Title IX and the reverse discrimination argument

Guest Post From: Kristine Newhall

The recent fight to restore men's track at the University of Delaware has raised some compelling questions about administrative transparency, athletic department priorities, and--of course--Title IX.

My focus here is on the last, specifically the discussion about the legislation that has emerged since the announcement of the team's elimination in January and through the recent filing of a complaint by the team with the Office of Civil Rights (OCR).

The issues are larger than this one particular case, though. My own research on Title IX and the language used to discuss its history, its implementation, and its effects illustrate the great misunderstandings around both the legislation and the concepts of equality and equity, and how they are mandated by Title IX.

This post is part one of two about the discourse around how the accommodation of athletic interests and abilities* is assessed and implemented. Today I want to address the concept of reverse discrimination. In a subsequent post, I will discuss the history of the three-prong test in an attempt to address a common response to athletic cuts: I support Title IX, but I don't like how it is implemented.

The UD track team's complaint to OCR references the concept of reverse discrimination. This phrase has been used often in discussions about Title IX and is often proffered by those whose teams have been cut. It also appears in the media coverage of such cuts.

In 2007 James Madison University cut ten intercollegiate teams. Both men's and women's teams were cut, but more men's opportunities were eliminated because JMU needed to demonstrate proportionality in its accommodation of athletic opportunities.** In a lawsuit against the school, the group Equity in Athletics claimed--among other things--that the university was engaging in reverse discrimination. The courts did not accept this argument and the cuts have stood.

In 2009, a former Kansas University swimmer filed a complaint alleging that the university was engaging in reverse discrimination against men because it did not offer them enough athletic opportunities. In an agreement with OCR, the university agreed to document its Title IX compliance, but was not found to be out of compliance.

The reverse discrimination claim has not been successful. It is part of the rhetoric used by those who wish to protect the opportunities of people who already receiving these opportunities and their benefits. Historically it has been used in reference to racial equality, specifically affirmative action programs. (And criticism of Title IX has included that it is a quota system; a critique levied against affirmative action as well.) I base my own conception of reverse gender discrimination on the work of critical race scholars such as Richard Delgado, Kimerble Crenshaw and Gary Peller and their respective work on reverse racism.

Reverse discrimination--as it is being applied in these Title IX cases--assumes gender neutrality; the proverbial level playing field. Reverse discrimination means that the intent, the history behind, and the impact of cuts are the same for men and for women. They are not.

Male student athletes still receive, according to the NCAA's April 2010 report, 57 percent of all intercollegiate athletic opportunities. It seems difficult to argue that Title IX is creating reverse discrimination when men have always had and continue to have more opportunities.

 

* This is just one area in which compliance with Title IX is measured. It is arguably the most visible and most controversial.

** Once a school cuts women's teams it can no longer claim compliance with either prong two--history of expanding opportunities for women--or prong three--meeting the interest and abilities of the underrepresented sex.

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  • Sgc,

    Great points and questions. I am sure Kristine will be back to further the discussion. Stay tuned!!!

  • Sgc,
    Regarding the first point, Title IX doesn't control for how many people turn out for one sport or sports in the aggregate, just like the lottery can't control how many people play the weekly jackpot, or Yale can't control how many people apply to their school. There's a set number of spots, one's chances for getting that spot are obviously better the fewer number of people who are interested in that spot. The concept (if that is indeed the concept you are referring to) of opportunities is always dependent on how many people want them. Title IX just mandates that, given the history of sexism in school-sponsored sport, opportunities be made available in an equitable manner.
    I might be addressing some of your second point in my second piece--so stayed tuned.
    But you are right--Title IX is about educational equity--at all levels, not just college. Athletics is seen as part of the educational experience, which is why it falls under Title IX. Athletic opportunities are not meant to fix other areas of discrimination. The purpose behind the extensive regulations regarding athletics offered by educational institutions is to ensure that gender discrimination in athletics does not get perpetuated. If a school seems to have a problem giving tenure to female faculty, well that is also a Title IX issue and a complaint or a lawsuit can be filed to remedy that discrimination. Or if a high school female is told she cannot participate in auto shop in the same way as her male peers, Title IX can also be used to help remedy that discrimination. Title IX is a legal remedy for specific situations. Obviously--and rightly--it has an impact on educational culture as well (and arguably the larger culture). But it remedies discrimination one case at a time while also, in part, discouraging discrimination as a whole.

