Gender benders

April 01, 1999 − by CIR − in News − Comments Off on Gender benders

Feminists beat up on male wrestlers and other jocks

By Jeremy Rabkin

The American Spectator, April 1, 1999

Harasser of employees, exploiter of interns, friend of pornographers, rapist – Bill Clinton is, of course, the darling of the feminist establishment. He does so much for feminists to keep them overlooking his, uh, private peccadilloes.

Thus we get a president who is, for all his twists and turns in other areas, absolutely unyielding and unvarying in his defense of abortion. How does he move the country toward compromise on this tormenting issue? By vetoing a ban on partial-birth abortions-what might more accurately be called “assisted infanticide.” This was Clinton’s policy even before the Lewinsky scandal broke.

Another thing we get is an ongoing campaign to import feminist doctrines into legal definitions of sexual harassment, except when committed by the president personally. This was the Justice Department’s approach during the year- long public debate about the Lewinsky scandal.

Yet another thing we get is “gender” quotas. On this issue, there may be another nasty policy turn in store, as more payoff bills come due for the president. In September 1997, Clinton celebrated the 25th anniversary of Title IX, a federal law prohibiting “discrimination on the basis of sex” in federally funded education programs. He promised sterner enforcement because Title IX “is the law and the law must be enforced.” This message seemed a bit untimely in 1998, but we are very likely to hear more about it in the next few months.

Yet on the matter of gender quotas, there is also some hope for relief. No, not from congressional Republicans, too traumatized by Clinton’s “vindication” in the Senate impeachment trial to tangle again with the feminist lobby. Rather, the relief may come from federal judges, who are not quite so intimidated by poll results. (Remember Secret Service privilege? White House counsel privilege? All the other groundless and absurd legal delaying tactics of Bill Clinton’s legal “dream team”? Notwithstanding his poll numbers, federal judges swatted down each one of them without so much as a word of apology to Geraldo.)

For more than two decades, feminists have complained about the inequities of college sports. More men are involved than women, and for feminists, the numbers alone prove “inequity.” Rather than focus on expanding opportunities for women, the activists are content to curtail opportunities for men in order to achieve “equity.”

A case underway in federal court in California illustrates the pattern. In the fall of 1993, the California State University Board of Trustees announced a settlement of a lawsuit brought by the state chapter of the National Organization for Women. The settlement pledged CSU to assure that, by the 1998/99 academic year, each college in the Cal State system would have the same male/female ratio in its athletic teams as in its student body, with no more than a five percent deviation from this quota.

As the deadline loomed, coaches started frantically cutting men from teams to bring the number of male athletes into line with the number of female athletes. At Cal State Bakersfield, seven male wrestlers out of 32 were cut from the team to make the overall numbers come out right. Stephen Neal and other members of the team then brought a federal lawsuit. District Judge Robert Coyle issued a tempo- restraining order against the cut at the end Of 1997 and a preliminary injunction this February. In the next few months, Neal v. California State University, Bakersfield (CSUB) will go to trial and the loser will likely appeal to the Ninth Circuit Court of Appeals. From there, the case may well go on to the Supreme Court, because the issue has percolated through so many lower courts that it may be hard for the high court to ignore.

Neal is particularly interesting because it challenges not lust a wacky California policy but the wider system of federal regulation now enforced throughout the country. In 1979, officials at the Office for Civil Rights (now in the Education Department) issued a policy interpretation on Title IX’s application to collegiate sports. Cal State officials cite those guidelines in defense of their athletic quota policy. In issuing his preliminary injunction, the judge held that the OCR policy may be in conflict with Title IX itself and more importantly, in conflict with the equal protection guarantees of the federal Constitution.

The OCR policy does not explicitly require colleges to maintain athletic quotas, but says that colleges can satisfy their obligations by showing that the male/female ratio of student athletes mirrors the male/female ratio in the student body. Without the right numbers, schools may still comply by demonstrating “a con- practice of program expansion for athletes of the “underrepresented ” sex. Federal officials have interpreted this to mean a continuing, year-by-year expansion, not just an initial period of growth.

Alternatively, a college is off the hook if it shows that “the interests and abilities” of the “underrepresented sex … have been fully and effectively accommodated” under existing programs. This means that a college may never reduce or refuse fund- for a female team, whatever the larger financial stringencies or the uncertainties of female athletic interest in a particular area. In 1996 Brown University, after years of litigation, was found in viol- of Title IX for reducing its funding of women’s gymnastics and volleyball teams during a period of overall athletic cutbacks (Cohen v. Brown).

