Opinion: Clarion Call

Of Title IX and 30 years of bureaucratic miasma

Clarion Call No. 157
Just from reading the preamble to Title IX of the Education Amendments of 1972, one would not suspect it was the preamble to 30 years’ of controversy, fights over interpretation, compliance tests, and the noxious slew of bureaucratic miasma that followed: “No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.”

The legislation seems, as Watson would say to Holmes after having his thoughts read, “absurdly simple.” Yet it has been a recurring feature in sports news, most recently in late May as yet another lawsuit over its interpretation reached the courts. Unlike previous lawsuits, the feature of interest in this one, filed Jan. 16 by the National Wrestling Coaches Association along with other coaches’ associations and wrestling groups, was the bell-pealing alarums rung throughout feminist circles that the Bush administration might weaken the interpretation of Title IX.

“On the eve of the 30th anniversary of Title IX,” warned The National Women’s Law Center, “when we should be celebrating how far female athletes have come and doing the work that remains to level the playing field, the Bush Administration may be poised to attack Title IX!”

Title IX is interpreted by the Office of Civil Rights, the agency within the U.S. Dept. of Education. In 1979, the Education Dept. issued a policy interpretation that put forth a three-prong test for compliance with Title IX. This test proved exceedingly obscure, prompting legislators to call on the Education Dept. to call for a more explicit policy interpretation. The Education Dept. responded in 1996 with its report, “Clarification of Intercollegiate Athletics Policy Guidance.”

Norma V. Cantu, then the assistant secretary for civil rights, explained in the report that to “institutions need to comply only with any one part of the three-part test in order to provide nondiscriminatory participation opportunities for individuals of both sexes.” The prongs used are these: 1) “substantial proportionality” — concerning participation rates and opportunities of men and women at an institution; 2) “history and continuing practice” — an institution’s “good faith expansion” of athletic opportunities; and 3) “fully and effectively accommodating interests and abilities of the underrepresented sex” — seeing if there are “concrete and viable interests among the underrepresented sex” that the institute should accommodate.

The wrestlers’ lawsuit challenges that interpretation and the first prong of the test on the basis that it actually establishes a quota based on gender, expressly prohibited by the actual legislation. It blames that interpretation on colleges’ cutting of men’s athletic opportunities — leveling the playing field the way a lawnmower levels a yard. As The New York Times reported May 9, since the passage of Title IX “170 wrestling programs, 80 men’s tennis teams, 70 men’s gymnastics teams and 45 men’s track teams have been eliminated, according to the General Accounting Office.”

Nevertheless, the NWLC’s tocsin-rattler turned out to be premature, as the Justice Dept. defended Title IX in its motion. It argued that the plaintiff’s remedy of eliminating the three-prong test and replacing it with new guidelines would not lead to the restoration of men’s collegiate teams or prevent future eliminations. The Justice Dept. further argued that the six-year statute of limitations for challenging the regulations had expired, based on the 1979 publication date (the plaintiffs claimed that the 1996 “Clarification” represented new regulation).

Despite the surprise from the Justice Dept., the NWLC still warned of Title IX’s impending doom at the hands of the Bush administration. “It spoke volumes that in its response to the lawsuit, the Administration made no defense whatsoever, even in passing, of the athletics policies that are so important to young women in this country,” stated Marcia D. Greenberger, NWLC co-president, who speculated over whether “this deafening silence foreshadows a planned attack on Title IX athletics policies.”