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80–529 PDF 2002

S. HRG. 107–542

TITLE IX: BUILDING ON 30 YEARS OF PROGRESS

HEARING

BEFORE THE

COMMITTEE ON HEALTH, EDUCATION,

LABOR, AND PENSIONS

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

ON

EXAMINING THE IMPLEMENTATION AND PROGRESS OF TITLE IX OF

THE EDUCATION AMENDMENTS ACT OF 1972, WHICH PROHIBITS SEX

DISCRIMINATION IN ALL ASPECTS OF EDUCATION

JUNE 27, 2002

Printed for the use of the Committee on Health, Education, Labor, and Pensions

(

(II)

COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut

TOM HARKIN, Iowa

BARBARA A. MIKULSKI, Maryland

JAMES M. JEFFORDS (I), Vermont

JEFF BINGAMAN, New Mexico

PAUL D. WELLSTONE, Minnesota

PATTY MURRAY, Washington

JACK REED, Rhode Island

JOHN EDWARDS, North Carolina

HILLARY RODHAM CLINTON, New York

JUDD GREGG, New Hampshire

BILL FRIST, Tennessee

MICHAEL B. ENZI, Wyoming

TIM HUTCHINSON, Arkansas

JOHN W. WARNER, Virginia

CHRISTOPHER S. BOND, Missouri

PAT ROBERTS, Kansas

SUSAN M. COLLINS, Maine

JEFF SESSIONS, Alabama

MIKE DeWINE, Ohio

J. MICHAEL MYERS, Staff Director and Chief Counsel

TOWNSEND LANGE MCNITT, Minority Staff Director

(III)

CONTENTS

STATEMENTS

THURSDAY, JUNE 27, 2002

Page

Kennedy, Hon. Edward M., Chairman, Committee on Health, Education,

Labor, and Pensions, opening statement ........................................................... 1

Wellstone, Hon. Paul, a U.S. Senator from the State of Minnesota, opening

statement .............................................................................................................. 3

Murray, Hon. Patty, a U.S. Senator from the State of Washington, opening

statement .............................................................................................................. 4

Collins, Hon. Susan M., a U.S. Senator from the State of Maine, opening

statement .............................................................................................................. 6

Mikulski, Hon. Barbara, a U.S, Senator from the state of Maryland, opening

statement .............................................................................................................. 7

Clinton, Hon. Hillary Rodham, a U.S. Senator from the State of New York,

opening statement ................................................................................................ 8

Questions from Hon. Hillary Rodham Clinton ............................................... 13

Paige, Roderick R., Secretary, U.S. Department of Education, Washington,

DC, accompanied by assistant Secretaries Gerald Reynolds and Brian

Jones ..................................................................................................................... 15

Bayh, Hon. Birch, Former U.S. Senator, Partner, Venable, Baetjer, Howard

and Civiletti, LLP, Washington; DC, Nancy Hogshead-Makar, Professor,

Florida Coastal School of Law, Jacksonville, FL; Arthur L. Coleman, Nixon

Peabody LLP, Washington, DC ........................................................................... 23

Prepared Statement .........................................................................................

Mr. Birch Bayh .......................................................................................... 25

Nancy Hogshead-Makar ............................................................................ 29

Arthur L. Coleman .................................................................................... 34

ADDITIONAL MATERIAL

Articles, publications, letters, etc.: .........................................................................

Roderick R. Paige, Secretary, U.S. Department of Education ...................... 40

The Battle for Gender Equity in Athletics: Title IX at Thirty ..................... 42

Title IX and Equal Opportunity in Vocational and Technical Education:

A Promise Still Owed to the Nation’s Young Women ................................ 62

Title IX at 30: Report Card on Gender Equity (A Report of the National

Coalition for Women and Girls in Education—June 2002 ........................ 84

(1)

TITLE IX: BUILDING ON 30 YEARS OF

PROGRESS

THURSDAY, JUNE 27, 2002

U.S. SENATE, COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS, Washington, D.C.

The committee met, pursuant to notice, at 2:29 p.m., in room

SD–430, Dirksen Senate Office Building, Hon. Edward M. Kennedy

(chairman of the committee) presiding.

Present: Senators Kennedy, Dodd, Mikulski, Wellstone, Murray,

Clinton, Gregg, and Collins.

OPENING STATEMENT OF SENATOR KENNEDY

The CHAIRMAN. We will come to order.

I would like to comment at the outset on the Supreme Court’s

voucher decision. I believe that this is a sad day for America’s

schoolchildren. Just because we can have private school vouchers

does not mean that we should.

I think it is wrong to divert scarce education dollars away from

public schools into private schools. Ninety percent of our children

attend public schools, and we owe it to them to reform our public

schools with better teachers, smaller class sizes, and extra help for

our children.

I think the administration’s policy of diverting public dollars to

private schools is wrong for schoolchildren, wrong for parents,

wrong for our schools, and wrong for our communities. I know that

we will continue to debate this issue, but I wanted to reiterate my

views today.

I received today some mail from some 1,600 local PTA organizations, 53 chapters, that have signed letters opposing the voucher

policy.

In 1972, fewer than 300,000 high school girls and only 32,000

college women participated in sports. Women comprised only 2 percent of the Nation’s college varsity athletes, received only one-half

of one percent of schools’ athletic budgets, and athletic scholarships

were nonexistent.

Today, over 150,000 college women participate in sports and receive one-third of athletic scholarship money. Over 2.5 million high

school girls participate in competitive sports.

In 1972, some colleges and universities excluded women from

their campuses and required them to have higher SAT scores than

men. Financial aid was withheld from women who were pregnant,

married or parenting, and women applying for doctoral programs

had to explain how they would balance a career and a family.

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Today, women comprise 56 percent of college students and are

awarded 42 percent of doctoral degrees.

Title IX deserves much of the credit for these important and dramatic changes. In the past 30 years, glass ceilings have been broken, doors have been unlocked, and gender stereotypes torn down.

The ‘‘persistent, pernicious discrimination’’ that Senator Birch

Bayh described as perpetuating second-class citizenship for women

is steadily being eroded from laws and policies as well as hearts

and minds.

There is no question that Title IX made the difference. As Olympic Gold Medalist Cheryl Miller said, ‘‘Without Title IX, I would be

nowhere.’’ Nevertheless, Title IX’s extraordinary success story does not silence the detractors. Although few are willing to attack Title IX directly, some argue that the three-prong compliance test in the Title

IX policy interpretation mandates quotas and requires the elimination of some men’s sports. Using misleading facts and figures

and outdated stereotypes, they argue that Title IX forces schools to

create opportunities for female athletes even though women and

girls are simply not interested in playing sports.

It is most troubling that the Bush Administration’s position on

this important issue is unclear. The administration recently asked

the Federal District Court for the District of Columbia to dismiss

a lawsuit by the National Wrestling Coaches’ Association challenging Title IX, but it did so in a way that does not show strong support for Title IX.

In a recent editorial about the lawsuit, the Wall Street Journal

said: ‘‘The Justice Department last Wednesday asked a Federal

court to dismiss a lawsuit brought by the National Wrestling

Coaches’ Association. The coaches claim, rightly, that the way Title

IX is enforced has transformed a law meant to guarantee opportunities for women into a system that forces universities to eliminate

them for men. The political question is what this Justice Department position means. Has the Bush Administration given up trying

to change Title IX enforcement rules, or is this just a procedural

dodge to avoid being pinned by an unfavorable court ruing? White

House sources tell us it is the latter, and that Education Secretary

Rod Paige will soon break out a public campaign to restore some

common sense to Title IX enforcement.’’

Many who have supported Title IX for 30 years wonder what

changes the administration wants to make in enforcement when

the law is already being sensibly enforced. Title IX is already very

flexible. Schools are able to prove compliance by meeting any prong

of the three-part test in the policy interpretation. In fact, between

1994 and 1998, of the 74 cases involving Title IX’s participation requirements, only 21 schools chose the often and unfairly attacked

proportionality test as their means of compliance.

Title IX does not require the elimination of men’s sports teams.

Some schools have decided to eliminate men’s sports like gymnastics and wrestling, but many schools use other, more competitive options. GAO found that 72 percent of schools which added

teams did so without discontinuing any other teams.

The Federal courts also believe that Title IX is being properly enforced. All eight of the Federal circuit courts asked to review Title

3

IX have said that the statute and regulations are reasonable. The

First Circuit Court of Appeals said: ‘‘No aspect of the Title IX regime at issue in this case—inclusive of the statute, the relevant

regulation, and the pertinent agency document—mandates genderbased preferences or quotas, or specific timetables for implementing numerical goals. Title IX operates to ensure that the gendersegregated allocation of athletic opportunities does not disadvantage either gender.’’ Given these facts, I hope the administration does not try to fix

what is not broken. Instead, I hope they will work with schools to

help them create opportunities for both women and men while complying with the existing Title IX guidelines.

In the past 30 years, America has changed immensely for the

better. A great deal remains to be done, but men, women, and girls

have more opportunities than ever before, and Title IX deserves

great credit for its contribution to this success.

We look forward to the hearing this morning.

I see my friend and colleague Senator Wellstone and welcome

any comment he wishes to make.

OPENING STATEMENT OF SENATOR WELLSTONE

Senator WELLSTONE. Thank you, Mr. Chairman, and I will try to

be brief.

I want to thank you for holding this critical hearing on Title IX.

Senator Bayh, you did really good. Title IX has transformed educational and athletic opportunities for women all over the country

for the last 30 years. What an enormous step forward, and it has

been an extraordinary success.

I am deeply concerned and hope we will get clarification today

about some of the press reports that the administration may take

actions that would in any way weaken Title IX, whether it has to

do with sports or with single-sex education. I think this would be

a terrible mistake.

One perspective I want to bring to this hearing, Mr. Chairman,

as a former wrestler and as someone who has coached wrestling as

well, I hate seeing what has happened to wrestling and other,

quote, ‘‘minor’’ sports, be they men or be they women’s sports, on

campuses across the country. I know how important wrestling—a

sport that I love; it has made all the difference in my life—is to

many, and I understand the frustrations of many others who have

not been able to participate in sports that they love and believe in.

I think something can and should be done to help, but I firmly

believe that putting wrestling or other men’s sports against women’s sports is not productive, is not fair, is not warranted, and it

will not work. I do not think that is the direction in which to go,

and I think that if we backtrack on Title IX, that is what could

very well happen.

You made reference already, Mr. Chairman, to the 2000 GAO report, so I do not need to do that.

I want to conclude by mentioning something that I think is positive, which is a piece of legislation I introduced that is similar to

legislation introduced by Jim Leach over on the House side. It is

called ‘‘The Olympic Sports Revitalization Act,’’ and I think it really helps. There are a couple of things that we want to do. One, we

4

want to create some grant programs to revitalize Olympic sports at

the community level for boys and girls. The idea behind that is that

you would bump up participation so that you would have more participation by the time you get to higher levels. Second, the bill

would provide scholarships for college athletes who play Olympic

sports. And as a matter of fact, on the House side, Congressman

Leach has talked about these as ‘‘Hastert scholarships’’ for college

athletes in the, quote, ‘‘smaller’’ sports, be they men or be they

women.

The third thing we want to do in this legislation, Mr. Chairman,

is to ensure that colleges—and this is really important—give adequate notice and opportunity for appeal to students whose sports

face elimination or reduction. Sometimes the decisions are just

made in an arbitrary way. Any university or college ought to be

able to spell out the numbers and reasons why teams are eliminated, and the athletes have to have an opportunity to know why.

I think that would be extremely important.

We also ask the Department of Education to place on the internet in a user-friendly way all the information reported under the

Equity in Athletics Disclosure Act so that students can accurately

gauge budget trends, and the relative health of the sports when

they make a decision to go to a college or university. Both these

changes will help ensure that some of these schools who might be

cutting teams in an arbitrary way will have second and third

thoughts; they will not just be able to go down the path of least

political resistance.

Finally, I think these kinds of proposals at least provide us with

a more positive, more effective way than playing off women’s athletics against men’s athletics, which I do not want to do, to try to

increase participation and not decrease participation in sports.

I think we need to move forward with these proposals because

I do not want us to turn our backs on Title IX. Title IX, Senator

Bayh, whether it is in academics or athletics, has brought us much

closer together as a Nation and much closer toward making sure

that women are given every opportunity to excel, not just in athletics but in education as well. And we ought to be able to figure out

how to move this forward in a positive way for all of our athletes,

and not move backward.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much.

The bells indicate the vote on final passage of the defense authorization bill, so I suggest we recess, rather than interrupt the

Secretary’s testimony.

We will recess, then, and come back in 5 to 7 minutes.

The committee stands in recess.

[Recess.]

OPENING STATEMENT OF SENATOR MURRAY

Senator MURRAY [presiding]. If the committee could come to

order, we will get started again.

Thank you very much. Senator Kennedy is on his way back from

the floor. I am going to go ahead and give my opening remarks as

will as the other Senators who are here, and he should return

shortly.

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I want to thank Senator Kennedy for convening this extremely

important hearing this afternoon to celebrate the accomplishments

and highlight the ongoing value of Title IX.

I would also like to thank Secretary Paige and the other witnesses who join us today. Thanks in large part to Senator Bayh,

Congress did its job back in 1972 to create more opportunities for

women. Now it is a generation later, and Senator Bayh’s son and

the rest of us are here to carry on that commitment.

Today I am especially eager to hear about the Bush Administration’s commitment to enforce Title IX. Before Title IX, the opportunity gap between men and women was dramatic. In the area of

higher education, women were barred from participating in schoolsponsored activities such as honor societies. They were discouraged

from entering certain professions and academic fields including

law, medicine, and engineering. And they were denied entrance

outright or were subject to tougher admissions standards than

men.

Since Title IX, the number of women enrolling in college has skyrocketed. In 1971, only 18 percent of young women completed 4 or

more years of college. Today women represent 56 percent of college

students. We went from only 9 percent of medical degrees going to

women in 1972 to nearly 50 percent today, and from just 7 percent

of law degrees going to women to 43 percent today. That is amazing progress.

