IN FEBRUARY 1998, after an American team won the first Olympic gold medal ever awarded for women’s hockey, there was a brief rainshower of patronizing media coverage, as is customary in such matters. Weren’t they a great bunch of gals? And didn’t they really deserve it? And–forget about them–didn’t the rest of us deserve it even more, since it was our Congress that had passed that Title IX thing back in ’72, finally forcing colleges to offer our women some serious varsity-level sports programs? And so on and so forth, blah, blah, blah. A.J. Mleczko, the U.S. hockey squad’s star defensewoman, thought all this attention was “wonderful,” of course. But she also found the self-congratulatory spin everyone was putting on her team’s triumph more than slightly weird. So far as Mleczko could tell, they’d come a long way, baby, pretty much entirely by themselves. And virtually unnoticed: “People say they love watching us play, and all we can ask is, ‘How is that possible? Where’d you see us?'” Face it, Mleczko told the Washington Post, “Women’s hockey has grown up in the dark.” Almost without exception, Mleczko and her teammates had each learned to play hockey as the only girl on the ice–and had been taunted for it. More than one of them had never so much as seen another female hockey player before joining the national program. Defensewoman Tara Mounsey, for example, had signed up while still a teenager in 1996, shortly after leading her otherwise all-boy high school team to the state championship, where she’d won top individual honors as the tournament’s “Mr. Hockey.” To be sure, a fair number of Mounsey’s 1998 co-medalists had previously skated in a full-fledged women’s program. But they’d done so with region-wide volunteer youth leagues, or at richly endowed prep schools, or, most importantly, on campuses like the University of New Hampshire and Providence and Harvard. And these were colleges–among a tiny handful across the country–that had been fielding top-flight varsity women’s teams for years and years before Title IX was ever enforced. Come to think of it, none of the women who won an Olympic gold medal in 1998–not one–had ever played hockey on a single team that owed even the slightest part of its existence to Title IX. Oh, well. It’s four years later already and Mleczko and Mounsey are back for a second Olympics, now underway in Salt Lake City, Utah. Their U.S. team has entered the competition on an astonishing 31-game winning streak, during which they’ve outscored their opponents by a combined 252 to 28. Most observers expect them to earn a repeat gold medal when the hockey final is played this Thursday. Many people are calling them the most dominant team, male or female, in the history of the sport. And yet it remains the case, despite turnover at 11 of 25 roster spots since 1998, that none of the U.S. women has ever played hockey on a single team that owed even the slightest part of its existence to Title IX. Do you suppose any of the NBC announcers or morning-paper sportswriters will take note of this detail? Neither do we. We suppose, instead, that our women’s hockey Olympians, should they sweep through the games the way they’re supposed to, will be advanced as proof–along with Brandi Chastain’s legendary Nike-brand brassiere–that Title IX, at long last and all for the better, has permanently remade the gender map of American sports. In its application to a particular women’s hockey team, this interpretation of events will be false and thus will cheat some genuinely peerless athletes of the full credit their accomplishment is due. By its application to life in general, however, this latest outburst of halfwit boosterism for Title IX will be falser and more damaging still. For that law has become an outright pestilence. It has made millions of dollars in fees for attorneys representing a few dozen undergraduate plaintiffs. But it has made only a negligible contribution to the overall growth of women’s sports at American universities. And in the process, Title IX has forced hundreds of schools to mothball decades-old team and Olympic-specialty programs, involving tens of thousands of lost varsity roster opportunities–for men. Needless to say, this is not what Congress intended in 1972 when it banned discrimination “on the basis of sex” in the administration of educational programs receiving federal financial assistance. It would be sixteen years before legislative amendments made clear that the ban extended to indirect aid beneficiaries like college athletics departments. And it wasn’t until 1992 that meaningful legal activity to enforce the ban became possible–after the Supreme Court ruled that Title IX authorized private-party litigation and large, monetary damage awards. But all along, one key part of the law’s text remained unchanged. And, you would think, unambiguous. “Nothing” in Title IX, this provision warned, “shall be interpreted to require…preferential or disparate