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Discriminating Against Achievement
[January 31, 2003]

By S. M. Oliva

This weekend, the Duke and University of Connecticut’s women’s basketball teams will square-off in a nationally televised #1-vs.-#2 contest. Coincidentally, this matchup comes the same week that a Bush administration advisory panel completes its recommendations for revising Title IX, the federal law prohibiting sex discrimination at most colleges and universities.

To hear some people tell it, any tinkering with Title IX would mark the end of women’s sports as we know it. Connecticut head coach Geno Auriemma, arguably the nation’s most successful women’s basketball coach next to Tennessee’s Pat Summit, said in a radio interview today that without Title IX, his team’s game against Duke this weekend would never take place. This is something of an exaggeration; after all, one doubts that had Title IX been repealed outright this week that Duke would have called Auriemma to cancel. Still, the larger point remains—what would happen to women’s sports in the absence or dilution of Title IX?

Well, for one thing, without Title IX women’s sports would have to rely largely on merit to stay in business. For example, while the UConn-Duke game would still go on, a larger share of Division I women’s games scheduled for this weekend would not. There simply aren’t enough quality women’s programs out there to field 300-plus full scholarship programs. Just look at the average scores from a first-round NCAA women’s tournament bracket, and you’ll see what I mean. Nationally speaking, quality women’s basketball remains concentrated in a handful of elite programs.

But because of Title IX, we’re supposed to pretend that this quality deficiency simply doesn’t exist. Indeed, the premise of Title IX enforcement is that any difference in men’s and women’s sports is due to intentional gender discrimination. But this simply isn’t true in most cases. Almost every documented study on this topic shows that women are simply less interested in collegiate athletics than men; yet Title IX, as interpreted by federal regulators, requires schools to maintain athletic programs that mirror the gender demographics of the campus.

For some reason, this demographic parity is imposed only on athletics. Title IX does not apparently require individual majors—say chemistry—to adhere to gender parity. Nor do other extracurricular activities; for example, why doesn’t Title IX mandate a student newspaper receiving university funds have a certain male-female staff ratio? In every other area of collegiate life, student interest dictates the program offerings, yet in athletics the preference is essentially imposed on them by federal regulation.

The Title IX mechanism itself remains misunderstood. Congress has no authority to directly regulate any college or university. The Constitution grants no educational powers to the federal government, thus the Tenth Amendment places such regulations in the hands of state governments and private institutions. But to get around this problem, Congress instead imposes Title IX as a condition of schools receiving federal funds. This includes not just direct grants—which most colleges don’t receive—but participation in student loan programs, which encompasses all but a handful of schools. It’s a gross abuse of power. Congress has no more authority to maintain a student loan program than it does to regulate college athletics, yet few people are willing to speak up on this question.

But even if Title IX were constitutionally valid, there is a separate question of enforcement. The Title IX passed by Congress simply states that no individual can be excluded from an “education program or activity” on the basis of sex. Former Sen. Birch Bayh, a key Title IX sponsor in 1972, stated that this law was not intended to create any kind of gender quota in college programs—in fact, the goal was just the opposite, to prevent such quotas. In 1975, then-Secretary of Health, Education and Welfare Caspar Weinberger promulgated the first Title IX regulations, which stated that colleges should provide programs in response to student interest, not a centrally-imposed quota. The rules provided for flexibility and local decision-making, as was the apparent intent of Congress.

In 1979, however, the creation of a separate Department of Education under President Carter led to a dramatic re-conceptualization of Title IX. With the new department came a new Office of Civil Rights, which today remains the principal agency responsible for Title IX enforcement. During the fairly hasty 1979 reorganization, the incoming OCR adopted revised regulations—without consulting Congress—that required schools demonstrate significant accommodation for women in athletic programs. The best way to demonstrate that, according to the 1979 policy, was to provide athletic opportunities “in numbers substantially proportionate” to the male-female ration of students enrolled. Thus, Title IX was converted from an anti-discrimination statute into a pro-discrimination quota law.

