.S. Secretary of Education Rod Paige announced February 26 that he would move forward only on recommendations from the Secretary's Commission on Opportunity in Athletics that were approved by consensus.
The surprise announcement concluded a day in which the commission released its final report and two commissioners released a competing "minority report." Information about both reports appeared in the March 3 issue of The NCAA News; Paige's announcement was made after the News' press time.
While Paige's directive might seem to indicate a clear course for Title IX enforcement, observers on both sides of the issue agree that the future may be less certain than ever.
Paige convened the commission in June to examine Title IX and appointed Ted Leland, athletics director at Stanford University, and Cynthia Cooper, a former WNBA player, as co-chairs. The commission conducted four town hall meetings and concluded its work in January.
The report, "Open to All -- Title IX at 30," was criticized by two commissioners, Julie Foudy, captain of the U.S. national women's soccer team, and Donna de Varona, a sports broadcaster and former Olympian, before it was even released.
The report included 23 recommendations, 15 of which were characterized as being approved unanimously. However, Foudy and de Varona say they dissented from two of the "consensus" recommendations and that they expressed concerns about others after reviewing them in the commission's written report.
Paige was not expected to respond to the commission's recommendations right away, but within several hours of the Department of Education's news conference, he made his announcement.
"I am pleased that the commission, made up of a diverse group of individuals with vastly different points of view, was able to agree on some important recommendations, and the department intends to move forward only on those recommendations," he said.
Department of Education spokespersons confirmed that Paige will consider only those 15 recommendations. They have declined to elaborate further.
Among the most controversial recommendations that seem no longer under consideration were those that, if adopted, would have:
Permitted institutions to count available roster slots instead of actual participants;
Permitted the exclusion of nontraditional students in calculating the undergraduate student body male-to-female ratio for purposes of compliance with the proportionality prong; and
Encouraged the Office for Civil Rights to revisit regulations that would permit outside funds to support teams that might be dropped or to allow other teams to be added.
Also likely excluded is one recommendation that had not seemed controversial at all. Recommendation No. 8 in the final draft of the commission's report would have encouraged "educational institutions and national athletics governance organizations to address the issue of reducing excessive expenditures in intercollegiate athletics. Possible areas to explore might include an antitrust exemption for college athletics."
Though many of the speakers before the commission encouraged that course of action and several commissioners spoke about it frequently, one commissioner voted against the recommendation, noting that he was opposed to an antitrust exemption for college athletics. That single vote seems to have eliminated that recommendation from further consideration.
Paige noted in his statement that the recommendations he did plan to review fell into four categories.
"Some of the unanimous recommendations include suggestions that the Department of Education (1) reaffirm its strong commitment to equal opportunity for girls and boys, women and men; (2) aggressively enforce Title IX in a uniform way across the nation; (3) give equal weight to all three parts of the test governing Title IX compliance; and (4) encourage schools to understand that the Department of Education disapproves of cutting teams to comply with Title IX," Paige said.
"The commission's work will greatly assist the department in strengthening, clarifying and improving the enforcement of Title IX."
Wrestlers among those displeased
Those who wish to see Title IX left untouched and those who wish to see major changes in Title IX enforcement now can agree on one thing -- that Paige's apparent intent to focus on the 15 recommendations leaves everybody unhappy.
Those who wished to see changes to Title IX fired off letters to Paige, Assistant Secretary of Education for Civil Rights Gerald Reynolds and President Bush. A posting on the wrestling site "InterMat" encouraged readers to contact Paige and send a carbon copy of letters and e-mails to President Bush.
InterMat suggest the following talking points:
"Paige has abandoned the Olympic sports community by insisting that only unanimous recommendations by the Commission on Opportunity in Athletics be considered."
"This position will maintain the status quo and will allow for the continued discrimination. It will continue the loss of programs and opportunities for Olympic sports such as swimming, wrestling, track and field, gymnastics, baseball and many more."
"Nowhere in the American system is unanimous consent required. The United States is based upon a majority-rules principle. A requirement of unanimous consent is un-American."
"You have abandoned the campaign promises made by President Bush. You have buckled to the pressure of a small but well-financed radical group seeking to keep the status quo."
Eric Pearson, chairman of the College Sports Council -- the group of organizations that is suing the government in an effort to have proportionality struck down -- expressed his concerns to Paige.