Before Title IX, for those fortunate enough to enroll in college,

opportunities to compete on college-level sports teams were few and

far between. At many colleges and universities, women’s athletic

programs and scholarships did not exist. In 1972, only 25,000

women competed in collegiate athletic programs. Women like

Donna DeVarona, winner of two gold medals at the 1964 Olympics,

won world competitions on behalf of the United States but were unable to obtain college scholarships.

Progress on college campuses has been impressive. Today, well

over 160,000, or 41 percent of all college athletes, are women. Since

the early 1980’s, the number of women’s collegiate teams has increased from 5,600 to nearly 10,000. At this past year’s Olympic

competition, when our Nation set a record by earning 34 medals,

fully one-third of those medals were won by women athletes.

But the added benefits that come with increased numbers of

women competing in athletics goes beyond the field. On average

student athletes get better grades, have higher graduation rates,

are less likely to abuse drugs, and are more physically fit. Cardiovascular disease is the number one killer of women in this country.

Opening more doors for women to develop athletic skills can offer

a health benefit that will last a lifetime.

Behind these statistics, the lives of many women have been improved because of the changes brought to us by Title IX enforcement. I have seen how Title IX has changed things from experiences of the women in my own family. My mom grew up in Butte,

MT, and she loved basketball. She was 5 feet, one inch tall when

she stretched, and all her life, she lived and breathed sports. But

it was not until after she died that I learned how much, when a

woman stopped me—a friend of hers from high school and grade

school—to tell me that my mother was the star of their intramural

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basketball team, and when she played, they always won. Unfortunately, her opportunity to compete ended in high school.

The situation was not much better when I went to school 30

years ago. I went to Washington State University where I happened to major in physical education and recreation. Back then, I

could participate in one sport—gymnastics. How great it was 15

years later to watch my own daughter choose to play soccer, learning how to play on and be part of a team, cheering each other on,

and learning how to win and how to lose.

The difference between my daughter’s generation and my own

could not be more stark. One of my favorite memories is watching

my daughter’s high school friends compete in high school basketball championships when she was a junior. They won the State

championship, and it was a dream come true.

My mom never got the chance to go to college on a sports scholarship, even though I am pretty sure she deserved one. The difference is that some of my daughter’s friends have done just that.

Not all girls, like not all boys, will be State champions or Olympic stars, but all of them should have the chance to learn to work

together, do their best, fight hard, and be very proud of their own

abilities. I believe that that is what America is all about.

There is no doubt that Title IX has opened doors for women between the time when my mom went to school and my daughter

went to school. The challenge for all of us today is to make sure

those doors of opportunity stay open for our grand-daughters and

our great-grand-daughters as well.

Thank you very much, Mr. Chairman, for having this hearing.

The CHAIRMAN. Senator Collins?

OPENING STATEMENT OF SENATOR COLLINS

Senator COLLINS. Thank you, Mr. Chairman.

Good afternoon. I too would like to thank the chairman for holding this hearing to commemorate the 30th anniversary of this landmark piece of legislation and to call attention to the positive impact

that Title IX has had in ensuring greater access for women in educational programs and activities.

I am very pleased that one of the leaders of the effort to pass

Title IX, Senator Birch Bayh, is here with us today. At the time

of its passage, Senator Bayh stated that the purpose behind Title

IX was to ‘‘provide for the women of America something that is

rightfully theirs—an equal chance to attend the schools of their

choice, to develop the skills that they want.’’

Since its enactment, important gains have been made for women

in higher education in a number of areas. In 1971, the year I graduated from high school, only 18 percent of women completed 4 or

more years of college. By 2006, it is projected that women will earn

55 percent of all baccalaureate degrees.

In the University of Maine system, women already make up 60

percent of the student body.

Today, as Senator Murray indicated, far more women are earning advanced degrees. In the year 2000, nearly 46 percent of all

law degrees and 43 percent of all medical degrees were earned by

women. Women are increasingly selected for faculty positions at

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our Nation’s best colleges and universities. In fact, nearly one in

five colleges or universities is led by a woman president.

Over the past 30 years, women have also benefited from the increased access to school sports programs. When I attended high

school, there were no competitive teams for girls except gymnastics—hard to imagine in the world we now live in, where

women have a wide variety of both high school and college sports

programs in which to participate.

There is also an increasing number of celebrity women athletes,

for example, Mia Hamm, to serve as role models for young girls.

In 1971, fewer than 300,000 girls played interscholastic sports.

Last year, the number was over 2.8 million. The number of women

playing sports at the college level has also increased from fewer

than 25,000 in 1971 to over 200,000 today.

In addition to the obvious health benefits for girls from this increased participation in sports, these programs help young women

to develop so much more than just athletic ability. It enables them

to develop the leadership skills and learn to work as a team—all

skills that are necessary and helpful in succeeding later in life. It

is no coincidence that nearly 80 percent of female managers of Fortune 500 companies played competitive sports.

As a result of Title IX, women and girls today tend to be better

educated and have so many more opportunities than those of just

a generation ago. While we must continue to ensure that Title IX’s

promise is fulfilled, we can celebrate the real accomplishments in

improving access for women in education programs and activities.

Thank you, Mr. Chairman.

The CHAIRMAN. Thank you.

Senator Mikulski?

OPENING STATEMENT OF SENATOR MIKULSKI

Senator MIKULSKI. Thank you very much, Mr. Chairman, for convening this hearing, and in addition to our distinguished panel, I

also want to give a very warm welcome to our former colleague,

Senator Bayh, who was the leading architect of this legislation, and

then both of you on this committee carried this forward.

You know, you cannot break a glass ceiling unless you have the

tools. I believe that Title IX gave women the tools to do many

things—not only access to school sports, but to sports scholarships

for many women—and it also opened other doors in higher education.

The 1970’s was an exciting time. It was the second wave of

America’s feminist movement. We were talking about breaking new

ground in our Constitution and supported an Equal Rights Amendment. We only got so far, and that amendment did not get ratified,

but we were told let us do it one law at a time.

Well, we did do it one law at a time. It has taken us a very long

time, and Title IX was one of those that really pioneered that effort.

Anyone knows that 4-foot-11 Barb Mikulski was not the star

jock. I was the star debater and was also on the drama team. I am

that now. My women colleagues call me ‘‘the coach.’’ Why do they

call me the coach? Because I run empowerment workshops; because

we talk about how we can help one another move ahead, how we

8

can support each other, how we can develop strategies to move legislative agendas forward.

Where did we learn that? I learned that in school. I happened

to go to an all women’s school, and I believe they have a place in

our society, a voluntary place, but it was about learning about

teamwork, it was about trying to find the best assets. And it is not

only about basketball or soccer or kicking the ball around or twirling on the gymnastic bars—it is really about learning a lot of rules

of life.

One of the first rules of life that we need to learn is that the law

is for everybody, that the law is not based on one gender, it is not

based on one social class, it is not based on one race or one ethnic

group. The law is for everybody, and that is what Title IX is. I believe that it opened it up for women. I think it was also particularly helpful for minority women who had access to these school

sports and scholarship. And I would hope that we would continue

it.

When Title IX was being debated, I heard the naysayers: ‘‘Women just are not interested in sports. They do not like it.’’ Well,

we now see the data for all the women who are interested in

sports. We have soccer teams, we have soccer moms, we have basketball stars, and so on.

Then, they said, ‘‘What you are really going after is to kill football,’’ that this is going to kill football. I do not know if you have

looked at it lately, but football continues to be the dominant sport

on college campuses, and it is often a source of great pride, certainly for us in Maryland to see the Terps go on to the Orange

Bowl.

So it was not about killing football; it was about making sure

that the dreams of young women were not killed.

I think we need to keep Title IX. We should not use the word ‘‘reform’’ as a code word for ravaging Title IX.

So we look forward to keeping the spirit of the law. We thank

one of our founding fathers for being here. Senator Bayh, you

would love it. This is why your son loves it. There are now 13

founding mothers to continue the dream.

Thank you very much.

The CHAIRMAN. Thank you, Senator Mikulski.

Senator Clinton?

OPENING STATEMENT OF SENATOR CLINTON

Senator CLINTON. Thank you, Mr. Chairman, and thank you for

holding this hearing.

I want to welcome our witnesses, both Secretary Paige as well

as Assistant Secretaries Reynolds and Jones.

I also want to applaud the Secretary for creating a blue-ribbon

panel—as of today, the announcement was made public—to examine ways to strengthen enforcement, expand opportunity to ensure

fairness for all. I believe that that is an appropriate undertaking,

and I look forward to hearing about the discussions and recommendations from this panel.

I understand that everything which has been said before about

the great success that Title IX has had, particularly as it has

opened doors to women, has also raised some questions about fairVerDate 11-MAY-2000 11:19 Nov 18, 2002 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 S:\DOCS\80529.TXT SLABOR3 PsN: SLABOR3
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ness and equity for men and men’s sports, and I believe there

ought to be a way to work that out without turning the clock back

or tipping the balance back against women, because as we have

just heard from my colleagues, what has happened in 30 years is

nothing short of miraculous. This extraordinary commitment to ensuring opportunity in education, and opening up the playing fields

is just as important as opening up the schoolhouse doors, and we

have accomplished that.

But certainly we want to be sure that we have not had unintended consequences with respect to men’s sports.

I also want to thank Senator Bayh for being here, because he

started us down this long road. I think he once said that Title IX

was the most important advance in women’s rights since the 19th

Amendment, and I believe that that is not an overstatement. It accurately describes what was accomplished in the last three decades.

I am pleased that we are going to have a panel that includes

some very accomplished witnesses in addition to Senator Bayh,

with Art Coleman and Nancy Hogshead-Makar.

I would also like to acknowledge one of my interns, Anne Cook,

who plays for the Washington Freedom. She has been advising me

about this issue, and I am delighted that she could join us.

I will submit my full statement for the record, but I wanted to

just make a few points, especially in light of the announcement

today about the blue ribbon panel.

I agree that litigation is not the way to resolve what appear to

be differences over interpretation and enforcement. And I certainly

hope that we are not going to be reopening Title IX and the regulations behind it as we look for ways to try to enforce them more fairly and effectively.

Today, Secretary Reynolds, I have sent a letter in response to

two notices filed in the Federal Register with regard to single-sex

instruction and the current regulations of Title IX of the Education

Amendments of 1972. As I know you are aware, I was the coauthor

of the amendment, with my colleague Senator Hutchison from

Texas, which enabled us within the No Child Left Behind Act to

create opportunities for single-sex education classes in schools. I

think there is a role for that, I think there is room for it, as long

as it is done in a way that does not lead back to separate but equal

or separate and allegedly equal. And I know that you would agree

with that.

I am a little concerned, however, because as the coauthor of the

amendment, I intended for this provision to instruct the Department to help guide local school districts wishing to use the innovative program funds rather than to suggest that the existing regulations required revision in order to support the use of the funds.

I think we can ensure the strength and force of Title IX and the

Equal Protection Clause of the Constitution while simultaneously

providing local school districts with the opportunity to experiment

with single-sex instruction.

There was an article on the front page of The Washington Post

today about what appears to be some significant achievement gains

in single-sex classes in one of our Washington public schools.

10

Clearly, we want to give schools guidance about how best to do

this under Title IX and under the Constitution, without upending

or leading to the kind of investigation or reconsideration of regulations that would in any way impede full equity or turn us back on

the path that we have started down with the help of Title IX.

So I am hoping that the Department will be very thoughtful and

careful about how best to support this option as one of the many

options that we are trying to provide students in our country,

building on the successes of Title IX, doing nothing to undermine

its intent, purpose, and implement.

I will also be requesting a GAO investigation to evaluate the

educational outcomes that flow from publicly-funded single-sex instructional settings because I do think we need to separate out the

effects of small classes, motivated teachers, from whatever effects,

if any, are solely because of single-sex placements.

So, Mr. Chairman, I am grateful that we are holding this hearing. It is really a celebration as much as a hearing. We are at a

turning point. The announcement of the blue ribbon panel holds

great promise, but we will have to consider it very carefully. I am

sure the Secretary and the distinguished members, including

Donna DeVarona, will take this new charge with great seriousness,

because we do not want to do anything that turns the clock back

on women and girls. We just want to be sure that all people, men

and women alike, boys and girls, have the chance to live up to their

God-given potential, and that is what Title IX was designed to do;

I think there is a lot of evidence that it has, and we want to make

sure that it continues to get the support that it needs.

Thank you, Mr. Chairman.

[The prepared statement and questions from Senator Clinton follows:]

PREPARED STATEMENT OF SENATOR CLINTON

I would like to thank our Chairman, Senator Kennedy, and my

esteemed colleague Senator Murray, for holding this hearing this

morning to celebrate thirty years of our Federal Government’s commitment to providing equal educational opportunities to American

boys and girls.

I would like to welcome all our witnesses today, Secretary Paige,

who is joined by Assistant Secretaries Gerald Reynolds and Brian

Jones. I am delighted that Senator Birch Bayh, Art Coleman and

Nancy Hogshead-Makar could all join us today.

Whether it’s on the playing field or in the classroom, our county

can take pride in the fact that the law of the land is written to ensure that all our children can reach the fullest potential that nature has bestowed.

And we owe a great debt of gratitude to those who worked in this

body and beyond, to make sure that we provide the full range of

opportunities to all our children and men and women.

I would like to thank one of the pioneers in this struggle, Senator

Birch Bayh, who joins us today. As the original sponsor of Title IX

of the Education Amendments of 1972, Senator Bayh helped to put

in place, what he himself referred to and I would agree is, ‘‘the

most important thing to happen to women in America since the

19th Amendment.’’ Senator Bayh, your legacy-literally and commitVerDate 11-MAY-2000 11:19 Nov 18, 2002 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\DOCS\80529.TXT SLABOR3 PsN: SLABOR3
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ment to providing equal opportunities to all our young citizens continues here in Congress. Yet far more important, your work and

that of your colleagues and the voices of all those who helped make

Title IX a reality, has changed lives and built futures, that prior

to its passage, were just dreams.

Since the passage of Title IX, our country has transformed into

one that once provided the chance to pursue every goal to half our

population. And what a long way we have come!

Since 1972, the demographics on college campuses have shifted

dramatically. Thirty years later, women comprise 56 percent of college students.

And today a woman’s personal life choices no longer shut out the

possibility of earning a college degree. Prior to the enactment of

Title IX, if a woman were pregnant, married or a parent, she could

not count on financial aid to help her earn a college diploma.

