Constitutional Opinions: Gender Benders
Rabkin, Jeremy
CONSTITUTIONAL OPINIONS by Jeremy Rabkin Gender Benders H crasser of employees, exploiter of interns, friend of pornographers, rapist—Bill Clinton is, of course, the darling of the feminist...
...Without the right numbers, schools may still comply by demonstrating "a continuing practice of program expansion" for athletes of the "underrepresented" sex...
...More men are involved than women, and for feminists, the numbers alone prove "inequity...
...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...
...Nonetheless, feminists are determined to punish male athletic programs to prove some abstract ideological point...
...Not even feminists want to impose quotas on women in such areas to assure some arbitrary notion of "equity...
...58 The American Spectator Ap r i l 19 9 9 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 funding for a female team, whatever the larger financial stringencies or the uncertainties of female athletic interest in a particular area...
...So in practice, colleges must achieve the quota in order to avoid bureaucratic investigations and lawsuits from women athletes...
...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...
...Neal is particularly interesting because it challenges not just a wacky California policy but the wider system of federal regulation now enforced throughout the country...
...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...
...And almost all the new female athletes were recruited by Division I schools (those with the most competitive 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...
...District Judge Robert Coyle issued a temporary restraining order against the cut at the end of 1997 and a preliminary injunction this February...
...By vetoing a ban on partial-birth abortions —what might more accurately be called "assisted infanticide...
...Their rates of participation are much higher than those of men when it comes to extra-curricular activities involving music, drama, and speech...
...JEREMY RABKIN is a professor of government at Cornell University...
...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 C SU 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...
...So we may soon see the push for gender quotas move on from the locker rooms to encompass the classrooms as well...
...In 1979, officials at the Office for Civil Rights (now in the Education Depaitment) issued a policy interpretation on Title IX's application to collegiate sports...
...Clinton's first appointee to the Court, and who has equated sex discrimation with race discrimination in a previous decision, will explain how gender quotas can possibly be consistent with the equal protection guarantees in the Constitution...
...But that number alone hardly proves "discrimination...
...That is the central evil of quota schemes—that they sacrifice the rights of individuals for the sake of reallocating aggregate outcomes among groups...
...This was Clinton's policy even before the Lewinsky scandal broke...
...How does he move the country toward compromise on this tormenting issue...
...This was the Justice Department's approach during the year-long public debate about the Lewinsky scandal...
...President Clinton has already promised "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 showing higher participation by men...
...Then maybe Ruth Bader Ginsburg, the feminist legal scholar who was Mr...
...Two years ago, everyone expected the Court to rule firmly against the dismissal of whites for the sake of racial target quotas...
...The undeniable fact is that women are less interested in competitive sports than men...
...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...
...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...
...In the name of battling discrimination, federal civil rights officials are effectively demanding that colleges discriminate against men...
...For more than two decades, feminists have complained about the inequities of college sports...
...He promised sterner enforcement because Title IX "is the law and the law must be enforced...
...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...
...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 sportsprogram do anything to frustrate their interests...
...It is true, as feminist critics are quick to note, that men still outnumber women in collegiate athletics...
...Feminists beat up on male wrestlers and other jocks...
...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...
...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...
...According to surveys by the National Collegiate Athletics Association, less than 4o percent of athletes on NCAA varsity teams are women...
...If they need to hold down costs, all their legal incentives are to cut men's programs and keep funding the women...
...Women also outnumber men in particular academic fields—for example, nursing...
...The American Spectator • April 1999 59...
...He does so much for feminists to keep them overlooking his, uh, private peccadilloes...
...It is not that female students simply pine away in college libraries...
...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...
...And they are succeeding...
...Rather than focus on expanding opportunities for women, the activists are content to curtail opportunities for men in order to achieve "equity...
...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...
...Not at all...
...Remember Secret Service privilege...
...Cal State officials cite those guidelines in defense of their athletic quota policy...
...On this issue, there may be another nasty policy turn in store, as more payoff bills come due for the president...
...This message seemed a bit untimely in 1998, but we are very likely to hear more about it in the next few months...
...Meanwhile, the Justice Department is working on new regulations for Title IX to clarify the legal status of observed disparities in male/female ratios in academic programs...
...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...
...White House counsel privilege...
...Stephen Neal and other members of the team then brought a federal lawsuit...
...At Cal State Bakersfield, seven male wrestlersout of 32 were cut from the team to make the overall numbers come out right...
...In Division III (where athletic scholarships are unknown and students simply play for the love of their sport), 178 new female athletes haveappeared in the past five years, while 9,000 positions for men were eliminated — "2o males dumped for every female gained," as the Independent Women's Forum put it...
...In Neal, for example, the plaintiffs pointed out that each wrestler cut from the team saved the college little more than $30 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...
...Notwithstanding his poll numbers, federal judges swatted down each one of them without so much as a word of apology to Geraldo...
...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...
...In 1996 Brown University, after years of litigation, was found in violation of Title IX for reducing its funding of women's gymnastics and volleyball teams during a period of overall athletic cutbacks (Cohen v. Brown...
...The nine justices may tell us soon...
...Yet on the matter of gender quotas, there is also some hope for relief...
...Federal officials have interpreted this to mean a continuing, year-by-year expansion, not just an initial period of growth...
...Does the Constitution really allow this...
...No, not from congressional Republicans, too traumatized by Clinton's "vindication" in the Senate impeachment trial to tangle again with the feminist lobby...
...Last year, the National Women's Law Center filed complaints against 25 colleges charging "gender bias" in their athletic programs...
...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...
...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...
...Rather, the relief may come from federal judges, who are not quite so intimidated by poll results...
...A case underway in federal court in California illustrates the pattern...
...It is not even a question of equalizing funding between men's and women's teams...
...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...
...Stephen Neal and his fellow plaintiffs are the male athlete counterparts to that teacher—removed from their places to satisfy a feminist quota...
...Yet another thing we get is "gender" quotas...
...W by is OCR pressing so hard for quotas...
...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 5,80o—so nearly four male athletes were kicked out of sports programs for every new woman...
...All the other groundless and absurd legal delaying tactics of Bill Clinton's legal "dream team...
...At the high school level, too, females are less likely than males to go out for teams...
...Will feminists back off now that the price of their quota scheme is becoming more evident...
...CONSTITUTIONAL OPINIONS by Jeremy Rabkin Gender Benders H crasser of employees, exploiter of interns, friend of pornographers, rapist—Bill Clinton is, of course, the darling of the feminist establishment...
Vol. 32 • April 1999 • No. 4
