Love Potion Title IX

And here we are forty years later.  If it weren't for Title IX, as every schoolchild knows, we wouldn't have a WPS, and the US wouldn't be Women's World Cup champions. Oh.  Awkward.

The time has clearly come for someone to cut through the haze of gender politics, fan wankery, and financial agendas to clearly explain what Title IX is and what it's meant for, what it's not, and what it means for society.  I am not that person.  This guy comes a lot closer.

But, since Beau asked the peanut gallery, then allow me to show my nuts.

You know what, based on that joke, I changed my mind - I am the perfect person to address and solve the world's gender problems.

ANYWAY.  Before we begin, let's do ourselves a lemon and revisit what Title IX actually says.

**** men's college soccer.

Wait, I seem to have misquoted.  In fact, I'm not sure I've found the right law.  Because I've made at least three Google searches, and it turns out Title IX doesn't even MENTION soccer.

In fact, it doesn't even mention athletics.  TRUE GODDAMN STORY.  You could win many bar bets on whether Title IX has a clause dedicated to abortion, but not college sports.

Hell, it even makes an exception for beauty pageants.  Title IX does need to be reformed.

Title IX was signed a week after the second Watergate burglary - but its enforcement on college athletics wasn't effective until well into the Carter Administration.  The regulations are worth a quick read, if only to understand why this is more about scholarships - it was pretty easy to see how men's sports would get better treatment than women's sports, which, again, if I'm a taxpayer with a college-age daughter, I wouldn't necessarily be cool with.  Before Title IX, and before these regulations, boys benefited from college sports in a way that girls couldn't.  This, and not any feminist social engineering agenda, was the driving force behind these laws.

Even then, the Supreme Court briefly overturned that enforcement, until the passage of the Civil Rights Restoration Act over President Reagan's veto in 1988.

So we've been celebrating the wrong anniversary.  Title IX opponents should call themselves Title IX originalists.  And Ted Kennedy should be hailed as a feminist icon, instead of Richard Nixon.  Wait.

Title IX is not a sports question, but a public policy question.  This is a much more fundamental law than whether college football is somehow sacred to a university's mission.  The question was raised, shall opportunities be available to boys and girls equally?  The answer came back, they shall.  The question was raised, may we spend taxpayer money on education for boys and not girls?  The answer came back, you may not.

Exceptions, like beauty pageants and merchant marine training academies and such, are exactly that - specifically outlined exceptions.  This is also why "Get rid of Title IX!" is such a laughable proposition.   This was a law based on equal access to college admissions and facilities.  Title IX was overdue in 1972, and anyone contemplating its repeal is a fantasist.

It's easy to see why women's sports advocates have assumed, and been granted, the mantle of Title IX defenders.  The law is extremely easy to justify, and Nixon at the peak of his power had no visible qualms about signing it.*  The question is why opposition to proportionality in college athletics have allowed this terminology.

On the admittedly dubious premise that the chairman of the American Sports Council should respond to random questions from any asshole with a blog, I asked Mr. Eric Pearson - the aforesaid president - what his organization's position was.  His response:

The American Sports Council's mission is to protect sports participation opportunities for both male and female students. We support language of the Title IX statute which states that no person in the United States shall on the basis of their gender "be excluded from participation in, [or] denied the benefits of participation..."

Title IX was enacted by the US Congress in 1972 to prohibit discrimination on the basis of gender. Since that time, the regulations that test compliance with the law have evolved to the point where they permit the very discrimination that the law intended to prohibit.

The ASC takes issue only with how the law is regulated by the US Department of Education, specifically, the proportionality prong of the 3 part test. Since the 1995 court decision Cohen v. Brown, fully complying with the proportionality test became the only way to make schools safe from Title IX litigation.  Therefore, in practice, the 3 part test is really only one test- proportionality.

