Title IX of the 1972 Education Amendments Act prohibited gender discrimination in school programs receiving federal financial assistance. But on the question whether its requirements applied to school-sponsored sports, which then as now generally received only indirect federal aid, the new law and its limited legislative history were entirely silent. Neither did the legislation make clear precisely how or under what circumstances it would be enforced by the executive branch. Nor whether it granted private citizens a right to sue for monetary damages when they felt victimized on account of gender. One thing about Title IX was certain, however: Compliance with its maddeningly vague terms would not be commanded until the end of a three-year grace period, in 1975.
That year, as the clock wound down, federal education officials finally proposed, and Congress approved without comment, a set of implementing regulations for Title IX. They were complicated and confusing, and they delayed the onset of enforced compliance for another three-year grace period, until 1978. In 1979, having received a torrent of panicked questions from colleges and high schools about what exactly they were supposed to do, particularly with respect to their sports programs, the Education Department issued what appeared to be a notably relaxed “policy interpretation” of its 1975 regulations. Schools could satisfy Title IX by providing varsity athletic opportunities to women at rates “substantially proportionate” to their campus-wide enrollment. Or by demonstrating a “history and continuing practice” of expanded opportunities. Or by fully accommodating the “abilities and interests” of female athletes. Take your pick.
College sports were largely exempted from even these loose strictures by a 1984 Supreme Court ruling that Title IX, as written, applied only to programs enjoying direct federal support. In 1988, Congress enacted a revision of the law that made explicit its coverage of post-secondary-school athletics. But at that point, the end of the boom-time 1980s, during which university sports budgets had grown for men and women both, few schools had difficulty reaching the second Title IX “safe harbor” provided by the Education Department’s policy interpretation: a “history and continuing practice” of expanded opportunities for women.
So by 1991, nearly twenty years after Title IX was born, the law, by itself, could claim virtually no practical effect on the gender landscape of American athletics. In Title IX’s entire history, the Department of Education’s Office for Civil Rights, which theoretically guaranteed gender non-discrimination in the sports programs at thousands of institutions, had initiated a grand total of three formal school-specific reviews. And it had never come close to punishing even a single school — by withholding its federal aid — for failing to do right by female athletes.
As our current decade dawned, then, activists on behalf of those athletes were without exception bitterly disappointed over Title IX and its application. “In many ways, we have not made any real progress since the mid-1970s,” complained Ellen Vargyas of the National Women’s Law Center. “Title IX has never been enforced,” was the rueful conclusion of Donna Lopiano, then women’s athletic director at the University of Texas (and now executive director of the Women’s Sports Foundation). In April 1991, Lopiano told the Chicago Tribune that Title IX had simply become “a joke.”
Eight months later, a supremely talented U.S. national squad demolished its international competition to win the first-ever women’s World Cup of soccer. Title IX could not possibly have had anything to do with the team’s success, and no one — literally no one — claimed otherwise. In fact, hardly anyone, in the press or anywhere else, even noticed that they’d won.
This year, this month, everyone is noticing, of course. Famously, this time, the American women’s team has again won the World Cup. And “again” is exactly the right word for it. Seven of this year’s eleven starters, all of them suddenly household names, also played in the 1991 championship. Michelle Akers, Brandi Chastain, Joy Fawcett, Julie Foudy, Mia Hamm, Kristine Lilly, and Carla Overbeck all joined the U.S. national squad as teenagers in the 1980s — Title IX’s “dark ages.” Before being selected as the nation’s finest soccer players, each of them had received her most extensive and important coaching not in high school, but in an independent, volunteer-staffed youth “select” league — a sports program, that is, outside even the nominal scope of Title IX. They were and are, without question, great, dominating athletes. And no law made them so.
Only you would never know that from the broadcast or print coverage. Donna Lopiano and Donna de Varona — founder of the Women’s Sports Foundation and chair of the World Cup organizing committee — are now everywhere identifying the U.S. women as “Title IX soccer players” whose triumph would have been all but impossible without that beautiful legislation. A rather insulting judgment, you would think. Also, a nonsensical one, given that the very same soccer players produced the very same triumph eight years ago, back when Lopiano and de Varona themselves thought Title IX a toothless sham.
