The election of George W. Bush has led to speculation that the way that the federal government enforces Title IX of the Education Amendments of 1972 -- the law that prohibits sex discrimination in education programs like college athletics -- may change in the new millennium. Now that the president has appointed a new head of the Office for Civil Rights at the Department of Education, Gerald A. Reynolds, that possibility appears greater.
In fact, thanks to a group of wrestlers and ex-wrestlers called Iowans Against Quotas -- who used the popularity of their sport in Iowa to solicit the views of presidential candidates before the all-important Iowa caucuses in 2000 -- Bush was on the record on Title IX even before he was his party’s nominee. His statement was supportive, but qualified -- perhaps as definitive as could be hoped for from a candidate whose party is plagued by a persistent gender gap at the polls.
“I support Title IX. Title IX has opened up opportunities for young women in both academics and sports, and I think that’s terrific,” read Bush’s statement. “I do not support a system of quotas or strict proportionality that pits one group against another. We should support a reasonable approach to Title IX that seeks to expand opportunities for women rather than destroy existing men’s teams.”
Despite Bush’s avowal, however, the federal government has indeed enforced just such a quota standard in college athletics for much of the past decade. Time and time again, government officials have interpreted Title IX to mean that the number of male and female athletes at colleges and universities must be closely proportional to the number of men and women in the overall student body.
The result? Bucknell University has announced it will drop wrestling and men’s crew as varsity sports, eliminating 44 men’s positions. Seton Hall and the University of St. Thomas have dropped their wrestling teams. Iowa State University has eliminated baseball and men’s swimming. The University of Nebraska at Lincoln has also axed men’s swimming and diving, leaving only three of the institutions in the Big 12 conference still participating in the sport. And those are just a few of the institutions that have cut men’s sports to comply with the proportionality test of Title IX.
Yet the proportionality interpretation has never been the subject of public debate. It was created outside the electoral process by unelected government officials working hand in hand with special-interest groups. During the previous presidential administration, driven by the desire to overcome real discrimination against girls and women that was once widespread, activists like Bernice Sandler, senior scholar at the Women’s Research and Education Institute; Donna Lopiano, the executive director of the Women’s Sports Foundation; Norma Cantu, the former director of the Office for Civil Rights; and groups like the WSF, the National Women’s Law Center, and the American Association of University Women set out to create preferences for girls and women. They sought out and co-opted friendly government officials. They initiated a shrewd legal strategy when friendly government officials were unavailable. They helped draft regulations and interpretations of regulations and interpretations of interpretations of regulations. They conducted a highly effective and sophisticated media campaign. Partly through government fiat, partly through a shared ideology, they built a phalanx of promoters and defenders of “gender equity” on college campuses and in high schools and grade schools across the country.
Because of their efforts, proportionality became the standard consistently supported by the Clinton administration, the standard adopted by the courts, and the only guarantee that an institution would not be exposed to a federal investigation or a lawsuit. It is the standard for compliance with Title IX today.
Institutions don’t need to experience a federal investigation or a lawsuit to know that there is no “safe harbor” short of proportionality, and that their athletic departments are not under their control unless they reflect the gender breakdown of their student bodies. They’ve read the “policy interpretations.”
They’ve also seen how the Office for Civil Rights has treated institutions like the University of Wisconsin at Madison. In the fall of 2000, having labored for a decade to attract women to its programs, the university had achieved near-perfect parity in the spring of that year: 429 athletes on the campus were men and 425 were women. Not good enough, wrote Algis Tamosiunas, of the OCR’s Chicago office, in a letter to university officials. Because women constituted a majority of students on the Madison campus, or 53.1 percent, the university would have to add another 25 women.
Such letters have been routinely sent from the OCR to universities struggling to stay on the right side of the federal authorities. OCR officials such as Norma Cantu were being dishonest when they insisted that because the regulations didn’t “require” sex quotas, those who administered the regulations didn’t work relentlessly to make quotas happen.
