Civil Liberties

Reasonable Doubts: Title IX from Outer Space

How federal law is killing men's college sports


"Giving Women a Sporting Chance: Cal State Plan Could Be a Template for Nation" jubilated a Los Angeles Times editorial. The month was October 1993, and the California State University system had just agreed to settle a National Organization for Women lawsuit by adopting a quota system for varsity sports participation, promising that women's share would come out within 5 percentage points of female enrollment at each of its 19 campuses.

According to the Times, this "welcome commitment" would put Cal State in the "vanguard of reform," for which its administration was "to be commended." "Gender fairness in sports is really not that difficult to comprehend," explained the Times, with that touch of condescension that so grates on non-feminist ears. "Too many athletic departments just don't"–can you tell where this sentence is headed?–"get it."

The settlement's compliance deadline was set for fall 1998, and by mid-1997 one of its results had become clear: massive cuts in men's sports throughout the Cal State system. In June, Cal State-Northridge dropped its baseball team, which had ranked among the nation's top 20, along with soccer, swimming, and volleyball. Cal State-Bakersfield drastically curtailed its outstanding wrestling program. San Francisco State, Fullerton, Hayward, Chico, Long Beach, and Sonoma all got out of football.

The Cal State-men's-sports massacre made news from coast to coast, and for good reason: As the Times headline predicted, it is going to serve as a model for the rest of the country. Last April, the U.S. Supreme Court declined to review a court decision against Brown University, leaving in place an interpretation of the federal Title IX law that has already begun to devastate such men's sports as track, wrestling, swimming, and diving nationwide. A survey by the National Collegiate Athletic Association found colleges have axed 200 men's teams in recent years, with 17,000 slots lost. Gymnastics teams, which numbered 133 as recently as 1975, are down to 32 overall. Even golf, a sport whose popularity in the outside world has soared, is hard hit.

The next targets for Title IX enforcers are elementary and secondary schools. Already, many high schoolers in Florida face a ban on all athletic competition because their schools haven't done well enough at equalizing sports participation. Armed with a 1992 Supreme Court decision which allows complainants to demand cash damages as well as lawyers' fees, litigators and regulators are swarming around the field house.

The premise of the gender-equity movement is simple: Women's sports should get just as much money, attention, and participation as men's. It's a lovely ambition, acceptable in the end to most college administrators as well as most social reformers. Only two obstacles remain: the fans and the participants.

College football, to begin with, is a huge business, generating fortunes in alumni donations, gate receipts, and broadcast fees. Yet it won't have a real female equivalent as long as women are free to avoid it. (Neither forced watching nor forced playing has yet arisen on the Title IX agenda.) Even aside from male-female differences in strength and stature, extremes of physical competition and the buzz of danger just don't play the same role in women's lives as in men's, either as players or as spectators. As National Review's Kate O'Beirne has pointed out, men made up a substantial majority of the television audience for the women's NCAA basketball finals.

In questionnaires of prospective Brown students, 50 percent of the men but only 30 percent of the women expressed interest in trying out for athletics. Intramural sports were open to all at Brown, but eight times as many men took part as women. Nor is it easy to argue that the dead hand of bygone male supremacy is the problem. Women at Vassar participate in varsity sports at a rate 13 percent lower than do men, even though Vassar was a women's college until 1969.

"Including football in counting the numbers is unreasonable," Olympic high jumper Amy Acuff told one reporter. "At my school [UCLA], they cut men's swimming and gymnastics so they could start water polo and soccer for women. It broke my heart because those men's teams were really good, and a lot of the women they brought into the new sports weren't serious athletes." (The defunct UCLA diving and swimming program had garnered 16 Olympic gold medals and 41 individual national titles.)

Tough, say the hard-liners at the U.S. Department of Education's Office of Civil Rights, which "has exhibited an astonishing indifference to the destruction of athletic opportunities for males," according to University of Chicago wrestling coach Leo Kocher. Anyone at all can file a complaint that triggers an OCR investigation, and such probes, as Pittsburgh Post-Gazette sportswriter Lori Shontz observes, are not always known for their sophistication and subtlety. Staffers who swooped down on Johns Hopkins University, for instance, demanded to know why the women's basketballs were smaller than the men's, not realizing that "women's basketballs are smaller by design to accommodate smaller hands."