At one time, earning a Ph.D and raising a family were thought

to be mutually exclusive. Yet 30 years later, the percentage of doctoral degrees awarded to women has increased from 16 percent to

42 percent.

Thanks to Title IX, schools opened shop classes to girls and a litany of career training courses providing pathways to careers for

women that previously were unthinkable.

Thanks to Title IX, our playing fields look starkly different from

the way they appeared before 1972. Before Title I, fewer than

300,000 high school girls played competitive sports. By 2001, that

number rose to 2.78 million, representing 42 percent of varsity athletes in high schools and 43 percent of college varsity athletes.

And while girls and young women have flocked to the playing

fields, boys and men’s participation levels in athletics has increased

as well, since Title IX.

Contrary to what Title IX’s critics may argue, we know from last

year’s GAO report, that as colleges and universities have added

teams to provide equitable opportunity for women, the vast majority has done so without discontinuing other teams. So let’s be clear

Title IX has opened opportunities, but not at the expense of others.

To those who still maintain that Title IX has resulted in the unintended consequence of closing doors to other athletes, we must

continue to strengthen our commitment to equity.

That is why I am delighted to join Senator Wellstone in co-sponsoring S. 1085, the Olympic Sports Revitalization Act which will

build on the legislative gains we’ve made to level the playing field.

In addition to encouraging participation in Olympic sports and

providing awards for college athletes, this bill will strengthen the

Equity in Athletic Disclosure Act, by requiring institutions to report equity in athletics data. It will require institutions choosing to

discontinue or reduce funding for intercollegiate athletics to notify

participants and provide an internal review process for the appeal

of such decisions.

And as we celebrate our progress in narrowing the divide between boys and girls and men and women, it is important that we

also take stock of the progress we still need to make.

Because even now, 30 years after the passage of Title IX, there

are still doors that need to be pried open. For example, in the

1999–2000 school year female students represented about 54 perVerDate 11-MAY-2000 11:19 Nov 18, 2002 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\DOCS\80529.TXT SLABOR3 PsN: SLABOR3
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cent of the student body at 4-year colleges, yet only 23 percent of

all NCAA Division I colleges provided women with athletic opportunities within 5 percentage points of female student enrollment.

And even today, sex segregation still persists in vocational training, with 77 percent of trade and industry courses attended by

male students and the vast majority of care-giving jobs being occupied by women at mean salaries of $19,000 per year.

Clearly, we have our work cut out for us. The best tribute to

Title IX and to those who fought for it, is our redoubled commitment to tear down the existing barriers and continue to open the

path for girls to participate in all the activities and classes that

their male peers enjoy, and for women to pursue the careers and

get the training and access to those careers that their male counterparts enjoy.

As I said earlier, I am delighted that Secretary Paige is here

today along with Assistant Secretaries Gerald Reynolds and Brian

Jones.

I would like to take this opportunity to reiterate my strong support for providing parents and students the option of single-sex instruction, consistent with Title IX and the Equal Protection Clause

of the Constitution.

As you know, I was proud to co-sponsor, along with Senator Kay

Bailey Hutchison, the amendment that led to the inclusion in the

‘‘No Child Left Behind Act’’ to allow local educational agencies

(LEAs) to use Innovative Program funds. The provision also instructed the Department to clearly outline how districts can use

these funds appropriately.

I want to emphasize now, as we celebrate Title IX and the victories it has won for women and girls, that I intended for this provision to instruct the Department to provide guidance to implement

current law, rather than to suggest the existing regulations required revision in order to support the use of funds.

I explain this concern and my recommendations in greater detail

in a letter that I have written to Assistant Secretary Reynolds in

response to his invitation for public comment.

In addition, I believe there is a lot more we can learn about single-sex instruction. That is why I will be requesting the GAO to investigate and evaluate the educational outcomes and impact on the

surrounding districts of existing and previously existing publicly

funded single-sex instructional settings.

My support for districts to experiment with reform only bolsters

my longstanding and unwavering belief that in order for any innovation to deliver the first-rate outcomes we expect from all our children, we must provide the necessary ingredients that distinguish

successful schools: a highly qualified teacher in every classroom, reduced class size, and modern, up-to-date facilities. With these inputs and the flexibility to experiment with creative reforms, we can

provide a world-class education to our nation’s children.

Mr. Chairman, I ask that I be permitted to submit my full remarks and my questions for the record.

Thank you.

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QUESTIONS FROM SENATOR CLINTON ON SECRETARY PAIGE’S ANNOUNCEMENT OF

BLUE RIBBON PANEL

We have just learned today of the Secretary’s announcement of a commission to

examine ways to strengthen enforcement and expand opportunity for all college athletes.

Question 1. To each of the witnesses, I ask, what recommendations would you

make to the new panel as it begins its work?

[To Secretary Paige]: The new panel will examine issues surrounding the enforcement of Title IX as it relates to athletics.

Question 2. Will this new panel propose or consider modifications to any of the

athletics policy guidances or regulations?

Question 3. What is the process for such consideration of modifications?

Question 4. Secretary Paige, to what extent does the Administration believe that

Title IX has diminished men’s athletics opportunities?

Question 5. To what extent do you believe the other important provisions of Title

IX are enforced adequately?

Question 6. Is the administration satisfied with the current level of enforcement

of Title IX with regards to access to higher education, access to all types of career

education and training, the participation levels of girls and boys in math and

sciences, and the equitable representation of men and women in the education field?

Question 7. Do you plan to establish panels to examine inequity in these areas?

VOCATIONAL EDUCATION

Thirty years after the enactment of Title IX, the patterns of enrollment in vocational and technical programs mirror the sex-segregated patterns that existed prior

to passage of the law. Young women remain clustered in ‘‘traditionally female’’ programs that prepare them for low-wage careers and do not provide them with the

training or technical skills necessary to enter high-wage jobs that can provide true

economic self-sufficiency. This sex segregation in vocational classrooms across the

country not only has a deep impact on the earning power and job prospects of the

young women who graduate from these programs, but these young women also often

receive a substandard education because they are bypassed for opportunities in

high-technology programs, such as Cisco Networking Academies, and frequently

their traditionally female programs lead to fewer opportunities to take advanced

courses in academic subjects such as math and science. On June 6, 2002, the National Women’s Law Center filed 12 Petitions for Compliance Review with each of

the regional offices of the Office for Civil Rights calling on the Federal Government

to conduct full investigation of the sex segregation in vocational programs and remedy the discrimination that has resulted in erecting barriers to full educational opportunity for girls and young women. The information provided to the Department

included enrollment data that had been collected directly from the States, as well

as examples of discrimination faced by female students in these programs.

Question 8. In response to this information, do you intend to direct the Office for

Civil Rights to conduct Title IX investigations in every region of the country to remedy discriminatory policies and practices in vocational and technical programs?

Question 9. Will this effort be coordinated by the headquarters office here in

Washington, or will each regional office act independently in determining the best

way to conduct its investigation and resolve problems of sex discrimination in these

programs?

Question 10. Have any of these investigations begun? Do you have a timeframe

for completion of the investigations?

TESTING

In recent years, there has been a dramatic increase in reliance on standardized

tests linked to high-stakes educational decisions. Moreover, the Elementary and

Secondary Education Act recently signed by the President mandates additional tests

for students in grades 3 through 8. Although, these tests are to hold educators acVerDate 11-MAY-2000 11:19 Nov 18, 2002 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6621 S:\DOCS\80529.TXT SLABOR3 PsN: SLABOR3
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countable for student progress there can be little doubt that States and LEAs will

use them is some cases for higher stakes purposes.

A substantial record of disparities in scoring between male and female students

on many standardized tests dates from before Title IX’s enactment and continue

over the last 30 years. These gaps have had a harmful impact on educational and

economic opportunities available to women and girls as well as students of color.

Under Title IX, tests must be valid predictors of success in the areas being tested

and must measure what they purport to measure. If a test does not meet this standard, and if it produces a scoring deficit for one sex, it has a discriminatory impact

on the members of that sex and is unlawful.

If tests are to meet the goals of improving educational access and increasing academic achievement, they must be developed in compliance with professional testing

standards and civil rights laws. There is a justifiable concern that test misuse will

seriously undermine and threaten the gains anticipated from standards-based reform efforts. While little has been done to analyze the gender differentials at the

elementary and secondary school level, it is well-documented, for example, that male

students continue to do better than female students on high-stakes tests for entry

into higher education, such as the SAT. The results from the 2000 SAT show that

the gender gap is now 38 points. This gender gap persists within racial and ethnic

groups as well: on average, in 2000, African American females scored 12 points less

than their male counterparts; Asian American females scored 38 points less than

their male counterparts; and Mexican American females scored 44 points less than

their male counterparts. The implications of this persistent and widespread gap are

great, given that it has been well documented that the SAT under-predicts academic

performance for female students.

Just as employment tests that adversely affect minorities and women and that

are not valid violates Title VII under the Griggs decision, education tests violate

Title VI, Title IX, and section 504 under similar circumstances.

As testing has increased, the Department of Education’s Office for Civil Rights

has received numerous requests for assistance by educators and policymakers on the

fair and appropriate use of tests and has also received a growing number of discrimination complaints, mostly in the K–12 arena.

After extended internal review and consultation with educators, testing experts,

policymakers and civil rights groups, in December 2000, the Department of Education released a guide prepared by the Office for Civil Rights, The Use of Tests

as Part of High-Stakes Decision-Making for Students: A Resource Guide for Educators and Policy-Makers. This guide is intended to provide information about professional standards and civil rights laws relating to the use of tests. However, that

testing guidance has been ‘‘archived’’ by the Administration, leaving schools and

school districts with no official guidance from the Office for Civil Rights on complying with our civil rights laws as tests are used.

Question 11. (1) Are there any parts of the guidance that you oppose or disagree

with? Which parts? How would you change the guidance?’’

Question 12. (2) As Assistant Secretary for Civil Rights, will you urge that this

important guidance is removed from the ‘‘archives’’ and put into effect? What are

your plans to circulate this guidance to schools, administrators, teachers, Boards of

Education, policymakers and others involved in developing and evaluating tests?

Question 13. (3) If a civil rights division under your command fails to reenact the

archived testing guidelines, are you planning to find some means of directing State

and local school districts that are under increased pressure to develop testing programs under the No Child Left Behind Act? How will you go about developing new

guidelines? Whom will you consult? What sort of timeframe do you envision for this

process?

Question 14. (4) Do you agree that tests must comply with civil rights laws, including Title IX of the Education Amendments of 1972, Title VI of the Civil Rights

Act of 1964, and Section 504 of the Rehabilitation Act?

Question 15. (5) Do you plan to regularly review data that will be collected, under

the Elementary and Secondary Education Act, to evaluate the impact of tests on female students generally and on female students of color? What will you do if the

data do demonstrate such an impact?

The CHAIRMAN. Thank you very much.

I would like to thank Secretary Rod Paige for being here today.

Before being confirmed as Secretary of Education in 2001, he was

15

superintendent of the Houston Independent School District since

1994. In that capacity, Secretary Paige helped to turn around the

struggling school district.

I noted recently, Mr. Secretary, that the difference in Houston

between Anglos and Hispanics has narrowed to six points above

the State average. I would just raise that as an interesting point

for people who are looking at our No Child Left Behind Act.

Throughout Secretary Paige’s career, he has committed himself

to public education and preparation of teachers. Over the last year

and half, we have worked closely with Secretary Paige on the No

Child Left Behind Act, and we are looking forward to continuing

to work with him on other important issues.

We know you have a time constraint, Mr. Secretary, and we are

going to have a vote, as I understand, fairly shortly, and I apologize. We are looking forward to your testimony, and we are very

appreciative of your patience with us here this afternoon and for

the opportunity to work with you. You were typically gracious in

calling about the announcement of your blue ribbon committee to

give advice on Title IX, and I thank you very much.

We welcome Mr. Reynolds and Mr. Jones as well.

STATEMENT OF HON. RODERICK R. PAIGE, SECRETARY, U.S.

DEPARTMENT OF EDUCATION, WASHINGTON, DC, ACCOMPANIED BY GERALD REYNOLDS AND BRIAN JONES, ASSISTANT SECRETARIES

Secretary PAIGE. Thank you, Mr. Chairman, Senator Gregg,

members of the committee.

I appreciate the invitation to be here today, because it gives me

the opportunity to discuss one of the most important civil rights

laws in our Nation’s history—Title IX of the Education Amendments of 1972.

As you know, we just celebrated the 30th anniversary of this

landmark legislation. Without a doubt, Title IX has opened the

doors of opportunity for generations of women and girls to compete,

to achieve, and to pursue their American dreams.

Many of the people in this room today are too young to remember

what the world was like prior to 1972 when Title IX became the

law of the land and prohibited schools that receive Federal funds

to discriminate on the basis of sex.

Back then, it was not uncommon for high school girls to be

steered to courses that narrowed their future options. High schools

routinely excluded girls from classes that stood to give them the

skills to compete for higher-paying jobs. Those who overcame these

obstacles and proved themselves worthy of college admission often

faced new barriers, such as quotas that limited female enrollment.

This held especially true in the professional schools for such disciplines as law and medicine. The stories are legend of women who

made it into these schools, even graduated first in their class, yet

they still endured shunning and harassment for their efforts.

Thanks to the vigorous enforcement of Title IX as well as our society’s greater acceptance of women in the workplace and on the

playing field, more women than ever are playing sports, graduating

from college, and pursuing their dreams.

16

For example, we have seen explosive growth in certain girls’ and

women’s sports in high school and college levels. In 1971, before

Title IX went into effect, more than 294,000 girls participated in

high school sports. Last year, that number exceeded 2.7 million.

That is an 847 percent increase.

Between 1981 and 1999, the number of college women’s teams

rose 66 percent. According to the GAO, colleges created nearly

3,800 new women’s sports teams, including 846 soccer teams, 516

cross-country teams, 432 softball teams, 350 volleyball teams, 304

indoor track teams, and 302 basketball teams.

In 1972, when Title IX became law, 44 percent of all bachelor’s

degrees went to women, as compared to 57 percent in 2000, the

most recent year for which data is available.

Today, the majority of college students are women, and many are

entering professions that once excluded them.

