PLAYING UNFAIR

There had never been an American track-and-field program like this. But the following year, Blinn College was due to begin reporting to the federal Department of Education’s Office for Civil Rights under Title IX of the 1972 Education Amendments. And it could not comply. Blinn is a small, cashstrapped school, and its track-and-field program for men represented a full 25 percent of its limited sports scholarships. That skewed the composition of its varsity offerings toward males. So in 1995, hopelessly boxed in, the Blinn trustees voted to kill men’s track and field and create women’s softball and volleyball teams instead. The Odessa meet was the school’s last — forever.

Title IX was not originally intended to work this way, and for the longest time, it didn’t. The legislation was directly modeled on Title VI of the 1964 Civil Rights Act, adopting its language almost verbatim to effect a ban on gender exclusion or discrimination in any federally supported education program. At the time of its enactment, public-school and postsecondary sports appeared to be the programs most infected with bias. Fewer than 300,000 girls participated in high-school athletics in 1971, for example, along with more than 3.6 million boys.

How was Title IX supposed to redress this imbalance? Congress left its scope ambiguous. It was not clear that Title IX allowed the award of monetary damages in a private lawsuit. It was not clear what effective enforcement measures the federal government could take against non-complying schools short of withholding all federal aid. And it was not even clear whether Title IX applied to most school sports programs in the first place, since they receive only indirect federal aid.

So the executive branch was left to develop Title IX regulations on its own, flying blind. The first installment was finalized in 1975. It was complicated and confusing. There was a clarifying “policy interpretation” in 1979 that established a “three-prong test” of compliance. Schools could satisfy the law first by providing girls and women with varsity sports opportunities at rates “substantially proportionate” to their enrollment. Or, second, by demonstrating a “history and continuing practice” of expanded opportunities. Or, third, by fully accommodating the “abilities and interests” of female athletes.

There things stood for most of the next 15 years. The Office for Civil Rights at the Department of Education would occasionally jawbone an allegedly maleficent institution or local board into doing better by its young-lady jocks. And meanwhile, for reasons that seem not much related to Title IX at all, school-based sports opportunities for girls and women were dramatically expanding nationwide. By the 1994-95 school year, the gender gap in high-school athletics had closed from more than 12 to 1 to about 3 to 2.

But starting in the late 1980s, Congress and the courts began to mess everything up. The Civil Rights Restoration Act, enacted over President Reagan’s veto in 1988, definitively extended Title IX coverage to any program — including sports — in any school that receives any federal aid. A February 1992 Supreme Court decision established a right to monetary damages in private Title IX litigation. And the lower courts were then off to the races. A series of federal district court cases endorsed the discrimination claims of female college athletes whose schools had, for budgetary reasons, eliminated their sports — and ordered those programs restored.

In the process, these courts, upheld every time by the federal circuit courts, effectively knocked out two prongs of the old three-pronged test. The litigation itself was taken as evidence that the schools had failed Prong Three by not fully satisfying athletic demand. Prong Two was repeatedly interpreted to require recent sports program expansion for the ” underrepresented sex”; girls teams added in the 1970s and 1980s didn’t count. So the only defense a college or university had left was achievement of the Prong One benchmark, something close to a 50-50 gender allocation of varsity playing spots. Only nine schools in the National Collegiate Athletic Association’s top sports division can now meet this test. The other 99 do not, and the situation is much the same in the lower divisions.

Title IX has become a quota. With few exceptions, no school in the United States may abandon an existing women’s sports program for any reason. To remain on the happy side of the law, schools must get their numbers in ever- finer balance by adding women’s programs, which few if any of them can afford to do, or eliminating their men’s athletic programs. Which is what dozens of universities have been doing the past few years, prodded by Clinton administration Office for Civil Rights chief Norma Cantu. Cantu has exponentially increased her office’s Title IX investigations. She has also issued a “clarification” of the three-prong test for consistency with the new, judicially enforced push for rigid parity.

Any college with a football program begins this mathematical exercise with about 100 “too many” male athletes. But football is a “revenue” sport in men’s college athletics. And men’s revenue pays for women’s programs, which eat up far more cash than they earn. So most schools have cut football rosters rather than kill their teams outright (though several in the California state system have lately done that, too). Most schools have also been forced to deal much more brutally with their marginal, non-revenue men’s sports.

Colgate has dropped baseball. Michigan State is dropping men’s fencing and lacrosse. The University of New Hampshire will drop baseball, lacrosse, and golf. Innumerable colleges have dropped wrestling and men’s gymnastics, both of which are approaching extinction on the national level. Ditto for men’s swimming and diving, which has died even at UCLA, world famous for its Olympic medalists. Notre Dame, Iowa State, Penn State, Illinois, Illinois State, Cornell, SUNY/Albany, and others have all done something like this — the list is long and depressing. All told, since 1992, NCAA member schools have added more than 5,000 roster spots for female athletes. But at a cost of more than 20,000 lost spots for men.

No school is immune. The best-known case, Brown University, is also the most instructive. Brown is a very p.c. place. It fields female athletes at almost three times the national average. It offers 18 women’s varsity sports, more than double the national average, and most of those teams have roster spots their coaches cannot find women to fill. But because Brown’s male/female athletic ratio is still a bit out of whack, the federal courts have found it in violation of Title IX. This, despite the fact that Brown’s own evidence — and all the equally unrebutted national evidence of modern social science — indicates that women don’t participate in sports at the same rate as men for one reason more than any other: They simply don’t want to.

Things can only get worse. Much worse. There are still about 80,000 more men than women playing intercollegiate varsity sports in the United States. Under current law, given the general financial circumstances of American higher education, most of those men will have to quit. It’s inconceivable that the courts will save them any time soon. The Supreme Court has recently declined to hear a final appeal of the Brown University case. It will be at least a few years before some college or university manages to force the Supreme Court to rule on the matter — by first persuading a circuit court that Title IX has become an engine of unconstitutional reverse discrimination. By then, Title IX litigation will probably have oozed its threatening way into high-school athletics, where similar gender disparities remain.

Of course, Congress, now controlled by a nervous and gender-gap-obsessed Republican party, could always rewrite Title IX to make plain that all this is unnecessary, bad, and forbidden.

Fat chance of that. Hang up your jock straps, boys. The ball game’s over.

David Tell, for the Editors