Proportionality works by counting the numbers of student athletes.  Basically, the gender ratio of a school's undergraduate student body must mirror the gender ratio of the athletes on school sponsored teams.

That means if 57 percent of the student body is female (the average at America’s colleges), then 57 percent of the school’s athletes must be female as well. This compliance test for Title IX serves to advantage the majority gender on college campuses in every way possible, while the minority gender is pushed below the law.

The ASC seeks to reform the regulations that govern compliance. The 3 part test should be replaced with a new set of criteria that focuses on issues that coaches, athletes, and parents care about.  New criteria would evaluate access to facilities like practice areas and locker rooms, coaching support, and equivalent funding for equivalent teams.

In other words, if a school has a swimming team for men and women, then it should support them the same in every reasonable manner.

In addition to the above mentioned qualitative considerations, the regulations should be strictly accountable to the language of the law.  So the overriding criteria must always evaluate if a student is "excluded from participation in, [or] denied the benefits of participation" on the basis of their gender.

I had some follow-up questions, which I have not received a response to - again, because, why should he, really?  People are too nice to me as it is.  But for the record, in case any of you out there wish to answer them:

(1) What, specifically, would you replace proportionality with? Is there a fairer means of deciding who gets access to scholarships? How would you rewrite that section?

(2) Is that the only part of Title IX you would change? I ask specifically because you link to and excerpt a George Will article from 2002, which goes far, far beyond merely changing the proportionality language. What would you say to people (like me) who see attacks on Title IX as veiled or not-so-veiled attacks on feminism?

(3) What about football? Is it fair or unfair to say that football skews most programs' gender proportionality much more severely than any other factor?

(4) I'm trying to ask this in a less offensive way, but - what's the public interest in preserving less popular men's college sports programs? Title IX as written - the 1972 version - is very broadly about equal access to education, and it seems like it's hard to sell the idea that girls should have fewer scholarships and fewer opportunities for higher education simply to preserve a men's gymnastics team, for example. (If that's not a fair way to frame the question, I apologize.)

(5) Along those lines - the argument isn't about Title IX of the Federal Code, but 45 CFR Section something or other. Why is this subject framed as a Title IX issue?

(6) What would you think, given rigorous bookkeeping, of exempting profitable programs from Title IX coverage? (The 1972 Title IX law had exemptions all over the place, including for beauty pageants, so this wouldn't be a huge stretch.)

I wish I had asked another question - Mr. Pearson mentioned Cohen v. Brown, and everything I've read suggests that Brown University bungled all three prongs of the test, not simply prong one about proportionality.  Apparently the case in question spent a goodly amount of time on said prong, but it seemed to me that was where Brown University fought the hardest.

Heh.  Prongs.  Hardest.

It seems to be an article of faith that the proportionality prong is the deciding factor, but the Office of Civil Rights guidelines strongly suggest otherwise:

The first part of the test--substantial proportionality--focuses on the participation rates of men and women at an institution and affords an institution a "safe harbor" for establishing that it provides nondiscriminatory participation opportunities. An institution that does not provide substantially proportional participation opportunities for men and women may comply with Title IX by satisfying either part two or part three of the test. The second part--history and continuing practice--is an examination of an institution's good faith expansion of athletic opportunities through its response to developing interests of the underrepresented sex at that institution. The third part--fully and effectively accommodating interests and abilities of the underrepresented sex--centers on the inquiry of whether there are concrete and viable interests among the underrepresented sex that should be accommodated by an institution.

So why the focus on proportionality by Title IX opponents?  Probably for the same reasons that Title IX opponents don't object to the term "Title IX opponents."  Both defenders of women's sports (such as myself, although I'm not exactly Donna de Varona) and opponents are using the noble language of Title IX for marketing purposes.

Yes, I believe that Title IX opponents have found it more productive among their supporters to attack feminism in general, even though society has largely settled the issues  that made Title IX necessary.  The George Will article referenced by the ASC is a perfect example - it's a sweeping denunciation of feminism that is both comprehensive and pointless.  But "quotas" is an issue that can be relied on to agitate the base.  It's a lot easier to be against quotas than for men's gymnastics.

