The Federalist Society

Dangerous Waters in the (Title IX) Safe Harbor

Civil Rights Practice Group Newsletter - Volume 3, Issue 2, Summer 1999

August 1, 1999

Kimberly Schuld

Being a male in today's feminized society is something akin to being (in the words of one Southern gentleman) the bastard child at the family reunion. You can't help what you are, yet you are eyed with suspicion, treated as a second-class citizen and blamed for the sins of generations past. Women have achieved majority status in many facets of society, yet feminists still argue that women remain oppressed by the male "patriarchy."

The control that feminist political leaders wield over our college campuses and K-12 education policy has systematically pushed men and boys to the fringes of the systems. Only recently have researchers begun to recognize the academic damage inflicted on boys by the excessive attention given to the accommodation of girls. New studies reveal that, on average, boys are now two grade levels behind girls in reading and verbal skills by the time they reach junior high school. The much-hyped male edge in math and science is minuscule compared to the vast chasm between boys and girls in verbal and language arts.

On college campuses, men are not welcome in some feminist-driven academic disciplines unless they have first demonstrated contrition and a desire to abrogate their manhood to the higher pursuit of "gender equity." Boston College was recently in the news because Professor Mary Daly refused to let male students take her course. She describes the male psyche as "phallocentric necrophilia" and herself as a "Positively Revolting Hag." She defends barring men from her classroom by stating, "[w]e've [women] seized this space on the boundary of a patriarchal institution." It was only when student Duane Naquin threatened a lawsuit that the university took action to force Daly to stop discriminating. The Professor has decided to retire rather than open her classroom to men.

But nowhere in schools is discrimination against males more predominant and accepted than in varsity athletics. Men's teams are being cut and capped at an alarming rate in an effort to show the federal government that women are not being shortchanged. In the meantime, new athletic opportunities for women are not developing, primarily due to lack of interest. The National Collegiate Athletic Association ("NCAA") conducted its first gender equity study in 1992. The second study, conducted in 1997, showed that over the previous five-years more than 20,000 male athletic positions were eliminated, and fewer than 6,000 new positions for women were created.

The culprit is Title IX of the Education Amendments of 1972. More specifically, it is the way in which Title IX has been interpreted and implemented on the Clinton Administration's watch. The Department of Education's Office for Civil Rights ("OCR") has jurisdiction over Title IX compliance and the authority to withhold the federal funding of offending institutions. In the brave new world of OCR chief Norma Cantu and her staff, failure to meet an agency-derived, unofficial gender quota is grounds for being branded an offender these days.

Congress passed Title IX in 1972. The provision copied the anti-race discrimination language in Title VI, and applied it to sex. The statute states that "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." (20 U.S.C. § 1681) The original language of the law itself has never been changed. It simply guarantees equal opportunity in educational programs. However, federal bureaucrats and their feminist allies have created an environment of preferential treatment for women and girls at the expense of men and boys.

The statute also clearly states that Title IX is not intended as a quota bill, and further, that it cannot be used to punish the over-represented sex (males) for past discrimination against the under-represented sex (females). Both of these tenets are being violated in current practice.

Assurances that quotas would not be part of Title IX were critical to its passage. The Congressional Record reveals that when Congress passed Title IX, the sponsoring members promised both the House and the Senate that Title IX would not be a quota bill. Senate sponsor Birch Bayh, an Indiana Democrat, stated that the gender quotas were "exactly what this amendment intends to prohibit..." and that, "[t]he thrust of the amendment is to do away with every quota." Further, Bayh stated, "[Title IX] only requires that each individual be judged on merit without regard to sex." Title IX House sponsor, Rep. Albert Quie, made it clear that Title IX "would provide that there shall be no quotas in the sex anti-discrimination title."

The Department of Health, Education and Welfare ("HEW") was tasked with developing the regulations that would instruct schools on Title IX compliance. The initial regulations were very broad and created more confusion than clarity. During the 1979 reorganization of HEW into the Department of Education and the Department of Health and Human Services, the responsibility for Title IX and its regulatory language was assigned to the Office for Civil Rights under the Department of Education. Schools waiting for further clarification during this period were given the 1979 Policy Interpretation.

The 1979 Policy Interpretation created a three-part test of compliance for athletic programs. The first prong was the proportionality in participation test. The proportionality test states that a school will be found in compliance with Title IX if the gender breakdown in its athletic program is "substantially proportional" to the gender breakdown of undergraduate students. This policy has never been reviewed or approved by Congress, but has been used extensively in the courts to require strict adherence to a participation quota.

Prong two of the test allows schools to comply by demonstrating a history and continuous expansion of women's programs.

Prong three provides that a school is in compliance if it has effectively and fully accommodated all the athletic interests and abilities of men and women on campus.

The OCR insists that it is not requiring that schools comply with the proportionality test, and that its actions are not causing schools to drop men's sports, but actions speak louder than words. In its 1996 Clarification of the three-part test, Cantu's office identifies the proportionality test as the so-called "safe harbor" for schools, indicating that at the very least the OCR favors a quota-based approach to gender equity.

The second test-history and expansion of women's sports-presents a major problem for schools that have already developed an extensive women's program. When Brown University was sued by Amy Cohen in 1992 (809 F. Supp. 978, 991 D.R.I. 1992), it was the model of progress supporting 18 women's teams at the varsity level. Unfortunately for Brown, the school hadn't added a new women's team since the mid-1980's. The court found that history alone could not define compliance. The OCR capitalized on the rulings in the Cohen case in its 1996 Clarification to state that a school can meet prong two if it has added a new program (sport) for women in the past three years.

Upgrading women's athletic programs is also not sufficient to pass test two. Although the main complaint of female athletes and coaches is that their teams are sorely underfunded, a school cannot meet the Title IX test by building depth into its existing women's programs. The fact remains, however, that new women's sports are often added at the expense of the existing women's sports. So the question for schools becomes, how many women's sports are they required to add? Enough to reach the gender quota "safe harbor."

The third prong of the test is functionally useless. There is no OCR-approved vehicle to measure women's athletic interests and abilities, nor whether either one has been fully accommodated. Brown University initially defended itself under this prong of the test. The judge dismissed the evidence because the OCR does not deal with how to measure compliance under test three. The presumption of the OCR is that if a complaint has been lodged, the school has not fully accommodated someone's interest and should, therefore, be investigated.

The capping and cutting of men's teams is a quick way to make it to the safe harbor, especially if your athletic department has a budget shortfall. Because nothing in the OCR guidelines, the regulations, or the statute specifically requires that schools must increase opportunities for women, there is an environment in which it has become a "safe" and common practice to simply discriminate against men. Despite the great success of women's sports in overcoming past discrimination, women and girls are interested in varsity athletics in far fewer numbers than boys and men. If a school cannot afford to start a new women's program, or cannot find enough female athletes to round out its existing programs, the number of men must be lessened.

Universities, colleges and high schools governed by Title IX are being punished for failing to prove a level of interest in sport among women and girls that simply does not exist outside the school grounds. The OCR is following a poorly designed, outdated and possibly illegal policy interpretation to dictate the number of female athletes at colleges and high schools regardless of the needs, interests or priorities of an individual campus or an individual student. Feminist leaders are out to destroy one of the last bastions of maleness—the varsity team. They are using and twisting anti-sex discrimination law to discriminate against men in a manner that, when applied to women, launched the feminist movement.

Kimberly Schuld is the Director of Play Fair, an educational project on Title IX created by the Independent Women's Forum. For more information on Title IX, please visit the web site at www.iwf.org.


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