Final report of 'Commission' to have monumental effect

On June 27, United States Secretary of Education Roderick Paige officially announced that the Department of Education would establish a panel to gather facts about Title IX, "listen to what the American people have to say, and report back to [Paige] with their recommendations by the end of January." The date has been extended until Feb. 28, but the report that the Commission on Opportunity in Athletics produces will still undoubtedly have monumental effects on Title IX of the Educational Amendments, set forth by President Richard Nixon in 1972. Title IX has transformed through various statutes -- most notably in 1975, 1979 and a Letter of Clarification in 1996 -- during its 30-year history. The Commission was assigned to evaluate whether the intentions of gender equity in state-funded educational endeavors are currently being met. Many have questioned the political agenda of the 'Blue Ribbon Panel' members, eight of whom are employed at major conference Division I schools and the Commissioner of the Southeastern Conference. This from a government that includes former wrestling coach and current Speaker of the House, J. Dennis Haster, and John Ashcroft's speech writer, Jessica Gavora. Gavora is the former president of the Independent Women's Forum and the author of Tilting the Playing Field, a book that is against proportionality. Chief attorney for the National Wrestling Coaches Association, Larry Joseph, however, also feels slighted by the choice of commissioners, citing that three commissioners represent women's special interest groups. The June appointment of the Commission also coincides with the court moving to dismiss the lawsuit led by the NWCA against the Department of Education. The suit claims, among other things, that the proportionality clause from the 1979 statute -- one of the three ways that a school can be considered to have gender equity -- is a quota system and is therefore illegal. "In forming the commission, I think it was more of a classic Washington defense move rather than a classic defense move," Joseph said in November. Penn legal studies professor Scott Rosner explained that the Commission's report will likely be converted to a letter of clarification by the Office of Civil Rights, similar to the one that then-Assistant Secretary of the OCR Norma Cantu issued in 1996. While this letter is not considered law, a circuit court has yet to rule contrary to that evaluation. The document serves as an explanation for the three-part test of the 1979 statute. It is part of this explanation that wrestling coaches fervently hope the OCR will overturn. The three-part test gives athletic departments three choices of how to comply with one of the three segments of Title IX. Prong one -- proportionality -- gives schools the option to comply by having the proportion of the sex of its athletes be within five percent of the university at large. Prongs two and three, meanwhile, mandate that the school either prove that they have a continuing history of giving opportunities to the underrepresented sex or fully and appropriately represent the interests of the underrepresented sex. In an interview conducted in October, Penn Athletic Director Steve Bilsky said that Penn is currently in compliance with prongs two and three. However, as of June, there was a 59.8-40.2 percent male-female disparity in gender, which is not proportional to Penn's overall enrollment. Because it is difficult to evaluate the second two prongs quantitatively, many athletic departments have used the proportionality clause as an excuse to cut low-profile men's athletic programs. In fact, Cantu remarked in the 1996 Letter of Clarification that the first prong of the 'three-part test' is a "safe harbor" for universities to ensure they are gender equitable. "This really is the gendered version of the Michigan admission's case," Rosner said. "It shouldn't be. This is not a quota. When there are alternatives to proportionality, it by definition is not a quota. Now one of [the prongs] is somewhat dubious -- the utility of one is somewhat dubious...." The 'dubious' issue becomes complex because university's are left in a Catch-22 situation in terms of measuring interest on campus -- the third prong. Statistics clearly show that men participate more in intramural sports than women. However, women's rights groups claim that it is impossible to evaluate interest based on surveys, if women have not had the opportunity to participate in athletics in the first place As Rosner paraphrased the first circuit court of the Cohen v. Brown University case, "interests and ability rarely develop in a vacuum." "It's our belief that it's preposterous and dangerous to base an opportunity on whether some people think another group is interested or not," Chair of the National Coalition for Women and Girls in Education Jane Fasteau said in November. While the Commission voted 11-4 to submit a suggestion in its report that proportionality continue to be a part of the law, the Commission has already voted to include new ways to evaluate Title IX, ways that will undoubtedly affect how the law is interpreted in court.

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