Yes: The equal treatment rule has been twisted to discriminate against men.
By Kimberly Schuld Schuld is director of the Play Fair project at the Independent Women's Forum, an educational public-policy organization based in the nation's capital.
A small Eastern liberal-arts college -- call it Acme University to protect the innocent -- offers nine athletic programs for men and nine for women. Acme University is a Division III school and consequently cannot offer athletic scholarships. It does, however, sprit its budget of less than $300,000 equally among the 18 teams. The women have equal access to athletic opportunities and equal financial support. By all appearances, Acme University is scrupulously enforcing the type of gender equity envisioned by feminist leaders with the passage of Title IX of the Educational Amendments Act.
But Acme University is holding its breath because 58 percent of the undergraduate students on campus are female, while only 40 percent of its athletes are female. The Department of Education's Office of Civil Rights, or OCR, has left the door wide open for this school and others like it to come under attack because they have not met the sports-participation quota called the "proportionality test." Essentially, if the percentage of women in the athletic department is not equal to the percentage of women on campus, anyone can file a complaint and the OCR comes knocking on your door. Hence, the fictitious name for a very real school.
Congress passed Title IX in 1972 as an antisex-discrimination statute in response to employment and admission discrimination against women at colleges and universities. Three years later, the Department of Health, Education and Welfare wrote the Athletics Regulation to ensure that female students could not be denied opportunities in varsity athletics. In 1979, a three-part test for measuring the accommodation of interests and abilities was written by the agency as a policy interpretation. This three-part test for athletics says a school can show compliance by meeting the participation quota, showing a history and continuing expansion of women's programs or showing that it has fully accommodated the interests and abilities of its students.
The OCR claims that a school can be in compliance by meeting any one of the three parts and, presumably, each school can choose the test they want to meet. However, the OCR's regulatory guidance and investigative process during the last six years emphasizes the proportionality test. In other words, quotas count. If a school shows that the percentage of female athletes is substantially proportional to the percentage of female undergraduate students on campus, the OCR presumes that sex discrimination has been eliminated. If it cannot show proportionality, the presumption is that women are being shortchanged.
But discrimination is not necessarily reflected in outcomes. For example, Acme University has a football team, which results in the higher percentage of male athletes than female athletes in the athletic department. However, the 18 women of the softball team receive the same amount of university funding as the 85 men on the football team. It is illogical to say that the women are being discriminated against because they are a smaller percentage of the athletic department, but that is precisely what the participation quota does.
San Francisco State University was one of 19 campuses forced to meet the participation quota as a result of a lawsuit between the California National Organization for Women and the California State University chancellor's office. In 1995, the school decided to end its football program. Athletic Director Betsy Alden said, "We needed about 120 women athletes, about six teams of 20 women each if we were going to keep football. There are not even six more sports out there." The school had planned to add women's tennis, but rather than be allowed the option to develop another sport for women as competitive opportunities arose, they were forced to tell the men to go home. …