Title IX's Pyrrhic Victory

ow the quest for "gender equity" is killing men's athletic programs

Michael W. Lynch from the April 2001 issue

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"I was trying to figure out if it was a dream or not," recalls former Providence baseball coach Charlie Hickey, who started as an assistant in 1991 and took over the program in 1996. "A lot of wild thoughts came to mind, a lot of hatred, bitterness. Then I had to tell 29 kids."

Providence outfielder Jason Hairston recalls the October day when the coach interrupted practice to deliver the news. "It was like someone had taken your heart out of you," he says. Hairston had good reason to be upset. Like others on the squad, he had chosen Providence because of its baseball team. As a high school senior in Connecticut, he'd made all-state teams in soccer and baseball and was heavily recruited in both sports by such schools as the Naval Academy, West Point, and Boston College. He decided to pursue his options in baseball because he found it more challenging. "People say I was better at soccer," says Hairston. "But I played baseball for the love of the game." He chose Providence because he liked its atmosphere, its location, its academic reputation, its standing in the prestigious Big East sports conference, and the relative largess of its scholarship offer.

The unexpected demise of Providence's baseball team forced Hairston to make a tough decision. He'd already completed two years of academics at Providence. If he played his junior year at Providence, the team's last season, it was unlikely that he'd be able to transfer and play his last year of eligibility at another school. Even if he was able to play his final year of eligibility, it would cost him academically. Most schools will not accept three years of academic work, so transferring would delay his graduation for at least a year. Hairston decided to stay and play at Providence. It's a decision he doesn't regret but one that came at a steep price for a young man who planned to play four years of Division I baseball, with the goal of getting drafted into the pros. "It made me give up my dream," says Hairston, who graduated last year and now works for KPMG Consulting. "I could have worked here, played Division I baseball, and showcased myself. Now I can't."

The same qualities that convinced Hairston to choose Providence -- the school's size, familial atmosphere, and Big East schedule -- were helping Coach Hickey produce the best baseball teams in Providence College's history. In 1995 and 1996 the team was the Big East season champion. Hairston's dream of playing Major League Baseball was hardly a pie in the sky. Two of Providence's recent graduates have made it, if only briefly, to the big leagues. Six or seven Providence alumni are sprinkled through the minor leagues.

The Biggest Quota

Title IX itself says nothing about athletics. It simply prohibits discrimination based on sex in federally funded education programs. "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," states the relevant part of the law.

Title IX also says nothing about quotas based on population proportions. In fact, the law's creators emphatically argued against such things. "The thrust of the amendment is to do away with every quota," explained its chief Senate sponsor, Birch Bayh (D-Ind.). House sponsor Albert Quie (R-Minn.) similarly underscored that Title IX "would provide that there shall be no quotas in the sex anti-discrimination title."

Despite such intentions, Title IX has become, in the approving words of Rep. Maxine Waters (D-Calif.), "the biggest quota you've ever seen." Speaking at a 1997 House Constitution Subcommittee hearing, Waters emphasized that point, calling Title IX, "a quota -- [a] big, round quota."

What happened? In 1979, following standard operating procedure, the federal Department of Health, Education, and Welfare issued a policy interpretation for athletics. Schools would be in compliance with Title IX, HEW decreed, if they met any one prong of a three-prong test: They could provide sporting opportunities to the sexes in "numbers substantially proportionate to their respective enrollments"; they could show a "history of continuing program expansion"; or they could show they were already meeting the "interests and abilities" of women.

In the 1990s, federal courts elevated this interpretation to the level of law. At the same time, they focused on the proportionality test as the only definitive means to prove compliance. A 1992 court decision further established that plaintiffs could collect attorney's fees and damages, which substantially raised the stakes for colleges and universities. Once compensatory and punitive damages could be awarded in Title IX cases, the lawsuits effectively became self-financing. Even when damages aren't awarded, public interest attorneys can bill the court at several times their actual costs. In fact, enterprising lawyers don't even need aggrieved plaintiffs; suits can be filed by anyone based on aggregate numerical disparities.

In 1996 Norma Cantu, assistant secretary for civil rights at the Department of Education, made it clear that while a school could theoretically meet Title IX requirements in any one of the three ways outlined by HEW, the only true "safe harbor" for a school was to offer "proportional opportunity." At the same time, Cantu redefined opportunity to mean the number of women playing sports, not the number of spots available on a school's teams. On this reading, explains Mark Martel, attorney for former CSUB wrestler Stephen Neal, "an opportunity equals an actual participant. So if a woman's team could have had 25 athletes but only 20 go out for the team, there are only 20 opportunities. If a men's team has 25 opportunities and 25 men go out, then there is unequal opportunity."

In short, what happened to Title IX is a classic Washington story. Ideological activists take words that appeal to a general sense of fair play, such as opportunity, and then redefine them. While they argue for their new definition in court, they simultaneously justify their actions to the public based on the old, common-sense understanding.

The redefinition of opportunity turns out to be critical to the new wave of Title IX enforcement, because men go out for sports in greater numbers than women do. Women's sports activists claim that in the absence of discrimination, women would play sports in equal numbers to men. "You treat sports the same way, and girls are just as interested in playing as boys," Donna Lopiano, executive director of the Women's Sports Foundation, told ABC's John Stossel on 20/20 in 1998. She said there was "no doubt in [her] mind" that discrimination is the reason girls and boys don't play in equal number. "If you build it," she told Stossel, "they will come."

There's some evidence for Lopiano's claim. Recall that in 1970 12 boys played high school sports for every girl. As the number of girls' teams grew, so did the number of female participants. In 1970 just one out of every 27 high school girls played varsity sports, according to Lopiano. Today that figure is about one in three. If women with athletic aspirations had simply accepted the status quo in the 1960s, we'd likely think the 12-to-1 disparity was "natural," simply the result of girls' preferences. Yet over the past three decades, millions of girls have filled up soccer fields, softball diamonds, lacrosse fields, and basketball courts.

Paying for Parity