Note also how infrequently - as in, next to never - the word "football" comes up among Title IX opponents.  If anything is killing men's college sports, it's continuing to rationalize the existence of college football as currently inflicted upon student-athletes.  The best thing Title IX opponents (and Title IX supporters) (and America) could do is burn down the NCAA, acknowledge that big-time football and basketball should be run as minor-league professional teams, force unprofitable football teams to justify their largely worthless existences, and start the whole college athletics philosophy over again from square one.

I will hold my breath waiting for Title IX reformers to suggest this.  Again, among the people who hate Title IX, it's a hell of a lot easier to attack feminism than football.

While women's college athletics are stronger than ever, that has not necessarily translated into the post-graduate area - at least, when it's not wrapped tightly in an American flag.  We've already seen how Julie Foudy is asking for MLS to subsidize a women's pro league.  Fortunately, no other influential voice in women's soccer is surrendering quite so OH GOD DAMN IT ABBY.

LE: How would they pull together? There are some philosophical differences between them and some W-League teams have affiliations with MLS. What do you think of MLS involved in a women’s league?

Wambach: Having MLS on an infrastructure basis is going to be imperative for any women’s professional league that starts up again here in the United States.

I don’t know much about the WPSL or the W-League, but there are differences, philosophical or not. But I do know that the MLS will be an integral part of creating a women’s league, whether it be just using their facilities or split time with their staff, because truthfully, the cost of running a team from the ground up is astronomical for a women’s program at this point. Being able to share costs at some level – field or employees – would really benefit.

The Pointer Sisters were wrong.  Sisters are doing it for The Man.

I mean, what's this about benefit?  Cui bono?  (Literally, who gets boned?)  Let's pretend for a moment that MLS, like the NBA, can subsidize an entire women's league out of their big-ass profits.

Although on second thought, let's not.  We have test cases for where a bigger, more successful sports team is given responsibility for marketing a soccer subsidiary (the Revs, the Wiz under Hunt Sports).  We even have a test case for what happens when an MLS team tries to adopt a little sister (Galaxy/Sol).

The best case scenario is that women's and men's soccer fans are wildly divergent audiences (which I tend to agree with).  In that case, you're asking the same people to double their workload to market to a similar, but different target.  If potential Sol fans responded to the same marketing as Galaxy fans, the Sol (and WPS) would still exist.  And either Sol fans were Galaxy fans already, or made an equally considered decision not to be.   So you have people who can sell soccer to one group, who now have to figure out what motivates a separate market - presumably taking time away from the men's MLS team as well.  All for people who had already been reached.  The benefit for the MMLS team seems miniscule.

The worst case scenario is if the MMLS and WMLS fans were, in fact, the same people.  Assuming family budgets for leisure activities are finite (turns out they are - ask me how I know), an existing MLS team would have to cannibalize its own market to support a WMLS team.  Again...not really seeing the upside for the existing MMLS team.

This is assuming that women's club fans would not be content with existing teams such as the Seattle Lady Sounders and the Chicago Lady Fire and the FC Lady Dallas, who currently define separate but equal in ways Homer Plessy would recognize.  I don't think that's what Foudy or Wambach have in mind, however.

It strikes me as ironic even in the most Morissettesque way that forty years after Title IX, women's soccer is trying for second-class status, and I hope those who love women's soccer reconsider this.

I welcome your comments.  It is very possible that I've misstated some basic fact or misunderstood some obvious concept.  I promise to accept such correction with vindictive, bitter personal attacks.

*I remember reading, but cannot for the life of me trace, a story that Nixon himself saw perfectly well the implications of Title IX for college sports, football in particular, if Title IX was applied as written, but was wrongly reassured by his staff.