In 1972, only 9 percent of medical degrees went to women as

compared to nearly 43 percent in 2000. In 1972, only one percent

of dental degrees went to women, compared to 40 percent in 2000.

And in 1972, only 7 percent of law degrees went to women as compared to 46 percent in 2000.

It is no longer unusual to see women in positions of power and

influence, including running large corporations, ruling from the

bench, or advising the President of the United States. Women fill

key leadership positions throughout the administration, including

at the U.S. Department of Education.

Clearly, the changes brought about with the help of Title IX have

greatly expanded the opportunities for girls and women to achieve

their greatest potential. And we at the Department of Education

are working to build on these successes.

President Bush put it best when he said ‘‘Tremendous advances

have been made in the fight for equality. But we must remain diligent in enforcing our Nation’s laws. And we still have work to do

in this area.’’

Indeed we do. As U.S. Secretary of Education, I am proud to be

a part of implementing the President’s vision of a Nation where

civil rights laws are enforced fairly and vigorously.

In that regard, the Department of Education works diligently to

address complaints of Title IX violations. Let me give you a few recent examples.

The Office for Civil Rights received a complaint from a school

district that girls’ basketball games were never scheduled during

prime playing time, like Friday nights, as the boys’ games generally were. We found this not only to be true in that district but

also in seven other districts in the same area.

The Office for Civil Rights entered into a commitment with all

these districts, and starting with this upcoming school year, all

eight districts will provide equal opportunity for boys and girls to

play on prime time nights.

In another case, we received a complaint against a school district

alleging that the athletic facility for the girls’ softball team was inferior to that provided for the boys’ baseball team. We found the

charge to be true, and the school district agreed to build a comparable girls’ softball facility on the high school grounds.

17

In yet another case, we worked with a State’s school board association to help develop a model policy barring harassment of students and staff based on sex, race, national origin or disability.

Last month, the Office for Civil Rights and the school board association issued a letter announcing the model policy. We are now

working to help them spread the message to all schools in that

State, and we are sharing this model throughout other States.

Finally, after we investigated a number of complaints against

one university, the school agreed to significant changes, including:

recruiting female athletes from high schools and providing athletic

scholarships for them; providing female athletes with the same opportunities to attend summer school as their male counterparts;

providing the same benefits for coaches of women’s sports teams as

are provide for coaches of men’s teams; and providing lockers for

the women’s basketball team, installing lights on the women’s soccer field, and renovating the softball field.

These are just a few examples, but each one of them speaks to

this administration’s commitment to the hopes and dreams of thousands of girls and women in our Nation’s schools.

When we say we want no child left behind, we mean it literally— none. Our goal is to bring out the best efforts in all of our young

people in our Nation’s schools, from kindergarten through college.

We celebrate not only the success but also the spirit of Title IX,

which says ‘‘Open to all.’’ Listen to the words that are at the heart

of Title IX, and I quote: ‘‘No person in the United States shall, on

the basis of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance.’’ This administration is committed to those words.

As you know, there are criticisms from a number of quarters

about our commitment to access to all athletics. Some say we have

gone too far; others say we have not gone far enough.

For example, there are college administrators who say the Department has failed to provide clear guidance on how to comply

with Title IX. There are also groups that allege that the Office for

Civil Rights has failed to effectively enforce Title IX, causing the

elimination of men’s teams.

Some would like to settle this in the courts, but we believe the

better approach to this is to discuss all these questions openly in

a forum where all voices and all points of view are heard.

Earlier today, I announced that we will bring together 15 experts

to fund the Committee on Opportunity in Athletics. These are people who are on the front lines facing the difficult issues in athletics

every day. I am proud to say that Cynthia Cooper, former head

basketball coach—

The CHAIRMAN. Excuse me, Mr. Secretary. They have called for

the vote. I know you are only able to stay until 4 o’clock, but Senator Murray will be right back. We very much appreciate it, and

I apologize to you for these votes.

Secretary PAIGE. That is quite all right, Senator. I understand,

and thank you for your leadership here.

[Recess.]

Senator MURRAY [presiding]. Secretary Paige, I understand that

you had not quite finished your statement, and I would like to give

18

you the opportunity to do that, and then I believe I have time for

a couple of questions before you have to leave, and I will also turn

to Senator Gregg for questions.

Secretary PAIGE. Yes. Thank you.

I am proud to say that Cynthia Cooper, former head coach of the

Phoenix Mercury basketball team, will be our chairperson for this

commission. I know you will remember Cynthia as one of the

brightest starts in the WNBA, and I am confident that she will be

a great leader for this team.

Ted Allen, athletic director at Stanford University, will be a cochair for the commission.

The rest of the commission includes Percy Bates, a professor and

director of programs for educational opportunity at the University

of Michigan and faculty representative to the Big 10 Conference in

the NCAA; Bob Bowlsby, director of athletics at the University of

Iowa; Genee DeFilippo, athletic director at Boston College; Donna

DeVarona, chairman of the United States Olympic Committee’s

Government Relations Committee. Donna twice won Olympic gold

medals in swimming and cofounded the Women’s Sports Foundation.

Judy Foudy is president of the Women’s Sports Foundation and

captain of the U.S. national women’s soccer team.

Tom Griffith is general counsel at Brigham Young University.

Cary Groth is athletic director at Northern Illinois University.

Lisa Graham Keegan is CEO of the Education Leadership Council and former Arizona superintendent for public instruction.

Muffet McGraw is head coach for women’s basketball at the University of Notre Dame.

Mike Slive is commissioner of Conference U.S.A.

Rita Simon is a professor at American University and president

of the Women’s Freedom Network.

Graham Spanier is president of Penn State University.

And finally, Deborah Yow is director of athletics at the University of Maryland.

As you can see, the Commission on Opportunity in Athletics includes many outstanding professionals. Their mission will be to

gather facts, listen to what American people have to say, and report back to me with their recommendations by the end of January.

I know that questions of fairness often generate strong opinions

on both sides, and I welcome that debate. I believe that reasonable

people can disagree and still find common ground.

I am confident that with the help of the Commission, we can

learn how we can do a better job of enforcing a good law that represents hope for so many Americans.

Madam Chairman, I want to thank you and the members of the

committee for this opportunity to speak. I look forward to working

with you as we go forward, because I know that you share the commitment with the President, who is committed to expanding opportunities for all Americans, girls and boys, women and men, in the

classroom and on the playing field.

Thank you very much. We will respond to questions.

Senator MURRAY. Thank you very much, Mr. Secretary, and I

apologize for the disruptions this afternoon, but we will try to move

forward now.

19

Secretary PAIGE. We understand. There are a lot of things going

on, and we understand that.

Senator MURRAY. Yes, and I understand that you have to leave

in just a few minutes, so let me take this opportunity to ask just

a few questions.

Secretary Paige, in response to the National Wrestling Coaches’ Association lawsuit that questioned Title IX’s three-part test, the

Department presented procedural arguments in calling for its dismissal. By not addressing the lawsuit’s merit, the administration’s

faith in the three-part test seems questionable to me.

What is your opinion of the three-part test, and can you tell me

if the Department is considering a change in its Title IX enforcement policy?

Secretary PAIGE. We are going to rely a good deal on the commission, and what we want to hear is an open discussion of the issue,

a public discussion of the issue, and we want to gain information

from all parties.

We do know that there are a lot of people now who do question

some of the elements of the three-part test, and we are not sure

that that has any validity at all, but we do want to have an open

discussion of thoughtful and caring people who have had experience operating this law—these athletic directors, for example,

Debby Yow, who runs a major athletic program at the University

of Maryland, a championship program, can give us a lot of advice.

So as we proceed, we would like to work with you and other

members of the Senate.

Senator MURRAY. Do you expect the commission to come back

with recommendations for changing Title IX policy?

Secretary PAIGE. I am not sure what they will come back with.

I cannot prejudge what the commission might come back with.

Senator MURRAY. Will you adopt whatever they come back to you

with?

Secretary PAIGE. We will not automatically adopt what our commission comes back with, but we will certainly take it into consideration.

The commission is built intentionally of independent, thoughtful,

caring people, and I am sure they will come back with their own

opinion and will not be influenced by what we say. But we want

to listen to them, and that is why we empaneled them.

Mr. JONES. Madam Chair, may I respond to the point about the

lawsuit?

Senator MURRAY. Yes.

Mr. JONES. As the Department’s general counsel, it was my office

that assisted the Justice Department in drafting that motion. I

have heard the criticism that our focus on the procedural points in

the case somehow suggests our view of the law and the merits. I

think that that is certainly incorrect. There is a bit of reading between the lines that goes into this, but I think that what we did

in that case was really something that is very routine in litigation.

The litigation process is a plodding one. What we did in that case,

I think, was to make a very strong argument that the case that

was filed by the National Wrestling Coaches’ Association does have

some substantial procedural weaknesses, and I think we are confident that we can actually win that argument and in fact dispose

20

of the lawsuit. It just simply was not the time in that motion for

us to address the merits, and if we get beyond this motion to dismiss, if some of that case survives, then, we are certainly eager to

get into the merits, and we will defend the Department’s position.

Senator MURRAY. Okay. Let me ask you this. For the past 30

years dating all the way back to 1968, the Department has conducted a survey of schools every 2 years to collect vital information

about students that is broken down by race, gender, national origin, disability.

I have a copy of the survey here, and some of the questions it

asks include, ‘‘Please indicate the number of inter-scholastic athletic teams where only male students are on the team, where only

female students are on the team, where male and female students

play. Please report the total enrollment for the current school year

as well as the number of students in gifted and talented programs,

LEP programs, et cetera. If in the previous school year, your school

administered a district or State test that students are required to

pass or that is used as a significant factor in making promotion decisions for all students, please provide the number of students tested and passed, tested and failed, not tested, alternative assessments.’’ This is an assessment that the Department has been doing for

30 years. Some of the things this information enables the Department to know is how to enforce the nondiscrimination provisions of

Title IX, Title VI, and the Rehabilitation Act. In fact, because this

survey is so well-established, the Department was considering adding questions to it for the purposes of collecting the outcome data

required under the new education bill.

Can you tell me if it is true that the Department is now considering or already has decided to stop sending out the OCR survey altogether?

Mr. REYNOLDS. Senator, I can assure you that that is not true.

We will collect the data— Senator MURRAY. Through the same survey, that survey?

Mr. REYNOLDS. I do not have a copy of the survey that you have

in your hand, but we have not made any significant modifications

to the last survey. There may have been a question or two added

or subtracted, but the survey will take place.

Senator MURRAY. Well, it is the method of the survey that we are

asking about.

Mr. REYNOLDS. Yes, and as I said, there have been no major

changes to the survey that was done. I believe the last one was

done in 2000.

Senator MURRAY. So you expect to continue to do it as you have

for the past 30 years, with the same information requested?

Mr. REYNOLDS. The survey has changed over time, and we have

to assess what our concerns are. We have to make adjustments to

take into account what is happening out there across the 12 regional offices. But there will not be any radical changes to the— Senator MURRAY. When do you expect to make a final decision

about what it will look like?

Mr. REYNOLDS. The decision has already been made.

Senator MURRAY. Secretary Paige, let me ask you one last question. Thirty years after the enactment of Title IX, the patterns of

21

enrollment in vocational and technical programs resemble the sexsegregated patterns that existed prior to passage of the law. On

June 6, 2002, the National Women’s Law Center filed 12 petitions

for compliance review with each of the regional offices of the Office

for Civil Rights, calling on the Federal Government to conduct a

full investigation of the sex segregation in vocational programs and

remedy the discrimination that has resulted in erecting barriers to

full educational opportunities for girls and young women.

Can you tell this committee how and when you will be moving

forward on addressing those petitions?

Mr. REYNOLDS. We recently received the petitions, and we have

responded to them by acknowledging receipt of the petitions. We

are in the process of reviewing them, and after we have reviewed

the data, and also relying on data that we have collected at OCR,

we will make a determination as to what the next steps should be.

Secretary PAIGE. Senator, may I apologize now. It is very important that we leave at this moment, but let me promise you that we

are interested in your points, and we are open to any discussion

or questions that you might have for us if you will just give us a

ring or invite us up.

Senator MURRAY. Thank you. I do have some other questions

that I will submit for the record.

Let me just ask Senator Gregg if he has any questions before you

leave.

Secretary PAIGE. Thank you.

[Questions of Senator Murray with responses were not available

at press time.]

Senator GREGG. I appreciate the fact that the Secretary has

given us some extra time today.

First, I think your statement was excellent, Mr. Secretary. I

think that setting up this commission is a superb idea.

I want to associate myself with the strong support for Title IX.

I have two daughters, both of whom are quite athletic and both of

whom have been great beneficiaries—in fact, one of my daughters

was the only child in her high school who played 12 semesters of

varsity sport, including boys, and was captain of three teams. So

she took advantage of the program rather aggressively.

It has been a huge success, and it has certainly leveled the playing field to a great degree. But as has been pointed out, there are

concerns, there are issues, and they should be looked at, and that

is what this commission is set up to do. It has many talented people. I am very impressed with the list of people, and I am sure they

are going to give us very blunt and I suspect very substantive

input into what we should do if there is something we can do to

improve the law, and I look forward to their report.

Thank you for taking the time to testify today.

Secretary PAIGE. Thank you, Senator.

Senator MURRAY. Thank you very much, Mr. Secretary, Mr. Reynolds, Mr. Jones.

Secretary PAIGE. Thank you for this opportunity, Senator.

I would like to just make this last statement, that as we celebrate not only the success but also the spirit of Title IX, which says

‘‘Open to all,’’ we continue to look forward to working with you on

this.

22

Thank you.

Senator MURRAY. Excellent. Thank you very much, Mr. Secretary.

If our second panel would come forward, I will go ahead and

make the introductions as you are moving into place.

As our second panel comes forward, let me apologize again for

the disruptions this afternoon. I think we have lost some of our

committee members; some of them expect to come back. But we

really do appreciate all three of you joining us here this afternoon.

We are honored to have Senator Birch Bayh with us. He is the

father of the Title IX legislation. Senator Bayh served his home

State of Indiana in the United States Senate for three terms from

1962 to 1980. Throughout his time in the Senate, Senator Bayh

was a key figure in the historic legislation affecting the American

Presidency and the individual rights of women, minorities and

youth.

