Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Title IX and Quotas: A Modest First Step

Keith Pavlischek


February 11, 2002

Title IX, the 1972 federal statute that prohibits schools and colleges that receive federal money from discriminating on the basis of sex, has been enormously effective in opening up sports opportunities for women and encouraging their participation. Hardly anyone disputes this fact, and no one wants to return to the old days when women athletes were second class citizens. But over the past decade a highly questionable interpretation of the law with drastic implications for collegiate men's sports has become a matter of serious political controversy.

The controversy is over Title IX's mandate that both men and women should have every opportunity to compete in intercollegiate sports. Last month the National Wrestling Coaches Association (NWCA) filed suit, alleging that in 1996 the Department of Education unlawfully altered the interpretation of Title IX. The result, they say, has been the wholesale demolition of non-revenue-producing male collegiate sports pro-grams, costing students their scholarships and opportunities to compete.

From late in the 1970s until recently schools could comply with Title IX by showing that the number of athletic opportunities for women was "substantially proportionate" to their total enrollment. Title IX's 1996 "clarification" said the number of athletes would be counted rather than simply the number of spots allotted to teams. If 52% of your campus population are women, close to 52% of the college's athletes better be women or you'll have to face down Leviathan. The Feds make you an offer you can't refuse: either add women's teams or cut men's teams.

Some feminist organizations that support the 1996 interpretation think that merely having an opportunity to compete is insufficient. They tag anything less than proportional equality as gender discrimination. Pressure from their side, in fact, has stalled President Bush's nomination of Gerald Reynolds to be Assistant Secretary of Education for Civil Rights.

But why can't colleges just add more women's teams? The problem, as the research shows, is simply that while interest in almost all other types of extracurricular activities is significantly higher among females, interest in competitive sports remains drastically greater among males. To conclude that a university is discriminatory based on the statistical fact that more college women are interested in drama would be foolish. But that's the assumption in the sports arena. The result is a system restricting the number of "opportunities" (team slots) for men. Male sports participation is legally restricted by the degree of female interest in competitive sports.

The NWCA and groups like the Independent Women's Forum think that proportional equality is simply a polite way to say "quotas." Those sports, such as wrestling, that historically have not had a gender equivalent sport (e.g., women's softball for men's baseball), have been especially (but not exclusively) hard hit. In recent years, many college wrestling teams have been eliminated and it is hard to deny the fact that Title IX (misapplied) is the cause.

Absurdly enough, even after a university decides to eliminate a team, an independent group of alumni who wants to promote a non-revenue sport like wrestling is not allowed to fund the program with travel money, uniforms, salaries, and a place to practice (even off campus). A modest first step toward addressing this injustice would be to encourage voluntary organizations—institutions of civil society—to support intercollegiate sports programs. If a group of alumni wants to support a wrestling program at its alma mater, it is simply unjust to prohibit that support in order to comply with a quota restriction. You might say that this should be a fundamental right in a free society.

—Keith J. Pavlischek, Fellow
   Center for Public Justice


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Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”