ORSET, Vt.
Title IX, the federal law
that prohibits sex discrimination in educational programs
receiving federal assistance, may be in for an overhaul. This
week a committee appointed by the Bush administration will
hold its final meetings before submitting its recommendations
for changing the law to Secretary of Education Rod Paige.
Since Title IX was enacted in 1972, it has been the subject of
debate — much of it misguided — about its application to
college athletics. At issue now is how to alter the law — or
not — so that, as Secretary Paige has put it, we can find ways
of "expanding opportunities to ensure fairness for all college
athletes."
I hope the commission will realize that what's wrong with
Title IX isn't Title IX. What's wrong is that, in practice,
there are two Title IX's. The first Title IX was the one
passed by Congress in 1972 to put an end to sex discrimination
in schools — good for the original Title IX! The second Title
IX, the one currently enforced, is the product of a policy
interpretation in 1979 by the Department of Education's Office
for Civil Rights (but never debated or approved by Congress) —
and which is functioning as a gender quota law.
In its prohibition against sex discrimination, the 1972 law
expressly states as "exceptions" any "preferential or
disparate treatment because of imbalance in participation" or
any "statistical evidence of imbalance." In English, this
means that Congress recognized that the intent of Title IX was
not to establish gender quotas or require preferential
treatment as reparation for past discrimination. Smart
thinking — after all, the legislation was intended to prohibit
discrimination against either sex.
But what happened in 1979 — and in subsequent
re-evaluations of the law — has invited discrimination against
male athletes. The 1979 interpretation required colleges to
meet at least one of the following three criteria: that the
number of athletes from each sex be roughly equivalent to the
number of students enrolled; that colleges demonstrate a
commitment to adding women's sports; and that they prove that
the athletic interests of female students are effectively
accommodated. The problems lie in complying with the first
criterion. In order to achieve gender proportionality, men's
collegiate sports are being undermined and eliminated. This
was never the intention of Title IX.
The proportionality rule stipulates that the ratio of male
to female athletes be proportionate to the ratio of male to
female students at a particular college. On average, females
make up about 56 percent of college enrollment, males 44
percent; for most colleges to be in compliance with
proportionality, more than half the athletes on team rosters
must be women. Can you imagine this rule being applied to all
educational programs — classes in science, engineering,
accounting, medicine or law? What about dance, drama or music
— not to mention women's studies?
In 1996, the Department of Education further bolstered the
proportionality zealots by requiring colleges to count every
name on a team's roster — scholarship and nonscholarship
athletes, starters and nonstarters. It is this ruling that has
prompted a lawsuit by the National Wrestling Coaches
Association, the Committee to Save Bucknell Wrestling, the
Marquette Wrestling Club, the Yale Wrestling Association, and
the National Coalition for Athletics Equity, all of whom argue
that the 1996 rules exceed the Department of Education's
statutory authority "by effectively mandating the very
discrimination that Title IX prohibits."
Why are wrestlers so upset about this? The number of
collegiate wrestling programs lost to Title IX compliance is
staggering; this is especially alarming because, since 1993,
wrestling has been a rapidly growing sport at the high-school
level. Data compiled by Gary Abbott, director of special
projects at USA Wrestling, indicates that in 2001, there were
244,984 athletes wrestling in high school; only 5,966 got to
wrestle in the National Collegiate Athletic Association. Not
to put too fine a point on it: there is only one N.C.A.A. spot
for every 41 high-school wrestlers. The numbers have been
going downhill for a while. In 1982, there were 363 N.C.A.A.
wrestling teams with 7,914 wrestlers competing; in 2001, there
were only 229 teams with fewer than 6,000 wrestlers. Yet, in
that same period, the number of N.C.A.A. institutions has
increased from 787 to 1,049. No wonder wrestlers are
unhappy.
As for the virtual elimination of walk-ons (nonscholarship
athletes) in many men's sports, and the unrealistic capping of
male team rosters — again, to make the number of male athletes
proportional to the number of females — the problem is that
athletic programs are going to absurd lengths to fill the
unfilled rosters for women's teams. But women, statistically,
aren't interested in participating in intercollegiate
athletics to the degree that men are. J. Robinson, wrestling
coach at the University of Minnesota, cites intramural sports,
which are wholly interest driven, as an example. In a column
about Title IX published in the Chronicle of Higher Education,
Robinson wrote that "men outnumber women 3-1 or 4-1 on the
intramural field."
Don't we need to know the exact numbers for how many women
are interested in playing college sports now? But the Women's
Sports Foundation, an advocacy group that favors maintaining
proportionality, opposes conducting surveys of incoming
students — that is, expressly to gauge interest in athletics.
These surveys, they say, would force "female athletes to prove
their interest in sports in order to obtain the right to
participate and be treated fairly." But men would fill out the
same surveys.
One suggestion that the presidential commission is
considering is counting the available spots on teams, rather
than the actual participants. The Women's Sports Foundation
rejects this idea, arguing that it counts "ghost female
participants." However, the foundation has no objection to
counting interest that isn't there.
