    [Senate Hearing 107-542]
    [From the U.S. Government Publishing Office]

                                                              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

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              COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

                   EDWARD M. KENNEDY, Massachusetts, Chairman
    CHRISTOPHER J. DODD, Connecticut     JUDD GREGG, New Hampshire
    TOM HARKIN, Iowa                     BILL FRIST, Tennessee
    BARBARA A. MIKULSKI, Maryland        MICHAEL B. ENZI, Wyoming
    JAMES M. JEFFORDS (I), Vermont       TIM HUTCHINSON, Arkansas
    JEFF BINGAMAN, New Mexico            JOHN W. WARNER, Virginia
    PAUL D. WELLSTONE, Minnesota         CHRISTOPHER S. BOND, Missouri
    PATTY MURRAY, Washington             PAT ROBERTS, Kansas
    JACK REED, Rhode Island              SUSAN M. COLLINS, Maine
    JOHN EDWARDS, North Carolina         JEFF SESSIONS, Alabama
    HILLARY RODHAM CLINTON, New York     MIKE DeWINE, Ohio
               J. Michael Myers, Staff Director and Chief Counsel
                 Townsend Lange McNitt, Minority Staff Director

                                C O N T E N T S

                                  ----------

                                   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

                   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.
        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 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 gender-based
    preferences or quotas, or specific timetables for implementing
    numerical goals. Title IX operates to ensure that the gender-
    segregated 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 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.
        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 school-sponsored 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 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 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 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 fairness 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.
        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 commitment 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 percent 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.
      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 accountable 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 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.
        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.
        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 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 co-chair 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.
        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 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 enrollment in vocational and technical programs
    resemble the sex-segregated 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.
        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.

     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 26\1/2\ 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
    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.
        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
    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.
        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. 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:]

                   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.
        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,
    group-wide 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.
        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.

        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-year-old, 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.
        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.
        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 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 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 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
    two-thirds 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.
        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.
        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.]

                              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 increase.
        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 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.]