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Title IX Returns to Courthouse

Colleges: In latest challenge to law, plaintiffs claim policy is having a negative effect on men in minor sports.

September 19, 2002|MARYANN HUDSON HARVEY | SPECIAL TO THE TIMES

Terry Crawford, former Olympic coach, coach of national champions, champion of men and women, and a woman, is having a conversation she would have once thought unfathomable.

Mired in conflict, fearful of change because she doesn't quite trust the ones making the changes, she's talking about a law--Title IX--that greatly helped her life and countless other women in sports, and she's troubled that it's not doing the same for men.

"I just finished a term as president of the U.S. Track Coaches Assn., and roster management [capping] in men's teams is a major issue for schools throughout the nation," said Crawford, the track and field coach for men and women at Cal Poly San Luis Obispo, which, she adds, is not a victim.

"The number of athletes on men and women's teams is so drastically different, it's like a flashing neon sign. If a male athlete has an injury or is ineligible, his coach is left in a lurch. On the other hand, schools are adding as many females to the roster as they can almost round up."

That neon sign, which used to signal blatant inequities for women in sports, now has an arrow under it pointing toward the men, and the courthouse. The latest challenge to reform Title IX is now in the throes of legal maneuvering in the U.S. District Court in the District of Columbia. If successful, this case could dramatically change the way the 30-year-old law--credited with having greatly increased opportunities for girls and women in sports--is enforced.

The defendant, the U.S. Department of Education, which enforces the law that bans sex discrimination in education programs or activities that receive federal funds, has filed for dismissal. The plaintiffs, a group of college coaches, alumni and athletes, have filed a motion for summary judgment. Oral arguments are set for Oct. 2.

The court will hear the plaintiffs, as well as other reformist groups that include men and women, claim the department's policy enforcing Title IX was unlawfully adopted and allows schools to run their sports programs under a quota system. With the bulging roster of football teams, and the financial restraints of athletic programs, reformists say leftover opportunities for men in minor sports are sparse and teams often are eliminated or capped by schools seeking to achieve the right numbers for compliance.

Core to the complaint is the three-part test, a policy developed in 1979 to help schools determine if they are in compliance, and the 1996 letter of clarification of that test, which the plaintiffs allege further skewed the law by establishing a quota program.

They want the test invalidated.

"We are saying that the [Department of Education] didn't have the authority to adopt the three-part test in the first place, didn't adopt the test with the proper procedure and, finally, by not revisiting the policy in light of the changed circumstance between the 1970s and the 1990s, failed as an agency," says Larry Joseph, attorney with McKenna Long & Aldridge LLP., the Washington firm representing the plaintiffs.

The Department of Justice has asked for dismissal of the complaint based on procedural grounds. A spokesman for the department said it would make no comment about the suit other than what is contained in its filings. In June, the Department of Education, citing the suit and the 30th anniversary of Title IX, created a commission to review the issues surrounding its policy enforcement.

Previous challenges to Title IX--all of which have been denied--have been against schools. This is the first suit brought against the policy maker. "The other suits were focused on a particular instance--a team being cut by a school, or a team being denied--but this is directly challenging the policy interpretation, and it is a much more narrow focus," said Kim Yuracko, assistant law professor at Northwestern University.

Most of the allegations involving policy in this case have been included, albeit indirectly, in other lawsuits, according to law experts who have reviewed the case. But the allegation that the Department of Education changed the rules without following proper procedure is clearly new.

"It is claimed that the [1979] policy is contrary to statute and the Constitution," says Thomas Sargentich, law professor at American University College of Law.

"I'm unclear about the likelihood of plaintiffs' success with these arguments, which aren't new. I think the most novel thing [about the suit] is the procedural challenge. There are many such challenges in the law generally, and they tend to turn on the court's view of whether the later interpretation significantly differs if at all from the earlier interpretation.

"In general, if courts are disposed to be critical of agencies, it is often easier for them to take such an approach on the basis of procedural concerns, as they don't intrude as directly into the substance of policy."

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