National Wrestling Coaches Association  1976 Auction Road  Manheim, PA 17545  717-653-8009    College Sports Council  1825 I Street, NW Suite 400  Washington, DC 20006  202-429-2097     Joint Statement of the National Wrestling Coaches Association and the College Sports Council to the Commission on Opportunity in Athletics    September 26, 2002    Dear Commissioners:    The Commission's charter directs you to "collect information, analyze issues, and obtain broad public input directed at improving the application of current Federal standards for measuring equal opportunity" under Title IX.  In that important and complicated undertaking, the National Wrestling Coaches Association (NWCA) and the College Sports Council (the Council) focus you on several prominent fallacies and offer our views on the most pressing issues facing the Commission.    By way of background, the Council is a growing coalition representing the interests and ideals of intercollegiate athletics.  At present, Council members include the NWCA, the College Swimming Coaches Association of America, the College Gymnastics Association, and the United States Track Coaches Association.  The NWCA and Council are plaintiffs in the lawsuit filed by coaches, student-athletes, and alumni against the 1979 "Three-Part Test" and the January 16, 1996 memorandum purporting to clarify that test.  In addition to the Council's members, several sports groups have gone on record as supporting our lawsuit, including USA Wrestling, USA Gymnastics, and US Diving.    Legal Misconceptions About Title IX, the Three-Part Test, and Our Lawsuit    Opponents of reform have characterized our lawsuit as an attack on Title IX and have argued that the Three-Part Test is part of Title IX.  Perhaps as a result, on June 28, 2002, the Washington Post reported that the lawsuit "ask[s] a federal court to invalidate Title IX."  Similarly, on the July 4, 2002 Newshour with Jim Lehrer, a co-president of the National Women's Law Center stated that "in fact, the wrestlers' case tries to set aside the 1975 regulations issued under the Ford Administration."  Given this confusion about even the most basic background "facts," it is important to describe what our lawsuit challenges, and what it does not.      Title IX is a statute, enacted by Congress in 1972, that prohibits intentional gender-based discrimination in federally funded educational programs.  Title IX also directs federal agencies (such as the Department of Education) to issue regulations, rules, and orders to effectuate that prohibition.  In 1975, the Department's predecessor issued, and President Ford signed, regulations that require schools to provide "equal athletic opportunity for members of both sexes," which includes an inquiry on "[w]hether the selection of sports and levels of competition effectively accommodate the interests and abilities of both sexes."  Those regulations also allow the Department to consider "other factors."  Finally, in 1979, the Department's predecessor adopted a Policy Interpretation that - along with many other things - includes the Three-Part Test as a factor that it intended to consider in its regulatory (not statutory) inquiry into the equality of athletic opportunity when it reviewed the merits of the 92 complaints then pending before it.      If, instead, the Department's predecessor had intended the Three-Part Test to apply prospectively, beyond those 92 complaints, it would have needed first to amend the regulations and then to obtain President Carter's signature in order for the amended regulations to supplant the regulations signed by President Ford.  It took neither of these statutorily required actions.  Consequently, the Three-Part Test is neither the statute nor the regulation, but instead remains an ad hoc factor designed to address 92 instances of alleged discrimination that took place more than 20 years ago.      Our lawsuit challenges only the Three-Part Test and the subsequent 1996 "Clarification" of the Three-Part Test.  Thus, contrary to the assertions of the National Women's Law Center and the Washington Post article, we are not challenging the 1975 regulations or Title IX.  Indeed, we are trying to enforce both, which together provide for equal opportunity based on interest and prohibit intentional gender-based discrimination.  In marked contrast, the post-Clarification Three-Part Test provides for equal participation based on enrollment and purports to authorize gender-conscious cutting and capping solely to achieve a numerical quota (the enrollment ratio of men and women at a particular school).      If we prevail in our lawsuit, therefore, the regulations will continue to require schools to provide student-athletes of both genders with equal athletic opportunity based on interest.  Indeed, an unchallenged part of the 1979 Policy Interpretation will continue to require schools to "take into account the nationally increasing levels of women's interests" when assessing interest.  At any school where men and women are equally interested in intercollegiate athletic competition, therefore, a victory in our lawsuit will not affect the school's obligations.  Where either gender has a higher interest in intercollegiate athletics, however, the school must provide athletic opportunities in proportion to the respective levels of interest.      Thus, schools will need to assess interest, potentially looking to a variety of factors such as high school athletic participation rates, student demographics, students' eligibility to participate in sports, the genders' respective participation rates in alternate extracurricular activities, and the regional or national character of the market from which the school draws its students.  For example, the time commitments associated with many extracurricular activities correlate against having time to participate in intercollegiate athletics.  Schools cannot punitively limit the athletic opportunities of one gender because students of the other gender freely choose to participate in alternate extracurricular activities.  Consequently, the gender ratios for the entire student body cannot and do not accurately predict interest in intercollegiate athletics any more than they predict interest in dance or music.  Although proportionality with enrollment ratios may be easy to measure, administrative convenience cannot justify discrimination.      Notwithstanding that the original 1975 Title IX regulations allowed a school to assess interest by a "reasonable method [it] deems appropriate," schools want and need a deterministic model to ensure that they do not discriminate against either men or women.  Thus, it is imperative that the Commission and the Department provide schools with guidance on "safe harbor" methods for measuring interest in intercollegiate athletic competition.  The easiest solution is to survey incoming students, either directly during orientation or indirectly through the background information provided with the standardized SAT and ACT tests.  To adjust for students who either lose or gain interest during the course of their education, schools could supplement that data by correlating students' answers with their subsequent participation.  If you find this issue either highly divisive or statistically complex, however, the Commission could recommend that the Secretary of Education commission an independent, peer-reviewed analysis by professional demographers.  In similar regulatory contexts, Congress and federal agencies often seek the assistance of the National Academy of Sciences (NAS) to analyze complicated technical issues in a professional and impartial way.      Factual Misconceptions about Opportunities in Intercollegiate Athletics    In its annual report for 1981-82, the National Collegiate Athletic Association (NCAA) began reporting women's sports participation and the number of women's teams offered.  Perhaps as a result, the readily available data published by both the NCAA and the U.S. General Accounting Office (GAO) report on athletic opportunities start with 1981-82 and end with the most recent data available.  For example, the most frequently cit