Women's Quarterly

You're in Trouble Again, Johnny

Not satisfied with squashing boys’ teams across the country, the Clinton administration is getting ready to impose quotas on every other aspect of education, reports Jessica Gavora

Women's Quarterly, Winter 1998

Say, here’s a thought: why doesn’t the federal government regulate the number of boys permitted to take biochemistry in every university in the country? Crazy? Not according to President Clinton, whose administration is already at work drafting rules that would give it just that power.

For once, the administration is remarkably candid about what it is up to. In most areas of law, the Clinton administration makes a point of denying that it favors quotas while in fact insisting upon them. But in the realm of education, Clinton has given the country fair notice of what he intends to do: police the number of women and the number of men enrolled in every academic program in the country. The regulations to do it are being drafted by the Department of Justice at this very moment.

The tool the president intends to use is Title IX of the 1964 Civil Rights Act. Until now, the law has been used to ban sex discrimination in college athletics. But last June, at a White House ceremony honoring the twenty-fifth anniversary of the addition of Title IX to the act, Clinton announced a dramatic new initiative. He told his audience of educators, athletes, and women’s groups that he believed Title IX’s reach should be extended beyond sports. It should be broadened to bring about "gender equity" in every academic program that in any way benefits from federal aid—that is, virtually all of them. "Every school and every education program that receives federal assistance in the entire country must understand that complying with Title IX is not optional. It is the law and the law must be enforced," said Clinton. "We are not stepping up our enforcement of Title IX," seconded an administration official."We are beginning it."

The transformation of Title IX from a guarantee of equal opportun-ity into an excuse for quotas is a relatively new thing. It can be traced to a series of federal court rulings in an anti-discrimination lawsuit brought against Brown University in Providence, Rhode Island. In the early 1970s, Brown set to work to build an exemplary women’s athletic program. But in 1991, it unexpectedly found itself in a budget crunch. To trim costs, it downgraded two women’s teams and two men’s teams from varsity status (that is, university-funded) to club (unfunded) status. The female athletes sued. They complained that while the Brown student population was fifty-one percent female, the university’s athlete population was only thirty-eight percent female. This, they asserted in Brown v. Cohen, was evidence of discrimination under Title IX. A federal district court and then a federal appeals court agreed.

Under the Brown decision, if a college’s student body is fifty-two percent female, fifty-two percent of its varsity athletes must be female, too. If not enough girls sign up, then boys must be sent home. Last year, the Supreme Court refused to review the decision, leaving it as law. Quotas had moved from the admissions office to the gridiron and the gym.

Alas, women simply don’t turn out for competitive sports at the same rate as men. As a result, schools are increasingly forced to make their male-female participation rates more equal not by adding women, but by subtracting men. Colleges across the country have been forced to shut down hundreds of male sports, including the Olympic-training programs that produced gold-medal winners in diving and swimming (see accompanying article). Last fall, Boston University ended its ninety-year-old football program, reducing the number of male athletes on campus by sixty-three and thereby achieving "gender equity" without adding a single new female athlete. At nation- al Collegiate Athletic Association (NCAA) institutions in the past five years, the number of men playing sports has declined by ten percent.

And this is where we are before—to quote that Clinton aide—the administration begins to enforce Title IX in the classroom as well. As University of Chicago law professor Richard Epstein warned during the Brown trial, if such an interpretation of the law were adopted by the government, "Title IX would be read to require a rough proportion of men and women in engineering and science on the one hand, and art and literature on the other, even though most certainly far more men are engaged in the former activities, and far more women students are engaged in the latter."

Until now, the federal agency entrusted with enforcing Title IX has been the Department of Education’s Office for Civil Rights (OCR). And the person in charge of that office is one of the most zealous advocates of sex and race quotas in the entire administration, Norma Cantu. Cantu is the person most responsible for using Title IX to bring quotas to sports, and the force behind pushing them further to academics. In 1993, FairTest, an anti-standardized testing advocacy group, filed a Title IX complaint with Cantu’s office alleging sex bias in the Preliminary Scholastic Assessment Test (PSAT). The problem, according to FairTest, was that too few of the 15,000 National Merit Scholarship finalists selected by the PSAT were girls. Although around fifty-five percent of the test takers each year are female, young women make up only about forty percent of national Merit Scholarship finalists.

