According to the National Women's Law Center, the number of female college athletes increased from 31,852 in 1972 to 150,916 by 2000. During this same time period men's participation opportunities, teams, and budgets also increased. Despite this evidence, the Department of Education and the Bush Administration believe that Title IX has limited men's participation in sports and needs to be reviewed. On June 27, 2002, Secretary of Education Roderick Paige announced the appointment of the Commission on Opportunity in Athletics to begin this process.

The Commission was charged to look at Title IX and to "examine ways to strengthen enforcement and expand opportunities to ensure fairness for all college athletes." After nine months of study, the Commission issued its report, "Open to All: Title IX at 30," to the Department of Education on February 26, 2003. To no one's surprise, the report recommends amending Title IX regulations, thus weakening its power to guarantee equity in sports for women and girls.

A Biased Process
From the first announcement of the Commission throughout the entire process, women's groups have expressed grave concerns over the composition of the Commission and the Commission's operating procedure. During a January 31 press conference held by women's rights leaders, Feminist Majority president Eleanor Smeal claimed, "The Bush administration is conducting a stealth attack on Title IX." Title IX affects students from grade school through college. However, ten of the fifteen Commissioners represented Division I-A institutions. Only one Commissioner represented high school, and no Commissioners represented Division II or III institutions, middle schools, small colleges, or junior/community colleges.

Even though the Commission was charged to examine opportunity and fairness in college athletics, any changes in enforcement of Title IX would affect all institutions receiving federal dollars, including middle schools and high schools. Division I-A institutions tend to have large football or men's basketball programs that often hamper their efforts to be in Title IX compliance. Such institutions have much to gain from weakening Title IX standards. Although the Commission was developed to examine fairness in athletics, from the outset it seemed skewed to curtail Title IX's scope.

The veneer of a democratic public forum on Title IX was put in place, but that too was window-dressing on an already fixed process. Public town hall meetings were held in four cities: Atlanta, Chicago, Colorado Springs, and San Diego. The Commission invited speakers to present during the morning of the hearings and allowed public comment for the afternoon session. In Atlanta a second morning of public comment was held. The Chicago meeting was devoted to hearing about issues affecting high schools and junior colleges. Overall, of the fifty-two panelists invited to speak by the Commission, opponents to Title IX far outweighed supporters. Fifteen speakers were in favor of Title IX, while thirty-one were opposed to Title IX. Six speakers were neutral. Biasing the procedure all the more, there was no procedure in place during public discussion to ensure that the Commission heard from both pro and anti-Title IX speakers.

The United States General Accounting Office expert on Title IX was never invited to testify before the Commission. The Commission was never provided with testimony about the standards and implementation of the 1996 clarification of Title IX issued by the Office of Civil Rights. The former head of the Office of Civil Rights, Norma Cantu, who issued the 1996 clarification, attended at least one of the town hall meetings, yet she was never asked to testify. The Commission was not informed that Title IX athletic policies have been upheld by every one of the eight federal appellate courts that has ever reviewed them.

Three-Prong Compliance Test
The Commission's proceedings focused on examining Title IX compliance. Under current Title IX regulations, schools must meet one of three measures to demonstrate Title IX compliance. This is often referred to as a "three-prong test." Schools can demonstrate substantial proportionality, meaning that they provide athletic opportunities in proportion to the number of men and women students. Schools can demonstrate a "history and continuing practice of program expansion," or they can prove that they have "fully and effectively accommodated" women's interests and abilities. The 1996 clarification issued by the Office of Civil Rights describes the substantial proportionality prong as a "safe harbor" for compliance, meaning that it is the preferred way for an institution to be in compliance with Title IX, but still an institution needs to meet just one of the three prongs to be in compliance. Ignoring the weight of legal proceedings, opponents of Title IX argue that the substantial proportionality prong amounts to a quota and is therefore illegal.