Posted on April 7, 2002
Title IX, Sanity 0
Ambiguous law castrates college sports
If you've ever wondered why so many federal laws and regulations are so indecipherably vague and convoluted, it usually isn't by accident. For example, the IRS collects millions of dollars every year that are not owed, because taxpayers can't always be sure which deductions they're entitled to, and they're afraid of being punished for guessing wrong. The fact that this uncertainty enriches the government at the expense of individual citizens is not likely to be coincidental.
The benefit to the government is not always material, though. More often, it appears in the form of a broader latitude for judges and bureaucrats to mold their interpretations to fit their own preferences, which tend to be too unpopular to be explicitly approved by the people's elected representatives. The environmentalist movement, for one, practically owes its life to this phenomenon. Nobody who is accountable to the voters would declare a puddle in somebody's backyard to be a federally protected wetland. If an unelected official at the EPA derives that interpretation from an ambiguous law, however, the same congressmen who created that law will decline the opportunity to clarify it.
A similar thing has happened with the Title IX Education Amendments of 1972. This legislation, meant to combat gender discrimination in federally funded educational institutions, has been transformed into an execution order for hundreds of men's collegiate sports programs.
At first glance, it's difficult to see how Title IX could possibly be interpreted in such a way that requires athletic departments to adhere to gender-based quotas by eliminating men's teams. In fact, it seems to directly proscribe such a result in Section 1681 subsection (a), where it says, "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 ... "
So why has Bowling Green State University had to cut its men's lacrosse, wrestling, swimming, tennis and track teams in order to comply with a law that forbids the exclusion of participants on the basis of sex? If the Nineteenth Amendment, which recognizes women's right to vote, were interpreted the same way, it would require that a certain number of men's votes be thrown out, to assure that women are not underrepresented. Susan B. Anthony would have been as baffled as anybody by such an interpretation. It makes no sense -- at least if you presume the law, or even this section of it, to be consistent.
The hidden contradiction can be found in subsection (b), which begins by reiterating subsection (a), but then abruptly dismisses it. "Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section, or other area," it says, in one of the most excruciatingly verbose clauses ever recorded, "Provided, that this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex."
So an imbalance in participation levels between men and women cannot be used to require disparate treatment, but it can be used as evidence in legal or regulatory proceedings. But to what end, if not to take "corrective" measures?
The Education Department's Office of Civil Rights (OCR), which is assigned the responsibility for enforcing Title IX, tightroped its way between the opposing clauses by drawing up a three-point guide to measure compliance. Accordingly, a university must prove its innocence by doing one of the following: (1) bringing participation levels for the underrepresented sex into proportion with undergraduate enrollment rates; (2) demonstrating a continuous process of expanding opportunities for the underrepresented sex; or (3) fully accommodating interests and abilities of the underrepresented sex.
Since options (2) and (3) require a subjective judgment on somebody's part, the only way a school can guarantee compliance is to select option (1). This regulation has the effect of mandating a reduction in the number of men's teams, because it falsely assumes an equality in interest which is almost uniformly nonexistent.
As a rule, men are more inclined than women to take part in competitive athletics. Pointing that out might offend certain federal bureaucrats, but it's indisputable. How many all-girl pick-up games have you ever seen? Sure, there are usually a couple girls who will compete with the boys in schoolyard games, and lots of girls play little league baseball, but seldom, if ever, is there a one-to-one ratio. For this natural disparity to be treated at the college level as proof of institutionalized sexism is entirely baseless and counterintuitive.
No discrimination had been alleged at Bowling Green, nor has the slashing of that school's men's programs done anything to help female athletes, to say nothing of the ideal of "gender equity." The OCR hasn't felt a need to answer for this travesty, though, because the government line is that universities like Bowling Green are eliminating their men's teams voluntarily. That's where the weasel room lies in Section 1681 subsection (b) of Title IX. The government technically doesn't "require" educational institutions to grant disparate treatment on the basis of sex; it merely intimidates them into choosing to grant disparate treatment on the basis of sex.
Feminists and their political stooges refer to the wholesale hatcheting of men's sports programs as an unfortunate, unintended consequence, which is easily outweighed by the law's positive impact. (One notable exception is NOW, which at least has been consistent enough not to pretend to care about Title IX's victims). These shallow sympathies could have been believed as recently as a decade ago, but considering all the damage that's been done by now, it's a little too late to say "oops."
Since Title IX was enacted, the number of college wrestling teams has shrunk by about a third. UCLA has been forced to eliminate its once prolific men's swimming and gymnastics programs. The University of Miami has had to cut the diving program that produced Olympic gold medalist Greg Louganis. The baseball team at Providence College, a formidable one for a Northern school, was axed in 1999. Then there's the biggest scalp recently claimed by Title IX, the Boston University football team, a perennial powerhouse in Division I-AA, which was terminated in 2000.
Not only are existing men's teams being slashed, but adding any new ones has become a daunting proposition. This means that the growing sport of hockey, which requires at least twenty roster spots, is being suffocated. While professional hockey continues to spread to the South and West, and the high school game now flourishes in most Northern cities, the sport at the college level remains largely confined to New England and the Great Lakes. As a result, the development of U.S. players lags behind, while Eastern Europeans and Scandinavians challenge Canadian supremacy in the NHL.
