Long before there was an Axis of Evil, pro-gender-quota feminists perfected a preemptive war strategy that would fill Paul Wolfowitz’s heart with envy. The idea was to forestall reform to implementation of Title IX, the federal law that outlaws sex discrimination in education, by greeting any consideration of change with rhetoric designed to incite indignation among soccer moms and inspire fear among the politicians who court them.
In 1995, former high-school wrestling coach Dennis Hastert convened (merely convened) a hearing to consider (merely consider!) allegations that discrimination against male athletes under Title IX has produced a situation in which four men’s collegiate athletic opportunities were being sacrificed for every one gained by women. No member of Congress suggested repealing Title IX. No congressman proposed even amending the law. But feminist groups savaged the hearing anyway. With the help of an ever-compliant national media, they labeled the meeting a conspiracy of the newly Republican Congress and big-time football to turn back the clock for women. Congressman Hastert has since become Speaker Hastert, but the Republican-controlled Congress has never taken a critical look at Title IX since.
And just last year, as the new administration settled into the White House and a lawsuit mounted by male athletes challenging Title IX enforcement was filed against the Department of Education, women’s groups cranked up the rhetoric once again. Before any official had uttered a public peep about Title IX, charges were hurled that the Bush administration was poised to “gut” the law. One particularly excitable gender-equity activist warned that the administration was preparing to send American women “back to the 18th century.” And once again, this “scream first, ask questions later” strategy paid off. The new administration made no move to change Title IX regulations and filed a motion to have the lawsuit thrown out of court.
This by-now predictable pattern of talk of Title IX reform met by loud, outsized rhetoric has played itself out yet again with the Commission on Opportunity in Athletics, created by Education Secretary Rod Paige to “examine ways to strengthen enforcement and expand opportunities to ensure fairness to all college athletes.” On paper at least, the commission represents the best hope in a generation for restoring sanity to a law that was conceived in fairness but has devolved into the most explicit federally enforced quota in American public life. But the recommendations approved (as well as those disproved) in the commission’s final meeting Thursday are a bad sign that the preemptive strategy of women’s groups will prevail in this latest and most promising effort at Title IX reform.
At the commission’s penultimate meeting in Philadelphia in December, the overwhelming majority of members showed promising signs that they had come to share the growing desire for Title IX reform among athletes, coaches, and parents. The 15-member commission, comprised overwhelmingly of proponents of “gender equity” — current and former women’s team coaches, female athletic directors, administrators from Big Ten colleges — expressed virtual unanimity that the reigning standard of Title IX compliance, known as the proportionality test, has serious flaws. Proportionality is a gender quota that mandates that the gender breakdown of a school’s athletic program match the gender split of the student body. If a school is 55 percent female, 55 percent of its athletes must also be female. If not, then some male athletes have to be eliminated. Meeting in December, few of the commissioners felt this was a fair or rational test of equity. The lone holdouts for the status quo were the commissioners culled from special-interest women’s groups.
And sure enough, the commission had barely begun to show a nascent desire for restoring fairness to Title IX when pro-quota women’s groups began to attack, not just the ideas discussed by the commission, but the commission itself. Despite the fact that her own organization is represented by not one but two commission members — Women’s Sports Foundation (WSF) president/U.S. women’s soccer star Julie Foudy and WSF founder and Olympic swimming champion Donna De Varona — Women’s Sports Foundation Executive Director Donna Lopiano charged that the commission was “stacked” against women and in favor big-time football and men’s basketball. “This whole thing is a sham,” Lopiano told the New York Daily News. “They’re basically trying to undo everything we’ve accomplished in 30 years.”
This opening barrage of defamation was followed more recently by hysterical predictions of massive losses to women’s athletic opportunities if the commission’s recommendations are accepted. Women’s groups staged a press conference festooned with camera-ready, pig-tailed athletes and predicted ridiculously that the commission’s reforms would cost female athletes 374,000 to 931,000 sports opportunities a year, or 7.5 million to 18.6 million over a generation. These numbers were based, not on real losses of existing women’s opportunities, but on the failure of the federal gender quota to be implemented.
