RE: Title IX softball case

Date: Thu Apr 13 2000 - 10:51:05 EDT

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    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

      As noted by Judge Hall, "a university may bring itself into Title IX decreasing athletic opportunities" This does
    not lend itself to a situation in which anyone would win. She also rules
    that the institution "can also bring itself into
    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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