Currently, Senator Bayh is a partner in the Washington, DC law

firm of Venable, Baetjer, Howard, and Civiletti. I am pleased to

have Senator Bayh join us today to discuss the implementation and

progress of Title IX.

I am also pleased to have with us today Nancy Hogshead-Makar,

a triple gold medalist in the Olympics for swimming. Since retiring

from swimming, Ms. Hogshead-Makar has been a high-profile advocate of gender equity in sports. She is one of the Nation’s foremost

experts on Title IX, particularly within the context of intercollegiate sports.

She is also a former president of the Women’s Sports Foundation.

Today she is a professor of law at the Florida Coastal School of

Law, where she teaches tort and sport law. In addition, she is the

director of the Legal Advocacy Center for Women in Sports.

I would also like to welcome Mr. Art Coleman, who is currently

counsel at Nixon Peabody, LLP in Washington, DC, where he provides policy and advocacy services to educators and policymakers.

Mr. Coleman also served in the Clinton Administration as deputy

assistant secretary of the U.S. Department of Education’s Office of

Civil Rights from 1997 to 2000. Prior to his appointment, he was

senior policy advisor for the assistant secretary for civil rights.

Mr. Coleman’s focus at the Department of Education included

issues related to standards reform and test use, students with disabilities, affirmative action, sexual and racial harassment, and gender equity in athletics.

I would invite our witnesses to submit their full testimony for

the record and address anything that you have heard in the prior

panel as well.

Senator Bayh, we will begin with you.

23

STATEMENTS OF HON. BIRCH BAYH, FORMER U.S. SENATOR,

PARTNER, VENABLE, BAETJER, HOWARD AND CIVILETTI,

LLP, WASHINGTON, DC; NANCY HOGSHEAD-MAKAR, PROFESSOR, FLORIDA COASTAL SCHOOL OF LAW, JACKSONVILLE,

FL; AND ARTHUR L. COLEMAN, NIXON PEABODY LLP, WASHINGTON, DC

Mr. BAYH. Thank you, Madam Chairman, Senator Wellstone. I

appreciate the thoughtful comments that you and your colleagues

have directed my way.

I must say that I think there were many fathers and probably

even more mothers of Title IX, and I consider myself fortunate to

have been there at the time that this matter was before us.

My interest in Title IX has been something that has been near

and dear to my heart for a good number of years.

If the committee will permit me to emphasize one personal note,

I fell in love with the 19-year-old daughter of a wheat farmer in

Eden, OK who was a straight-A student, president of the student

body, and was elected president of Girls’ Nation. Her first goal in

life was to the have the opportunity to get a degree from the University of Virginia. Unfortunately, the admissions director had a

sign on the door: ‘‘Girls Need Not Apply.’’ So I had a full appreciation for the next 261⁄2 years of the importance of having women treated equally across the board.

Title IX has one goal and just one goal—I think I can speak for

all the sponsors; Senator Kennedy was one of them, and Senator

Mikulski was there when we were wrestling with it. Our interest

really started with the passage of the ERA through the Congress,

and unfortunately, we were three votes short of getting it ratified,

but in the process, the evidence was absolutely unequivocal that

the way in which young and not so young women were treated on

our college and university campuses was really unconscionable. But

the one goal was to ensure equality of education for all of our students throughout the Nation’s school system.

I think it is important in some of the furor that has been raised

about certain aspects of Title IX to equate this goal in personal

terms. Our goal is to see that our daughters will have the same opportunities as our sons. And it seems to me that when you state

it that way, the argument sort of disappears, because I do not

know of any set of parents who would not want to see their sons

and their daughters treated equally.

With the emphasis having been placed more recently on the athletic accomplishments of Title IX, which are significant, I think

that in the debate, we tended to overlook what I feel is an even

more important accomplishment, and that is the academic accomplishments. Only a small percentage of a student body will have

the good fortune to participate in athletics. All of them are there

to get a good education, and that will go with them long after they

have the opportunity to participate in sports.

As my colleague here looks at her three gold medals, I think she

has to be just as proud as, certainly, the practical aspects of being

able to be a professor of law at one of our fine institutions of higher

education.

When we first started—and 30 years seems like a long time

ago—but when we first started, statistics have been bandied

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around, but when you look right at it, one percent of the athletes

were women, 2 percent of the budget. We have had a recitation of

what has happened in the interim, where we have gone from about

32,000 to 150,000, a fivefold increase, and it has been eightfold,

going from 300,000 to 2.7 million in our high schools, which I think

is a sign of the times. In fact, I think the real sign of the times

is to know the around the athletic field where I jog on Saturday

and Sunday, there are equal numbers of little girls and little boys

out there kicking the soccer ball.

I think that that is where we are going. We are changing the

stereotype of the, quote, ‘‘traditional’’ role of women. And I think

that Title IX has played a part in that, and I share the pride of

others who were involved in that.

I would like to emphasize one figure that has already been mentioned, but I do not think we can overlook the fact. First of all,

there are no quotas intended by anybody who was implicated in the

passage of Title IX. The courts have already said that, but all you

have to do is read the language of the one-sentence amendment.

There are no quotas involved at all. And as far as taking opportunities away from men, the Title IX sponsors did not want to take

away from men—they wanted to give more to women—and that is

the way to equalize opportunity, not by detracting from opportunities for men, but by giving more opportunities to women.

Art Coleman will be able to recite in some detail, since he had

responsibility for implementing it, the various opportunities that

are available that show that there are no quotas, and there are

other ways of reaching the goal that we are all after, namely,

equality.

So the criticisms are quotas, denying men, and the third one is

that little girls are not interested. Well, when you have an 800 percent increase in high schools in this period of time, do not tell me

that young women are not interested. It is very much like ‘‘Field

of Dreams’’ which, as an incorrigible optimist and a sentimentalist

at heart, I can still hear Kevin Costner responding to the voice:

‘‘Build it, and they shall come.’’ Title IX builds it, and women have

been coming and coming and coming, and they will continue to

come as long as they have the opportunity to do so.

The last criticism of the four basic criticisms is that nobody likes

to watch little girls play anyway. Well, let me tell you, anybody

who has any relationship with universities like Connecticut or Tennessee, like Maryland or Virginia, like my Boilermakers—

Senator MURRAY. University of Washington.

Mr. BAYH [continuing]. Well, I was saving Washington for later,

but I will say Washington—but you could not buy a ticket to

Mackie Fieldhouse when the women’s teams were there. They are

now on television, and people are watching them on television.

I wanted to particularly cite the ingenuity of Washington State.

All the concern with the number of football scholarships going to

men, and there can be no denying the number of scholarships and

the amount of resources that go into football—it is my understanding that the athletic department at Washington State has been creative enough to develop a rowing program where they have exactly

the same number of women rowers on the water as they have men

playing on the turf on the football field.

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That is the kind of ingenuity that I think it takes to bring up

the tide that will help women without detracting from men.

I have already spoken longer than I intended, but the benefits

attendant to playing athletics have already been cited. Some of us

have been fortunate enough to have had that opportunity as men.

Now it is good to see that women have that same opportunity to

develop the lifestyle characteristics that will serve them and their

families well for the generations to come.

We still have some unfinished business out there despite all the

progress that has been made. I think the last survey of Division I

schools showed that 53 percent of the undergraduates were women,

and only 41 percent of them are athletes; 36 percent of the budget

goes to men’s sports.

We have had major improvements where, before Title IX, 18 percent of the faculty were women. That has risen to 37 percent, but

that is still short of equality, and some of the nuances of how you

get to be a professor are very difficult for women, and they need

to be addressed.

Let me conclude my remarks on a personal note just as I started.

Several years before I met this young daughter of a wheat farmer,

I was sitting in my home out here between Rockville and Bethesda.

My father had coached four sports at Indiana State, and he had

been asked to come over and be director of physical education in

the public school system. He announced at dinner to my mother

and my sister and me that the next day, he was going to testify

before Congress. Well, that was pretty tall stuff. We asked him,

‘‘What in the world are you going to say?’’ He said, ‘‘Well, I am going to tell them that it is long overdue

appropriating money for physical education for girls, and I am

going to tell them that little girls need strong bodies to carry their

minds around just like little boys.’’ And, Madam Chairman, they

still do.

Thank you for your courtesy.

[The prepared statement of Mr. Bayh follows:]

PREPARED STATEMENT OF MR. BIRCH BAYH

Mr. Chairman and members of the committee: I want to thank you for your invitation to testify this afternoon on the implementation and progress of Title IX. As

you know, June 23 marked the 30th anniversary of Title IX which prohibits sex discrimination in all aspects of education. As the chief sponsor of this legislation, I

think we can all be proud of the fact that, in my judgment, it is the most significant

contribution to equality for women since the 19th Amendment to the Constitution,

which gave women the right to vote. However, despite the doors of opportunity Title

IX has opened for women and girls, today it is under serious attack.

Opponents declare that Title IX requires ‘‘quotas’’ for women, particularly in athletics. President Bush, his Secretary of Education, Roderick Paige, and his recess

appointment to the DOE’s Office of Civil Rights, Gerald Reynolds, have all made

this assertion. A principal aide to Attorney General John Ashcroft, whose Justice

Department must defend Title IX in court, purports a ‘‘relentless political agenda’’

by those she defines as ‘‘turning the grant of opportunity for women guaranteed

under Title IX into a grant of ‘‘preference.’’ Some editorials describe supporters of

Title IX as ‘‘zealots who threaten any college or university that fails to conform to

their notions of gender and racial equality.’’

Much of this opposition results from a lack of knowledge concerning what Title

IX does and does not do. Let’s look at the facts. Nothing in Title IX requires quotas,

as each of the eight federal courts of appeals that has considered the issue has held.

In fact, a school can comply with Title IX by showing simply that it is making

progress in expanding opportunities for female athletes or that it is accommodating

26

the interests of female students at the school, whatever the number of opportunities

it provides.

Much of the recent furor is due to the misperception that Title IX forces schools

to terminate men’s teams, like wrestling. Let me make the record clear. The proponents of Title IX had no intention of taking away opportunities from young men.

Our goal was to provide more opportunities for young women. In most instances

that has been the result. The law’s detractors ignore the fact that 72 percent of our

colleges and universities have added teams for women without cutting any teams

for men. Men’s budgets and participation opportunities in sports have increased

overall. There has been an enormous growth of other men’s teams, such as baseball,

which existed in 642 NCAA member schools in 1982, and exists in 857 schools

today. It’s not female athletes who are crowding out wrestlers; it’s the more popular

men’s programs that continue to dominate sports budgets, leaving women’s and

other men’s teams with only a small share of the pie. Fortunately, many dedicated

and creative school administrators have established programs which, like football

for men, create many slots for women. Washington State, for example, now offers

rowing for women. They field as many women on the water as they do men on the

turf. New teams for women have been created and, in many instances, women’s

teams have become profit centers when properly promoted. In addition, alumni and

other sources of support have been developed.

A flashback to the pre-Title IX era shows what is at stake. Prior to Title IX, young

women were only one percent of varsity college-level athletes, they got a meager two

percent of overall athletic budgets, and scholarships were almost nonexistent.

Today, the number of college-level women playing sports has ballooned from less

than 32,000 in 1972 to over 150,000 today (and from about 300,000 to 2.78 million

at the high school level). Along with their male peers, women now enjoy the attendant benefits of increased health, self-esteem, academic performance, and leadership

skills, as well as decreased drug use, smoking, and teen pregnancy.

On the world stage, we have taken pride in the medals won by our female Olympians and in our World Cup soccer champions. At home, we see banner sports coverage of our women’s NCAA basketball teams. And, contrary to conventional wisdom that ‘‘no one will pay to see women play,’’ they are packing them in at schools

like Purdue, Tennessee, Connecticut and others where women’s basketball is taken

seriously.

But despite the progress, Title IX’s mission is far from complete. Women are 53

percent of the student body at Division I colleges, but are only 41 percent of the

athletes and receive only 36 percent of athletic operating budgets. Hundreds of

schools fail to provide women with their fair share of athletic scholarships. The

same disparity exists at the high school level.

Tragically, the attacks on Title IX divert attention from the law’s dramatic improvement in academic opportunities for women students.

Prior to Title IX, many of our nation’s colleges and universities simply excluded

women outright; many had quotas (most medical and law schools limited the number of women to 15 or fewer per school); and many required women applicants to

have significantly higher grades and SAT scores. Women students received only half

the number of scholarships as their male counterparts, with the value of those

scholarships averaging 50 percent less than those of men. Women students were denied outright other important financial assistance, such as the Rhodes program.

Only 18 percent of the faculty in higher education were comprised of women.

Thirty years later, women students represent over half of all undergraduates.

They compete for financial aid whether they be single, married, parents or part-time

students. And, women constitute 37 percent of all faculty.

We must not underestimate the tremendous strides that women and girls have

made in education. At the same time, we must not allow a mistakenly-drawn debate

to threaten the progress that still needs to be achieved to reach true equality in our

nation’s classrooms and playing fields. The key question is do we wish less opportunity for our daughters than our sons? The answer speaks for itself. Therein lies

the success of Title IX.

Senator MURRAY. Thank you very much, Senator. We really appreciate you coming today and for all the work that you have done

on behalf of so many of us who followed you.

Senator MURRAY. Professor Hogshead-Makar.

Ms. HOGSHEAD-MAKAR. I would like to thank you for this opportunity to talk about Title IX.

27

I come to you wearing two hats. With the one hat that I wear

as an Olympic champion, my life has been affected by Title IX in

the most personal way that you can imagine. My first year being

world-ranked was 1977, and there was an article in the paper, and

I said, don’t women usually peak physically at around the age of

18, and wouldn’t that be perfect for the 1980 Olympics. In my

mind, women’s athletic careers, like Donna DeVarona’s, stopped

when they graduated from high school; there was no place else for

them to go.

In around 1979, 1980, when I graduated from high school,

women started getting scholarships. I had not planned on swimming, but if I could get a college scholarship, I was more than

ready to go.

For people who were just 2 or 3 years older than I was, it did

not matter that they had the same athletic credentials that I had.