As usual in Washington, the quota-enforcers heatedly deny that quotas are actually mandatory, insisting that schools can comply by passing one of two other tests. They can show that women are satisfied with existing offerings–but then a complaint itself is apt to serve as evidence of dissatisfaction. Or schools can show a pattern of continued expansion of women's programs, which is to say continued progress toward proportionality. In practice, according to the American Football Coaches Association and other critics, proportionality is the "primary emphasis of enforcement," and the other two tests, though they may furnish the regulators some facade of deniability against quota charges, offer no enduring safe harbor of compliance.

In the Brown case, the federal court rebuffed the university's effort to offer evidence that men were more interested in athletics. Are women's teams undersubscribed and men's oversubscribed? Then a university must have fallen short in finding ways to make the women's programs attractive. Is it easier for women at a given level of achievement or commitment to obtain athletic scholarships than it is for men? Too bad: The university may lose anyway, unless it's brought the overall head count into line.

Nor can educators necessarily get off the hook by pointing to other demographic or behavioral variables. The student body at Cal State-Bakersfield, reports Elizabeth Arens in Policy Review, is 64 percent female and includes many women in their 40s and 50s who are upgrading their education after launching families and disinclined to pursue varsity sports.

"The women's advocacy groups strongly oppose any effort to survey interest in athletics because they do not like the results," charges Chuck Neinas, executive director of the College Football Association, who says the current state of legal interpretation "will make it difficult, if not impossible, for those universities that sponsor football to comply with Title IX."

Feminist litigators make little secret of their animus toward football, many evidently agreeing with University of Wisconsin-Milwaukee professor Margaret Carlisle Duncan that it's "an institution that promotes male dominance." Where it can't be axed entirely, they favor at least reducing the number of players on rosters, as Cal State-Fresno and other institutions have reluctantly done. College teams play with larger rosters than the pros, partly because they can't rely on mid-season signups or trades to replace sidelined regular players.

Ironically, colleges with standout football teams, being flush with revenues for scholarships and equipment, have the easiest time expanding women's sports. Although top-division football as a whole makes money, it is made unevenly, with some strong teams raking in the receipts and others running deficits. Title IX activists urge colleges to boot money-losing pigskin teams, though it seems unlikely that a conference whose cellar-dwellers dropped out could for long achieve a Lake Wobegon effect and consist entirely of teams with favorable win-lose records.

In any event, the head count, not money, is what's often really at legal issue. Wrestling is among the least expensive sports to sustain. Princeton refused to accept a $2.3 million alumni gift intended as an endowment to save its 90-year-old men's wrestling team, just as the University of Southern California did when alumni tried to save its men's swimming program. Roster cutbacks for "big" men's sports, a common feminist proposal, aid compliance efforts not so much because they save pots of money–the non-star "walk-ons" dropped are typically already playing without scholarships, travel, or equipment subsidies–but because they keep down the number of male bodies.

Of course, the Equal Employment Opportunity Commission can't resist making things worse. Last October, it put out new guidelines arm-twisting colleges to pay coaches of women's teams as much as they do men's. The guidelines do start with a token concession that not every volleyball coach may be entitled to the salary of a Big Ten football wizard, but from then on it's mostly bad news. Comparisons between dissimilar sports? No problem. Offers based on market rates or current pay levels will be suspect: "Cultural and social factors may have artificially inflated men's coaches' salaries."

The guidelines hint that if colleges can't show that they've advertised and promoted men's and women's squads equally, women's coaches should win salary-dispute cases. Of course, to hype a fanless team may be to throw good money after bad: In one well-known case, the USC men's basketball program brought in 90 times as much revenue as the women's. The agency also suggests a college may lose a case if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

In the whole Title IX controversy, incidentally, it appears next to impossible to find anyone willing to criticize the law in principle. Sure, enforcement has gone haywire and the results are crazy, but everyone hastens to add that of course they just adore the law itself.

As for the old idea that universities in a free society should be entitled to make their own decisions–well, that notion, like so many men's track teams, is on its last lap.