[Congressional Record (Bound Edition), Volume 149 (2003), Part 10]
[Senate]
[Pages 12925-12927]
[From the U.S. Government Publishing Office, www.gpo.gov]




                         SUBMITTED RESOLUTIONS

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SENATE RESOLUTION 153--EXPRESSING THE SENSE OF THE SENATE THAT CHANGES 
TO ATHLETICS POLICIES ISSUED UNDER TITLE IX OF THE EDUCATION AMENDMENTS 
OF 1972 WOULD CONTRADICT THE SPIRIT OF ATHLETIC EQUALITY AND THE INTENT 
  TO PROHIBIT SEX DISCRIMINATION IN EDUCATION PROGRAMS OR ACTIVITIES 
                 RECEIVING FEDERAL FINANCIAL ASSISTANCE

  Mrs. MURRAY (for herself, Ms. Snowe, Mr. Daschle, and Mr. Kennedy) 
submitted the following resolution; which was referred to the Committee 
on Health, Education, Labor, and Pensions:

                              S. Res. 153

       Whereas title IX of the Education Amendments of 1972 (20 
     U.S.C. 1681 et seq.), also known as the ``Patsy Takemoto Mink 
     Equal Opportunity in Education Act'' (referred to in this 
     resolution as ``title IX''), prohibits education programs or 
     activities, including athletic programs or activities, that 
     receive Federal financial assistance from discriminating on 
     the basis of sex;
       Whereas prior to 1972 and the enactment of title IX, 
     virtually no college offered athletic scholarships to women, 
     fewer than 32,000 women participated in collegiate sports, 
     and women's sports received only 2 percent of college 
     athletic dollars;
       Whereas the regulation implementing title IX was submitted 
     to Congress, multiple hearings were held, and the regulation 
     became effective July 21, 1975, with specific provisions 
     governing athletic programs and the awarding of athletic 
     scholarships;
       Whereas according to the Department of Education's 1979 
     Policy Interpretation, which interprets the application of 
     title IX and its implementing regulations to athletics, an 
     educational institution may demonstrate compliance with title 
     IX's requirement that it allocate athletic participation 
     opportunities on a nondiscriminatory basis to male and female 
     athletes by meeting 1 of the criteria in a 3-part test, by 
     demonstrating--
       (1) that intercollegiate level participation opportunities 
     for male and female students are provided in numbers 
     substantially proportionate to their respective enrollments 
     at the institution;
       (2) a history and continuing practice of program expansion 
     responsive to the developing interests and abilities of 
     members of the underrepresented athletes' sex; or
       (3) that the interests and abilities of the members of the 
     underrepresented athletes' sex have been fully and 
     effectively accommodated by the present program;
       Whereas the 1979 Policy Interpretation and its 3-part test 
     have been in place for over 2 decades and have been supported 
     by both Republican and Democratic administrations;
       Whereas 2 out of 3 educational institutions comply with the 
     second or third criterion of the 3-part test;
       Whereas the Office for Civil Rights of the Department of 
     Education issued a Clarification of Intercollegiate Athletics 
     Policy Guidance in 1996 regarding the 3-part test--
       (1) confirming that educational institutions can comply 
     with title IX's requirement of nondiscriminatory allocation 
     of athletic participation opportunities by meeting any single 
     part of the 3-part test;
       (2) setting out specific examples for compliance to guide 
     the institutions; and
       (3) confirming that there are no strict numerical formulas 
     for determining title IX compliance;
       Whereas the 1979 Policy Interpretation and the 1996 
     clarification provide educational institutions with ample and 
     fair guidance on compliance with title IX and provide 
     flexibility to the institutions so that they may determine 
     for themselves how best to comply with the law;
       Whereas the enforcement mechanism of title IX, the 3-part 
     test, has been upheld as legal and valid by each of the 8 
     United States Courts of Appeals to consider it;
       Whereas since the beginning of title IX implementation, 
     men's participation in intercollegiate sports has increased 
     from 220,178 to 231,866, and women's participation in those 
     sports has increased from 31,852 to 162,783, an increase of 
     more than 400 percent;
       Whereas the number of girls participating in athletics at 
     the high school varsity level has increased from 294,015 in 
     1972 to 2,784,154 in 2001, an 847 percent increase;
       Whereas sex discrimination in athletics persists, despite 
     the strides made under title IX, with, for example, female 
     athletes receiving only 42 percent of the college athletic 
     participation opportunities nationwide, even though female 
     students make up 56 percent of the college population, and 
     female athletes receiving $133,000,000 fewer athletic 
     scholarship dollars per year than their male counterparts;
       Whereas nothing in title IX or its policies requires 
     educational institutions to reduce men's athletic 
     participation opportunities to come into compliance with 
     participation requirements and 72 percent of colleges and 
     universities that have added women's teams have done so 
     without cutting any teams for men;
       Whereas recommendations made by the Commission on 
     Opportunity in Athletics for changes to the athletics 
     policies issued under title IX would seriously weaken title 
     IX's protections and result in significant losses in athletic 
     participation opportunities and scholarships to which women 
     and girls are entitled under current law; and
       Whereas those recommended changes to the title IX athletics 
     policies would allow an educational institution that fails to 
     equally accommodate its male and female students to be in 
     compliance with title IX without having to fully demonstrate 
     that discrimination does not exist in the institution's 
     athletic programs: Now, therefore, be it
       Resolved, That it is the sense of the Senate that--
       (1) changes to athletics policies issued under title IX 
     would contradict the spirit and intent of title IX's mandate 
     to provide equal opportunities in athletics;
       (2) the current title IX athletics policies, namely, the 
     1975 regulations issued under title IX, and the 1979 Policy 
     Interpretation, as clarified in the 1996 Clarification of 
     Intercollegiate Athletics Policy Guidance, should remain 
     unchanged and be enforced vigorously to eliminate the 
     continuing discrimination against women and girls in 
     athletics; and
       (3) if the Department of Education changes the current 
     title IX athletics policies, Congress will respond with 
     legislation to restore the policies and preserve the right to 
     equal opportunities in athletics, as mandated by title IX.

