Feminist lawyers put different spin on Title IX

[Brent]

Spencer: Feminist lawyers put different spin on Title IX
 
Gil Spencer , Times Columnist  11/16/2003
 
Delaware County's Barclay Surrick ascended to the federal bench just in time save the West Chester University women's gymnastic team from discriminatory elimination. But if it hadn't been him it probably would have been some other federal judge. It was a pretty simple case.

After all, the legal facts were all on the side of the gymnasts.

Facing a budget shortfall of close to $100,000, WCU's athletic department was ordered to make some cuts. It could have cut the men's lacrosse team, which it did, and say, the men's basketball team, which it didn't. Instead, it cut the women's gymnastics program.

Big mistake.

Maybe Athletic Director Ed Matejkovic thought he was being even-handed by cutting one men's team and one women's team. But he should have known better.

Even though the number of male and female varsity athletes at West Chester is substantially the same, there are a lot more women attending the school than men. Today, some 61 percent of WCU's students are female. That means (if my math is correct) men now make up only 39 percent of the student body.

See the problem?

No? Well, according to a decade's old interpretation of the 1972 anti-sex discrimination act in education, known as Title IX, the gender breakdown of varsity athletes should be "proportional" to their numbers in the student body. So, if 60 percent of a student body is female, 60 percent of their varsity athletes should be female as well. Get it?

I know what you're asking. You're asking what if, on a percentage basis, fewer women than men want to go out for varsity sports?

It's a fair question. In fact, survey after survey has shown this to be true in most places.

But the courts that have heard these cases have routinely dismissed that consideration as being basically irrelevant. If the U.S. Department of Education wanted to use "proportionality" as its rule, judges weren't going to say it couldn't.

Never mind that the original law written in 1972 seemed to have prohibited exactly this sort of quota mongering when it stated:

Nothing (in this act) shall be interpreted to require any educational institution to grant preferential treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of that sex participating in or receiving the benefit of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, state, section, or other area.

Essentially, the feminist lawyers pushing proportionality instructed federal judges to ignore this section of the law, and the judges, judges like Barclay Surrick, meekly complied.

In the West Chester case, Surrick found that the school not only failed to comply with the proportionality test, but also failed to show a "history and continuing practice" of adding women's sports; or "fully and effectively accommodating the athletic interests and abilities" of female students.

Again, never mind that when the school cut the women's gymnastics program it added a (more cost-effective) women's golf team. And never mind too that today the school offers 11 varsity sports for women but only 9 for the men.

I called the school Friday to ask Dr. Matejkovic about all this but he was out of town. I was told he was away attending the women's soccer team's game in New York. Yesterday, I was told, he was going to attend the WCU's women's basketball tournament. He's a busy man.

Last week, he was quoted in another newspaper, "Whatever we're told to do by the judge, we'll do."

I imagine reinstating the women's gymnastics team will do for starters. That will bring the total number of varsity sports for females up to 12, a full one-third more than there are for men.

Over the past 10 years, nationally, some 400 college men's sports programs have been axed specifically so that universities could comply with this patently unfair interpretation of Title IX.

A recent commission of mostly liberal, well-meaning academic types was set up by the Bush administration to look into this ongoing slaughter. But it quickly found that standing up to feminist lawyers' well-publicized but phony claims that they were out to destroy athletic opportunities for little girls everywhere was too emotionally and politically difficult to withstand.

So until a federal judge somewhere decides to interpret the 1972 law as written instead of as twisted, slapped around and stood on its head, more rulings like Barclay Surrick's can be expected.

In any case, it's hard not to be happy for the young women on the gymnastic team. All they ever wanted to do was compete. And none of this is their fault.

But a quick question: 61 percent of WCU's student body is female. Where is the proportionality in that?

Gil Spencer's column appears Sunday, Wednesday and Friday. E-mail [email protected]