Particular venom was directed at a proposal by University of Maryland Athletic Director Debbie Yow that would leave the quota intact but create a little more wiggle room for schools to achieve Title IX compliance. The proposal would allow schools to have a 50-50 split of male and female athletes regardless of the makeup of the student body — with a leeway of 5-to-7 percentage points. Feminists seized on this proposal to assume universal bad faith on the part of higher education. Any loosening of the federal gender quota that they for years have denied existed, feminists warned, would spark a race to the bottom by gender-biased college and university administrators.
“This scares me,” commission member Julie Foudy told the press. “The reality is that the universities are going to go down the path of least resistance, which would be 43 percent [female athletic participation, regardless of female representation in the student body].” In other words, if we’re going to have a Title IX quota that doesn’t exist, it had better be a tough one or colleges and universities will cheat.
Following this media barrage, the final recommendations approved by the commission on Thursday fell far short of the reforms hinted at in December. A proposal tabled by Brigham Young University counsel Tom Griffith to abolish the proportionality test outright was defeated 11-4. And in the most disappointing defeat of the day, a watered-down version of the Debbie Yow proposal — a 50-50 split of athletic opportunities between men and women with a 2-3 percent leeway — was defeated in a 7-7 tie vote taken before Commissioner Lisa Graham Keegan joined the meeting.
What is most frustrating to supporters of Title IX reform is that the final recommendations approved by the commission show a broad recognition of the unfairness and illogic of proportionality, but leave the test on the books as the reigning standard of Title IX compliance. The commission approved, for example, a measure promoting the use of student surveys to determine interest in athletics on campus. Making the actual interests of students rather than their representation in the student body the benchmark for apportioning athletic opportunities is the key to restoring equality of opportunity to Title IX. The commission gave a nod in this direction but maintained the equality-of-results mandate created by proportionality.
Other significant reforms enacted by the commission point to the fundamental flaw in proportionality without really fixing the problem. The commission voted to exclude non-recruited or “walk-on” athletes from inclusion in the quota for male athletic participation — a long-needed move. It is simply unjust to turn away walk-on male athletes — who vastly outnumber female walk-ons — in order to achieve an arbitrary numerical result. But why keep the limit on male participation at all? The commission also approved a measure exempting older, so-called “non-traditional” students from the student-body baseline against which athletic proportionality is measured. This, too, is a needed reform. It is irrational to assume that older college students with families and jobs (who are disproportionately female, by the way) are as likely as more traditional students to be interested in playing lacrosse or rowing crew. But why use the total number of students on campus — even exempting non-traditional students — as your baseline for fairness to begin with? Doesn’t it make more sense to only use students who are actually interested in playing sports?
As Secretary Paige and the Bush administration contemplate regulatory changes to Title IX based on Thursday’s votes by the commission, they will be wise to remember that the proportionality test has not always been the sole standard of compliance with the law. The proportionality test was created in 1979 as one part of a three-part test that, like the commission’s recommendations, also purported to take into account different levels of interest and ability in athletics among men and women. But over the years, bureaucrats have worked hand-in-hand with women’s activists and trial lawyers to make the three-part test a one-part test of statistical proportionality. And as long as the clear, quantifiable, but deeply illiberal proportionality test is on the books, it will be the refuge sought by judges faced with difficult questions of equity — and the socially engineered outcome promoted by feminists and their lawyers.
For all the sturm and drang that has accompanied the deliberations of the Commission on Opportunity in Athletics, its word will not be the final word on Title IX. The recommendations of the commission will be forwarded to the education secretary in a report next month. The hard, politically perilous work of reform will be left to the Bush administration. Aware of this, Senate Minority Leader Tom Daschle took a page from the feminists’ playbook in a statement on Title IX earlier this week. “If the president refuses to defend Title IX,” Daschle said, “its supporters in Congress will.”
For the sake of fairness for both girls and boys, let’s hope that the preemptive strategy of Daschle and the feminist gender warriors fails to achieve its objective.
— Jessica Gavora is author of Tilting the Playing Field: : Schools, Sports, Sex, and Title IX.