Title IX Trojan Horse?

New federal investigation theoretically is based on respect for the law barring gender bias, but advocates for women's sports see an attack on protections for female athletes.
November 3, 2009

A federal investigation into possible bias against female applicants would, one might expect, be welcome news to groups that advocate for the education of women. After all, these groups have over the years urged tougher federal enforcement of anti-bias laws.

But factor in the politics of Title IX of the Education Amendments of 1972, which bars gender bias in educational institutions receiving federal funds, and things have a way of getting complicated. Namely, a new federal probe into the allegations that liberal arts colleges are unfairly favoring male applicants is seen by many Title IX experts as a sneak attack on an important law. They believe that in the name of gender equity, the commission is in fact trying to undercut gender equity.

At issue is a move by the U.S. Commission on Civil Rights to investigate liberal arts college admissions. The inquiry was begun based on reports that many private liberal arts colleges -- struggling to have anything close to parity between male and female students -- favor male applicants. Private undergraduate colleges generally are considered to have the legal right to do so, given an exemption in Title IX for their admissions policies. But much of the probe is directed toward the issue of athletics, with commissioners favoring the inquiry saying that it would be "preferable" for liberal arts colleges to add male athletic teams to attract more male students than it is to use admissions preferences, as is alleged to be taking place now.

The inquiry was planned without much consultation with advocates for women's athletes, and many of them -- just learning of what's going on -- are concerned.

The civil rights commission's investigation "seeks to allow schools to discriminate against women in order to attract more male students. Not only is this unlawful, it would be patently unfair," said Leslie Brueckner, a lawyer with Public Justice, a legal organization that has brought numerous suits on behalf of women's athletics. "Women should not be made to pay the price for the fact that fewer men are interested in seeking higher education. Surely, there are other ways to attract males to schools than to reinstate sex discrimination against women in sports."

Brueckner noted that the Civil Rights Commission's own analysis in deciding to kick off the investigation cited a variety of reasons that men these days lag in college enrollments: They are more likely than women to enlist in the military, to seek jobs in the building trades or to end up in jail. Given these large societal issues, she asked, why should a federal agency be assuming that the key problem with male enrollments is insufficient chances to be an athlete, and that this justified a shift in Title IX. If colleges are favoring male applicants, she said, the solution isn't to let them ignore the rights of female students who are athletes.

"The goal of this approach, as I understand it, would be to stop schools from discriminating in admissions by permitting them to discriminate in athletics," Brueckner said. "To this, I have only one response: Two wrongs do not make a right."

Other advocates for women's athletics are noting that that the commission appears to assume that it has the job of helping colleges find some way to attract more men, when federal officials for years weren't that bothered about imbalances in the other direction.

"Small, selective liberal arts colleges have been whining for years about their gender imbalance," noted the Women's Sports Blog Monday in commenting on the Civil Rights Commission's move. "Turns out that young women have, shockingly, bought the message that they can do anything and that includes becoming extremely successful candidates for college. Yet after years of exclusion and missed opportunities for women, the natural correction of some schools running, say, 60-40 women to men is being treated like the threat of the century. The problem? Well, oddly enough that imbalance allegedly makes it harder to recruit more men. Don't worry, you're not the only one to whom that reasoning seems circular. The second issue disappears if the first issue isn't considered a national emergency."

Donna Lopiano, president of Sports Management Resources and a longtime leader of the fight for more opportunities for women in athletics, said it was "nonsensical" for the commission to suggest that Title IX enforcement change in order to allow colleges to recruit students in new ways.

"Civil rights laws are not utilitarian actions meant to recalibrate student or social populations," she said. "They are statements of human rights principles, that if followed, will allow student or social populations to evolve without unfairness. To suggest that civil rights be suspended for any reasons is an indication of someone missing the point by a long shot."

The Commission on Civil Rights, whose members are appointed by the president and Congressional leaders, does not have much legal authority to force colleges to change policies. But the commission can hold hearings and publicize its views and has been influential in shaping debates on some discrimination issues.

Gail Heriot, a Republican appointee who is a professor of law at the University of San Diego, was the commissioner who proposed the investigation. She said in an interview that she was surprised by the concern of women's advocates, saying that they should be concerned about the possible discrimination against female applicants to liberal arts colleges. "What we're trying to find out is whether or not women are being discriminated against. The job of the commission is in part to find facts, and this is a situation where people aren't sure whether such discrimination is going on," she said.

Of course one reason supporters of women's athletics are dubious is that Heriot's proposal for an investigation -- adopted by the commission -- states that such discrimination would probably be legal but focuses on Title IX enforcement in athletics as a problem.

But Heriot said that the concerns were, at best, premature. "We're not at that point yet," she said. If the commission finds that discrimination is going on, it will then "go on to the proper policy response," which might include her suggestion that new views of Title IX enforcement might give colleges the ability to attract more men without admissions preferences.

Carrie L. Lukas, vice president for policy of the Independent Women's Forum, a group that has criticized Title IX, praised the commission's investigation. Lukas said that she has "sympathy for the position of liberal arts colleges" in wanting to attract more male students. "College is more than just learning. You have a social situation and you want to expose people to people of varied backgrounds, and fewer and fewer men would be a problem for men and women alike." At the same time, she said that "I think everyone is uncomfortable with the idea of lowering standards for men, and having different admissions criteria for men and women."

Lukas said that "I don't think there's any doubt" that Title IX has limited the teams colleges support for men. More men's teams at liberal arts colleges -- if they didn't need to fear being challenged over Title IX -- would attract more male students. "If you are a male wrestler right now, you have fewer and fewer options, and a lot of those guys on the bench at bigger state schools can't participate. But they would welcome the opportunity to go to a smaller school" that added wrestling as a sport.

Fatima Goss Graves, vice president for education and employment for the National Women's Law Center, said she was bothered by the assumptions underlying the civil rights commission's plans. "The hypothesis is flawed from the start. It presumes that only men are interested in sports, and that all men are interested in sports, so right there you are operating on flawed presumptions about the interests and abilities of students."

Title IX, she noted, doesn't bar colleges from adding teams. What the law does is require equity. A college could easily add men's and women's teams, she noted, and would probably attract more male and female students interested in those sports. "When you offer opportunities to men and to women to play sports, they play sports."

Erin E. Buzuvis, an associate professor at the Western New England College of Law who has written extensively about Title IX, characterized the latest inquiry as part of a pattern of attacking Title IX. "There's always been resistance to Title IX," she said, and this is a new strategy, but with the same goal. She predicted it would fail because "in the end most people believe in equal opportunities."

On the broader questions of whether private colleges are discriminating against female applicants, some experts also raised questions. Many private college admissions officials have said in recent years, that with enrollments approaching 60 percent or higher female, they have done much more to recruit and enroll male students.

But David Hawkins, director of public policy at the National Association for College Admission Counseling, said it was important to remember that colleges in fact consider a wide range of factors in admissions decisions. While a recent survey by the association found that some colleges do consider gender in admissions decisions, 72 percent reported that gender had no importance in decisions and another 16 percent reported that gender had only limited importance in decisions. Even for those colleges that did indicate that they considered gender, he said, they placed much more emphasis on academic qualifications of applicants, as measured by high school preparation and various other factors.

"None of the factors [like gender] are rated anywhere near as highly as academic factors," he said.


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