National Review: The University of Minnesota’s unlawful discrimination
In the 1980s there were over 100 men’s collegiate gymnastics teams at the NCAA Division I level. As of the start of the 2021–22 school year, only 13 remain. While any individual school’s decision to eliminate its program can likely be credited to a number of factors, one that is cited consistently is the need to comply with Title IX — the federal equal-opportunity-in-education statute. Title IX prohibits schools that receive federal funds from denying students opportunities to compete in athletics on the basis of their sex. That is, nevertheless, exactly what many schools are doing.
Take the case of Evan Ng. Evan has competed in gymnastics since he was six years old. After rising to the rank of state and national champion, he was recruited by multiple universities to compete at the collegiate level. Evan decided to join the University of Minnesota’s 118-year-old men’s gymnastics team for the fall of 2020 — declining a more generous financial-aid offer from another school — because of his connection with coach Mike Burns and a firm belief in the school’s championship-caliber program.
Yet just days into the start of his freshman year, Evan was informed of some troubling news: The university was proposing to eliminate the men’s gymnastics team — as well as the men’s tennis and track teams — at the end of the school year.
The teams needed to be cut, the university claimed, in order to reduce the number of male student athletes on campus. In other words, according to the university, Title IX ostensibly required it to discriminate on the basis of sex in eliminating men’s teams to create sex-based quotas for athletics. The university is wrong. As a result, Evan — with the help of Pacific Legal Foundation — recently sued to have the team reinstated.
Typically, when one hears of university-athletics cuts, one suspects the program’s insolvency or poor athletic performance. That was decidedly not the case here; the university has admitted as much, conceding that eliminating all three teams would save the school only $1.6 million out of an annual $125 million budget. In fact, the men’s gymnastics team maintained a reasonable $750,000 budget with the help of a private $900,000 endowment. Worse still, none of the university’s projected savings was claimed to be needed for saving any other programs or for adding women’s teams to address any statistical shortcomings.
Instead, this is a case of patent discrimination. The university has claimed that Title IX requires it to have statistical parity between its ratio of male and female athletes and male and female undergraduates. In other words, if 45 percent of the undergraduates were male, then the school would seek to limit its athletes to 45 percent male. Because men were slightly overrepresented in athletics, the university believed it had to reduce its number of male athletes, essentially creating sex-based quotas for its sports teams.
The text of Title IX says no such thing. Schools are not required to maintain statistical balance between athletes and students on the basis of sex. Indeed, in drafting the statute, Congress recognized that a simple statistical imbalance alone is insufficient in finding a school to have engaged in sex discrimination.
Ignoring the text of the statute, the university seems to have relied on a nonbinding Department of Education guidance document that says that schools can show they are providing equal opportunity by maintaining “substantial proportionality” between athletes and the student body by sex. But turning an equal-opportunity law into one that requires schools to cap athletic opportunities for men based on the number of male students is precisely what the statute prohibits: denial of opportunity due to sex.
Because the text of Title IX and the principle of equal treatment preclude the university from using the law to shield its decision to eliminate men’s gymnastics, and because the numbers speak for themselves in establishing that it was not financially necessary to cut the team, the university’s decision is unlawful and in violation of the equal-protection clause of the 14th Amendment to the U.S. Constitution.
More fundamentally, the university’s belief that its sports teams must match the sex-based makeup of the student body doesn’t withstand scrutiny. The university isn’t requiring the marching band, drama department, or classes in general to statistically match the composition of the student body. Nor should it.
Using sex-based quotas as a proxy for equality of opportunity ignores the preferences and complexities of people as individuals. There are any number of reasons why more men might play sports than women, or why more women may take women’s studies classes than men. A statistical imbalance does not itself equate to discrimination.
Perhaps most damning for the university is that, even assuming achieving proportionality is necessary, the university had already done so prior to eliminating the men’s gymnastics team — a fact recognized by the federal government in 2018. That the numbers somewhat shifted two years later because of normal enrollment fluctuations still does not justify the elimination of men’s gymnastics. If it were otherwise, another sport would be on the chopping block with every fluctuation in enrollment.
In the name of equal opportunity, the University of Minnesota has treated Evan Ng as nothing more than a number on a ledger that needs balancing out. Until the university stops denying Evan and his teammates the opportunity to compete solely on account of their sex, we will continue to fight for his rights in court.
This op-ed was originally published by National Review on December 10, 2021.