  Mr. DASCHLE. Mr. President, today is opening day for the seventh 
season of the Women's National Basketball Association. The league's 
incredible success demonstrates the enormous influence that title IX 
has had on women in sports, and in society.
  Since the WNBA's inception, the number of players and teams in the 
league have doubled, and its popularity has skyrocketed throughout the 
Nation, and all over the world. It is fitting, therefore, that the WNBA 
has helped lead the way in support of maintaining title IX and its 
enforcement. The league has circulated a petition and collected over 
25,000 signatures, including those of current and former NBA and WNBA 
players, as well as of an impressive array of other prominent 
Americans, to voice concern over the proposed changes.
  It is in the spirit of this overwhelming support for the effort to 
provide equal opportunities for all of America's students that I join 
my Senate colleagues in offering a bipartisan resolution on title IX.

[[Page 12926]]

  Specifically, our resolution would express the sense of the Senate 
that the changes to title IX policies recommended by the Commission on 
Opportunity in Athletics would run contrary to the spirit and purpose 
of the original law, and that the current mechanisms for enforcement 
are both fair and reasonable. Our resolution would also state that 
Congress will respond to any changes in title IX policy with 
legislation to restore these protections, and to preserve the right to 
equal opportunities in athletics.
  The enactment of title IX in 1972 was a landmark moment in this 
history of American education policy. For the first time ever, women 
and girls in schools across the Nation could be sure they would receive 
the same educational opportunities as their male counterparts--
opportunities to learn, grow, and compete.
  But this issue is about more than equality under the law; it is about 
demonstrating to our children that confidence and success in our 
society, in our workplaces, and on our athletic fields know no gender. 
It is about teaching our girls and boys the skills they need to 
participate in our society.
  Studies have shown that girls who play sports are less likely to 
become depressed, fall victim to an eating disorder, take drugs, get 
pregnant, and contract breast cancer later in life. Thus, as a result 
of title IX and the doors that it has opened, our Nation has produced a 
stronger, healthier, happier generation of girls than ever before.
  Title IX's successes have been overwhelming. Prior to 1972 and the 
enactment of title IX, virtually no college offered athletic 
scholarships to women, fewer than 32,000 women participated in 
collegiate sports, and women's sports received only 2 percent of 
schools' athletic funds.
  Since the implementation of title IX, men's participation in 
collegiate sports has increased, and women's participation has 
increased more than 400 percent. At the high school level, the increase 
in athletic opportunities for women and girls has been even more 
staggering; since 1972, female participation in high school varsity 
athletics has increased from 294,015 to 2,784,154, an increase of 847 
percent.
  While title IX has already enjoyed many successes, the fact remains 
that sex discrimination in athletics persists. Unfortunately, the 
Secretary's Commission on Opportunity in Athletics has proposed changes 
to title IX enforcement that are deeply troubling.
  The Commission's report ignores clear evidence showing that our 
daughters' new opportunities have not come at the expense of our sons. 
Nothing in title IX or its policies requires schools to reduce men's 
opportunities to comply with participation requirements, and 72 percent 
of colleges and universities that have added women's athletic teams 
have done so without cutting any teams for men. In fact, evidence 
suggests that we must do more to strengthen title IX enforcement, not 
weaken it.
  Currently, despite the fact that women comprise 56 percent of the 
college population, female athletes receive only 42 percent of the 
college participation opportunities nationwide. In addition, women and 
girls receive $133 million fewer scholarship dollars annually than 
their male counterparts.
  The changes being proposed would significantly weaken the existing 
mechanisms for enforcing title IX's provisions--mechanisums that have 
been in place for decades and have provided adequate flexibility to 
educational institutions seeking to demonstrate compliance.
  Moreover, the current enforcement mechanism has been repeatedly 