Here, though, combined in a tight ball, we have three of the national pundit industry’s very weakest subjects: feminism, sports, and the law. And so, in the echo chamber of its own ignorance, and in its own voice, the news business has unanimously amplified a piece of truly outlandish historical revisionism. Newsweek’s Jonathan Alter on MSNBC: “We are learning this week that the triumph of women’s team sports is the result of something called Title IX.” NBC Today anchor John Palmer: “As the father of three daughters, I can only say three cheers for Title IX and women’s soccer.” Elizabeth Kaledin of CBS News: “Sports-playing girls everywhere can thank a law called Title IX.” The Washington Post’s Ann Gerhart: Brandi Chastain’s black Nike sports bra “is the cloth symbol of Title IX’s success.” And so on, to infinity and beyond.
The eagerness with which these people have swallowed and circulated such abject mythology might otherwise be laughable. If, that is, the mythology itself had not been consciously designed to obscure a serious and rather sinister reality, one of the decade’s most underreported stories. The reality is this: In the late 1990s, Title IX is no longer a toothless sham, but a genuinely deadly legal weapon. And that weapon is not producing a renaissance of women’s sports generally, any more than it produced Mia Hamm and Brandi Chastain in particular. (A quarter-century-long cultural transformation of American gender relations and expectations seems most responsible for that.) Instead, in the hands of private litigants and federal judges, in a process ruthlessly spun and propagandized by ideologues like the Donnas de Varona and Lopiano, Title IX is now producing a wholesale slaughter of collegiate-level and Olympic-specialty athletic programs for men.
In 1992, after hearing the appeal of a high school sex-harassment lawsuit out of Georgia, the Supreme Court at last resolved the question whether Title IX authorized the award of actual monetary damages and attorney’s fees to private litigants. It did, the justices ruled. Beginning the following year, in the first cases involving college sports programs to be decided under these new rules, a series of federal circuit courts — contrary to all standard jurisprudential analysis — elevated the Education Department’s 1979 Title IX policy interpretation to the status of law. And while they were at it, the courts effectively rewrote that document to radically shrink the compliance safe harbors previously available to university administrators.
In each instance, the mere existence of a lawsuit brought by female athletes was assumed to defeat a school’s claim that it was accommodating the “abilities and interests” of all its students. Similarly, women’s sports teams created in the 1970s and 1980s were deemed irrelevant to a “history and continuing practice” of expanded gender opportunity. A college was obliged instead to fund new teams on a constant basis. Otherwise, so long as its female students remained proportionally underrepresented among varsity athletes, any post-secondary school in the country was presumptively in violation of Title IX and faced mammoth financial liability in potential litigation. Many campuses were confronted with this problem — and many still are. At the end of the 1998-99 academic year, six years after the rigid Title IX numbers test was established by the courts, only ten of the nation’s more than 300 NCAA Division I colleges and universities have managed to get their statistics in balance.
All the rest are desperate. Any school that wants to retain its revenue-generating football program starts the exercise with at least 100 “too many” male athletes. The vast majority of major colleges already offer the most popular women’s sports, so to boost their varsity female totals, a fair number of them, with the NCAA’s connivance, have begun conferring full “team” status on exotic hobbies or outright trivia. New horseback riding and women’s bowling “programs” have been the fashion for some time now. This year’s model, according to a darkly hilarious Wall Street Journal story in May, is women’s crew — inaugurated even on the water-starved, desert campus of Arizona State University, with a team composed entirely of novice oars-people.
Except that very few rising college freshwomen around the country actually want to row a boat. And many American universities cannot find enough women for the sports-team rosters they already have — let alone afford to create still more of them. Faced with bad gender numbers and the concomitant threat of a lawsuit, then, what is a school to do?
Start lopping off its “surplus” of male athletes by killing the teams they play for, that’s what. Since 1993, according to figures compiled by the Independent Women’s Forum, more than 50 NCAA-sanctioned men’s golf programs have died at colleges and universities across the country. Twenty-three swimming and diving programs — including UCLA’s legendary Olympic training camp — have disappeared. Thirty-nine men’s tennis teams have been disbanded. A total of 90 track and cross country programs have been suspended. Wrestling, already fragile, has vanished from 43 schools. Even baseball — at schools where it has been played for 100 years — has not proved immune. Cumulatively, upwards of 20,000 men’s varsity positions have gone extinct this way between 1992 and 1997, according to the NCAA. Tens of thousands more will inevitably follow.
All in the service of a highly questionable, judicially imposed, bean-counting fetish over abstract “gender equity.” This is Title IX’s true, modern, remorseless face, not our women’s soccer team. Until the law is dramatically amended by Congress — or somehow restored to sanity by a successful legal challenge — American athletics will face no greater peril.
David Tell is opinion editor of THE WEEKLY STANDARD.
