Untitled Document

Committee on Commerce, Science and Transportation
United States Senate
Wednesday, October 18, 1995

As recently as May 9, 1995, I had the opportunity to testify before the House Subcommittee on Post secondary Education, Training, and Lifelong Learning, on Title IX as it relates to athletics. It was evident from the testimony of various individuals at that hearing and the positive response of the members of the subcommittee that there is widespread, bipartisan support for the goals of Title IX in the area of intercollegiate athletics. Indeed, consistent with this support, I believe that the record shows that there have been many gains made in the effort to ensure equal opportunities for all students since the passage of Title IX; however, there is still much work to be done if we are to fulfill the promise of that landmark legislation.

Overview of Testimony

In seeking to ensure a level playing field for all, OCR's enforcement is faithful to the clear and unequivocal Congressional mandate of nondiscrimination in Title IX: that members of both sexes be provided equal opportunities to participate in athletics. Indeed, OCR's guiding principle in this area — and in other areas of civil rights enforcement — is to ensure that all students are afforded equal opportunities. Title IX is a basic nondiscrimination requirement, intended to expand, not limit, opportunities. That is the driving force of OCR's enforcement, which is faithful to the expressed will of Congress, flexible in its dealings with colleges and universities, and fair in its protection of boys and girls.

The Need for and Benefits of Title IX

This visible and dramatic inequality was not just limited to scholarships. At one large southwestern university, women had 10 sports and a total budget of $200. At a Big Ten school, women received $40,000 out of a $6 million athletic budget. And, at an Atlantic Coast Conference school, women received $30,000 of the $2.2 million committed to intercollegiate athletics.

Even today, despite much progress, we are finding that women are being denied comparable opportunities and necessary operating, recruiting, and scholarship dollars. In addition, in recent years, OCR has investigated cases in which a school provided each of its men's teams separate, well-furnished locker rooms, while all women's teams were forced to use the same locker room. At this same school, men could use weight training equipment at no charge; women, on the other hand, were required to pay for this opportunity. And, in another case, both the men's and women's crew teams were provided shells designed for men that were too heavy for women to use in practice or competitions. At that same school, the locker room at the boathouse was available only to men when men and women competed on weekends.

The story is not entirely anecdotal, however. Let us look at the statistics reflecting the participation of women at NCAA member institutions in 1971, the year before Title IX's passage, and in 1994 [see Exhibit 1, Intercollegiate Athletics Participation by Men & Women in NCAA Member Institutions]. Two observations are apparent: [1] Since the passage of Title IX, women have made significant strides in their participation in intercollegiate athletics; and [2] Despite those gains, there is still much work to be done if the promise of Title IX is to be fulfilled.

Senator Hatch has perhaps best captured the essence of the meaning and promise of Title IX. In 1984, on the Senate floor, he observed that there were few, if any, Senators who did not want "Title IX implemented so as to continue to encourage women throughout America to develop into Olympic athletes, to develop in educational activities or in any other way within our schools of higher education." .Indeed, Title IX and Olympic sports enjoy a symbiotic relationship. As participation opportunities for women and girls on the elementary, high school and college levels increase as a result of Title IX, more women are successfully able to compete internationally in Olympic sports. The role of Title IX in ensuring increased opportunities for women in sports is undisputed. As one Olympic athlete, Cheryl Miller, noted: "Without Title IX, I'd be nowhere." Likewise, new and emerging Olympic sports for women provide increased opportunities for women and girls on all levels, as school districts and educational institutions begin to take notice of women's interest in athletics.

Also, we should not lose sight of the many benefits off the playing field that result from providing equal opportunities in athletics. According to the Institute for Athletics and Education, girls who participate in sports are three times more likely to graduate from high school, 80 percent less likely to have an unwanted pregnancy, and 92 percent less likely to use drugs. Also, the health benefits are extensive. For example, studies report that women who participate in sports lower their risk of breast cancer. There are psychological benefits, as well. Women athletes have a higher level of self-esteem and confidence and a lower rate of depression than non-athletes. The availability of athletic scholarships dramatically increases the ability of athletes to pursue a college education and to select from a greater range of institutions. Eventually, this has implications for future employability of persons who will go on to become productive members of our society.

And then there are the important values we learn from participation in sports — teamwork, standards, leadership, discipline, work ethics, self sacrifice, pride in accomplishment, strength of character. These values are as important to women as they are to men.

A number of former women athletes point to communication learned in sports competition as key to their upward career mobility. Ninety-three percent of women in one study agreed that women who participated in sports would be better able to compete successfully later in life. Another interesting statistic — 80 percent of women who were identified as key leaders in their Fortune 500 companies had sports backgrounds.

Title IX and Department of Education Regulations. Policy and Enforcement

On June 20, 1974, HEW published proposed regulations, which included specific provisions for college athletics. In response to the notice of the proposed regulations, HEW received over 9700 comments, which were considered prior to publication of the final regulations. President Ford signed the Title IX regulations on May 27, 1975. These were submitted to Congress for review pursuant to the General Education Provisions Act, and during the review, the House Subcommittee on Postsecondary Education conducted hearings. The regulations, which became effective on July 21, 1975, established a three-year transition period to give secondary and postsecondary institutions sufficient time to comply with the equal athletic opportunity requirements-a period that expired in 1978.