Today, on paper, the prospects for reform of Title IX appear to be excellent. Contrary to the law’s more excitable defenders, ending quotas would not entail repealing Title IX or even amending it. The proportionality test is not law; it’s not even regulation subject to Congressional approval. It is simply a bureaucratic decree, a policy interpretation issued pursuant to a regulation that was issued pursuant to a statute. If Gerald Reynolds and his staff at OCR want to change the Title IX athletics policy to exclude the proportionality test -- or change any other Cantuera policy interpretations, reinterpretations, guidance, or what have you -- they can simply issue new policy.
But then again, it’s not that simple. Before the Bush administration even had the chance to appoint a secretary of education, the Women’s Sports Foundation fired a Title IX warning shot across its bow. “Under the provisions of the federal Administrative Procedures Act, if the Office for Civil Rights ... wishes to change the regulations or current policy interpretations, OCR would be required to issue a ‘Notice of Proposed Rule Making,’” the WSF reminded its supporters in the spring of 2001. “OCR would then be required to designate a reasonable period of time for public comment, usually 30 to 60 days, before it could issue changes in regulations.” The WSF, then, “would have the option of submitting comments. The Foundation would not favor any change that weakens this law and results in unequal treatment of female athletes.”
A veiled threat? To be sure. And to make sure that a risk-averse Republican president doesn’t make the mistake of thinking he can take on the Title IX lobby with impunity, such gender warriors point to the results of a 2000 NBC News/Wall Street Journal poll that found that 76 percent of those questioned supported cutting back on resources for men’s athletic programs to ensure equivalent athletic opportunities for women.
It is interesting, to say the least, that feminists now take refuge in a poll showing widespread public support for cuts to men’s programs that they insist are not occurring as a result of Title IX. Still, is there credence to their claim that the public supports elimination of men’s opportunities under the law? Only if we assume that the NBC/Wall Street Journal poll is an accurate portrayal of how the law is enforced today. The survey asked the public if it would support cutting back on resources for men’s athletic programs and investing more in women’s to make the programs “more equal.” Who but the most hardhearted misogynist wouldn’t support those two words?
Yet the fundamental issue isn’t the fair and equal division of resources between men and women, but an attempt by the federal government to dictate how men and women should behave. Female athletes have more teams to choose from in many colleges and universities today than male athletes. They receive more athleticscholarship aid per capita than male athletes. The battle for “gender equity” is not a battle for resources; if it were, women’s groups would have declared victory some time ago. The struggle is about power and ideals.
In their attempt to prove that all differences between the sexes are socially created, feminists have been willing to sacrifice the interests of males for the manufactured illusion of an androgynous ideal. Imagine what the public’s reaction would be to a question that accurately portrayed the way the law is enforced:
“To comply with Title IX, many schools and universities have had to eliminate men’s opportunities to participate in sports -- including unfunded opportunities -- in order to ensure that no more men than women are athletes on college campuses. Do you support eliminating men’s opportunities to create a 50/50 gender balance in school sports programs while positions on women’s teams go unfilled?”
That is not how the pollsters who conducted the survey for NBC News and The Wall Street Journal asked the question because that is probably not how they understand the law to be implemented. Journalists -- even ink-stained veterans -- routinely describe compliance with Title IX in terms of the equal sharing of resources between men and women in athletics. The result is that it is rare for a citizen who picks up a newspaper or turns on the television to see coverage of the law that is not glowingly positive.
Christina Hoff Sommers, the author of The War Against Boys and Who Stole Feminism, and others have done an excellent job of uncovering the disinformation and false statistics used by women’s advocates to advance their agenda. But they are virtually alone in this thankless task. For far too long, the wittingly or unwittingly gullible media have treated even the most outrageous claims of feminists as fact. The effect has been to give artificial life support to the myth that girls and women are an oppressed minority, clinging weakly to their rights only with the assistance of the full weight and authority of government.
Why isn’t there more acknowledgment of the reality of Title IX enforcement among education officials and in the education press? Quota critics point to an atmosphere of extreme intolerance to dissent from Title IX orthodoxy on campus. Time and again, coaches I spoke with refused to allow their names to be used for fear of losing their jobs. Even coaches who had already lost their jobs in Title IX cuts refused to go on the record for fear of not finding new jobs on other campuses. It is a measure of the power of liberal women’s activists in academe today that universities are unable -- or unwilling -- to complain as the federal government micromanages more and more of their affairs in the name of “gender equity.”