So in practice, colleges must achieve the quota in order to avoid bureaucratic investigations and lawsuits from women athletes. If they need to hold down costs, all their legal incentives are to cut men’s programs and keep funding the women. It is not even a question of equalizing funding between men’s and women’s teams. In Neal, for example, the plaintiffs pointed out that each wrestler Cut from the team saved the college little more than S30 worth of athletic gear-for a total savings so negligible as to make no noticeable impact on the sports budget, while working a real hardship on wrestlers seeking practice partners in their weight class.

In the name of battling discrimination, federal civil rights officials are effectively demanding that colleges discriminate against men.

Judge Coyle struck a blow against this system in his preliminary ruling when he held that achieving a quota cannot be a defense to discrimination. If it were, he reasoned, then institutions could practice the most blatant discrimination against particular individuals yet escape any liability by pointing to good overall numbers (a conclusion that flies in the face of Supreme Court interpretations of other non-discrimination laws). That is the central evil of quota schemes- that they sacrifice the rights of individuals for the sake of reallocating aggregate outcomes among groups.

Why is OCR pressing so hard for quotas? Women typically make up at least half of the student body, and if they want to participate in sports, why would a college with a sports program do anything to frustrate their interests? Facilities and coaches do cost money, and schools must juggle various budget priorities, but what reason would a college have to disappoint women athletes more than men?

It is true, as feminist critics are quick to note, that men still outnumber women in collegiate athletics. According to surveys by the National Collegiate Athletics Association, less than 40 percent of athletes on NCAA varsity teams are women. But that number alone hardly proves “discrimination.” The undeniable fact is that women are less interested in competitive sports than men. At the high school level, too, females are less likely than males to go out for teams. A survey conducted last year by the Independent Women’s Forum found that rates of participation in varsity sports were much lower at a select group of all-women’s colleges than at undergraduate institutions generally. If “discrimination” keeps down the proportion of women athletes at co-ed schools, What accounts for overall participation rates that are half of the national women’s average at Bryn Mawr, Mount Holyoke, Wellesley, and Smith?

It is not that female students simply pine away in college libraries. Their rates of participation are much higher than those of men when it comes to extra-Cur- activities involving music, drama and speech. Women also outnumber men in particular academic fields -for example, nursing. Not even feminists want to impose quotas on women in such areas to assure some arbitrary notion of “equity.”

Nonetheless, feminists are determined to punish male athletic programs to prove some abstract ideological point. And they are succeeding. An NCAA survey last year found that over the previous five years, schools had coped with budget pressures by cutting over 200 male teams and reduced their varsity rosters by over 20,000 male athletes, while increasing female participation by only 5,800-so nearly four male athletes were kicked out of sports programs for every new woman. And almost all the new female athletes were recruited by Division I schools (those with the most competitive teams). In Division III (where athletic scholarships are unknown and students simply play for the love of their sport), 178 new female athletes have appeared in the past five years, while 9,000 positions for men were eliminated – “20 males dumped for every female gained,” as the Independent Women’s Forum put it.

Will feminists back off now that the price of their quota scheme is becoming more evident? Not at all. Last year, the National Women’s Law Center filed complaints against 25 colleges charging “gender bias” in their athletic programs. And last July, President Clinton’s Office for Civil Rights sought to increase the pressure on these (and other) schools by warning them that not even a one-percent deviation could be tolerated in the male/female ratio of athletic scholarships.

Meanwhile, the Justice Department is working on new regulations for Tide IX to clarify the legal status of observed disparities in male/female ratios in academic programs. President Clinton has already promised 11 stepped up enforcement” of Title IX to assure that women have “access to advanced math and science programs” -though the only real evidence for lack of such “access” now is, as in sports, overall numbers show- higher participation by men. So we may soon see the push for gender quotas move on from the locker rooms to encompass the classrooms as well.

We must hope that, before that new policy becomes cemented into law and practice, Neal v. CSUB or a case much like it gets to the Supreme Court. Then maybe Ruth Bader Ginsburg, the femi- scholar who was Mr. Clinton’s first appointee to the Court, and who has equated sex discrimination with race discrimination in a previous decision, will explain how gender quotas can possibly be consistent with the equal protection guarantees in the Constitution.

Two years ago, everyone expected the Court to rule firmly against the dismissal of whites for the sake of racial target quotas. Civil rights organizations were so fearful of what the Court would decide in the case of a white teacher in Piscataway, New Jersey, that they raised enough money to induce the teacher to settle her case before the Court could rule on it. Stephen Neal and his fellow plaintiffs are the male athlete counterparts to that teacher-removed from their places to satisfy a feminist quota. Does the Constitution really allow this? The nine justices may tell us soon.

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