To complement the regulations. OCR issued a Title IX policy interpretation on intercollegiate athletics to provide colleges and universities with more detailed guidance on how to comply with the law. This policy interpretation was issued on December 11, 1979, after OCR reviewed more than 700 comments on a proposed interpretation issued a year earlier, and after extensive consultation with educators, athletic directors, coaches, athletic associations, civil rights groups. and education organizations. OCR also visited several colleges to obtain more information on their athletic programs and to assess how the policy would apply in actual practice to the athletic programs at individual campuses.

The Title IX policy interpretation sets forth responsibilities in three general areas:

athletic financial assistance;
athletic benefits and opportunities; and
accommodation of student interests and abilities.

This policy interpretation, along with the Title IX statute and implementing regulations, have guided OCR's enforcement in this area for almost two decades, enjoying the bipartisan support of Congress and full support of the courts.

Indeed, federal courts across the country have consistently recognized that the standards by which OCR assesses compliance with Title IX are faithful to the will of congress. Courts have observed that OCR's policy standards draw their essence from Title IX. Moreover, OCR's guidance in this area of Title IX enforcement avoids any absolute requirement Of numerical proportionality between the numbers of sports opportunities offered to men and women and the numbers of students, by sex, and recognizes that different expenditures on men's and women's. sports may be permissible.

The Clarification of the Three-Part Test

To better explain the flexibility, of the standards that guide the enforcement of Title IX in the area of athletics, the Office for Civil Rights on September 20, 1995, issued in draft a "Clarification of Intercollegiate Athletics Policy Guidance: The Three- Pan Test" ["the Clarification"], specifically elaborating upon existing standards, contained in the Title IX regulation and 1979 Policy Interpretation [See Exhibit 3, "Dear Colleague Letter and "Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test"]. The Clarification. was circulated for comment to over 4,000 interested parties, and a notice of its availability to the public was published in the Federal Register on October 2, 1995.

The Clarification focuses on what is commonly referred to as the "three-part test," which is pan of a larger analytical framework reflected in the 1979 Policy Interpretation. One of the purposes of the Clarification is to respond to requests for specific guidance about existing standards that have guided OCR's enforcement of Title IX in the area of athletics for over a decade. Another purpose of the Clarification is to confirm that a school will be found to provide nondiscriminatory participation opportunities if it meets any part of a three-part test: (1) by providing athletic participation opportunities in numbers that are substantially proportionate to enrollment by gender; or (2) by establishing a history. and continuing practice of program expansion for members of the underrepresented sex; or (3) by fully, and effectively accommodating the interests and abilities of the underrepresented sex. No one pan of the three-pan test is preferred by OCR or used exclusively by OCR over another as a method of ensuring compliance with the law; rather, the three-part test furnishes three individual avenues for compliance.

Of course, I have heard the argument, as you may have, that because of budgetary constraints, compliance with Title IX means, in effect, that men's sports must be cut. In the past several years, a number of colleges and universities have experienced budgetary constraints. As a result, some have eliminated or "capped" men's teams, such as wrestling, swimming, and gymnastics.

OCR does not advocate eliminating or "capping" teams as a means for achieving compliance with the law. Nor has OCR required that men's teams be cut in order for institutions to come into compliance with Title IX. [See Exhibit 4, Title IX Athletics: OCR Enforcement Activities (FY 1989-94)]. In fact, the Clarification specifically states that "nothing in the three-part test requires an institution to eliminate participation opportunities for men." OCR's preference is that there be sufficient athletic opportunities for all students. Individual institutions must make their own decisions about their athletics programs, including the distribution of. athletic opportunities within the men's program and within the women's program. Indeed, the idea that "if women gain, men must lose" presents a false dichotomy. The federal court in the recent decision of Cohen v. Brown quoted one of the expert witnesses who stated:

I believe that philosophically in any case where you have a previously disadvantaged population that you're trying to bring up to snuff to the advantaged population, that it's a bad idea to bring the advantaged population down to the level of the disadvantaged population.

Title IX has helped girls and women realize more of the benefits and educational opportunities afforded by athletic participation. Let us not lose sight of the fact that a year before Title IX became law, only 32,000 women participated in intercollegiate athletics. Today, that number is around 105,000. Women are participating in volleyball, soccer, and crew, in addition to the traditional sports.

Conclusion

While I applaud the progress that has been made, the task of providing equal athletic opportunity remains unfinished. OCR continues to find serious violations in many of its cases, as do the courts, which are ruling with increasing frequency that women are not receiving equal athletic opportunity. OCR will continue to respond to complaints, and it also will continue to work actively with many schools and associations to address problems and issues before they become the subject of complaints.

Rest assured, we will continue to enforce Title IX fairly and to help institutions comply with the law. Many colleges and universities are striving to provide equal athletic opportunity, and we will work with them to find creative and innovative practical approaches to ending sex discrimination in intercollegiate athletics.

Mr. Chairman, there is no place for discrimination in sports. Discrimination goes against the very grain of what competition is all about. In sports we encourage and reward performance. In our history, sports have allowed us to cross all artificial social and class distinctions and barriers. We should showcase sports as a model of equality in American society as we continue to set examples for all countries around the world with our Olympic participation.

Thank You