affirmed--by the regulations issued by the Department of Education in 
1975, by the Department's 1979 policy review, and by the 1996 
Clarification of Intercollegiate Athletics Policy Guidance.
  These policies have remained unchanged for 20 years, thanks to the 
affirmation of both Republican and Democratic administrations. Instead 
of evaluating proposals that could weaken title IX, the administration 
should focus on efforts to continue to build on its history of success.
  The argument used by detractors of title IX in favor of the 
Commission's recommendations is that title IX has increased athletic 
opportunities for women to the detriment of those available to men. 
This is simply not true.
  Today, the Senate must take a strong stand in favor of title IX as it 
is currently written and enforced. Title IX is an integral part of the 
effort to provide America's students with the opportunities they need 
and deserve to achieve their full potential, and we must not retreat 
from this goal. I urge my colleagues to join me in support of this 
important resolution.
  Mr. KENNEDY. Mr. President, Title IX of the Education Amendments of 
1972 prohibits discrimination on the basis of sex in all education 
programs and activities that receive Federal funding, including sports. 
When Congress passed this important civil rights law, it intended to 
give girls and women opportunities equal to those of boys and men in 
all education programs receiving taxpayer dollars. Today, on opening 
day of the Women's National Basketball Association's seventh season, we 
see again the enormous impact of Title IX on women's sports. Since its 
first season in 1997, the WNBA has doubled its number of teams from 8 
to 16. Last year, millions of fans from countries throughout the world 
tuned to see 176 women play professional basketball in 256 regular-
season WNBA games.
  Over the past 31 years, Title IX has expanded athletic opportunities 
at all levels for all women. Fewer than 32,000 women participated in 
college sports before Title IX. Today, the number is 163,000. 
Opportunities for girls in high school have grown even more incredibly, 
from 294,000 to almost 2.8 million.
  Athletic opportunities contribute to better health for women, and 
they also translate into better outcomes in many other areas as well. 
Participation in sports builds confidence, improves self-esteem, 
reduces stress, teaches teamwork, and improves achievement in 
education.
  The female athletes of the past 31 years who have reaped the benefits 
of Title IX are a tribute to its success. Countless women have taken 
the lessons they learned on the playing field and applied them to the 
rest of their lives. They serve as role models for us all. And one of 
the things they have proved so clearly is that when the opportunities 
are there, women will show up to play.
  But it's never clear sailing for Title IX. Despite all the progress 
in athletic opportunities under the current law, women continue to lag 
behind men in playing time and funding. Women in Division I colleges 
comprise 53 percent of the student body, but they receive only 41 
percent of the opportunities to play in intercollegiate sports, 43 
percent of athletic scholarship dollars, 36 percent of athletic 
budgets, and 32 percent of the dollars spent to recruit new athletes.
  Even though parity is not yet achieved, a movement is under way to 
undermine Title IX. The Bush Administration's Commission on Opportunity 
in Athletics has issued recommendations that would drastically reduce 
its enforcement and put women and girls at a disadvantage by permitting 
schools to reduce athletic opportunities and scholarships for women. 
The Women's Sports Foundation estimates that college women would lose 
50,000 slots and $122 million in scholarships under one of the 
Commission proposals. High school girls would lose 305,000 
opportunities. What is needed is even stronger enforcement of Title IX, 
not weakening or modifying it. The Department of Education should 
concentrate its efforts on fully and fairly enforcing the existing law 
through existing mechanisms.
  Current law on Title IX is fair, and it provides schools with 
flexibility in meeting its requirements. They can comply in any one of 
three ways: by showing that the percentages of male and female athletes 
are substantially proportionate to the percentage of male and female 
student enrolled full-time; by demonstrating a history and continuing 
practice of program expansion to meet the needs of the under-
represented athletes; or by demonstrating that their interests and