The 1979 policy remains the effective basis of today’s Title IX enforcement. Congress itself would abandon the anti-discrimination intent of Title IX in 1987, when it reversed the Supreme Court’s 1984 holding that Title IX did not apply to college athletics. The court itself would make things worse in 1992, when it held plaintiffs bringing private discrimination suits under Title IX could receive unlimited damage awards. This enabled activist groups to use the courts as weapons against universities in order to micromanage athletic department policies.

The major effect of the post-1979 policy has been to create a sense of perpetual victimhood within the women’s sports culture. As evidenced by the Bush commission’s work this week, Title IX advocates accept it as an article of faith that without the law, their work will collapse instantly. Even modest changes to the current interpretation—such as excluding non-scholarship athletes from the quotas—bring about wails of discrimination. It is nearly impossible to have an honest debate on Title IX within the women’s sports community, and indeed, any effort to have such a discussion is met with excessive hostility.

The feminist furor has grown to the point where any athletic accomplishment by a woman is tied to Title IX, even where no rational connection exists. Some recent pro-Title IX columnists, for example, have cited the success and popularity of Venus and Serena Williams as evidence of Title IX’s importance. This ignores the fact that neither sister attended college on an athletic scholarship; like most professional tennis players, their careers began as teenagers. If anything, the sisters owe their success to the work and encouragement of their father, Richard Williams, and the expansion in tennis’ popularity due to the careers of Chris Evert, Martina Navratilova, and Billie Jean King—none of whom benefited from the post-1979 Title IX policy. Furthermore, tennis is an international sport, thus it would be arrogant—especially for leftists—to assume that a single U.S. administrative policy had a significant impact.

The incessant need to tether all female athletes to Title IX has one undeniable consequence: the devaluation of true achievement. By lumping Venus and Serena in with the women attending college on bowling scholarships, you effectively say that all accomplishment is a function of gender, and that your failure to achieve must result from rampant sexism. Similarly, if not enough women are interested in sports to achieve “gender parity,” than it must be the school’s fault for discriminating against women. These are hardly messages we should be sending young women—achieving for your own sake is worthless, unless you achieve it in the name of all “womanhood.”

This is gender tribalism in its most primitive state. Title IX supporters no longer view women as individuals capable of achievement, but rather as oppressed members of the “sisterhood” in need of permanent charity. For this reason, it’s practically considered a human rights violation to force women’s sports to compete for resources and attention on merit. In the eyes of feminists, repealing Title IX is the equivalent of living under the Taliban. And if you think that’s an exaggeration, consider the feminist establishment’s violent convulsions over Augusta National Golf Club’s lack of female members.

What Title IX does, in its present form, is discriminate against achievement, both male and female. Successful men’s wrestling and track programs must be sacrificed for the sake of Title IX, while women are recruited as tokens on some campuses to fill quotas by playing sports they aren’t very interested in. At the same time, the sports fans are chastised routinely for not watching women’s sports, even when the product on the field or court is clearly inferior and not worth the attention. The theme is consistent and clear: you must not discriminate—that is, judge—on the basis of achievement, because gender is more important. That’s the precise kind of sexism that led to Title IX’s passage in the first place. Thirty years later, we’ve come full circle.

At the same time, however, Title IX is not totally responsible for the current mess. College athletics have gotten out of hand in recent decades, fueled by the intentional lowering of academic standards to admit high-profile men’s basketball and football players, many of whom have no place in a university setting. There is no more excuse for admitting an unqualified student because he’s an athlete than because he’s an “underrepresented minority,” as the University of Michigan might say. While athletic scholarships, unlike affirmative action, are based on merit, it is merit largely unrelated to the core academic mission of a university. The Division I-A schools complaining about Title IX are not representative of most colleges, which don’t offer extensive athletic scholarships. In this sense, Title IX is a crop partially yielded by the major colleges’ own policy of rewarding athleticism over intellectual achievement.  

 

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