Posted on April 30, 2005

by

Daniel Clark

If people are going to publicly call themselves "supporters of Title IX," you'd think they'd take the time to read the law that goes by that name. It's only nine pages long, and the parts that are relevant to the controversy over college athletics are only a fraction of that. Yet those who say they're "advocates" of Title IX seldom directly refer to it, and often give the impression that they either don't know or don't care what it says.

When they say "Title IX," they are referring generally to what they call "gender equity in sports" -- a subjective term that appears nowhere in Title IX, but is bandied about by its "supporters" as if it were that law's subtitle.

What they're usually talking about is the "proportionality test" -- the first section of the three-part compliance regulation outlined by the Department of Health, Education and Welfare in its 1979 "Policy Interpretation." According to that report, a university could demonstrate its compliance with Title IX by meeting one of the following three guidelines:

(1) Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or (2) Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or (3) Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

Due to the vagueness of tests two and three, universities were unsure of what they needed to do to satisfy these rules. So in 1996, the Education Department issued a "clarification." In it, Clinton-administration Assistant Secretary for Civil Rights Norma Cantu proposed steps that might be taken to demonstrate compliance with these tests, but left it up to the Education Department's Office of Civil Rights to determine whether those measures were adequate. She designated test one -- the proportionality test -- as a "safe harbor," where school administrators had to find shelter if they wanted to be sure they were protected from subjectively derived judgments of noncompliance.

It didn't take Nostradamus to foresee that coerced compliance with the proportionality test would result in the epidemic elimination of men's sports programs, which it has. The student bodies of most colleges are well over 50 percent female. If more than 50 percent of the athletic roster spots of those schools must go to women, it's almost inevitable that there will be significant numbers of male athletes excluded from participation, for the simple reason that they are men.

That's a direct violation of the actual Title IX, which reads in part, "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ..."

The reactions of "Title IX advocates" to the wholesale discrimination against male athletes on the basis of sex has been, at best, callous. The canned response is that the elimination of men's programs is an "unintended consequence." That's not to say they consider it a mistake, or else they would try to remedy it.

On March 17^th, the Bush administration updated the regulation in an effort to alleviate the pressure to cut men's teams, by offering a verifiable way of complying with test number three. The Office of Civil Rights issued an e-mail "Model Survey" that schools may use to measure students' interest in athletics. If the school is providing enough opportunities in women's sports to meet the demand reflected in the survey, it can use that data as evidence of its compliance.

"Title IX supporters" have predictably registered their disapproval. NCAA President Myles Brand issued a statement objecting that, "The e-mail survey suggested in the clarification will not provide an adequate indicator of interest among young women to participate in college sports, nor does it encourage young women to participate -- a failure that will likely stymie the growth of women's athletics and could reverse the progress made over the last three decades." Actually, it's more likely to reverse the suffocating effect on men's athletics over the last three decades, a development one would hope that the president of the NCAA would welcome.

USA Today sports columnist Christine Brennan, who wouldn't know Title IX from strychnine, but always writes and speaks on the subject anyway, also criticizes the new survey for failing to encourage participation in women's athletics. In a March 24^th column, she relates a tale of how an Illinois high school survey indicated a lack of interest in girls' volleyball, but that more than 300 schools in that state now have girls volleyball teams, because "the athletic association, seeking more opportunities for female athletes, took it upon itself nonetheless."

Brand and Brennan seem to think that Title IX requires universities to take a Green Eggs and Ham approach to women's athletics. If there's nobody petitioning to start a varsity team in, say, women's lacrosse, and the school actively solicits feedback from prospective women's lacrosse players and receives none, then there's no injustice in not fielding a women's lacrosse team. The school is not required to hound female students, asking, "Would you, could you, play lacrosse with a goat?" Whether or not more women are participating in athletics is a morally neutral question, which should have no legal consequence one way or the other. Title IX is an anti-discrimination law, not a recruitment mechanism for women's sports.

Even if Brennan's reheated, third-hand anecdote is accurate, it's not a relevant story unless a boys' sport had to be eliminated from each Illinois high school that didn't find enough participants for girls' volleyball. Without the destructive effect of the proportionality test, Brennan's "if we build it, they will come" approach to women's sports would be uncontroversial.

If anything, the new survey still errs on the side of supporting women's sports at the expense of men's, because it only requires that female athletes' interests and abilities be accommodated. If the authors of the three-part test were concerned with discrimination instead of "underrepresentation," the survey would be aimed at the entire student body, and male students would respond in droves.