They were not going to get a college scholarship, and they were not

even going to get an opportunity to participate in college. Without

this legislation, it did not matter that I was going to get up at 4:45

in the morning and swim for 2 hours, an hour and a half during

school PE, running and lifting weights, and two and a half more

hours after school—none of that would have mattered for people

just a few years older than I was. It was because of this legislation.

I feel very proud that I earned a college scholarship, and if you

ever have any doubt about whether your public service here makes

a difference in the individual lives of citizens, you need look no further than my life.

As I come today talking with the hat of an attorney and someone

who works in this field, I have been a long-time advocate. Donna

DeVarona came and talked to us at the 1984 Olympics after competing in college, and she told us there was something called the

Grove City decision, which was a Supreme Court decision that essentially gutted Title IX. And Senator Bayh and others had to come

back and get it put back. But that sort of put the fire under me

to make sure that other women had the same opportunities that

I was able to enjoy, to make sure that those opportunities were

protected by law.

That summer, I became an intern at the Women’s Sports Foundation and eventually went on to become their president, and now

am able to operate a Legal Advocacy Center for Women in Sports

at Florida Coastal School of Law.

Where all of this comes from is my profound belief and respect

for the strength of a sports experience for all of our children, for

boys and girls. Having had that experience is as important as math

class. It is where you learn valuable life lessons that it is difficult

to learn in the classroom.

I have a young son—and I will be happy to show you a briefcase

full of pictures if you are interested—and I know that making sure

that he finds a successful sports experience is one of the best parental decisions that I will ever make for him.

We have a lot of reasons to celebrate Title IX today, but recently,

those who oppose Title IX have become more vocal. For example,

Jessica Gavora, who serves as a top aide to Attorney General John

Ashcroft, has written a misleading book titled, ‘‘Tilting the Playing

Field,’’ that is critical of the regulations implementing Title IX.

28

And, as has been mentioned here, the National Wrestling Coaches’

Association has filed suit against the Department of Education

claiming reverse discrimination that Title IX imposes quotas and

requires cuts in men’s teams.

In both cases, the anti-Title IX rhetoric does not reflect reality.

In particular, the following long-discredited arguments used

against Title IX have reappeared: (1) that Title IX is a quota law;

(2) that these quotas force schools to cut men’s teams; and (3) that

women’s opportunities are inflated—that is, they do not even desire

these opportunities in sports because of a purported inherent lack

of interest in athletics.

All of these claims are factually insupportable and have been resoundingly rejected by the courts and by society in general. Instead, Title IX protects both boys and girls from discrimination. It

has shepherded new opportunities for boys and girls to play sports

and ensures that educational decisions are not based on overly

broad generalizations or stereotypes for boys and girls.

Some of those misleading statements have already been addressed here, so I am just going to focus on the myth that Title IX

is hurting men’s athletics.

The law and regulations do not require that schools cut teams.

In the 1950’s, Congress passed desegregation laws that made it impermissible to operate racially-segregated public facilities like

parks and swimming pools. Some communities chose to come into

compliance with this by closing those public facilities, by closing

the swimming pools or the parks.

Similarly here, what the Supreme Court said was that that is

okay as long as it is equally bad for everyone.

The same thing is happening with schools making those individual choices to cut men’s teams. But unlike the desegregation laws,

where we put the blame where it appropriately should have been—

we said that that is a morally bankrupt decision for you to close

that pool rather than desegregate it—nobody was trying to weaken

the law or say that there was something wrong with desegregation.

But that is what is happening here. They want to reduce the opportunities and protections that women have in sports rather than do

something to help men’s athletics and men’s opportunities in

sports.

The real issue here is the athletic department’s financial responsibilities, not weakening effective civil rights laws. I am very familiar with Jessica Gavora’s book; I have read it and have debated her

many times, so if you have many questions, I will be happy to answer them.

I am out of time, but I just want to say that we have so many

reasons to celebrate 30 years and what has happened with Title IX,

and I would hate to see all of those gains lost at this critical time

right now.

Thank you very much for having me here.

Senator MURRAY. Thank you very much for an excellent statement.

[The prepared statement of Ms. Hogshead-Makar follows:]

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PREPARED STATEMENT OF NANCY HOGSHEAD-MAKAR

Mr. Chairman and Members of the Committee: Thank you for providing me with

the opportunity to testify today regarding Title IX of the Education Amendments

of 1972, a landmark civil rights law passed 30 years ago to eliminate sex discrimination in American education.

During my testimony today I speak with two voices: one as a female athlete who

was personally and directly affected by Title IX. I proudly earned a full athletic

scholarship to Duke University unlike the swimmers just a few years my senior who

had equivalent credentials. That scholarship kept me in swimming beyond my high

school days, and I went on to become an Olympic champion at what was then considered the practically geriatric age of 22. I know hard work and dedication were

indispensable in becoming a champion, but the law was equally essential in giving

me an opportunity to share with male athletes in a profound educational experience

that continues to be a foundation for and shape my life experience today. Without

Title IX, a number one world ranking wouldn’t have been enough to earn an athletic

scholarship. Without Title IX, getting up at 4:45 in the morning for a two hour

workout before class, year in and year out, and an undefeated high school career

wouldn’t have been enough to qualify for a college scholarship. If you ever question

whether your public service in passing a law makes a difference in the individual

lives of citizens, look no further than the impact Title IX has had on my life.

I also speak as a long-time advocate for women in sports. In 1984, Donna

DeVarona spoke to the United States Olympic Team about the infamous Grove City

decision, and how our college athletic opportunities were no longer protected by law.

I knew how much my athletic career had shaped me and like Donna, I wanted to

make sure that other women had access to this important piece of an education. The

next summer I interned at the Women’s Sports Foundation, and I eventually became its President. I am currently an attorney and law school professor at the Florida Coastal School of Law in Jacksonville Florida with significant experience in

legal advocacy for women in sports.

My long-term advocacy comes from a profound respect for the strength of a sports

experience for all our children. Research consistently demonstrates the significant

health, academic, and emotional benefits, including promoting responsible social behavior for all our children who participate in sports programs. I am now the mother

of a young son, Aaron, and I know that providing him with a successful sports experience will be one of the best parental actions that I can take.

While we have ample reason to celebrate the 30th Anniversary of this historic legislation, recently those who oppose Title IX have become more vocal. For example,

Jessica Gavora, who serves as a top aide to Attorney General John Ashcroft, has

written a misleading book, Tilting the Playing Field, critical of the regulations implementing Title IX, and the National Wrestling Coaches Association has filed suit

against the Department of Education, claiming reverse discrimination—that Title IX

imposes quotas and requires cuts in men’s teams. In both instances, the anti-Title

IX rhetoric does not reflect reality. In particular, the following long-discredited arguments used against Title IX have reappeared:

(1) that Title IX is a quota law;

(2) that these quotas force schools to cut men’s teams; and

(3) that women’s opportunities are inflated—that is, they do not desire opportunities in sports because of a purported inherent lack of interest in athletics.

All of these claims are factually insupportable and have been resoundingly rejected by the courts and society generally. Instead, Title IX protects both girls and

boys from discrimination, has shepherded new opportunities for boys and girls to

play sports, and ensures that educational decisions are not based on overbroad generalizations or stereotypes about boys and girls.

1. MYTH: TITLE IX MANDATES QUOTAS

Nine out of our twelve Federal circuit courts who have ruled on the 20 year old

three-part test are all in agreement: Title IX and its implementing regulations and

policies are lawful and entitled to deference. They do not impose quotas. To use the

word ‘‘quota’’ when discussing Title IX is simply wrong.

The policies interpreting Title IX give schools broad flexibility to chose between

three wholly independent ways to show that they provide non-discriminatory sports

participation opportunities. Schools can either show that the athletic department’s

gender mix matches its general student body population, OR that the institution has

a history and continuing practice of expansion for women’s athletics, OR that it is

meeting the interests and abilities of the female athletes on campus. If a school can

meet any one of these tests, it complies with Title IX’s participation requirements.

30

The current regulations are a fair and principled way of measuring whether a

school is or is not discriminating against the under-represented sex. Without them,

a wanna-be softball team would be left without solid benchmarks to make their case

to the athletic department that opportunities are lacking. If a school is not providing

women with opportunities matching their student-body enrollment, if it does not

have a history and practice of improving opportunities for women, AND if the school

has unmet demand among its female athletes, then surely this inability to meet any

of the three tests is a clear indication that the school is discriminating against these

potential-softball players when it denies them the resources to be able to participate

in this important educational program.

Comparing men’s and women’s participation rates is appropriate in the unique

sex-segregated world of athletics, as opposed to the medical school or law school,

where admission is gender-blind. Because of this sex-segregation, schools decide—

in the first instance—how many teams they will sponsor and how many slots they

will allocate for female, as compared to male, students. As a result, ‘‘determining

whether discrimination exists in athletic programs requires gender-conscious, groupwide comparisons.’’ Title IX simply requires that schools allocate these school-created slots in a nondiscriminatory manner.

Title IX does not require ‘‘proportionality’’ or any other mathematical test, as

some are alleging. There are many schools that are conducting athletic programs

that are in compliance with Title IX with athletic program male/female participation

numbers that are not proportional to the percentages of men and women in their

general student bodies. For example, the Office for Civil Rights reviewed 74 cases

involving the three-part participation test between 1994 to 1998. Only 21 of these

schools—less than one third—were held in compliance under the proportionality

prong of the three part test. The other 53 schools complied under Title IX’s other

two tests. The regulations provide a meaningful way to measure whether or not a

school is providing opportunities between the sexes fairly; they are flexible and

allow schools to find the answers that best serve their needs.

2. MYTH: WOMEN ARE NOT INTERESTED IN SPORTS OR ATHLETICS PARTICIPATION

I find this assertion to be not only dangerously stereotypical and flawed, but also

insulting to all women. Thirty years ago, when just one out of every 27 high school

girls played a sport, girls heard the same argument—that they weren’t as interested

in sports. Today one out of every 2.5 high school girls plays a sport and more girls

are playing all the time, yet this assertion is made with a straight face. I don’t want

my son to hear that ‘‘boys are more interested in sports than girls’’, ‘‘boys are better

or more interested in math and science than girls’’ or ‘‘girls are more interested in

dance than boys’’ because these statements become self-fulfilling prophecies if we

say them enough to our children. Just a short while ago, our daughters heard that

professions like science and the law were for our boys, yet today women account for

50 percent of medical school students and law school students. To accept the notion

that women are less interested in sports than men would simply maintain existing

discrimination and curtail opportunities at artificially limited levels.

While at Duke University in 1981, women comprised just 27.8 percent of the collegiate-athlete population. Concluding that year that this was a ‘‘natural’’ percentage

differential would have tragically limited female college scholarship athletes, preventing hundreds of thousands of women from engaging in this important educational experience. Furthermore, locking in a ‘‘natural’’ 60 percent male 40 percent

female sports participation, as some foes of Title IX suggest, would be patently unconstitutional. Sex-based classifications are impermissible on the basis of just this

sort of gender-based stereotype.

Development of women’s interest in sports since the enactment of Title IX shows

irrefutably that interest reflects opportunity. While fewer than 30,000 women participated in college sports before Title IX, today that number exceeds 150,000—five

times the pre-Title IX rate. Girls in high school now are participating at a rate of

2.8 million per year—an 800 percent increase from pre-Title IX participation rates.

Women’s participation continues to be hampered by schools not sponsoring teams

based on unfounded un-provable stereotypes.

Demand for sports participation by both boys and girls far exceeds our schools’

resources. There are more than six million boys and girls playing high school sports

today who are vying for fewer than 400,000 college athletic participation slots. With

2.8 million girls playing high school sports, it is inconceivable that schools cannot

find women to play on the teams they create. That’s akin to the National Football

League claiming that it can’t find enough football players to play (and be financially

rewarded) in its league, when each year they draft less than two hundred players

and there are currently 60,000 football players in the NCAA.

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Finally, if it is true—as Title IX foes suggest—that women do not desire the

sports participation opportunities that are foisted upon them, then a school will be

deemed legally in compliance under the third prong of Title IX’s participation test.

If a school does not have unmet demand, if it is providing opportunities for the

women athletes who attend the school, have the ability to play and want to play,

then the school will be in compliance with Title IX.

Interest in positive-lifestyle activities—reading, science or sports occurs in our

children because three things are in place: (1) adult leaders understand the importance of these skills and inspire and teach children to do these things, (2) children

have the opportunity to access what is necessary to participate: books, science

games or teams, fields and athletic programs and (3) the activity is structured to

ensure that children have a fun and successful experience so they want to come

back and do it again.

As Congress and the courts have consistently recognized, this stereotype is belied

by the lessons taught by Title IX and by its very purpose. Everyone knows that

sport gives considerable gifts to all our children: confidence, strength, courage and

resilience. Everyone knows how important team sports are to success in the working

world. Everyone knows the life-long health benefits of sports. Stereotypes shouldn’t

be—indeed, cannot legally be—used to justify discrimination.

3. MYTH: TITLE IX IS HURTING MEN’S ATHLETICS

The law and the regulations do not require schools to cut men’s teams.

In the 1950s, Congress passed desegregation laws that made it impermissible to

operate racially segregated public facilities like parks and swimming pools. Some

communities chose to close those facilities rather than desegregate. The Supreme

Court held that the community’s actions were Constitutionally permissible, that

communities could come into compliance by closing these public facilities. Similarly

here, courts have held that schools have the choice to cut men’s teams to come into

compliance with non-discrimination statutes. But unlike the reaction to Title IX

today, no one in the 1950s blamed the law for the community’s morally bankrupt

decision to close swimming pools. No one argued that the law should be weakened

so that public swimming pools could remain all white. The blame for the loss of the

pool went where it belonged—on the individual community’s decision.

Rather than jettisoning a successful 30 year old federal law, the NCAA, school

districts or local communities may wish to consider a rule that would prohibit this

possible choice—a rule that would flatly prohibit schools from coming into Title IX

compliance by simply cutting a men’s sport. This solution offers a local, membership-based response to any perceived losses in men’s sports, rather than endanger

the gains that women continue to make on the athletic field.

