A Department of Education commission studying Title IX concluded its contentious task last week, releasing a final list of recommendations. But at the same time, two members broke away from the panel and issued their own dissenting missive.
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The Commission on Opportunity in Athletics proposed 23 recommendations and presented them Feb. 26 to Secretary of Education Rod Paige. Mr. Paige then said the agency would take action only on the 15 unanimous recommendations. He declined to officially accept the minority report.
Disputes over how to deal with the 31-year-old law, which forbids gender discrimination both on the playing field and in the classroom at schools receiving federal funds, grew increasingly raw as the 15-member panel moved through eight months of study and hearings.
Men’s groups say the law has caused schools to cut men’s teams in “minor” sports like wrestling to comply, while women’s advocates say some schools still fail to give women equal athletic opportunities.
In the 70- page report, commissioners unanimously recommend that the agency reaffirm its commitment to equal opportunities for male and female students; that the Education Department’s office for civil rights not change its current enforcement policies in a way that would undermine the law; and that the OCR should make it clear that cutting teams to demonstrate compliance with Title IX is a “disfavored practice.”
Disputed Recommendations
The report says little that is specific to K-12 education, other than a recommendation that the department initiate programs to promote students’ interest in sports at that level. Critics have said the commission ignored that area, among others, during its deliberations.
If Mr. Paige was hoping to quell some of the bitterness generated by the report by saying he would deal only with the unanimous recommendations, his approach didn’t work.
Olympic gold medalists Julie Foudy and Donna de Varona, the two dissenting commission members, say they did not favor two of those recommendations and did not intend to be on record supporting them. They called the report “flawed.”
The recommendations in dispute deal with expanding the use of athletic-interest surveys to determine if a school is complying with Title IX of the Education Amendments of 1972, and a suggestion that the Education Department explore additional ways of demonstrating equity beyond the existing three-part test used today.
The “proportionality” part of that test generally requires that the percentage of female athletes equal the percentage of women in the overall school population. That measure has been used most often by schools and universities since 1996, when the OCR deemed it a “safe harbor.”
Schools may also comply with the law by showing steady progress in expanding opportunities for women, or by demonstrating they’re meeting interest levels among their female enrollment.
Ms. Foudy, a professional soccer player, and Ms. de Varona, a swimmer, said their minority report grew out of a feeling that the commission’s procedures were slanted. Ms. Foudy said she had anticipated disagreement and heated discussion among commissioners, but said, “I didn’t anticipate I wouldn’t have a voice.”
In an e-mail, Ms. de Varona said she felt “backed into a corner” with “not enough time and a careless, rushed ending to very important issues.”
The two co-chairs of the commission, Stanford University Athletic Director Ted Leland and former professional basketball player Cynthia Cooper said they were disappointed by the actions of Ms. Foudy and Ms. de Varona. Ms. Cooper said that the two had been instrumental in proposing several recommendations included in the main report.
“Now for them to step away and act as though we weren’t open and fair,” she said, “I have a real problem with that.”
On Wednesday of last week, Mr. Leland said the rest of the 13 members of the commission had signed off on the report. But by Thursday, at least one other member was distancing herself from it. Northern Illinois University Athletic Director Cary Groth said the commissioners had never gotten a chance to officially endorse or reject the final product.
“I’m not so sure it would be fair to assume that every other commissioner is in favor of the report,” she said. “I’m a commissioner that is not comfortable with some of the things in the report.”
By saying he would “move forward only on those recommendations” that were by consensus, Secretary Paige avoids some of the most controversial and specific suggestions. Among them: allowing schools to exclude “nontraditional” students when calculating male-female enrollment ratios, and eliminating so-called walk-on athletes—team members who are not attending school on athletic scholarships—from proportionality calculations.
But women’s sports advocates did not declare victory. “The secretary’s announcement clearly takes some specific ways of weakening Title IX off the table,” said Jocelyn Samuels, the vice president for educational opportunities at the National Women’s Law Center, based in Washington. “It leaves open a host of possibilities of other ways to weaken current protections.”
Mike Moyer, the executive director of the National Wrestling Coaches Association, which has a Title IX lawsuit pending, said he didn’t want to speculate on what Mr. Paige might ultimately do. There is no set timeline for the secretary to act on the report.
“Any changes they would make to Title IX are a step in the right direction,” Mr. Moyer said of Education Department officials.
It’s unlikely that the controversy that has surrounded this process from the start will end any time soon. At a press conference last week, Ms. Foudy was flanked by the actresses Geena Davis and Holly Hunter and by athletes including the Olympic gymnast Dominique Dawes, who all pledged to keep the issue alive.
Sen. Patty Murray, D-Wash., said she planned to ask the Senate Health Education, Labor, and Pensions Committee to hold a hearing on the process that led to the Title IX report. And Sen. Edward M. Kennedy of Massachusetts, the committee’s senior Democrat, accused the Bush administration of setting the commission up to fail.
“The commission,” he charged, “was designed to justify a predetermined plan: to weaken this important civil rights law.”