[[Page 12927]]

abilities have been fully and effectively accommodated.
  This three-part test has been in place for over two decades, and has 
been supported by both Republican and Democratic administrations. It 
has been upheld by all eight Federal Courts of Appeals who have 
considered it.
  Some critics claim that the first prongs of the three prong test, 
called the proportionality text, has become the de facto test of 
compliance. But in fact, 2 out of 3 schools comply with Title IX 
through the second and third options, not through proportionality.
  The major complaint is that Title IX has hurt men's sports. Yet, 
since the beginning of Title IX implementation, men's participation in 
intercollegiate sports has actually increased, and so has the total 
number of teams for men. Nothing in Title IX or its policies requires 
schools to reduce men's opportunities. 72 percent of colleges and 
universities that had added women's teams have done so without cutting 
any teams for men. When schools have discontinued men's or women's 
teams, a lack of student interest was cited as the most important 
factor in the decision. Schools also discontinue men's and women's 
teams because of choices about how to allocate their resources. These 
decisions are not the product of a Title IX mandate.
  Unfortunately, the President's Commission was not representative of 
the whole Title IX community. Two-thirds of the Commissioners 
represented Division I-A colleges, which have the largest men's 
basketball and football budgets and therefore the most to gain from 
weakening Title IX. No Division II or III colleges, no community 
colleges, and no high schools were represented, even though they tend 
to have the most successful record of implementation of Title IX. Twice 
as many opponents of Title IX were asked to testify before the 
Commission, compared to proponents of the law. Institutions that had 
been sued for non-compliance and lost their cases were invited to 
testify, but the women who were discriminated against and who brought 
these suits and the schools that have complied with the law 
successfully were not invited.
  In response to the unfairness of the process and resulting findings, 
two of the Commissioners issued a minority report summarizing the 
problems with the Commission and its recommendations. Secretary of 
Education Paige has refused to consider the concerns raised in the 
minority report. Needless to say, the Commission was not fair and 
impartial, and it should not be the basis by which Congress judges 
Title IX. The Commission's proposals contradict the spirit of athletic 
equality and the intent to prohibit discrimination against girls and 
women in education.
  Today, we submit a bipartisan resolution to maintain Title IX and 
strengthen its enforcement. Only then will full promise be achieved. We 
must retreat from the Nation's commitment to equal opportunity for 
women and girls in education and athletics. Girls and boys, women and 
men, need education opportunities such as athletics to allow them to 
build character, self-esteem and motivation. The past 31 years 
demonstrate the amazing advances that women and girls have made in 
athletics when they are given the opportunities to play, and it would 
be shameful for Congress or the Administration to misuse that 
extraordinary success as an excuse to retreat now.

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