Leahy: Proportionality is a “quota system”

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Rob Sherrill (TheMat.com)
08/28/2002


   ATLANTA, Ga. - As the first of four scheduled Town Hall Meetings conducted by the Secretary's Commission on Opportunity in Athletics concluded Wednesday, supporters of re-examining the current interpretation of Title IX, the law prohibiting discrimination in educational programs, including intercollegiate athletics, on the basis of sex, left the Wyndham Downtown Hotel cheered by the testimony presented by attorney and author Crista Leahy in the morning session.     In response to questioning by members of the 15-member Commission, Leahy handed those seeking re-examination some of their best ammunition to date when she stated that "the only way for universities to comply (with Title IX) is by substantial proportionality," and said she considered the proportionality standard "a quota system."    Established by Secretary of Education Rod Paige on June 27, the Commission, co-chaired by former WNBA Houston Comets star Cynthia Cooper and Stanford University Director of Athletics Ted Leland, was convened to collect information, analyze issues, and obtain broad public input directed at improving the application of current Federal standards for measuring equal opportunity for men and women and boys and girls to participate in athletics under Title IX. The Commission must report its findings, in a written report to Secretary Paige by January 31, 2003, as to whether those standards should be revised and, if so, how; also, to recommend other steps that might be taken to improve the effectiveness of Title IX and to maintain and build upon the extraordinary progress that resulted from its progress 30 years ago. The Commission's second hearing is scheduled for September 17 at the Drake Hotel in Chicago.    Leahy, a 1996 honors graduate of Princeton University where she played on an NCAA champion lacrosse team, graduated from the University of Chicago Law School this year and is a clerk for the Honorable Frank H. Easterbrook of the Seventh Circuit Court of Appeals. She began Wednesday's testimony by presenting a 30-minute history of Title IX she originally authored in 1996, including the law's original passage in 1972 as part of the Civil Rights Act, the policy interpretations of 1975 and 1979, the latter instituting the three-prong test of compliance still in effect today, the Grove City College vs. Bell court case that effectively gutted Title IX, and its reaffirmation with the passage of the Civil Rights Restoration Act over President Ronald Reagan's veto in 1987. She also addressed the Cohen vs. Brown University case in detail, including the First District Court of Appeals decision that equated opportunity with participation - the introduction of the well-known "safe harbor" that proportionality has become for colleges and universities pondering Title IX compliance.      But it was the question-and-answer exchange with Commission members that produced Leahy's most explosive remarks.     It began when Boston College Athletics Director Gene DeFilippo asked Leahy whether sufficient guidance exists for determining compliance based on prongs 2 and 3 (effective accommodation and fulfilling student interest) of the three-prong test.     "A university that is being sued has plaintiffs sitting on the other side of the courtroom who are assumed to be interested and able," Leahy replied, adding: "There is no clear indicator of prong 2. There is no clear guidance. None of the three (prongs) are considered by themselves. What it always comes down to is: What are the numbers? That question always comes up. The problem universities face is that the only way to comply is by substantial proportionality."     Department of Education Assistant General Counsel Brian Jones then asked: "What about the "safe harbor" notion? Should it be eliminated? Is it possible to re-invest it on one of the other two prongs?"     Leahy opined that only the effective accommodation prong might be possible, adding: "What would that mean? What statistics would you use? It all goes back to proportionality. Don't stop accommodating until you've reached substantial proportionality. Substantial proportionality handcuffs universities."     University of Iowa Athletics Director Bob Bowlsby added: "What about the flexibility of the law that we're supposed to have? Prong 3 will never be successful; prong 2 is an ongoing process; so prong 1 is the only answer for universities. Do institutions have any flexibility?"     In a response that completely contradicted testimony presented 24 hours earlier by National Women's Law Center Co-President Marcia Greenberger, Leahy said: "I don't think there's an enormous amount of flexibility. I don't think flexibility is an objective; if it is, we haven't accomplished it. I would spend some effort trying to gauge interest, especially at Division II and Division III schools. I don't think there is flexibility now, but I don't think there should be flexibility."     Greenberger had asserted in her testimony Tuesday that the present policies not only are rational, but do give schools flexibility in determining how they will comply. "The policies are reasonable because they are flexible," Greenberger said. "It could be argued that there is too much flexibility."     Brigham Young University General Counsel and Assistant to the President Tom Griffith questioned why other educational programs, such as drama, music, dance, and engineering, were not being subjected to the same test of Title IX compliance as intercollegiate athletics.     "If I wanted to be an engineer and (a university) told me I couldn't, I'd have a nice little Title IX case," Leahy admitted. "But we would never use that kind of measure in any (other program). It's not a relevant comparison. It's simply easier to use merit criteria in other cases."     Donna DeVarona, the first President of the Women's Sports Foundation, then cut to the chase.    "Do you consider proportionality a quota system?" DeVarona asked. "If we got rid of it, would all the big-time schools cut all their non-revenue sports for men and women and put that money into the revenue sports?"    "Yes, I do consider (proportionality) a quota system," Leahy replied. "Until we have real participation rates that reflect 50-50 (men and women), it's hard to see it as anything but a quota system."  Leahy added she considered it unlikely that non-revenue sports would disappear.    "If we effectively measure interest, why would any university assume there's no interest in (non-revenue) sports?" Leahy asked. "I don't see it happening unless socialization (of students) were to change drastically. Colleges and universities simply can't focus on interest now without considering the proportionality consequences."    Some fireworks also accompanied the presentation by Grant Teaff, Executive Director of the American Football Coaches Association.    "It's time to stop the quota-based atmosphere that today pervades college athletics," said Teaff, who coached football in all three NCAA divisions in a career that spanned over 35 years, 24 as head coach at Baylor University. "By far, the majority of football players at our 700 college programs do not receive scholarships. I was a walk-on. I wouldn't be here today if I hadn't gotten an opportunity. Now, only 20 walk-ons are permitted at the start of fall practice. We don't like denying opportunity, but we're doing it now, both in football and in other sports. Football does not like being the culprit."    When the talk turned to the "arms race" in football - the rush of major Division 1-A football schools to build new facilities and pay head coaches multi-million dollar salaries to keep pace with their peers, Deborah Yow, Athletics Director at the University of Maryland, didn't spare herself from scrutiny.    "I'm part of the problem," Yow admitted. "I'm paying my head football coach (Ralph Friedgen) and my head basketball coach (Gary Williams) seven-figure salaries. And I'm gladly paying them. It's totally market-driven. The University of Maryland is not going to be disadvantaged."    Yow also warned Teaff: "Someone is going to be denied (opportunity), whether proportionality exists or not. There simply is