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Thursday, June 6, 2002
Updated: June 19, 1:16 PM ET
Statute has changed with the times

By Greg Garber
ESPN.com

The 30-year story of Title IX is one of expansion and contraction, depending on the vagaries of the political and cultural climates. Title IX proponents worry that it may be on the verge of another spasm of contraction.

A lawsuit in federal district court in Washington, D.C., asks this fundamental question: Does Title IX violate the very premise of equality it purports to demand?

The National Wrestling Coaches Association, which has seen 171 of its collegiate programs eliminated since the birth of Title IX, is among several groups, including Marquette University's defunct wrestling team, leading this most recent court test.

We have no problem with the opportunities women have gotten. But Marquette is a poster program for our lawsuit. I don't know how anyone can oppose our point of view when they hear that story. It's not about the money in college athletics, it's about making the numbers work.
Mike Moyer, NWCA executive director
"We have no problem with the opportunities women have gotten," said Mike Moyer, the NWCA's executive director. "But Marquette is a poster program for our lawsuit. I don't know how anyone can oppose our point of view when they hear that story. It's not about the money in college athletics, it's about making the numbers work."

In 1979, the Department of Health, Education and Welfare issued a policy interpretation of Title IX that included a three-prong test to be considered in assessing an institution's compliance. To prove it is providing males and females equitable opportunities to play sports, an institution had to do one of the following:

  1. Demonstrate that the percentage of its female athletes is nearly the same as the percentage of female undergraduate students;
  2. Show that it is steadily increasing opportunities for women;
  3. Prove that it is meeting the athletics interests and abilities of its female students.
A subsequent policy interpretation in 1996 clarified the original position and is the target of the lawsuit, which claims those requirements are discriminatory against men because they: Allocate athletic opportunities based on a participation formula, rather than on students' actual interest; Provide for the expansion of women's athletic programs beyond the expansion of men's; And accommodate the athletic interests of women without regard for the athletic interests of men.

"Opportunities should reflect interest," Moyer said. "You have to quantify interest. If there were five men who rode a horse, they shouldn't necessarily be given an equestrian team. We want to eliminate gender quotas forever."

On May 29, in a formal response to the lawsuit, the Bush administration defended the law, arguing that the wrestlers' suit should be thrown out. Marcia Greenberger, co-founder and president of the National Women's Law Center, reacted to that response with mixed feelings.

"I thought the government response was warranted," Greenberger said. "All of the laws and lawsuits cited were correct. But I was concerned that it was a very limited response. There wasn't any passing reference in the government's papers to underlying support for Title IX policy and regulations. It was limited to technical, administrative points. Given how much focus there had been on purported problems of the policies, it was unusual at best, and certainly worrisome at worst, that there was no government support for the policy.

The wrestlers' argument is that (the money) should come from women's athletics, therefore we need to weaken Title IX's requirements. To even state that is to show the unfairness of the argument
Marcia Greenberger, National Women's Law Center
"The wrestlers' argument is that (the money) should come from women's athletics, therefore we need to weaken Title IX's requirements. To even state that is to show the unfairness of the argument. Since women still get second-class treatment, to weaken Title IX so they can go back to third- and fourth-class treatment is a betrayal of Title IX's original concept of discrimination."

Since its inception in 1972, Title IX of the Education Amendments has been a law that sometimes seemed like more of an abstract concept. Over the years, it has been defined, refined and clarified by the government and the courts as athletes and institutions argue over what this sentence really means:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance."

Here's an accounting of the major events that have shaped Title IX since it was signed into law by President Richard Nixon on June 23, 1972:

May 20, 1974: Senator John Tower proposes an amendment that would exclude revenue-producing sports from determinations of Title IX compliance. The amendment fails.

May 27, 1975: President Gerald Ford signs the Title IX athletics regulations, a product of a year of research and debate.

Feb. 17, 1976: The NCAA challenges the legality of Title IX.

Dec.11, 1979: Department of Health, Education and Welfair issues a policy interpretation on Title IX, featuring a three-prong test to assess compliance.

1980: The Department of Education is established and given oversight of Title IX through the Office for Civil Rights.

Feb. 28, 1984: The Supreme Court, ruling on Grove City v. Bell, limits the range of Title IX solely to the area of athletic scholarships. The Court concludes that Title IX only applies to specific programs that receive federal funds.

March 22, 1988: The Civil Rights Restoration Act of 1987 becomes law after it was vetoed by President Ronald Reagan. This reverses Grove City v. Bell and requires athletic departments to again comply with Title IX.

Sept. 6, 1988: Haffer v.Temple University toughens the Title IX law by insisting on new standards for budgets, scholarships and participation rates of male and female athletes.

Feb.26, 1992: The Supreme Court rules in the Franklin v. Gwinnett County Public Schools case that monetary damages are appropriate in Title IX cases.

Jan. 16, 1996: The Office for Civil Rights issues a clarification of the three-prong test that measures an institution's compliance with Title IX.

Nov. 21, 1996: A federal appeals court upholds a lower court's ruling in Cohen v. Brown University, finding that Brown University discriminated against female athletes. Brown had argued that it did not violate Title IX, because women are less interested in sports.

Source: The University of Iowa's "History of Title IX Legislation, Regulation and Policy Interpretation."

Greg Garber is a senior writer for ESPN.com.