Forget about sports for a moment. After all, Title IX—the 1972 law barring sex discrimination in federally funded educational programs—was not just about field hockey. Indeed, the grievance that generated the statute in the first place didn’t even mention athletics; it was a class-action complaint on behalf of all women in higher education in America, charging unfair treatment in such realms as admissions, financial aid, hiring, promotion, and salary. Students across the country testified about being rejected from programs of study that allowed only a slim number of slots to be “taken from” men; female faculty told of being repeatedly passed over for promotions because they were not perceived as properly “feminine.”
Title IX changed all that—or much of it. According to statistics compiled by the University of Iowa, for example, 25 percent of Ph.D.’s granted to U.S. citizens in 1977 went to women; by 1994, that figure had reached 44. The percentage of medical degrees earned by women leaped from 9 percent in 1972 to 38 percent, and law degrees from 7 to 43 percent. Math and sciences still lag—women make up only 23 percent of physical scientists and 10 percent of engineers. But even those meager numbers represent vast improvements. Without Title IX and other anti-discrimination laws passed in what she calls “the golden age of the ’70s,” Margaret Rossiter, the author of Women Scientists in America, says hiring would still proceed as a function of “cronyism and decisions made behind closed doors with no accountability.”
What’s more, Title IX has made sexual harassment actionable on campuses, and it has rendered illegal the shockingly once common practice of kicking women out of school—or at least out of mainstream academic programs—if they become pregnant.
Title IX, in short, has changed America radically, by opening to girls and women full access to a range of educational opportunities that had been barred for centuries.
All this is important to remember as the fate of Title IX hangs in the balance. Secretary of Education Roderick Paige will issue new guidelines on Title IX enforcement based on the recommendations released in late February by a special commission on gender equity in sport. Wracked by time limitations and by allegations that the commission was stacked with members associated with Division III schools and that the information it was using was incomplete and skewed, it issued recommendations—over the vigorous objections of commissioners Julie Foudy and Donna de Varona—that the National Women’s Law Center, for one, fears will “dramatically reduce the participation opportunities and scholarships to which women and girls are entitled.”
The commission looked primarily at one of three methods colleges may use to demonstrate their compliance with the law in the area of athletics—showing that the proportion of athletic opportunities for women matches their proportion of the student body generally. Critics of this compliance test claim that it has forced colleges to cut men’s wrestling, swimming and diving, gymnastics, and other men’s “minor” sports when they can’t afford to add new programs for women. But among many grievous lapses, the commission never considered the persistence of discrimination against female athletes that the law was designed to address. Some 80 percent of schools are not living up to the equity the law demands—yet the Office for Civil Rights, which has the power to withhold federal funds from noncompliant institutions, has never done so.
Despite multiple requests from commissioners, the Department of Education did not allow the author of a General Accounting Office study on participation trends to testify, so commissioners did not hear that men’s participation opportunities and number of teams have, in fact, continued to increase since Title IX.
So Title IX’s defenders are bracing for new regulations from Paige that will likely reduce athletic opportunities for women. What’s more, any erosion of the law could have wider-reaching effects. Once the central principle of fairness is weakened, the entire law is vulnerable.
That, in fact, is what the forces behind attacks on Title IX are counting on. Right-wing policy groups—among them, the Center for Individual Rights (CIR) and the Independent Women’s Forum (IWF)—have taken aim at Title IX as one more target in their wide offensive against civil rights legislation. The wrestling coaches lining up with them—by scapegoating women for the loss of their programs to behemoth budgets for men’s football and basketball—are at best being used. Indeed, according to Laurie Priest, director of athletics at Mount Holyoke College, men’s coaches pressing against Title IX have declined invitations to join forces with women to hold back the enormous, distorting expenditures on men’s basketball and football. “They said they know it’s not really Title IX’s fault, but they can’t go up against football,” says Priest. “They’ll use what they can to get attention.”
