Back to Title IX

Below I said I found it difficult to reconcile the Washinton Post and the Washington Times stories this morning on the Bush administration’s statement regarding the enforcement of title IX of the Civil Rights Act of 1964. As enforced by the Clinton administration’s unspeakable Norma Cantu of the Department of Education’s Office of Civil Rights, title IX became a scythe of destruction that cut men’s athletic programs at universities throughout the country. The Post story suggests that nothing has changed; the Times story suggests that the destructive element of the Cantu-era enforcement guidelines has been repealed.
Pending the analysis of our sports editor, reader Dafydd ab Hugh has undertaken to explain what has transpired: “It’s a little confusing; but in fact, if you parse carefully (in this post-Clinton era), you will discover that the two stories are not incompatible. The secret is in the wording: Title IX was never, by itself, the problem. It set up a ‘three-prong test’ for compliance, allowing a university to show that it was not discriminating against either sex (but really, only women were the targets) by either: 1. Showing that male and female students participated in sports in roughly the same proportions as their enrollment; OR 2. Showing a history of expanding sports programs for the underrepresented sex; OR 3. Showing that the school has ‘accommodated the interests and abilities’ of the underrepresented sex.
“But what happened next is what caused all the problems: Bill Clinton promulgated (through his Education Department’s Office of Civil Rights) a rule that said, in effect, that only the first prong would be acceptable… that prongs two and three would not be considered evidence of compliance with Title IX. And it was this insistance on strict proportionality in athletics — when we all know that women simply aren’t as interested in athletics as men — that forced schools and universitites to shut down large portions of their athletic teams and activities, to ‘fire’ enough men to bring their proportion down to the level of the women’s enrollment.
“Thus, if a particular university had 55 percent women and 45 percent men (often the case), and if 20 percent of the men turned out for athletic activities, while only 10 percent of the women did (again, pretty common), that means that the sex proportions of the athletes at that school would be 38 percent female and 62 percent male. But they have to get to 55 percent female and only 45 percent male; since they probably can’t get more women to show up, their only recourse, under the Clinton rule (not Title IX itself), was to send half the male athletes packing! This would bring the ratios into compliance.
“The Washington Post gets at this very obliquely, since they know the Clinton rules actually violated Title IX; the story is even worse in admitting the findings of the Bush panel: ‘Those who followed the spirited 13-month debate said the Bush administration appears to have ended its deliberations in a different frame of mind from when it began. Before the commission was appointed, some administration officials had said the law was in need of change.’
“Yes; but then the Bush panel discovered it wasn’t the law itself — it was just Clinton’s improper reinterpretation and modification of the law! What has happened is that the Bush administration has revoked, not Title IX itself, but rather the regulation enacted by the Clinton Department of Education. Now the regulations of the Department of Education Office of Civil Rights are fully in compliance with Title IX itself, allowing a school to come into compliance by any of the three prongs: ‘Reynolds, a nonvoting commission member, said that it became apparent during months of testimony that many schools believed that only the first option was considered “a safe harbor” based on a 1996 Education Department letter. “There is no prong that is favored over another, and I think that’s an important distinction,” Reynolds said in a telephone conference with reporters.’
“And it’s the last prong that is now the easiest out for a school: all it means is that you cannot have an athletic department that consists of nothing but football and hockey, neither of which is even possible for the vast majority of women, even the athletic ones. So long as the school can show that it has *some programs* available for women too, or if it shows it’s trying to find some programs for women by expanding the choices available, it doesn’t matter if fewer women turn out than men… they’re still in compliance with Title IX. ‘The clarification, which is effective immediately, discourages schools from cutting sports teams to comply with Title IX, an issue that became contentious when the wrestlers association and four other athletic groups filed their lawsuit in January 2002. They said the law had led to the elimination of 355 men’s college athletic teams, and 22,000 spots on those teams, over the previous decade. In June, a judge said the groups failed to show how the law had done any harm.’
“And the judge was correct: the actual law was never the problem. As usual, it was Bill Clinton and the Democrats.”

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