DATE: Monday, May 12, 1997                  TAG: 9705100002
SECTION: LOCAL                   PAGE: B7   EDITION: FINAL 

TYPE: OPINION 

SOURCE: ANN SJOERDSMA

                                            LENGTH:   91 lines

SEX QUOTAS IN COLLEGE ATHLETICS DEFEAT SPIRIT OF TITLE IX

Mark Spitz swam to a record seven gold medals at the Munich Olympics. The Miami Dolphins were a perfect 17-0 en route to victory in Super Bowl VII. And Billie Jean King aced defending champ Evonne Goolagong, 6-3, 6-3, to win her fourth Wimbledon singles title.

The year was 1972, a year of impressive numbers in sports.

But today, 25 years later, one number towers above the rest. It's a nine or, more accurately, ``IX,'' as in Title IX.

In 1972, Congress adopted Title IX, a plainly worded statute prohibiting sex discrimination in educational programs receiving federal funds. Its focus was on basic concerns: admissions, curricula, faculty hirings, tenure. Sports? Yes, but they weren't in the same league - then.

Today, Title IX is virtually synonymous with athletics. It has fundamentally changed the face of collegiate sports, as well as societal attitudes toward women's athletics.

No question, the statute has done much good. But it is ironic to me, a sports-minded feminist, that had the Equal Rights Amendment passed, current Title IX law about ``compliance'' in athletics probably wouldn't have gotten to first base. In the cause of ``gender equity,'' courts today are crunching numbers to create athletic ``opportunities'' for women, without regard to whether women even want them or to the harm done to men.

How in the world did Title IX go from being a simple anti-discrimination statute to an affirmative-action mandate, a sex-quota-based system? How did women's demand for equal treatment result in courts giving them preferential treatment?

Two words: federal bureaucracy. The unelected minions of regulation have complicated - and confounded - Title IX beyond recognition. Beyond spirit and intent.

In 1979, the Department of Education's Office of Civil Rights published an ambiguous Policy Interpretation of its own ambiguous regulations governing Title IX. Since then, the courts have tried to interpret OCR's interpretation, notably an ambiguous ``three-prong'' test of compliance.

I wouldn't wish these prongs on any lawyer. Not even F. Lee Bailey. They're cruel and unusual, and. . . . they were at the heart of Brown University vs. Amy Cohen et al., the much-watched Title IX case that the U.S. Supreme Court recently refused to review. The court opted to sit on the bench and watch Congress play this game.

Brown, a 2-1 ruling from the 1st U.S. Circuit Court of Appeals (North Carolina and Virginia are in the 4th Circuit) ``favored'' the female student-athletes. But it's the court's interpretation of the ghastly prongs that counts. Despite a touchy denial, that interpetation leads inevitably to sex-based quotas, which Congress expressly disavowed. And to what appears to be discrimination against men, violative of both Title IX and equal protection.

Here's the question the court had to answer: Did Brown University ``effectively accommodate the (athletic) interests and abilities of members of both sexes''? If it did, there's no Title IX foul. If it didn't, there is. Simple enough, right? Ha! Remember the prongs!

Brown could comply with Title IX only if it:

Prong 1. Provided athletic participation opportunities for male and female students in numbers ``substantially proportionate'' to their respective enrollments; or

Prong 2. Could show a ``history and continuing practice of (athletic) program expansion'' that demonstrates it is responsive to the developing interest and abilities of the ``underrepresented'' sex; or

Prong 3. Could show that the interests and abilities of the underrepresented sex ``have been fully and effectively accommodated by the present program.''

Brown University, a leader in ``gender equity,'' had a 13.01 percent disparity between overall female athletic participation (38.13%) and female enrollment (51.14%). Narrow the gap, the court said. Cut men's programs if need be.

Brown also had an ``impressive history'' of program expansion, but it wasn't ``continuing,'' the court said. And it had accommodated women's interests and abilities, but not ``fully.'' The court's logic on these points is beyond torturous. Trust me. F. Lee would agree.

So, how does a university prove a ``continuing expansion'' of athletic opportunities for women and a ``full'' accommodation of women's interests? Through sex-based statistics, of course. Through quotas.

Brown argued that women have less interest in sports than men and that lack of interest - not lack of opportunity - accounts for ``gender disparity.'' But the 1st Circuit refused to look at data supporting this argument. Some stats, it seems, the court likes, some it doesn't.

Dissenting chief Judge Juan R. Torruella, however, found reason to believe the three-prong test unconstitutional. His legal analysis centering on equal protection provides a good starting-over point for Title IX reform.

In 1972, the athletic playing field was decidedly unlevel. Today, it still is. But now it tilts to the ``other side.'' As a good old ERA feminist, I don't want to pile on the points. I just want to even the score. How 'bout it? MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book

editor for The Virginian-Pilot.

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