In fact, those women's groups opposed to tampering with
either the 1979 interpretation or the 1996 ruling, which
endorses the proportionality arm of Title IX, often argue that
there are three ways (at least on paper) for an institution to
comply with Title IX — not just proportionality. But only
proportionality can be measured concretely. A 1996
clarification letter from the Department of Education refers
to the proportionality test as a "safe harbor" — meaning that
this simple-to-apply numerical formula can assure an athletic
director and a university president that their institution is
in compliance and not subject to legal action. In other words,
proportionality is not only wrong — it's lazy.
Some women's advocates argue that it is not proportionality
that forces athletic directors to cut men's teams; they blame
the budget excesses of Division I football and men's
basketball. But there are countless examples where money was
not the issue in the case of the sport that was dropped.
Marquette University had a wrestling team that was completely
financed by alumni and supporters; yet the sport was dropped
in 2001, to comply with gender equity. (Marquette has no
football team.)
Boston College dropped three sports that had only part-time
coaches and offered no scholarships; these sports could easily
have been sponsored by fund-raising. Keep in mind, too, that
the majority of male college teams dropped in the 1990's were
from Division II and Division III programs, which don't have
big-time football or men's basketball.
Furthermore, many Division I football and basketball
programs earn millions of dollars a year, enough to support
all the other sports programs — men's and women's. Moreover,
most schools with high-profile football programs are schools
where women's teams have thrived. (Witness the Big 10, the
S.E.C., the Big 12 and other Division I athletic conferences,
which have produced both winning football teams as well as
great women's teams in other sports.)
While eliminating men's sports like wrestling, where the
interest in participation is increasing, athletic programs go
begging to find women athletes to fill the vacancies on an
ever-expanding number of women's teams.
One of the most ludicrous examples of this was the attempt
by Arizona State University in Tempe — a cactus-studded campus
in the middle of the Sonoran Desert — to add a competitive
women's rowing team. There's not a lot of water in Arizona.
But the school asked the city to create a body of water (by
flooding a dry gulch) on which the team could practice.
Because of a lack of funds, the school had to drop the plan.
This is probably just as well; taxpayer dollars would have
financed scholarships either to rowers from out of state or to
teach Arizona women (most of whom have never held an oar) how
to row. But Arizona State is to be commended. It not only
worked to meet the numerical demands of proportionality, it
tried to adhere to the original spirit of Title IX by adding
opportunities for women, not by cutting opportunities for men.
To apply the rule of proportionality to men's and women's
collegiate athletics amounts to a feminist form of sex
discrimination. And I won't be dismissed by that other
argument I've heard (ad nauseam) from those women's advocates
unwilling to let proportionality go — namely, that to oppose
proportionality, or even the crudest enforcement of Title IX
to eliminate men's sports programs, is tantamount to being
antifeminist and hostile to women in sports. Don't try to lay
that on me.
I am a women's advocate. I have long been active in the
pro-choice movement; my principal political commitment is my
longstanding and continuing role as an abortion-rights
advocate. But I'm also an advocate of fairness. What is unfair
is not Title IX — it is Title IX's enforcement of
proportionality, which discriminates against men.
In 1992, Brian Picklo, a walk-on, asked the Michigan State
Wrestling coach, Tom Minkel, if he could try out for the team.
Picklo had wrestled for only two years in high school and
never qualified for state tournaments. Minkel thought Picklo's
chances of wrestling in the Big 10 were "slim to none." But
Picklo became a two-time Division I All-American, and he won
the Big 10 title at 190 pounds. In most wrestling programs
across the country today, Brian Picklo wouldn't be allowed to
be a walk-on.
Title IX, the original legislation, was conceived as a
fairness-for-all law; it has been reinvented as a tool to
treat men unfairly. Advocates of proportionality claim that
universities that are not "proportional" are breaking the law,
but they're not breaking the original law.
The Women's Sports Foundation has accused the presidential
commission of politicizing Title IX. But Title IX was
politicized by the Department of Education in 1979 and 1996 —
during Democratic administrations. Is it only now political
because a Republican administration is taking a closer look at
the way Title IX is applied? (I make this criticism, by the
way, as a Democrat. I'd have a hard time being an abortion
rights advocate in the Bush administration, wouldn't I?)
Based on 2001 membership data — raw data from the National
Federation of State High Schools, and from the N.C.A.A. — for
every single N.C.A.A. sports opportunity for a woman, there
are 17 high school athletes available to fill the spot; for a
man, there are 18. Isn't that equal enough? In fact, women
have more opportunity to compete in college than men do. Yet
the attitude represented by the Women's Sports Foundation, and
other women's groups, is that women are far from achieving
gender equity; by their continuing endorsement of
proportionality in collegiate athletics, these women's
advocates are being purely vindictive.
Years ago, I was playing in a Little League baseball game
when an umpire made what I thought was a memorable mistake.
Later, in another game, he made it again. I realized it was no
mistake at all — he meant to say it. Instead of hollering
"Play ball!" at the start of the game, this umpire shouted
"Play fair!"
Keep Title IX; eliminate proportionality. Play
fair.
John Irving won an Academy Award for his screenplay of
"The Cider House Rules," adapted from his 1985 novel. He
competed in or coached wrestling for over 30 years and was
inducted into the National Wrestling Hall of Fame in
1992.