For their part, proponents of Title IX need to recognize how the assault on women’s athletics is one more cog in the machinery grinding away at anti-discrimination laws, affirmative action, disability rights legislation, and other laws aimed at genuine equality, and they need to link up with those fighting to preserve all the instruments of equity. As the Supreme Court deliberates on challenges to race as one consideration in admissions to the University of Michigan’s undergraduate and law schools, Title IX’s supporters have good reason to quake in their Nikes—and to lace up for a strategic team effort.
The genius of Title IX—and one reason it is so threatening to those who are hostile to a genuinely pluralistic, multiracial society—is that it insists on what legal scholars called “substantive equality” rather than merely “formal equality.” That means, explains University of Pittsburgh law professor Deborah Brake—who litigated many Title IX cases as an attorney with the National Women’s Law Center in the ’90s—that Title IX goes beyond the formalities of offering the same treatment to people who are alike. It doesn’t require merely that men’s football, say, open up its tryouts to women and then let the “meritocracy” rule by insisting that no discrimination has occurred if men consistently get chosen over women. The law recognizes, instead, that when it comes to athletics, men and women are generally and significantly different in size and strength, so equal access has to be measured in a different, more structural—or substantive—way. Title IX looks for equality in the access to opportunities accorded athletes of both sexes.
Opponents insist that universities conduct surveys to determine student interest in sports and use those numbers as the basis for determining proportional spending, but that misses the substantive work of Title IX, which aims, among other things, to redress a culture that consistently applauds boys for athletic achievement and pours resources in their direction. Is it any wonder that they would express more interest?
Affirmative action makes a somewhat analogous claim (in addition to the all-important case for diversity), arguing that white and male students are not the same as those who have historically been denied the privileges and access whites and men can take for granted; it seeks a substantive remedy that takes long-standing institutional racism and sexism into account. Insisting on “color blind” admissions policies is a “formal equality” argument that refuses to recognize such structural differences.
Groups like CIR and IWF reject substantive-equality approaches on principle. As they see it, as long as formal barriers are removed—”whites only” signs or quotas limiting women in med schools—racial and gender justice has been achieved. On substance, of course, such a claim is ludicrous. While women represent 53 percent of the undergraduates at Division I colleges, they receive only 41 percent of participation opportunities, 36 percent of athletic operating budgets, and 32 percent of recruiting dollars. Yet, coached by CIR, men in minor sports cry “reverse discrimination,” declaring that they are victims of women’s sexism when their programs get cut. And similarly, white students who don’t get into a college that considers race among other criteria in its admissions policies regard themselves as victims of racial discrimination even as whites continue to occupy the overwhelming majority of positions of privilege in the U.S.—and to be funneled into them through less visible preference programs, like college legacy admissions.
CIR and its fellow travelers cleverly claim harm from civil rights initiatives, employing the very language of civil rights outrages (“quotas,” “discrimination”), denying other possible sources of the alleged harm, and declaring irrelevant the larger structural picture.
They make great headway in reframing the terms of the debate for two key reasons. First, quite simply, they play to the underlying racism and sexism that tug tenaciously at the core of American culture. It’s not difficult to convince wrestlers that they have been taken to the mat by women—rather than slighted by athletic directors who, nationally, spend over 80 percent of their men’s budgets on basketball and football—when the locker room still seethes with suspicions that women don’t really belong in sports, the bastion where boys become men.
The fear that women’s athletic prowess would somehow diminish men’s has fueled efforts to block women’s gains from the beginning. Now a staunch supporter, the NCAA actually tried in the 1970s and ’80s to limit Title IX’s reach into the realm of sports. The NCAA president wrote to President Ford in 1975 saying that Title IX would seriously damage—if not destroy—men’s intercollegiate programs. (Around the same time, University of Michigan football coach Bo Schembechler objected to women’s earning letters, asserting that they would devalue the school’s “M.”) In 1984 the Supreme Court ruled that schools were bound by Title IX only for programs receiving direct federal funds (making it OK to deny women access to science labs if those labs were built, say, with alumni funds). It took several years before Congress passed the Civil Rights Restoration Act, reinstating several anti-discrimination laws that had been gutted by the Reagan administration’s broad interpretation of the 1984 ruling. Between 1984 and 1988—when Title IX was not in effect—wrestling lost dozens of teams as the “arms race” in men’s basketball and football got underway.
