Title IX Sexual Parity: Why Stop at Sports?

Author:  Anne Hayes

As we have discussed in previous blogs, the National Women's Law Center (NWLC) has been very active lately, attempting to force high schools to adopt sex quotas for their sports programs under the theory that Title IX of the Civil Rights Act requires it.  To recap, Title IX of the Civil Rights Act states:

"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance."

The Act further requires that the Secretary of Health, Education, and Welfare (HEW) promulgate regulations to effectuate this provision, and further, that these provisions extend to "the prohibition of sex discrimination in federally assisted education programs which shall include with respect to intercollegiate athletic activities reasonable provisions considering the nature of particular sports."  In other words, women cannot be discriminated against in intercollegiate athletic programs, allowing for certain difference among the sorts of sports in which men and women participate. 

The NWLC, of course, has conveniently decided to read the word "intercollegiate" out of that particular provision of the law, instead preferring to import the athletic provisions into the more general  prohibition against sex discrimination.  And despite their claims that Title IX's athletic provision "has always" applied to high schools, as we have pointed out, there are no cases establishing that.

The real crux of the problem with Title IX, however, is not that it seeks to create equal opportunity–a goal with which few would quibble.  The problem is HEW regulations, by which colleges are "encouraged" to adopt a quota system in which the number of women participating in intercollegiate sports is equivalent to the proportion of women enrolled.  You see, while the regulations do specify two other means of compliance, universities are pressured to adopt the quota method as it provides the easiest method of proving compliance–the others require a school to somehow prove that all women who have an interest in sports have the same opportunity as men to participate in sports.  In other words, they are simply invitations for expensive administrative headaches and potential liability.   Consequently, colleges would rather adopt a "safe harbor": if the student body is 50% male and 50% female, compliance with Title IX is proven ipso facto simply by showing that the same number of women participate in sports as men.  Voila! No lawsuits.

Thus, what NWLC is really bucking for for high schools is not "equal opportunity," but a high school sports system, across the country, in which the same number of girls are participating in sports as boys.  And while the NWLC could be forgiven, or even lauded, for its efforts, if they were responding to a heartfelt and pervasive call from young women who have wanted to play interscholastic sports, and were denied the opportunity, the fact is:  they aren't.  As the College Sports Council has pointed out, Title IX's quota regulation has not generally increased the participation of girls in sports; instead, it has simply kept women's athletic programs static, while simultaneously shutting down men's athletic programs, so that schools could reach the desired "parity." 

And to any thinking person:  is it any wonder?  It is only in the imagination of government officials and activist crusaders that men and women, as a population, exhibit the same interests in anything.  The data is unequivocal that men and women in college show different levels of interest in a wide swath of subjects–check out the sex disparities in university engineering  (roughly 20% female), for example, or nursing programs (roughly 92% female), where there is no question that the educational opportunities are equally available to both men and women, but where the numbers are tremendously skewed in terms of sex.  So how does NWLC account for and justify the lack of parity in virtually every other university endeavor?  And why should anyone assume that men and women have an equal interest in participating in athletic competition at the college level–particularly when men have the added incentive of the possibility of earning a future livelihood from playing a sport?  The fact is, there is no rational basis at all for assuming that "parity" correlates to equal opportunity.

One is tempted to ask the NWLC:  why stop at sports?  Let's take a look at the number of men and women enrolling in Women's Studies Programs at universities and ask:  do these universities offer a comparable Men's Studies program for men?  If not, perhaps we should shut them down until the numbers even up.  Sounds a lot like discrimination on the basis of sex, to us.