As quoted in the National Review Online, Pearson wrote: "Instead of creating the commission, the Department of Education would have been better-served if it had just convened a meeting with the Feminist Majority and the National Women's Law Center and let them write the report. This would have saved the time of those citizens who made sacrifices to participate in the hearings."
Mike Moyer, executive director of the National Wrestling Coaches Association (NWCA), also a party in the lawsuit against the Department of Education, was less critical of the Department of Education, though still displeased.
"We're obviously disappointed," he said of Paige's decision. "Most things in our country don't operate by unanimous decision. They operate by majority vote.
"We recognize that Secretary Paige is under a lot of external pressure from a lot of groups," Moyer said, noting that the NWCA was still pleased to have had the town hall meetings and an opportunity to air its views.
As for what Paige may do under the umbrella of the consensus recommendations, Moyer is waiting and watching.
"It's pure speculation to try to imagine what the Department of Education can do," he said. "We turn our attention now back to our lawsuit, and we feel good about what we're trying to accomplish. Even if the Secretary doesn't do anything, we have a good chance of seeking our remedy in court."
Title IX advocates still alarmed
Those who want Title IX enforcement strengthened greeted Paige's announcement with concern, partly because many of the 15 remaining recommendations seem vague.
"The Secretary's statement is not a victory for Title IX or for women's sports," said Marcia Greenberger, co-president of the National Women's Law Center. "The Title IX policies that guarantee equal opportunity for women and girls are still very much on the chopping block."
Three of the commission's consensus recommendations that Title IX advocates believe threaten current Title IX enforcement are:
"If substantial proportionality is retained as a way of complying with Title IX, the Office for Civil Rights should clarify the meaning of substantial proportionality to allow for a reasonable variance in the relative ratio of athletics participation of men and women while adhering to the nondiscriminatory tenets of Title IX." (Recommendation No. 14 in the commission's final draft.)
* "The Office for Civil Rights should study the possibility of allowing institutions to demonstrate that they are in compliance with the third part of the three-part test by comparing the ratio of male/female athletics participation at the institution with the demonstrated interests and abilities shown by regional, state or national youth or high-school participation rates or national governing bodies, or by the interest levels indicated in surveys of prospective or enrolled students at that institution." (Recommendation No. 19 in the commission's final draft.)
"Additional ways of demonstrating equity beyond the existing three-part test should be explored by the Department of Education." (Recommendation No. 23 in the commission's final draft.)
The last recommendation, No. 23, was one that Foudy voted for at the meeting in Washington, D.C., in late January. When she saw how it appeared in the final report, however, she withdrew her support.
"That last one is so wide open, it gives them license to do anything. It basically brings all the other ones back into play," Foudy said.
"Secretary Paige's intention to pursue only the supposedly 'consensus recommendations' is not a positive direction for Title IX or for equity in athletics for girls and women," said Lisa Maatz, the American Association of University Women director of public policy and government relations. "The consensus recommendations actually leave Title IX policies vulnerable to any changes Secretary Paige would like to make in interpretation or enforcement, while having the appearance of being unanimously mandated by the commission."
Maatz is concerned that this could lead to major reversals on Title IX policies that would truly harm women and girls. "It's ironic, but not surprising," she said, "that some of these purported consensus recommendations are also those that commissioners Foudy and de Varona objected to so strongly that they felt compelled to issue a minority report -- a report that Secretary Paige refuses to put into the official record with the commission's report."
It remains unclear exactly when Paige plans to act and what he plans to do. In the meantime, many groups will continue to lobby lawmakers.
Rep. Louise Slaughter, D-New York, introduced a nonbinding resolution on the floor of the House of Representatives March 11 that stated in part that "proposed changes to Title IX athletics policies contradict the spirit of athletics equity and gender equity," and "current Title IX athletics policies ... should remain unchanged and enforced vigorously to eliminate the continuing discrimination against women and girls in athletics."
The bipartisan resolution, which had at least 18 members of Congress listed as co-sponsors, including Republican Nancy Johnson of Connecticut, concluded:
"If the Department of Education changes Title IX athletics policies, Congress should restore the intent of Title IX through policies that preserve the right to equal opportunities in athletics."
For the full final report of the Secretary's Commission on Opportunity in Athletics, see the Web site www.ed.gov/pubs/titleixat30/index.html. For the full "minority report," authored by Foudy and de Varona, see www.SaveTitleIX.com