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Thursday, May 23, 2002
Updated: June 19, 12:28 PM ET
Proponents fear Bush administration might gut Title IX

By Greg Garber
ESPN.com

On the cusp of it's 30th anniversary, Title IX -- long viewed as the catalyst for the explosion in girls' and women's athletics -- is under siege, its supporters fear.

A flurry of nervous phone calls and e-mails has kicked up over the past few days in the close-knit community of women's athletics administration. At best, they suggest the statute has been threatened by a prominent lawsuit and a national columnist. The worst-case rumor scenario: President George Bush's administration soon will re-examine Title IX, the 1972 law that guarantees, among many other things, equal opportunities in athletics for males and females.

Yes, we are all concerned. We haven't been able to comply in 30 years, so I'd hate to take a 20-year step back.
Jennifer Alley, National Association of Collegiate Women Athletic Administrators
"Yes, we are all concerned," Jennifer Alley of the National Association of Collegiate Women Athletic Administrators said Thursday. "We haven't been able to comply in 30 years, so I'd hate to take a 20-year step back."

Christine Grant, athletics director emeritus at the University of Iowa and a leading national advocate of Title IX, echoed Alley's comments.

"If it's true, that's disgraceful," Grant said. "I cannot believe that this president is considering this. What I think might happen is that he'll rile the parents of every young, talented girl and woman athlete -- that's what he's going to risk.

"I don't know who his adviser is, but he better get another one."

Bush was in Berlin on Thursday, addressing the German Parliament in the first speech in the Reichstag by a U.S. President. A White House spokesperson, however, declined to comment, referring the matter to the Department of Education. The Department of Education's civil rights office, according to a spokesperson, does not comment on pending legislation.

According to women's advocates, the instrument the Bush administration is considering to review Title IX is a pending lawsuit by the National Wrestling Coaches Association. The target of the lawsuit, filed Jan. 16 in federal district court in Washington, D.C., is a 1996 "policy interpretation" the U.S. Department of Education wrote to clarify the original law. The lawsuit claims that the statute, as amended, violates the rights of male athletes by relying on a participation formula -- Title IX requires athletic opportunities to mirror enrollment figures -- rather than on students' actual interest.

Mike Moyer, executive director of the NWCA, said he has been joined in the suit -- N.W.C.A. et al. vs. Department of Education (Case No. 1:02CV00072-egs) -- by several other national organizations. In the 30 years since Title IX, some 400 men's collegiate athletic teams have been eliminated, including more than 170 wrestling programs.

"We certainly don't want to bring down America as we know it," Moyer said, laughing, from his NWCA office in Mannheim, Pa., on Wednesday "We want to insure athletic opportunities to both girls and boys, to the degree that they have interest.

"Some of our opponents are very concerned because we're standing on solid ground. Title IX was simply intended to end gender-based discrimination on campuses that received federal money. But eliminating men's programs to level the field ... it violates everything that IX stands for. It sounds to me like they're pushing some panic buttons out there."

The rumors about the Bush administration's inclination to review Title IX apparently began with a phone call earlier this week from a Wall Street Journal reporter to the National Women's Law Center in Washington, D.C. Moyer said he wasn't aware of the brewing tempest.

"I have no idea if what you're hearing is truth or fiction -- quite frankly, it's the first I've heard of it," he said. "It sounds to me like the other side is trying to circumvent the truth."

"Nothing has been confirmed yet," said Donna Lopiano, executive director of the Women's Sports Foundation. "The one thing I'm sure of is that the Department of Education has postponed their response (to the lawsuit) three times already. What would make sense at one of these points would be that they would use the opportunity to say, 'The Department of Education has been sued, we are taking another look at Title IX.'

Concerned? Of course. ... If they try to do that, I think there will be significant public outrage. Pulling back on women's rights in an election year that's important to Republicans, they're risking an adverse soccer-mom reaction.
Donna Lopiano, Women's Sports Foundation
"Concerned? Of course. Not over their (court) performance, but the message that it sends. If they try to do that, I think there will be significant public outrage. Pulling back on women's rights in an election year that's important to Republicans, they're risking an adverse soccer-mom reaction."