The same effect will be seen in future Summer Olympics. By eliminating hundreds of swimming, diving, wrestling, track and gymnastics teams, Title IX has virtually guaranteed the United States a nosedive in the medal standings for 2004 and beyond. What's a greater outrage is how many athletes are being deprived of an opportunity to compete, because their teams are being cut, and there's a dearth of remaining programs to which they can transfer. There are no professional leagues for these events, so college is the only place where these athletes can develop their talent.
The National Wrestling Coaches' Association (NWCA) has tried to halt this trend by filing a lawsuit, which argues that the enforcement regulations violate the Constitution's "equal protection" clause. The validity of that claim may appear obvious, but not necessarily to a federal judge, who is at least as likely to conclude that a rigid system of quotas is equal protection. It would be better if this matter weren't decided in court, and, happily, it may not have to be.
Last year, President Bush nominated Gerald Reynolds to head the OCR. Sen. Ted Kennedy (D, Mass.), chairman of the Labor and Education Committee, blocked the nomination from being considered by the full Senate. His reason was that he had "serious concerns" about Reynolds' approach to Title IX. (For the record, Reynolds is black, which makes Sen. Kennedy a racist, according to the guidelines he set during the Ashcroft hearings.) Kennedy's concern stemmed from the 2000 Republican Party platform, which included a plank dedicated to "a reasonable approach to Title IX that seeks to expand opportunities for women without adversely affecting men's teams."
On March 29th, Bush placed Reynolds in office by way of a recess appointment, which will be reviewed by the Senate at the end of the year. This probably means that he will be able to serve a whole term, because if he didn't have enough support to win confirmation, Kennedy would have allowed his nomination come to the floor in the first place. Hopefully, Reynolds will address Title IX soon, and remove the proportionality rule that Clinton appointee Norma Cantu put in place in 1996, but the timing probably depends on how Bush thinks the decision will affect his nominee's chances for a formal confirmation.
Substantial resistance to ending the current quota system remains, and the ferocity of it belies any suggestion that the damage being done to men's sports programs is unintentional. If the elimination of a program -- the Providence baseball team, for instance -- has not benefited anybody (and nobody is arguing that it has), and those who have controlled the process have refused to seek a remedy for it, then it's only reasonable to conclude that the demise of that program was itself the aim.
America's educational system is infected with a strain of vindictive feminism, characterized by a visceral contempt for all things masculine. Does that sound overstated? Look how our public schools react to the commission of any overt act of boyhood. When grade school kids play games in gym class, they are often prohibited from keeping score. Dodge ball has been declared a national scourge, and targeted for elimination. Under "zero tolerance" policies, boys who point their fingers at each other and say "bang" must be suspended, and perhaps given psychological counseling. Kindergartners can now be charged with sexual harassment. Childhood masculinity is perceived as a syndrome, for which affected students must be treated, by chemical means, if necessary.
In college "women's studies" departments, feminist professors teach their students that marriage is slavery, and therefore that all marital sex is rape. By that stage of indoctrination, men are perceived no longer as victims, but as victimizers. They are evil, sadistic monsters, who have created a sick world of oppression and abuse in which to keep women imprisoned. The only way a male college student can join the forces of good is to shed his evil, by emasculating himself.
That's why depriving male athletes of a chance to compete is "corrective." Far from justifying disproportionate levels of participation, varying interest levels between men and women only demonstrate the need for correction, because they are attributable to fundamental differences between the sexes. The men are being too "typically male." They must be stopped.
From an embittered feminist (i.e., typically collegiate) point of view, the only thing wrong with Title IX's treatment of men's athletics is that it hasn't been destructive enough to major, revenue-producing sports that draw a lot of fan support. Spectator sports are a key component of the "oppressive" male culture that must be destroyed, as was demonstrated when feminist academics tried to spoil the Super Bowl, by fraudulently linking it with domestic abuse. The groups that opposed the Reynolds nomination must fantasize about giving the axe to Notre Dame's football program. Destroying the most storied college team in history could be seen as metaphorically bobbitting the entire sports-watching male population of America.
Unable to accomplish anything on that scale, they've instead tried to inflict a death by a thousand cuts. Bush's appointment of Reynolds will stop the bleeding, but congressional Republicans must now disarm the threat. A change in the OCR regulation is needed, but it can be unilaterally undone by Reynolds' successor. The problem must be stopped at its source, which is an ambiguous law that defers the determination of its meaning to a bureaucracy in the executive branch.
If the Republicans can regain control of the Senate this November, they will have an opportunity to amend Title IX, in such a way as to shift the burden of proof to the accusers, where it belongs. That way, discrimination will have to exist in order to be "remedied." Speaker of the House Dennis Hastert (R, Ill.), himself a former high school wrestling coach, can be counted on to do his part to accomplish this. What remains to be seen is whether former and possibly future Senate Majority Leader Trent Lott (R, Miss.), who was a cheerleader in college, will be willing to strap on the shoulder pads and get into the game.
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