The Justice Department and the U. S. Commission on Civil Rights have criticized proposals for implementing Title 9 as being so vague or lenient as to perpetuate discrimination against women in athletics.
The commission, moreover, recommended that all per capita spending on men's and women's sports be equalized, but that colleges be given a five-year phase-in period to adjust the costs of football programs into an equal-spending format.
The commission is recommending that, during that adjustment period. colleges consider ways to pare football costs -- including a possible reduction in athletic scholarships -- or to increase substantially the financing of women's programs.
The recommendations from the commsission and Justice Department came in separate responses to proposed policy rulings by the Department of Health, Education and Welfare for implementing Title 9, the federal law barring sex discrimination in school sports programs.
HEW had requested comments on the policy proposals from the nation's colleges, athletic associations and other intereste organizations and agencies. The final policies are expected to be issued on April 1.
Under HEW's proposals, colleges would have to equalize their overall average per capita spending based on the participation rates of male and female athletes.
But the proposals also permit colleges to justify spending differences is they result from "nondiscriminatory factors," such as the "scope of competition" (national, regional, local) or the "nature of the sport" (costs of equipment, supplies, etc.).
While such "defenses" could be used to explain the different costs of recruiting and other financially measurable tiems, HEW's proposals would still require equal per capita spending for scholarships.
Both Justice and the commission focused on the "scope of competition" defense as being nevulous and unjustifiable as a "nondiscriminatory factor."
Writing for Justice, John E. Huerta, acting assistant attorney general in the civil rights division, noted, that, for most sports, national competition is available for the men's and women's teams.
If the same opportunities are not available for the men's and women's teams in a particular sport, such as basketball and track, he wrote, "there should be a presumption of discrimination."
Otherwise, the general concept of allowing spending differences based on nodiscriminatory factors is proper, Justice held.
The department also said that separate treatment of athletic scholarships seemed proper, but that recruiting should probably be included with the other financially measurable items since the availiability of aid had more impact in student opportunities than the costs of recruiting.
Justice also said HEW's proposals were flawed bvecause the basis for calculating per capita expenditures is tied to present participation levels that would "tend to perpetuate the effects of past discrimination against women."
On this point, Justice also recommended that schools with major football and basketball programs immediately take remedial steps to increase women's opportunities and that HEW specify a time limit for compliance.
Otherwise, Justice said, "disproportionate financial support for men's football could continue and there would be no obligation to compensate for past practices resulting in low rates of participation by women."
The Civil Rights Commission's recommendations were often similar to Justice's, but its proposals on financing were more liberal than the department's or HEW's.
HEW's proposals would not require dollar-for-dollar spending because of the "defenses" permitted. Under the commission's proposal, per capita expenditures would have to be equalized eventually and there would be no "defenses."
HEW's "defense" proposals have widely been interpreted as applying primarily to football and basketball since they are generally the most expensive sports. The commission, however, said there is "no inherent 'special singificance'" to basketball and that sport should be funded equally for men and women.
"If HEW allows these justifications in perpetuity, it means there is always going to be inequality," said Helen Lucas, coordinator of the commission's project on equal opportunity in athletics.
"We decided you have to face the fact that football commands a large part of the budget at many colleges. Do you recommend that that be changed overnight?" she said. "If you're going to require equal per capita expenditures, you have to acknowledge that football requries more money than most sports."
Therefore, Luces said, the commission is recommending "a gradual phase-in for football -- not a waiting period." A five year period for achieving equal expenditures across the board was selected as being a reasonable and fair period, she said.
"If it means upgrading the women's program, fine. If it means reducing the football budget or the number of (95) scholarships allowed in football, fine," Lucas said.
Tom Hansen, a spokesman for the NCAA, called the commission's recommendations "unrealistic."
"A five-year moratorium under those specifications is certainly no solution to the ill-founded HEW proposals," Hansen said.