Cantu agreed with FairTest that this disparity indicated bias. And because the College Board, which administers the PSAT, receives federal funds, Cantu’s views carried the day. Under threat of losing government money, the College Board settled. Although it refused to concede that the PSAT was biased, the College Board agreed to add a thirty-nine-question, multiple-choice test of written English—a test on which girls score consistently higher than boys.

"The bottom line was counting bodies," says Gretchen Rigol, executive director of admissions and guidance services for the College Board. After the change was announced, FairTest executive director Laura Barrett asked the obvious question: "Why haven’t similar changes been made in similar exams [which also show a "gender gap" in scores favoring men] such as the SAT and GRE?"

Why not indeed? And why stop there? Boys are more likely than girls, for instance, to take math and science courses, particularly in high school. In his June remarks about Title IX, Clinton boasted that his administration has "stepped up enforcement" of Title IX in areas such as "access to advanced math and science programs." Norma Cantu’s office last year investigated almost forty school districts that have an "under-representation" of girls in advanced math and science classes and in gifted programs.

Yet another growth area of Title IX is sexual harassment. In 1992, the Supreme Court held that parents whose daughters have been harassed at school can sue the school districts—a far more lucrative target than teachers or classmates. In 1991, eleven sexual harassment complaints were filed by elementary and high school students. Four years later, the number of complaints had jumped to seventy-nine. Although the precise limits of the school districts’ liability have not yet been decided (that judgment is expected from the Supreme Court this year), Cantu’s office is amassing an ever thicker dossier of complaints. advocates of wider sexual harassment litigation are especially eager to use Title IX to permit girls to sue their fellow students—an eagerness responsible for a North carolina’s school district’s notorious and otherwise baffling decision last year to suspend six-year-old Jonathan Prevette for kissing a classmate.

The very uncertainty over what, if anything, Prevette did wrong only underscores the power ideological bureaucrats have to punish even a small boy who haplessly stumbles into their cross hairs. There’s nothing yet in the law to permit one student to sue another for kissing her. There’s not even anything in the Department of Education’s compendious regulations against it. This is because the department advances its most controversial policies with a strange legal device called a "policy interpretation." A policy interpretation is what harvard professor Louis Guenin calls "a creature of no known genus." Neither law nor regulation, the policy interpretation functions as the bureaucracy’s way of putting the public on notice as to what it will consider compliance with the law.

In a policy interpretation published last year, for instance, OCR held that both "dirty jokes" and "graffiti of a sexual nature" will be construed as sexual harassment under Title IX. Furthermore, student misconduct will be regarded as every bit as serious as harassment by teachers. Such conduct, the Office for Civil Rights has said in a guide for educators, cannot be excused "with an attitude of ‘boys will be boys.’" Schools should take preventative measures such as "sexual harassment awareness" training for teachers, elementary and secondary students, and parents.

As for any backtalk about constitutional rights and liberties, while "the school should pay attention to any due process or other rights the accused student or teacher might have [emphasis added]," the office for civil rights counsels, "the school should make sure that doing so does not interfere with the protections provided to the complainant by Title IX." Technically, a policy interpretation is not binding. But recipients of federal funds are naturally eager to keep the office happy, and so for all practical purposes, policy interpretations are the law of the land.

The expansion of Title IX enforcement to include sexual harassment and classroom education has school districts worried—and feminists crowing. "It’s like that [orange juice] ad, ‘It’s not just for breakfast anymore,’" Verna Williams of the National Women’s Law Center told the New York Times. "Title IX’s not just for sports anymore. It’s a tool for making schools more hospitable for girls and women, ending sexual harassment, and winning real gender equity across the board in education."

But the feminists may not get the last laugh. For now, corrective measures designed to equalize numbers and funding between the sexes are likely to redound in favor of women. But that won’t stay true. If men have a disproportionate interest in sports, engineering, and parachute school, women have equally disproportionate interests in other activities.

During the Brown litigation, the university studied the extra-curricular interests of its applicants. Women accounted for ninety-one percent of those who expressed an interest in dance, fifty-six percent of those who expressed an interest in drama, and sixty-six percent of applicants who expressed an interest in music. The day is not far off when a man who is denied a space in an oversubscribed acting, dance, or music class will file a lawsuit demanding that women be dropped from the program for the sake of equity.