The original court-mandated response date was March 18, but the Department of Education asked for an extension, which was granted, to April 17. Two more extensions -- the last ordered by the court on Tuesday -- pushed the deadline to next Wednesday. According to Larry Joseph, the lead attorney for the NWCA suit, the Department of Education is required to answer to each of the complaint's 99 numbered paragraphs.

"We feel Title IX is a great thing -- as long as you remove the proportionality part of the equation," Joseph said Thursday from his Washington D.C. law office. "We think it violates Title IX, turns the statute on its head."

The case makes three basic claims: 1) The Department of Education's proportionality requirement violates Title IX; 2) the three-part test that has been used by institutions since the 1996 clarification to decide whether they are offering equitable opportunities to males and females also violates the federal law; and 3) federal agencies with regulations have a responsibility to revisit those regulations when circumstances change.

"The last two pieces are something new," Joseph said. "Because we're raising administrative challenges that haven't been considered in prior litigation, we're very confident of winning.

Quite frankly, the Clinton administration should have revisited this proportionality requirement in 1996, but decided not to. That decision by the Department of Education not to revisit, we think is actionable.
Larry Joseph, attorney for the NWCA
"Quite frankly, the Clinton administration should have revisited this proportionality requirement in 1996, but decided not to. That decision by the Department of Education not to revisit, we think is actionable."

Recent stories in national newspapers about the lawsuit have provoked discussion, but nothing fanned the flames of the debate like a column in the current issue of Newsweek by the conservative George Will. Under the headline "A Train Wreck Called Title IX," Will uses words like "nonsense" and "lunacy" to describe Title IX.

Will relies heavily on a new book, "Tilting the Playing Field: Schools, Sports, Sex, and Title IX," by Jessica Gavora, a policy adviser at the Justice Department.

"Title IX fanatics," Will asserts, "start from the dogma -- they ignore all that pesky evidence about different male and female patterns of cognitive abilities, and brain structure and function -- that men and women are identical in abilities and inclinations.

"Confronted with evidence of what Gavora calls 'the sportsmania gap' -- men care more about playing sports -- the fanatics say: This is the result of historical conditioning, which colleges must combat. Colleges must not just satisfy women's demands for sports, they must create demands. Until it is created, statistical proportionality can be achieved only by cutting men's teams.

"Under what Gavora calls 'affirmative androgyny,' it is illegal to accept the fact that men and women have different interests, abilities and zeal regarding competition, or that young men have distinctive needs for hierarchy and organized team activities."

Grant, for one, begs to differ with Will's belief that women and girls care less about sports then men and boys.

"People confuse a lack of interest with a lack of opportunity," Grant said. "They are very, very different. I don't know of an instance where women were given an opportunity and nobody came. Because this society was once vehemently opposed to women excelling in sport, we've still got some people who believe that. George Will is one of them."

Linda Carpenter, a former professor at Brooklyn College, has been fighting the good fight for more than 25 years now. That's how long her longitudinal study, co-authored by colleague Vivian Acosta, has documented women's gains (and losses) in collegiate athletics.

"I just got an e-mail about that (the alleged Bush agenda) this morning," Carpenter said Wednesday. "It put a cloud in front of the sun."

Like many of her peers, Carpenter says blaming Title IX for cuts in men's programs is wrong. Rather, she insisted that the big-budget sports of football and basketball should bear the blame.

"It is so frustrating to me that Title IX is in some jeopardy," Carpenter said, "because of bad, disingenuous decisions by college administrators who have chosen to ignore the fact that more than half their students are women. It's easier to blame Title IX, and to drag your feet for 20 years. President Bush, it seems, is following this back-door method."

Added Grant, "The Republicans, apparently, have been trying to reach out to women. Well, this would be a leap back to the 18th century. I cannot think that the members of congress will stand by and allow him to do this."

Greg Garber is a senior writer at ESPN.com. He can be reached at greg.garber@espn.com.