Herb, I'd certainly be very glad if this step were taken to clarify the
law. However, recent rulings including the one by a panel of the Ninth
Circuit in California ruled that it is perfectly acceptable to come into
compliance with the law by eliminating opportunities. The ruling is Neal
v. Trustees, written by Judge Cynthia Holcomb Hall, Case No. 99-15316,
filed 12/15/1999. Full text is available at the Office of the Circuit
Executive's website at http://www.ce9.uscourts.gov.
As noted by Judge Hall, "a university may bring itself into Title IX
compliance...by decreasing athletic opportunities for...men." This does
not lend itself to a situation in which anyone would win. She also rules
that the institution "can also bring itself into compliance...by
subtraction and downgrading, that is, by reducing opportunities for the
overrepresented gender...." Again, the courts do not appear to be leaning
toward a commonsense win-win situation. The point that I make is that the
OPTION to subtract instead of add is still there, and should be closed off.
Do you have any thoughts on the OPTION?
I also mentioned that this option stems from the first prong of the
compliance test, proportionality to enrollment. I suggest this prong
should be vacated. I would focus on whether everyone's interests (yes,
including the wrestlers') are being met instead of how many of each gender
there are competing.
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