Heading into its 30th year on the books, Title IX, the federal mandate barring sex-based discrimination in government-funded education programs, has been the best boost for female athletes hoping to break down barriers or hurdle over them. But a titanic legal battle over Title IX is set to unfold in federal court later this year. Coupled with President Bush’s recent nomination of a staunch conservative to oversee the law’s enforcement, Title IX faces its biggest threat since the Reagan years.
Under Reagan, a 1984 Supreme Court ruling nearly extinguished the law when it disenfranchised athletics from Title IX. In 1987, athletics were reincorporated into the statute under the Civil Rights Restoration Act. During the Clinton years, Title IX passed several important legal tests that seemed to leave little doubt about its effectiveness as a guarantor of equity on the playing field. Now, though, it’s the Bush era, and there’s a backlash.
This past January, the National Wrestling Coaches Association (NWCA) announced its decision to bring a lawsuit against the Department of Education, charging that Title IX discriminates against male athletes. The coaches complain that Title IX’s proportionality test, which requires colleges to demonstrate roughly the same ratio for male and female athletes as for male and female students enrolled in the school, has forced universities to make deep cuts in men’s athletic teams. The suit—the first of its kind against a federal agency—is all the more alarming to women’s sports advocates because there is growing evidence that the backlash against Title IX is getting a warm reception in Washington and elsewhere.
By mid-March, at least two other sports associations, the U.S. Track and Field Association and the Men’s Gymnastics Association, had announced plans to join the NWCA’s suit. Influential conservatives on Capitol Hill seized on the suit as an opportunity to re-launch their own longstanding campaign against Title IX.
NWCA executive director Mike Moyer insists that he doesn’t question women’s right to participate in sports; it’s the way Title IX does it that ticks him off. He contends that proportionality is “inconsistent with the letter of the law,” and says he wants to see “a fairer application,” while insisting that the NWCA doesn’t “intend [the suit] to be political in any way.”
Not political? It’s nothing but political. The NWCA has drawn heavy fire from feminist groups like the Women’s Sports Foundation, while right-wing political groups and sports organizations with Olympic clout are lining up to endorse the NWCA’s position.
“The Women’s Sports Foundation can conduct all the studies they want, but the fact of the matter is that we’ve lost almost half our programs in wrestling since Title IX was made law 25 to 30 years ago,” says Gary Abbott, director of special projects for USA Wrestling, the organization responsible for the American Olympic wrestling team.
But whose fault is that? Donna Lopiano, executive director of the Women’s Sports Foundation, dismisses claims that Title IX unfairly overburdens non-revenue athletics such as track and wrestling with “gender quotas.” She contends that wealthy schools with big-name football and basketball teams on the NCAA’s Division I roster use Title IX as a scapegoat to hide gross funding disparities between Division I football and Division II wrestling. “It’s a fact that every school could meet the requirements for Title IX compliance by dropping one competitive division down,” she says. Lopiano also worries that high-powered right-wing critics will use the lawsuit to advance their agenda on Capitol Hill. “There’s no question that there are many informal connections between right-wing women’s groups and this new administration,” says Lopiano.
Indeed, after the NWCA’s announcement, a Capitol Hill conservative think tank, the Independent Women’s Forum, eager to flex its muscle under the Bush administration, gave the wrestling coaches its stamp of approval. The IWF has long counted on members like Labor Secretary Elaine Chao and Diana Furchtgott-Roth, current head of the White House’s Council on Economics and former economic advisor under the Reagan administration, to make its negative stance on the future of Title IX clear on Capitol Hill. With the help of key board members like former chairperson of the U.S. Commodity Futures Trading Commission (and wife of Enron’s friend in need Senator Phil Gramm of Texas) Wendy Lee Gramm and Vice President Dick Cheney’s wife, Lynne, the IWF has morphed from a right-wing lightweight to a sleek, conservative spin machine pumping out position papers on women’s issues.
The IWF’s first significant campaign was a 1997 “Fair Play” project, dubbing the Clinton administration’s 1996 “Clarification” of Title IX, which put the proportionality test on the books, “a crusade to impose unfair quotas and gender preferences.”
In June 2000, the IWF laid a 35-page report on D.C. policy makers that was a breathless compilation of stats and vignettes poking holes in Title IX.
More recently, Furchtgott-Roth and her IWF colleague Christine Stolba co-wrote The Feminist Dilemma, a conservative review of the latest developments in everything from gender equity in sports to sexual harassment. The book was published—shortly after Furchtgott-Roth was tapped for the White House position—by the IWF’s more influential coed consort, the American Enterprise Institute. The drumbeat of anti-Title IX publicity has already started. Stolba, the in-house Title IX expert for both the IWF and the AEI, routinely writes op-ed columns and lectures on the “sorry state” of the statute.
Echoing one of the primary themes of her book, Stolba told the Voice that boys “should not be punished just because girls don’t demonstrate as much interest in sports as boys do.”
Now the IWF is looking to up the ante, bypassing routine calls for legislation more attuned to women’s “natural disinclination” toward sports and going straight for the jugular.
A prime example is the IWF’s vigorous support in late February for Gerald Reynolds to head the Department of Education’s Office of Civil Rights. As early as last year, Reynolds topped the list of Bush’s candidates to manage Title IX enforcement as assistant secretary of the OCR. Reynolds’s ties to the Bush administration and his former presidency of the Center for New Black Leadership, a D.C. organization known for its pro-business and “anti-quota” stances, also made him a clear favorite of the IWF’s.
Bronx-born but now a Midwesterner, the African American attorney for Kansas City Power and Light has little in the way of educational experience, and his nomination set off alarms outside the conservatives’ orbit.
“It is inconceivable that a person with such strong convictions should be charged with implementing and protecting the laws for which he has shown such contempt,” NAACP president Kweisi Mfume told reporters.
Since Bush took office, the National Women’s Law Center has trained a watchful eye on the IWF’s links to the White House—and is trying to mobilize against Reynolds.
“Reynolds did say some troubling things about Title IX and the idea of quotas during the hearings, so we’re certainly concerned about his appointment,” says Neena Chaudhry, a senior counsel with the center.
But the real grenades won’t be lobbed until the Justice Department issues its official response to the NWCA lawsuit this month. At the very least, Lopiano says, the two pro-Title IX groups plan to file a brief protesting the NWCA’s suit against the Department of Education. Chaudhry says the center also may participate more directly in the case. That could make the lawsuit a major battleground between feminists and conservatives.
Lopiano insists that Title IX won’t go down without a fight, adding, “It would be suicidal for any politician to get on the opposite side of the Title IX issue.”