Athletic Department financial responsibilities are the issues, not weakening effective civil-rights laws. Schools can afford to maintain all of our existing sports programs and add new women’s sports if schools exercise fiscal responsibility and support each sport with a smaller piece of the budgetary pie. I mentioned earlier that

our family includes our son, Aaron. All of our time and resources are currently directed towards Aaron. When a daughter arrives, the Hogshead-Makar family budget—like those of colleges and universities—will have to adjust to provide equitable

sports opportunities for her, too. It wouldn’t be fair or equitable to deny her educational opportunities just because our son was born first.

The facts do not suggest that women or Title IX are hurting men’s athletics. In

fact, men’s sports participation in high school and college has increased since the

law’s inception 30 years ago. Schools themselves report that when they are deciding

to add or discontinue a men’s or women’s team, the level of student interest in the

particular sport was the most often cited factor. More important, two-thirds of the

schools that have added women’s sports to comply with Title IX did not eliminate

any men’s sports. And men’s athletics expenditures continues to far out-pace women’s expenditures—in Division I in the year 2000, for every dollar spent on women’s

sports, almost two dollars were spent on men’s sports. We simply cannot believe

rhetoric claiming that our daughters having an equal chance to play is causing men

to suffer.

CONCLUSION

Mr. Chairman, we have many reasons to celebrate this 30th Anniversary of Title

IX, but as I listen to those who oppose Title IX, I worry that all the hard work will

be for nothing. It is imperative that we continue to work together around the shared

goals embodied in Title IX to ensure that our daughters and our sons will have as

many educational opportunities open to them in the future. Thank you.

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Senator MURRAY. Mr. Coleman.

Mr. COLEMAN. Madam Chairman, thank you for inviting me to

testify today about the law, Title IX, and its enforcement in the Department of Education. It is an honor to be here with the father

of Title IX and someone who has lived its promise so vividly and

so well.

Equal opportunity is at its core about giving all of our students

an opportunity to fulfill their potential—to become another Sally

Ride in space or another Mia Hamm on the soccer field or another

Senator Murray sitting in this chamber as you are today.

This principle has particular resonance for me, not just because

I am a former Federal official, and not because now I am a counselor to college and universities and States, working to help them

comply with Federal laws—but also because I am the proud father

of a 6-year-old girl and a year-and-a-half-old boy.

It was not too long ago that I had a conversation with my 6-yearold, and we were talking about what she wanted to be when she

grew up. She said she wanted to be a nurse. We talked about how

wonderful that could be and what good things she could do for people. And in passing, as we were ending the conversation, I said,

‘‘And maybe you will even decide that you want to be a doctor.’’ And she said, ‘‘Oh, no, I could never do that. Boys are doctors,

girls are nurses.’’ After I picked myself up off the floor, she and I had a slightly

longer conversation about the fact that boys and girls can be anything they want to be if they put their minds to it.

So when I am not doing my most important job of being a parent,

I am an attorney who counsels colleges and universities, and I believe today, wearing that hat, just as I believe for my 6 years at

the Department of Education, that understanding Federal legal requirements means that you understand this—at the end of the day,

it is about reaching and affirming sound educational judgments.

There is a fundamental alignment between what Federal civil

rights law requires and what good educational common sense

means.

Today I want to address in the context of Title IX athletics, specifically the existing common ground that frequently gets overlooked as this debate becomes polarized and heated, and I think

quite unfortunately so.

Title IX is one Federal law that has enjoyed bipartisan support

for 30 years. In both Republican and Democrat administrations, on

both sides of the aisle in Congress, and in the overwhelming majority of Federal court opinions, we have seen a repeated reaffirmation of the existing standards of what the Department of Education

enforces today.

During my tenure with the Office for Civil Rights, we very intentionally did not change the law or change the standards that govern Title IX athletics enforcement. After hearing from colleges and

universities and other interested parties, what we discovered was

that there were real issues about consistency in enforcement across

the country, and there were issues about clarity and confusion. So

we worked to develop guidance that would develop those core concerns that we were hearing from the college and university community.

33

I should say as well, I think echoing Senator Clinton’s comments,

that I too welcome the dialogue that the Secretary of Education has

announced today. I am a big believer in the robust exchange of

ideas. But I want to be clear. We have had an open discussion for

30 years. From 1979 until at least 1997, the Department received

literally thousands of written comments and emails regarding Title

IX standards, comments that we took to heart as we continued to

work to ensure that colleges and universities and girls and boys

were getting the needed guidance and support they needed.

We also met with dozens of focus groups during my tenure to

bring in all points of view to see what kinds of issues we could air

and surface and identify for common ground. And I must say—and

I am sorry that he is not here—that I even did yeoman’s duty—

I went to Minnesota with Senator Wellstone in February to meet

with college wrestling coaches and talk with them about ways that

we might find common ground and to understand the reality of

Title IX.

The reality of Title IX is this: One, the standards in the area of

athletics do not mandate quotas or statistical parity. The Department of Education has said as recently as this year in its brief filed

in the lawsuit that was discussed earlier that there are three different avenues of compliance, and institutions have flexibility in

providing nondiscriminatory participation opportunities to their

students. The Department is clear and has been clear—OCR does

not require quotas.

Second, Federal courts on multiple occasions have affirmed the

Department policies. Numerous—in fact every circuit court opinion

of record has affirmed the wisdom of the Department’s athletic

standards, and when the question has been raised about illegal

quotas, they have rejected that claim.

Third, actions—actions which frequently speak louder than

words—prove that proportionality and quotas and statistical parity

are not the driving force of Title IX enforcement. I will tell you that

as a Federal official, I got very tired of hearing the ‘‘He said, she

said.’’ So one day, we brought in staff and said let us do our homework; let us uncover exactly what colleges and universities are

doing when complaints are filed with the Office for Civil Rights.

Much of this data has been published in subsequent GAO reports, but what it tells you is this—over 70 percent of the schools

that have been the subject of OCR athletics complaint investigations or compliance reviews have chosen prongs 2 or 3 to come into

compliance, not prong 1, the one that we hear it is all about. So

rhetoric aside, the facts show and the GAO has reported on two

separate occasions that reality.

Finally, I would like to make the point that Federal law across

the board and certainly in this context conforms to the goal of providing significant flexibility to institutions that must address their

Federal legal obligations. OCR and the courts have demonstrated

a keen understanding of the complexities sometimes involved in

achieving compliance and have allowed a wide range of choices

with reasonable time frames to help institutions do their job.

Thus, both in substance and as a matter of process, reasonable

and practical standards guide the enforcement of Title IX.

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We have much to celebrate today as Title IX is 30 years old, but

as I learned first-hand from my 6-year-old, there is still much work

to do. It is imperative that we continue to work together around

shared goals and common ground to ensure that the promise of

Title IX is a reality for everyone.

Thank you.

[The prepared statement of Mr. Coleman follows:]

PREPARED STATEMENT OF ARTHUR L. COLEMAN

Mr. Chairman and members of the committee: Thank you for providing me with

the opportunity to testify today regarding Title IX of the Education Amendments

of 1972, which is a landmark civil rights law that was passed by Congress 30 years

ago to eliminate sex discrimination in all aspects of American education—in the

classroom, in the hallways, and on the athletic fields. Protecting both girls and boys

from discrimination, this law operates to ensure that we do not make decisions in

any facet of education based on overbroad generalizations or stereotypes. Equal opportunity in education is, at its core, about giving all of our students the tools and

the range of choices that they deserve so that they can chart their own course— to become another Sally Ride in space or Mia Hamm on the soccer field.

This principle has particular resonance with me—not just because I am a former

Federal official and now counselor to education institutions, but also because I am

the proud father of a six-year old girl and year-and-a-half old little boy. It was not

too long ago that I was talking with my daughter Kate about what she wanted to

be when she grew up, and she quickly informed me that she wanted to be a nurse.

We talked about what an important job that was and how she could do many good

things for people as a nurse. I then, almost in passing, asked about whether she

had thought about becoming a doctor. Without hesitation, she advised, ‘‘Of course

not.’’ I was quickly told that ‘‘girls are nurses and boys are doctors.’’ Needless to

say, we talked a bit further about how girls—and boys—could be anything they

wanted to be, if they just made the effort.

When I am not doing my most important job of being a parent, I am an attorney

with Nixon Peabody LLP here in Washington, D.C., where I work with States, colleges and universities, school districts, and other educational providers to help them

understand Federal legal requirements in the context of their educational objectives

and to structure policies and programs that are most likely to comply with Federal

laws—improving educational outcomes for all students along the way. I continue to

believe now—as I did when I served as Deputy Assistant Secretary for Civil Rights

in the Department of Education [the Department] under the leadership of Education

Secretary Richard Riley—that the Federal nondiscrimination laws, properly understood, are grounded in sound educational practice. As a consequence, there is seldom

any one cookie-cutter way to achieve compliance. Under Title IX, as elsewhere,

schools should be and are given a range of choices about methods for achieving legal

compliance that make sense in their particular context and setting. The only choice

that they are not given is whether to comply. On this point, Title IX is clear: ‘‘No

person in the United States shall, on the basis of sex, be excluded from participation

in, be denied the benefits of, or be subjected to discrimination under any education

program or activity receiving Federal financial assistance.’’ In my over six years of service in the Department, I focused a significant amount

of my policy and enforcement responsibilities on issues related to Title IX, and developed a very keen awareness of the successes for which we should all be grateful,

and the challenges that lie ahead as we work to eliminate discrimination in all of

its forms from our schools. In the context of the achievements and the unfinished

work to be done, there are some very clear—indisputable—foundations that must

be understood in order to have any meaningful discussion about or accurate understanding of Title IX. I want to focus my testimony on those foundations because,

simply stated, we should be clear about the facts before we begin evaluating the

record of Title IX. (This is especially true where the rhetoric surrounding Title IX

often does not match reality.)

WHAT WE KNOW ABOUT TITLE IX

1. Title IX Covers All Aspects of Education: Title IX’s Coverage Extends to the

Classroom, the Hallways and the Athletic Fields of Our Schools that Receive Federal Funding.

As we celebrate the 30th Anniversary of this historic legislation, some in the

media and elsewhere have tended to describe Title IX as an athletics law. And while

35

it surely plays a role with respect to athletics, it is important that we not lose sight

of the critical role that it plays in other areas of education. We no longer see education gaps in many areas, as a result of this law. From the course-taking patterns

of high school girls in upper level math and science to the college completion rates

of young women, we’ve witnessed major progress regarding student achievement,

and have reversed patterns that were once driven by prevalent and different expectations for men and women. We’ve seen major strides in defeating stereotypes about

what women can achieve in ‘‘men’s occupations,’’ with dramatic increases in the

numbers of women entering the medical profession, the legal profession, and certain

Ph.D. programs. By the same token, doors have opened to men in professions that

were once considered ‘‘female professions’’ as a result of efforts tied to Title IX enforcement and related laws. Moreover, without Title IX, we wouldn’t have the kind

of focus and enforcement of principles that prohibit sexual harassment of students

and teachers in schools. The issue of sexual harassment is a very real one—for girls

and boys. It is one on which there has been substantial focus and progress, but as

in so many other areas, there is still much work to do.

2. There is Substantial Common Ground: Title IX Standards Have Stood the Test

of Time, Having Enjoyed Bi-partisan and Widespread Federal Court Support for

Decades.

Title IX is one Federal law that has enjoyed bipartisan support for three decades.

In both Republican and Democratic Administrations, on both sides of the aisle in

Congress, and in the overwhelming majority of Federal court opinions on the subject, we have seen a repeated reaffirmation of the principles that guide the Department. Sen. Hatch once 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.’’ I would venture that it is

likely that that sentiment is as true today as it was when he made the statement

in 1984 on the Senate floor.

Corresponding to this long-standing commitment to equal opportunity are the

long-standing requirements that both guide the work of the Office for Civil Rights

and help shape the opinions of the Federal courts, which will in appropriate cases

look to the interpretations of the Department for guidance. Guided by a law passed

in 1972, and upon regulations signed by President Ford in 1975, which were reviewed and approved by Congress, OCR has addressed the requirements of Title IX

in particular contexts—from admissions to counseling, from athletics to sexual harassment. I would like to briefly address the latter two areas, in which the Department has invested significant effort to help institutions ensure that the promise of

Title IX is a reality for all students today.

First, with regard to gender equity in athletics, the Department has published

several letters of guidance and clarification regarding the application of Title IX—

to help explain and describe the implementation of the standards that have been

in place since the late 1970s. During my tenure with the Office for Civil Rights, we

very intentionally did not seek to revise or modify long-standing requirements. After

hearing from colleges and universities that inconsistency in enforcement and clarity

was the issue, we worked to provide the assistance requested. Instead of re-writing

a 1979 policy on Title IX and intercollegiate athletics (which had followed a review

of more than 700 comments on a previous draft), we determined that if it wasn’t

broken, there was no need to fix it.

From some quarters, we heard then—as we are hearing yet again—that the

‘‘three part test’’ that comprises one part of the Title IX standard in athletics is

merely a quota law, that it requires strict proportionality between men and women

on campus, and that, in the words of one news analyst this past Sunday morning,

it requires ‘‘dogmatic statistical parity.’’ My response to those claims is simple: Before we attack a law, we should do our homework. In this case, the facts are these:

Department policies are clear: Title IX standards in the area of athletics do not

mandate quotas or statistical parity at any institution. The Department has for

years made this point, and in its most recent policy clarification said: ‘‘There are

three different avenues of compliance,’’ and ‘‘institutions have flexibility in providing

nondiscriminatory participation opportunities to their students, and OCR does not

require quotas.’’

Federal courts have consistently affirmed Department policies. In multiple Federal circuits, Federal appellate judges have affirmed the wisdom of the Departments

athletics standards, and have consistently rejected claims that they imposed illegal

quotas.

Actions by colleges and universities prove that proportionality is not the driving

force of Title IX enforcement, as it is not the avenue that most schools choose when

deciding how to comply with Title IX. While at the Department, I directed a study

36

to determine, in fact, the actual choices that were being made by schools when faced

with complaints of discrimination and when further work was needed. The results

of that study—published in a 1996 GAO report—show that (in cases where schools

had made compliance decisions) approximately seventy-five percent (75 percent) of

the schools coming into compliance with Title IX pursuant to work with OCR were

not electing the proportionality prong, but rather were choosing one of the two other

avenues to achieve success—with a good faith expansion of opportunities to meet

the needs of the underrepresented sex, or by effectively accommodating the interests

and abilities of the underrepresented sex.