The University of Oregon, for just one example, lists all of its varsity sports teams on its website. Scrolling down the list, one finds that there are women's soccer, lacrosse and volleyball teams, but there are no men's teams in those same sports. The U of O even eliminated its baseball team years ago, but if it ever dropped softball, there'd be hell to pay. If the athletic department sent a survey to the whole student body, there's no doubt it would be deluged by many times more responses from male students wanting to play baseball, soccer, volleyball and lacrosse than from prospective participants in any additional women's sports.

The strangest complaint about the Bush clarification came from U.S. Women's World Cup player Julie Foudy. "It seems to me that it needs to be something that passes through Congress or is brought through the public," she said. "If it substantially alters the law, then this isn't just a letter of clarification, this is a change." Mind you, Foudy was a member of the Title IX commission that President Bush appointed to suggest changes to the regulations during his first term. It should come as no surprise that little came of that commission's hearings, since it solicited opinions from people who can't distinguish between what is, and what is not, the law.

While the original enforcement regulation, signed by President Ford, was sent to Congress for review, it was not a law, which must be drafted and voted on by the legislature before the president's signing. Nor did it include the three-part test, which was added by the Carter HEW Department four years later. The Clinton "safe harbor" clarification was never voted on, or even "brought through the public," either. Foudy doesn't get it. The law is not what "Title IX advocates" are trying to enforce. If only the bureaucrats who draw up the regulations had confined themselves to the law, every university that has eliminated men's teams in obedience to the proportionality test would be found to be noncompliant.

Foudy, Brennan and Brand all complain that an e-mail survey is not a legitimate means of gauging student interest, but where were they in 1996, when Cantu penned her "safe harbor" clarification? In that same document, she wrote that "OCR [Office of Civil Rights] will look for interest by the underrepresented sex as expressed through the following indicators, among others: ... results of questionnaires of students and admitted students regarding interests in particular sports ... "

A couple paragraphs later she wrote, "[I]nstitutions have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet certain requirements. These assessments may use straightforward and inexpensive techniques, such as a student questionnaire or an open forum, to identify students' interests and abilities."

So what's different between then and know, one might ask. The answer is that if the results of the new OCR survey indicate that student interests are being met, that gives the university the "presumption of compliance" with test number three. The questionnaires suggested by Cantu would not be standardized, therefore OCR could choose to reject the results. Now that OCR has created its own questionnaire, it can assure universities that their results will be accepted, as long as they conduct the survey according to its instructions.

The Bush clarification specifies that, "The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status." So now a finding of noncompliance must be based on "direct and very persuasive evidence"? Well, where's the fun for a "Title IX supporter" in that?

Driving the point home, the clarification says, "In this analysis, the burden of proof is on OCR (in the case of an OCR investigation or compliance review), or on students (in the case of a complaint filed with the institution under its Title IX grievance procedures), to show by a preponderance of the evidence that the institution is not in compliance with part three."

No wonder this decision has provoked such anger. Normally, when somebody is accused of an offense against feminism, he is presumed guilty until proven innocent, and perhaps even then.

Shortly after the OCR survey was issued, the "supporters of Title IX" seemed to resign themselves to the terrible injustice of fratboys nefariously swimming and playing hockey. They needn't give up hope, though, because the NCAA board of directors has just passed a resolution instructing universities to disregard the new rule, and demanding that the Education Department withdraw the survey, which they say "does not support the spirit of Title IX."

Mind you, they wouldn't resort to conjuring the spirit of the law if they could find anything in the body of the law to support their position. For just over a quarter-century, the law that is Title IX has been effectively rendered moot. Instead, it is the OCR regulations that have been treated as law. Now that the regulations have been altered to better conform with the real law, "advocates" of Title IX are discarding the regulations, also. What they're now treating as the law is little more than a collection of their own feelings about the way things should be.

Hence their use of the term "equity" as a replacement for "anti-discrimination." Whereas discrimination can in many cases be proven, "equity" -- being roughly synonymous with "fairness" -- is a matter of opinion. If you are of the opinion that nothing short of a direct, statistical reflection of the student body can be "equitable," then there can be no presumption of compliance with regard to tests two and three, both of which are predicated on a statistical underrepresentation of women.

That's why they can declare their support for Title IX with such confidence, even when advocating the proportionality test that contradicts it. They don't need to technically, accurately describe Title IX, because the important thing is that they're standing up for "gender equity in sports," which everyone knows is really what the "spirit" of Title IX is all about.

... Everyone who hasn't actually read it, that is.

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