Keep Title IX quotas out of high schools
By Steven Geoffrey Gieseler
This coming fall, over a hundred James Madison University athletes – including both men's and women's national champions – won't be suiting up for competition like they did last year.
That's because earlier this month the university officially cut seven men's and three women's teams to comply with Title IX's dubious "balancing requirements."
The school decided there will be no more swimming or wrestling for men and no more fencing or archery for women, simply to make the percentage of women athletes reflect the percentage of the overall female student population.
While this type of gender-based discrimination – ironically something Title IX was enacted to prohibit – is not new on the collegiate level, some activists would like to see it applied in a whole new arena: America's high schools.
As originally written, Title IX is a good law. Its explicit purpose is to ensure that all students have equal opportunities. This laudable goal guided the government's interpretation of the law for the first years of its existence. Institutions were instructed to facilitate this equal opportunity for both genders not in terms of rigid proportionality, but in accordance with the genders' relative interests.
In 1979, the Carter Administration changed this system to directly contradict the plain language and purpose of the law, which sought to abolish all quotas. Carter's cabinet issued an interpretation of Title IX that not only permitted the quotas the law itself prohibited, but made compliance with a quota system one of only three ways a college could prove compliance with Title IX.
In 1996 the Clinton Administration took things a step further. Not only would Title IX be interpreted to allow quotas, it would require them. Indeed, the only safe way to avoid violating Title IX was to show that the percentages of men and women athletes were equivalent to the gender ratio of the overall student population.
At many colleges this was impossible, because more men than women had an interest in athletics. Since it wasn't feasible to force women to participate to even out the numbers, the Clinton Administration had another way. Colleges could simply eliminate perfectly good existing men's sports teams, and arbitrarily cap men's future participation in sports programs. With minor changes, this is the system that governs today, leading to the cuts at James Madison and other colleges.
Can you imagine the situation at James Madison happening at your local high school?
No legally binding rule or regulation ever has formally applied Carter's 1979 interpretation to the high school setting. Were it so applied, as some advocacy groups proudly desire, the result would be the largest quota system in America's history, governing millions of high school athletes across America.
This is not only legally improper, but also absurd public policy. High school sports share none of the concerns over scholarship money and nationwide recruiting that are so crucial to collegiate sports, and that are the focus of Title IX's application to colleges. High school students participate in sports not based on available scholarships or recruiting efforts but purely out of interest.
Thus, the government has no business limiting the participation of interested high school athletes just to satisfy a quota as an end in itself. Given the many proven benefits of athletic participation that include the development of leadership skills and the encouragement of physical fitness, the government should not advocate policies that limit opportunity based on quotas.
It's been 35 years since the enactment of Title IX. This milestone is a celebration of the achievements of female athletes, and rightly so.
But it also should serve as a time for the government to reconsider the way it has interpreted the law to mean whatever it wants it to mean, even when that diametrically opposes Title IX's clear language and original purpose. America's high school athletes deserve a new view of this old law, and not one turned on its head.
Steven Geoffrey Gieseler is an attorney with the Pacific Legal Foundation, a non-profit, public interest legal organization. He recently filed a petition with the Department of Education, on behalf of the College Sports Council, asking the Department to clarify that Title IX's quotas do not apply to high schools. For more information, please visit www.pacificlegal.org.
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