How much more convenient that nowadays women can be blamed. And the mainstream media have been easily spun to tell things that way. Kimberly Schuld—the director of IWF’s anti-Title IX campaign—bragged in a letter to leaders of wrestling associations a couple of years ago that the IWF was instrumental in getting a range of publications to cover Title IX from their point of view. She boasted that the producer of a 20/20 episode “was on the phone several times a week” with her and her colleagues, “who directed the tone of the show.” And she bragged, “I was a key player with the production staff” of a PBS segment on Title IX, assisting on “how to write the story line.” This past December, 60 Minutes aired an extremely lopsided segment with a promo spot as erroneous as it was hyped: “How did what used to be the lion’s share for college athletics become the lioness’s share?”
No matter how the Supreme Court rules on affirmative action at Michigan, the justices already gave civil rights opponents a huge boost, of course, by anointing George Bush president. Bush has been careful to affirm that he supports Title IX—it’s one of the most popular laws ever passed—but calling for re-examination, he presides over its stealth evisceration. His good pal House Speaker Dennis Hastert, a former wrestling coach who once called for a voice vote in Congress to overturn Title IX, keeps a bug against the legislation in the president’s ear. And the man Bush appointed as assistant secretary of the Department of Education’s civil rights office, who has the job of enforcing Title IX—Gerald Reynolds—is such a notorious opponent of affirmative action that Bush gave him the nod while Congress was in recess and could not object.
You don’t have to believe in vast right-wing conspiracies to recognize that those going after Title IX are not at the core most interested in improving athletic experiences for women and men alike. CIR and IWF openly reject the very idea, insisting that girls just don’t like sports so much. But even the gender equity commission didn’t so much as attempt to think about ways colleges can comply with Title IX while maintaining diverse men’s sports programs.
Even NCAA president Cedric Dempsey has said the biggest barrier to gender equity is overspending in men’s basketball and football. (Among NCAA programs, 78 percent of the so-called “revenue-producing” football teams lose more money than they raise; more than a third are running deficits of over $1 million per year.) If football teams gave out 60 instead of the whopping 85 scholarships they each grant every year (NFL rosters top out at 53), their schools would be able to field wrestling and gymnastics squads and still have money to spare. If they stopped housing football players in hotels on the Friday nights before home games, they’d save, according to the NCAA, some $60,000 a year—enough to keep a swim team going. But the athletes are offered more and more special perks as colleges vie for recruits—the biggest affirmative action boondoggle if ever there was one.
At Division I schools especially, Title IX is taking the heat for a system that’s out of control. Intercollegiate athletics has lost sight of its role as one piece of a well-rounded educational experience, Christine Grant, women’s athletic director at the University of Iowa from 1973 until 2000, told the Voice. “Because it’s all based on winning,” she says, “you have to recruit the best, and so you have to keep up with what all the competitors are doing in terms of what you offer the recruits, and so we’re on an accelerating treadmill and we can’t get off.”
In part that’s because women like Grant who have an experience of a different way of doing things have been largely frozen out of decision-making positions ever since the NCAA supplanted the Association of Intercollegiate Athletics for Women in the early ’80s. The AIAW granted scholarships on the basis of need, or at least restricted them to tuition. It emphasized athletes’ academic lives and required them to meet the same admissions requirements as all other students. That philosophy has been shut out of today’s male-dominated athletics directorships as the women who might have given voice to it were left behind. Which just goes to show how desperately affirmative action is still needed.