Meanwhile, in the deeply cynical belief that Title IX quotas will never threaten big-time football and men’s basketball programs, the National Collegiate Athletic Association has left men’s nonrevenue sports like wrestling and swimming to fend for themselves against Title IX quota cuts. It has not only looked the other way when men’s programs are eliminated to meet Title IX gender quotas, it has acted to encourage those cuts. The NCAA’s five-year-plan certification process unmistakably emphasizes proportionality.
Commenting on the data in the 1999 biennial “Gender Equity Study,” NCAA President Cedric Dempsey ignored cuts to men’s programs and instead lamented insufficient statistical progress on the women’s side: “As we move closer to proportionality, we recognize improvements will not be as dramatic. We’ve made some progress, but must continue to press for compliance.”
Like the OCR, the NCAA takes refuge in the defense that it doesn’t “require” cuts to men’s programs to achieve gender equity. But the NCAA, again like the OCR, doesn’t need to “require” cuts officially in order to be complicit in losses to men’s programs. As long as revenue-making men’s sports like football and basketball are immune from cuts geared toward gender equity -- and for the time being, at least, it appears they are -- the NCAA has been content to allow all of the pressure that Title IX quotas place on athletic programs to be absorbed by men’s nonrevenue sports. But if it purports to represent all intercollegiate athletics -- and to place limits on their scholarships, recruiting, and play -- the NCAA has a moral obligation to speak up for men’s teams that are being hurt by its craven acquiescence in gender quotas.
In the end, of course, it is up to those charged with enforcing our laws to apply Title IX honestly and forthrightly. This is not, needless to say, a politically painless proposition. After a significant rollback of race-based preferences in the 1990s, elected officials and even conservative activists seem to have lost their appetite for battling identity politics. To stand on principle, many seem to believe, is to risk appearing mean-spirited in an age when compassion is the opiate of the electorate.
Writing about the “conundrum of quotas” in The Wall Street Journal in the opening months of the Bush administration, the author Shelby Steele noted that conservatives have a hard time not appearing mean when they stand on principle on the issue of race because they lack moral authority. “Were conservatives of the last generation fastidious about principles when segregation prevailed as a breach of every known democratic principle, including merit?” wrote Steele. “Can conservatives now, when it so conspicuously suits their convenience, look the former victims of racism in the eyes and say, ‘Now we’re ready to enforce a discipline of principles for everyone’?”
The way out of this conundrum is the same as it was in the 1920s, when women struggled for the right to vote, and in the 1950s, when black people encountered segregationists at the schoolhouse door. The way out is to defend the principle of nondiscrimination, even when it is hard. Especially when it is hard.
And liberal feminist groups will make it hard to stand on that principle; they will challenge the moral authority of those who seek to restore the original intent of the law. But the principle of nondiscrimination that is embodied in the original intent of Title IX has stood the test of time. It has allowed girls and women to rise from uncomfortable interlopers to become the dominant force in American education. Conservatives can gain new moral authority by insisting on standing by that principle and resisting a distortion of the law that discriminates against a new group of victims and demeans the very achievements of the girls and women it purports to protect.
And we all can take a major step toward ending gender quotas by simply beginning to tell the truth and calling a preference a preference. For political reasons, straight talk has been avoided, and those who describe Title IX as a quota regime have been vilified as attempting to erase the hard-won gains of girls and women. Honorable people can disagree over whether or not government should institute such preferences to help previously disadvantaged groups -- yet Title IX quota advocates refuse to allow that debate.
There is no honor in subverting the democratic process so as to force a policy on the public that government officials don’t have the courage to call by its proper name. It’s time to let some sun shine on the topic of sex quotas in education, and let the people decide.
Jessica Gavora is a senior policy adviser at the U.S. Department of Justice. This essay is adapted from her Tilting the Playing Field: Schools, Sports, Sex and Title IX, being published this month by Encounter Books in San Francisco. Copyright © 2002 by Encounter Books.
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