In fact, another report issued by the GAO (in 2001) found that while complying

with Title IX was often one reason behind institutions’ decisions to offer or not offer

different athletic opportunities for men or women, the most often cited factor was

the level of interest in the particular sport.

Second, in the area of sexual harassment, and in the wake of incidents where it

was clear that schools were overreacting to claims of harassment just as they were

at times not paying enough attention to the issue, the Department published guidance to conform with existing Federal court legal standards, to help explain those

standards, and to describe the steps that schools should take on the front end to

help avoid problems. In an effort to closely track the consensus among Federal

courts, and to adhere to Supreme Court precedent in the area, the Department published in 1997 and then again in 2001 (in the wake of new Supreme Court decisions)

policy guidance for schools, which are obligated under Title IX to address issues of

harassment on their campuses. This is one of several areas where we at the Department recognized that the old adage fully applies: ‘‘An ounce of prevention is worth

a pound of cure.’’ As a consequence, the Department’s Office for Civil Rights

partnered with schools, states, and organizations like the National Association of

Attorneys General to provide, in writing and in person, technical assistance designed to assist schools in their efforts to ensure that they comply with Federal law,

while at the same time helping promote the kind of learning environment in which

all students are welcome and can fully participate.

3. Sound Educational Results: Reasonable, Practical Avenues for Meeting the Requirements of Title IX Are In Place.

The final point that I would like to make expressly is one that is implicit in my

review of OCR’s work above. Namely, Federal law and OCR’s practices conform to

the goal of providing significant flexibility to institutions that must address their

Federal legal obligations. OCR and the courts have demonstrated a keen understanding of the complexities sometimes involved in achieving compliance, and have

allowed a wide range of choices with reasonable time frames for implementing those

choices. Thus, both in substance and as a matter of process, reasonable and practical standards guide the enforcement of Title IX.

I would also like to add, at this point, that it was my distinct privilege to work

with the hundreds of career employees in the Office for Civil Rights and in the Department during my tenure at the Department. What I found as I came to know

them was that they were a group of individuals committed to the principles of equal

opportunity for all students, regardless of background, and that they had a healthy

respect for the range of legitimate institutional interests that must be considered

and valued as we all work together to achieve the goals of our nondiscrimination

laws.

Those staff worked diligently to improve services, identify problems and correct

them as they surfaced, and to find ways to partner with educational institutions to

create a better understanding of the common ground and common sense solutions

that, in fact, exist with respect to Title IX and other federal laws.

CONCLUSION

Mr. Chairman, we have much to celebrate on this 30th Anniversary of Title IX,

but as I learned first-hand from my six-year-old daughter, our work is not done. It

is imperative that we continue to work together around the shared goals embodied

in Title IX to ensure that our daughters and our sons will have as many doors as

possible open to them in the future—in the classroom and on the athletics field.

Thank you.

Senator MURRAY. Thank you very much, Mr. Coleman.

Thank you all for your excellent statements. Unfortunately, we

only have time for a couple of questions.

Mr. Coleman, you have spent a great deal of time looking at Title

IX. You said you had study groups and did a lot of research and

37

talked to a lot of people and even went to Senator Wellstone’s State

in February, which you should receive a lot of credit for.

Do you think that the administration’s decision to appoint this

new commission will bring about any new information?

Mr. COLEMAN. I think there is always the potential that you can

uncover issues that have not surfaced in the past, although I think

the record is quite clear and full of information about where we

are. My hope would be, frankly, as a matter of process that maybe

we can move away from the polarizing rhetoric which sometimes

does not have a basis in fact and actually get to common ground.

I think one of the interesting points when we hear that Title IX

is causing the cuts in men’s sports—if you look at recent GAO reports, they will tell you point-blank that in one instance, two-thirds

of the schools surveyed that have added women’s sports in the decade of the nineties have been able to do so without cutting men’s

teams.

The important point here is prongs 2 and 3, where virtually twothirds or more of schools are choosing to come into compliance, cutting a men’s sport would not help you comply. If you understand

the law, you need to know that that avenue will not help you come

into compliance with Title IX.

Senator MURRAY. How can we assure that the commission that

has been appointed will look to that question?

Mr. COLEMAN. I would hope they would be able to take the case

law, the OCR investigations, the decisions that have been made, as

well as the published reports on the issue, and ensure they see

what the facts are.

Senator MURRAY. Senator Bayh, what is your opinion of the new

commission that has just been appointed?

Senator BAYH. Madam Chairman, as I said earlier, I am an incorrigible optimist, and I am hopeful that this commission will be

able to find some innovative ways, that they will not tinker with

what the goal is—you and Congress are the ones who determine

when that goal is changed, not some commission that has been appointed—you do a pretty good job of studying the issues as well.

So I am hopeful that the personal experiences that are brought

there will provide some new opportunities for others who might not

have thought of the opportunities, like the folks out at Washington

State did.

I would like to mention one other thing if I might. During the

period of time when all this discussion was taking place about the

fact that wrestling programs had been terminated—and frankly, I

think that that is most unfortunate; I would be very angry if I were

a wrestler—but instead of suing the Department of Education, I

would sue the institution that discriminated against my sport. But

during all that time in which a handful of men’s sports opportunities were terminated, there must have been several hundred

schools that established new men’s teams like baseball. So the

math is that a lot more men’s sports were being created at the very

time when some of them were being denied.

Ms. HOGSHEAD-MAKAR. Not only are more men’s teams being created, but spending is actually increasing at a faster rate for men

than it is for women; so for every $2 that goes into men’s sports, you have $1 going into women’s sports.

38

Senator MURRAY. Professor, is it your experience, or do you think

it is necessary to change the three-part test that governs Title IX?

Ms. HOGSHEAD-MAKAR. I cannot imagine why. Let us say there

is a junior varsity softball team that wants to become varsity. They

need to have some kind of benchmark to be able to point to to be

able to tell their athletic director here is why you are not giving

us opportunities, based on gender, based on sex.

You cannot just look at tea leaves and say I think women should

have more opportunities or should not have more opportunities.

You need to have three different ways, or something that a school

can look to to see whether or not they are in compliance. If you do

not have some way of measuring compliance, then, the law is basically meaningless—it becomes a nice sentiment—well, we should

not discriminate against women. Someone can then say 10 percent

of opportunities are for women, and that is fine.

Senator MURRAY. Mr. Coleman, do you want to comment on that?

Mr. COLEMAN. Simply that one of the reasons why Title IX athletics gets perhaps an undue share of the headlines around the difficulties and the frequent polarization is because it is one of the

very few areas where we say ‘‘separate and equal.’’ On many occasions, you are comparing apples and kiwis. You are not comparing

identical things. You do not have girls and boys in the same classroom, doing the same things, so the issue are different.

So I think the three-part test, with its multiple ways of allowing

institutions to come into compliance, makes sense. There is no absolute perfect way. There is a logic behind each of them, and I

think that flexibility that is inherent in Title IX enforcement is

quite appropriate in this context.

Senator BAYH. And the decision is made back home, at the institution.

Mr. COLEMAN. Precisely. It is at the institutional level. And I

should also say that if, as some advocate, you eliminate prong 1,

what have you done? You have just taken away a choice that a university may make. And I believe in providing, consistent with the

broad parameters of civil rights laws, the maximum flexibility to

let institutions and other entities comply.

Senator MURRAY. Well, I appreciate all of you being here today,

and Mr. Coleman, I truly enjoyed your story about your 6-year-old

daughter. I used to teach preschool, and I took a large group of 5-

year-olds to a fire station one day, and we went through and saw

where they slept and where they cooked dinner and where they

kept the fire trucks. When we were all done, a 5-year-old girl

turned to me and said, ‘‘I cannot be a fireman.’’ I asked, ‘‘Why not?’’ She said, ‘‘Because I do not want to cook for all those guys.’’ [Laughter.]

So you never know where children’s assumptions are going to

come from.

We do have progress to make, but we have made a tremendous

amount of progress, and I want to particularly thank all three of

you for the tremendous efforts you have made. For my daughter

and some future grand-daughter that I may have, it has made a

tremendous difference, and we want to make sure that that stays

there.

39

Thank you very much. I will leave the record open for 5 days for

further questions.

Senator Bayh, you have a final comment.

Senator BAYH. Madam Chair, may I offer three documents that

I think the committee will find very helpful—one is entitled, ‘‘Title

IX at 30: A Report of the National Coalition of Women and Girls

in Education’’; second, compiled by the National Women’s Law Center, ‘‘The Battle for Gender Equity in Athletics’’ and ‘‘Equal Opportunity for Vocational and Technical Education: A Promise Still

Owed to the Nation’s Young Women.’’ It starts at a very early age where girls are put in one channel

and boys are put in another, and we are living in an entirely different world now.

Senator MURRAY. Those will be put in the record. I thank you

very much, Senator Bayh.

[Documents can be found in additional material.]

Senator MURRAY. I thank all of you.

The committee is adjourned subject to call of the chair.

[Additional material follows.]

40

ADDITIONAL MATERIAL

PREPARED STATEMENT OF RODERICK PAIGE

Mr. Chairman, Senator Gregg, and members of the Committee, I appreciate your

invitation to join you today, because it gives me the opportunity to discuss one of

the most important civil rights laws in our nation’s history: Title IX of the Education Amendments of 1972.

As you know, we just celebrated the 30th anniversary of this landmark legislation. Without a doubt, Title IX has opened the doors of opportunity for generations

of women and girls to compete, to achieve, and to pursue their American dreams.

Many of the people in this room today are too young to remember what the world

was like prior to 1972 when Title IX became the law of the land and prohibited

schools that receive federal funds from discriminating on the basis of sex.

Back then, it was not uncommon for high school girls to be ‘‘steered’’ to courses

that narrowed their future options. High schools routinely excluded girls from classes that stood to give them the skills to compete for higher paying jobs.

Those who overcame these obstacles and proved themselves worthy of college admission often faced new barriers, such as quotas that limited female enrollment.

This held especially true in the professional schools for such disciplines as law

and medicine. The stories are legion of women who made it into the schools—even graduated first in their classes—yet they still endured shunning and harassment for

their efforts.

Thanks to the vigorous enforcement of Title IX, as well as society’s greater acceptance of women in the workplace and on the playing field, more women than ever

are playing sports, graduating from college, and pursuing their dreams.

For example, we have seen explosive growth in certain girl’s and women’s sports

at the high school and college levels.

In 1971, before Title IX went into effect, more than 294,000 girls participated in

high school sports. Last year, that number exceeded 2.7 million—an 847 percent in- crease. Between 1981 and 1999, the number of college women’s teams rose 66 percent.

According to the General Accounting Office, colleges created nearly 3,800 new women’s sports teams, including 846 soccer teams, 516 cross-country teams, 432 softball

teams, 350 volleyball teams, 304 indoor track teams, and 302 basketball teams.

In 1972, when Title IX became law, 44 percent of all bachelor’s degrees went to

women—as compared to 57 percent in 2000, the most recent year data was published.

Today, the majority of college students are women. And many are entering professions that once eluded them.

In 1972, only 9 percent of medical degrees went to women—as compared to nearly

43 percent in 2000. In 1972, only 1 percent of dental degrees went to women—as

compared to 40 percent in 2000. And in 1972, only 7 percent of law degrees went

to women—as compared to nearly 46 percent in 2000.

It is no longer unusual to see women in positions of power and influence—including running large companies, ruling from the bench, or advising the President of

the United States. Women fill key leadership positions throughout the Administration, including at the Department of Education.

Clearly, the changes brought about with the help of Title IX have greatly expanded the opportunities for girls and women to achieve their greatest potential.

And we at the Department of Education are working to build on these successes.

President Bush put it best when he said: ‘‘Tremendous advances have been made

in the fight for equality. But we must remain diligent in enforcing our nation’s laws.

And we still have work to do in this area.’’

Indeed we do. And as the U.S. Secretary of Education, I am proud to be a part

of implementing the President’s vision of a nation where civil rights laws are enforced fairly and vigorously.

In that regard, the Department of Education is working diligently to address complaints of Title IX violations. Let me give you some recent examples.

The Office for Civil Rights received a complaint from a school district that girls’

basketball games were never scheduled during prime playing time—like Friday

nights—as the boys’ games were.

We found this not only to be true in that district, but in seven other districts in

the same area. The Office for Civil Rights entered into commitments with all the

districts, and, starting with this upcoming school year, all eight districts will provide

equal opportunity for boys and girls to play on prime time nights.

In another case, we received a complaint against a school district alleging that

the athletic facility for the girls’ softball team was inferior to that provided for the

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boys’ baseball team. We found the charge to be true, and the school district agreed

to build a comparable girls’ softball facility on the high school grounds.

In yet another case, we worked with a state’s school board association to help develop a model policy barring harassment of students and staff based on sex, race,

national origin, and disability. Last month, the Office for Civil Rights and the school

board association issued a letter announcing the model policy. We are now working

to help them spread the message to all the schools in that state. And we are sharing

this model with other states.

And, finally, after we investigated a number of complaints against one university,

the school agreed to significant changes, including:

Recruiting female athletes from high schools and providing athletic scholarships;

Providing female athletes with the same opportunities to attend summer school as

their male counterparts; Providing the same benefits for the coaches of the women’s

teams as is provided for the coaches of the men’s teams; and Providing lockers for

the women’s basketball team, installing lights on the women’s soccer field, and renovating the softball field.

These are just a few examples. But each one speaks of this Administration’s commitment to the hopes and dreams of thousands of girls and women in our nation’s

schools.

When we say we want no child left behind, we mean it. Our goal is to bring out

the best efforts of all our young people in our nation’s schools—from kindergarten

through college.

We celebrate not only the success but also the spirit of Title IX that says, ‘Open

to all.’ Listen to the words that are the heart of Title IX:

‘‘No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any

education program or activity receiving Federal financial assistance.’’

This Administration is committed to those words.

Mr. Chairman, I want to thank you and the members of this Committee again

for letting me come speak today.

I look forward to working with you, because I know you share my commitment

and the President’s commitment to expanding opportunities for all young Americans—girls and boys, women and men—in the classroom and on the playing field.

I’ll be happy to take your questions.

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[Whereupon, at 4:36 p.m., the committee was adjourned.]

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