[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.]

                                    

      
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