What is perhaps most amazing about all this is that it’s occurring despite the plain language of Title IX. Yes, the law forbids discrimination "on the basis of sex." But it goes on to say that schools are not required to "grant preferential treatment" to women "on the account of an imbalance which may exist" with respect to their ranks among athletes in comparison with their numbers in the institution as a whole. The Congress that voted for Title IX in 1972 had already witnessed the perversion of the original Civil Rights Act into a quota machine, and they were declaring as emphatically as they could that Title IX should not be used in this way.

Those good intentions, however, lasted only seven years. In 1979, the Carter administration’s Department of Health, Education, and Welfare issued a policy interpretation—one that has reigned ever since—that replaced the old standard of equal opportunity with a new requirement of equal outcomes. And now, twenty years further on, the Clinton administration is determined to bend the law even further and demand equal outcomes in every educational program that receives so much as a single federal dollar.

To understand how breathtakingly sweeping an agenda this is, you need to recall that the federal government funds education in many places other than traditional classrooms. The House Education Committee reports that forty federal departments, commissions, and agencies dole out more than $96 billion in annual education funding to museums, state and local governments, and private businesses—as well as to schools, colleges, and universities. On top of that is the money spent on training programs conducted by the federal government itself: schools operated by the Department of Defense and the Bureau of Indian Affairs, and law enforcement training conducted by the FBI. Each and every one of these activities, whether directly or indirectly subsidized by government, will now come under new scrutiny for evidence, not of sex discrimination, but of sex imbalance. Too many men in gunnery school? Too few men getting day-care training from Indian Affairs? You’ve got a federal case. This is too vast an empire even for Norma Cantu to rule. So new regulations being drafted by the Department of Justice will extend to every federal department and agency the power to conduct Title IX investigations and random compliance reviews of their own.

With what consequences? Perhaps most troubling is the likelihood that Title IX may affect government funding of medical and scientific research. The National Science Foundation gives out over $109 million in assistance to male-dominated undergraduate science, engineering, and mathematics programs each year. Should that money be cut back to ensure that America graduates no more male scientists and technologists than female? What would happen to the study of disease if the National Institutes of Health, which grant more than $200 million in funding to postsecondary schools, were to be told to allocate their budgets by sex? The department of Health and Human Services, for that matter, doles out more than $70 million in training nurses each year. Is it prepared to cut back on that training if fewer than half of those nurses are men?

Though the Department of Justice has yet to make the new Title IX regulations public—or even share them with congress—there are ominous signs of what their final form might take. In December, the Department of education racheted up its regulatory commitment to quotas, notifying some universities that "exact proportionality" would now be required when awarding financial assistance to female athletes. Previously, schools had attempted to achieve "substantial proportionality" by bringing the percentage of their scholarship-assisted female athletes within five points of the total percentage of female athletes. That same month, President Clinton appointed Bill Lann Lee acting assistant attorney general for civil rights. Lee is a longtime advocate of race and sex quotas, and it will be under Lee’s authority that the final Title IX regulations are issued.

The few congressmen who are paying any attention to the issue are muttering that it would behoove the Department of Justice to check with Congress before issuing any new Title IX regulations. If not, they warn, Congress has the authority to conduct hearings on proposed regulations and ultimately to block them if they don’t reflect the intent of the statute. Since the statute explicitly forbids quotas, Congress’ authority is clear and ample.

But don’t hold your breath. Though its original meaning has been distorted and its day-to-day effects are destructive, Title IX is riding an unprecedented wave of commercial and political success. The Women’s National Basketball association and its corporate sponsors—behemoths like Coca-Cola, Nike, and American Express—celebrated the league’s debut last year with banners festooning stadiums that read, "Thanks Title IX." The law has accumulated a constituency of powerful special-interest elites willing to brand any politician "sexist" who disagrees with their Orwellian vision of sexual equality. Will a Republican party terrified of the gender gap really stand fast as sex quotas move from the playing field to the classroom? Michael Williams, who ran the department of Education’s office for civil rights in the Bush administration, sadly observes that the quota advocates "won the sports battle."

As things stand, they look likely to win the battle for the classroom and the research lab, too.

Jessica Gavora is the former director of the Independent Women’s Forum’s Play Fair! project.