treatment” in any college program purely on the basis of statistical notions about how many men and women “ought” to be participating. The same language is nominally in force even today. But as these pages have taken pains to recount in the past, it has been rendered a practical nullity. The federal courts have been hearing sports-related Title IX lawsuits for ten years now. And for ten years now–inexplicably bending to a Clinton administration “clarification” of a Carter administration “interpretation” of original legislation that plainly bars the use of quotas–the federal courts have been ruling that Title IX is…a quota, simple as that. In all but the rarest circumstances, so says this case law, a college runs afoul of Title IX any time it fails to distribute athletic opportunities to men and women in proportions closely mirroring the undergraduate population at large. That the school may be having difficulty finding enough students to play on the women’s teams it already sponsors is no excuse. “Society has conditioned women to expect less than their fair share,” according to the Ninth U.S. Circuit Court of Appeals, a problem the Ninth Circuit “presumes” can best be remedied by offering women more than they want. And what if they just won’t take it? What if, on the questionnaire appended to each year’s college-entrance SAT, men’s expressed interest in varsity athletics continues to be three times higher than women’s? In that case, advises the Seventh U.S. Circuit Court of Appeals, it would be “extremely prudent” for university administrators to comply with Title IX the horrible but easy way: by canceling one or more of their traditional–and fully subscribed–varsity programs for men. Which is exactly what they’ve been doing; it’s been a bloodbath these past few years. Baseball programs are dying left and right. Certain Olympic specialties for men, wrestling and gymnastics in particular, are approaching extinction. Most Division I schools already offer a wider range of sports to women than to men. Women’s teams already outnumber men’s in the vast majority of NCAA-sanctioned sports–and absorb a notably outsized share of available scholarship money. We’re already at the point where, adjusted for population growth, significantly fewer men now play American college sports than at any time in the past twenty years, simply because they’re not being allowed to. And still there are “too many” active jockstraps nationwide, largely because “too many” schools refuse to let go of their 100-man football rosters. So the carnage will likely continue. A little-noticed plank in the 2000 Republican platform called for “a reasonable approach to Title IX that seeks to expand opportunities for women without adversely affecting men’s teams.” The Bush administration could realize any such reform unilaterally, of course, by rewriting the law’s enforcement rules. But even were they inclined to try, which is doubtful, there’d be no one at the relevant Education Department branch to do the work; Gerald Reynolds, the president’s Office for Civil Rights nominee, has been denied a confirmation hearing by Sen. Kennedy of Massachusetts, who takes instruction on such questions from Title IX’s fiercely ideological “gender equity” lobby. And Kennedy’s successful obstruction of Reynolds is probably an accurate measure of congressional feeling generally. Speaker of the House Denny Hastert, a former wrestling coach himself, would dearly love to take a corrective crack at Title IX’s underlying text. But he knows his colleagues are cowed–what with Brandi Chastain’s brassiere and all. “It’s a long hard sell,” Hastert acknowledges. Doesn’t sound like he ever expects to close the deal. That would seem to leave only the courts, whose unbroken record of abysmal rulings on the subject is somewhat less than encouraging. Last month the National Wrestling Coaches’ Association filed a federal district court lawsuit in Washington arguing, among other things, that Title IX’s current implementing regulations should be declared void by virtue of procedural irregularities in their adoption. We think they’re right about that. We hope they win, though it’s a longshot. We hope they win and are upheld at the Circuit Court level. We hope they’re upheld at the Circuit Court level and the Supreme Court then agrees to hear the case and winds up invalidating an entire decade of disastrous Title IX precedents. The bad news is that even this rosiest of scenarios will take years to play out. By which point–unless Congress or the White House should find the courage to intervene on behalf of justice and sanity–men’s college athletics may well be crippled beyond near-term repair. In any case, there’ll be good news, too: Come what may, serious women athletes in America, like A.J. Mleczko and her Olympic hockey colleagues, will unquestionably continue to flourish. Just as they would have had Title IX never been born. –David Tell, for the Editors