  • In reply to knewhall:

    You seem to cite the lottery example to argue that the Sgc's points are not necessarily relevant to the question of opportunity (as it is fluid), but it seems to me your explanation of Title IX's more general application to education, when looked at more closely, supports his argument, rather than militate against it.
    I would hazard a guess that if you were to assess the make-up of virtually every college major, you would find disparity among the sexes. For example, in your own field of Women's Studies, there is likely to be nearly 100% female enrollment. Nursing continues to attract a disproportionate number of women than men (something around 90%), while engineering tends to attract a disproportionate number of men when compared to general college enrollment. Do these numbers reflect discrimination and lack of opportunity for the sexes, or do they reflect personal choices? Why is there no Mens' Studies department at the university, and does that have Title IX implications? Are men being denied the opportunity to study issues of particular interest to men?
    Yet, sports seem to be the one area in which we cannot brook disproportionality without crying "Foul! Sexism!" Intense pressure has been brought to bear on colleges to adopt the only "safe harbor" provision of Title IX, which happens to be the third prong regulation imposing a proportionality quota. This proportionality test is based upon the belief that women have an exactly proportionate interest in participating in sports as men at the college level, which is not based upon any empirical evidence or analysis, but simply a bald assertion aimed at engineering a particular result.
    I am a female who played competitive sports in high school, although I opted to play only intramural sports at college. Is my own experience typical? I cannot say. But neither can anyone else--no one has bothered to find out. We simply merrily go on, forcing a result with no citable basis in fact. But not only do women not have a lot of career opportunities in professional sports (as opposed to men), but any number of reasons suggest that women, as a group, simply are not as inclined to participate in sports at the college level as men.
    Yes, Title IX can be used to remedy specific instances of discrimination. But let us not kid ourselves that it is being invoked for those purposes. More often than not, it is used as a bludgeon to pressure colleges, and now high schools, into engineering a specific result regardless of what girls or women may individually desire in terms of sports. Until women show some interest in forging their own futures through hard work and standing up for the truth rather than demanding an entitlement through the force of law, I am afraid it will be difficult for us to earn the respect that some of us are striving so hard to achieve.

  • In reply to knewhall:

    Anne,

    Very insightful comment. Your presentation of thought is well supported in logic, in addition to its depth. Let's keep this discussion going.

  • In reply to knewhall:

    Dear AnneH,
    I'm not sure I'll be able to get to all your points here, but I'll do my best. Also I am writing a part II about the three-prong test so stayed tuned...
    You're right that the same amount of scrutiny and regulations do not exist in every area of education. The attention to sports is a result of activism on the part of feminists and women's sports advocates from the very beginning and their battles with established male-dominated entities like the NCAA and various coaches' associations.
    If men who want to be nurses feel they are being kept out of the profession, that they are being discriminated against (and have been historically been discriminated against within the profession) they can attempt to remedy this using legal and activist means. But I am not sure this is the case. My anecdotal evidence suggests that when men want to enter female-dominated professions like nursing or social work, they are given incentives to do so within the profession (though not necessarily social support outside of it).
    As for the concept of men's studies... many of us who consider outselves feminist academics, whether we are in traditional disciplines like English, anthropology or sociology, or more interdisciplinary areas like women's and gender studies believe that men's studies does exist--in every other area of the university. There is no lack of research on men. It can be engaged in in every department. My own work certainly does not erase men. I talk about men and the construction of gender in our society all the time.
    Which leads me to my last point. I personally have a problem with the concept of "personal choice" because it assumes that all choices exist in a vacuum. They do not. They exist within a culture(s). A recent NPR piece on the "end of gender" discusses this. The mere fact that there are far fewer and far less lucrative professional sport opportunities for women is part of the choice-making process. Or maybe the fact that women receive far fewer athletic scholarship dollars: $176 million less annually according to an article I saw this morning. There is a choice--but the terms have already been created. And they have been created in a culturally specific context. In this case, it is a culture which has always encouraged more physical activity among boys--often in very subtle ways without any deliberate or nefarious intentions. But it still exists.
    One more thing. I do believe Title IX exists and is effective in remedying specific instances of discrimination. We write about these cases every week.

  • In reply to knewhall:

    Your response to my discussion of nursing missed my point. I believe men are NOT discriminated against with respect to nursing programs, and women are NOT discriminated against with respect to engineering programs; the disparity reflects personal choices. Yet: nobody argues "institutional sexism" as the reason for this disparity, and they do when it comes to sports. Accepting the validity of your argument that cultural influences affect women's choices (which I do) then why doesn't that cultural influence argument apply to nursing and engineering as well when it comes to Title IX's quotas? Why are we not imposing quotas on nursing schools to dispel and eliminate these nefarious sexist cultural influences? If we did, I expect we would see the result we are seeing under Title IX with respect to sports: a reduction in opportunities for the opposite sex, only, in this case, a reduction in opportunities for women to pursue nursing.
    The point is that sports are treated differently than every other college endeavor under Title IX in education, and that is simply not rational, and neither do I think it serves the cause of women. Moreover, I would hate to see quotas imposed on any university program so long as women, individually, have sufficient opportunities to pursue their interests. How can women purport to desire strength and independence when their remedy for every perceived injustice is to pathetically demand government intervention? How is it empowering to rely upon the authoritarian dictates of law? Are feminists interested in empowering women as individuals or just as a political force that must be appeased?
    As to fewer professional sports opportunities being emblematic of our culture's choice-making process: yes, it is. People just aren't that interested in watching women play basketball as they are in watching men play. What are we doing to do about that? Impose requirements on the public to purchase tickets? How on earth is imposing Title IX quotas on colege sports going to change the "terms" of our culture? And why on earth have feminists decided that sports are the defining cultural institution by which, when parity is reached, women will finally have declared themselves to be "equal" and liberated from the confines of a "sexist" culture when the fact remains that women are women and men are men? Just what the heck is wrong with being different from men, and why have feminists decided that we must be more like men in order to be "equal"? What kind of feminism is it that makes "being men" our standard of what it means to be women and that puts down women who AREN'T like men at nearly every turn?
    As for your argument that the rest of university studies are men-centered, I guess I would argue that in many cases that is a very narrow and sexist lens by which to view higher education. The bald fact is that in the past, men have had a greater influence on history and literature and science and art. This is not to say that women have contributed nothing, and I believe there are women without whom these endeavors would be sorely short-changed (i.e., Jane Austen, Mary Cassatt, Marie Curie, etc., not to mention the mothers and wives of all these men who did amazing things) but we cannot pretend history is something other than what it is, and I don't see why we must create a separation between women and men in deciding who is worth studying and what is worth reading. Moreover, isn't glorifying masculine accomplishments and elevating women onto those pedestals buying into the very patriarchy that the more radical feminists claim to reject?
    I don't consider men to exist an an adversarial relationship to me, and I do not think anyone owes me anything just because I am female. I have always believed that I must earn what I want through hard work, and if the world is not fair, which it is not to ANYONE, then I just have to overcome whatever obstacles I find. Does anyone really think we can change the culture by any other principle? Do we women really think we will change our culture by threatening lawsuits? Do we really want to teach young girls that griping and suing are better routes to personal success than than hard work?
    In the interest of full disclosure, I must mention that I have written a book critiquing feminism (Sexless: How Feminism is Failing Women), and I work for an organization that is challenging Title IX's quota regulation insofar as it is being applied and enforced against high schools.

  • In reply to annehayes:

    This statement AnneH: "I have always believed that I must earn what I want through hard work, and if the world is not fair, which it is not to ANYONE, then I just have to overcome whatever obstacles I find." is profound and one I live my life by. There is something to be said for those who believe that what they get out of life is exactly what they put into it. Earning something by the sheer determination and will that it takes to do so, even through adversity, is a concept too many today do not quite understand. It is something that no amount of $$$$ can buy as what one learns by going through this process has immeasurable intrinsic value.

  • In reply to Kirk Mango:

    Your point about adversity is so important. Facing and overcoming adversity is key; most "successful" people--men or women--are not successful because they don't run into obstacles, but because they refuse to be daunted by them. Too much feminist thought demands that women focus on the obstacles and not their own goals. Incidentally, it is amazing how often those obstacles disappear when you do not see them as obstacles. Feminists promote in women a defeatist attitude, in my opinion.

  • In reply to knewhall:

    I have an interesting point to throw into the mix. In this case I will be applying it to physical education rather than sports, however, its implications are eerily similar to this continuing discussion.

    Before Title IX physical education courses where divided by sex, all male classes and all female classes. They did not mix the two. I might also add that only female teachers taught females and male teachers taught males. When Title IX came into effect this had to change. Currently, at least at the schools where I have taught, both male and female physical education teachers teach coed classes.

    Many, me included, would anecdotally state that effort levels - something essential to building fitness levels, decreased from both males and females in these coed classes. It became harder to motivate and inspire students in coed classes to work harder. The mixture of the two brought out the social intricacies between the both sexes in this environment making achievement of goals for both much more difficult. This is especially true at the high school level, the level that I teach. Of course there are a select few athletes, of both sexes, who this did not have much impact on, however, they are in the extreme minority.

    There has been discussion this year in my school to go back to a split of the two groups as the need for higher fitness levels in our countries youth has become painfully obvious. When I bring this up to the students in my classes and ask them how they feel about it, the comments from many (the ones who need fitness improvement the most) are an emphatic "yes." When asked why, the girls statements always center on not wanting to sweat in front of boys, mess their hair up in front of boys, or demonstrate other behaviors that they feel boys may not like. The boys, without stating as much, demonstrate similar feelings. And this is after having coed classes in physical education for their entire lives.

    Basically, they are stating that they would work harder and do more if the boys and girls were split. I might also add that both the boys and girls are extremely uncomfortable being together in our swimming units, something that is a requirement in our school.

    From my perspective, I would apply the word equitability to all situations regarding Title IX, not necessarily equal but equitable. This term requires one to consider each specific situation, and its outcomes, when applying a rule/law that calls for equal opportunity. In the specific situation I have described, I would try to find a way to give students an equitable solution that took into account the activity, the outcomes expected or wanted, the idea of equal opportunity (or equitable opportunity), etc. I also believe this type of interpretation would help diminish the complications that Title IX has brought about in athletics at the high school and college level.

  • In reply to Kirk Mango:

    Another good point about men and women you have made here: we ARE different, and we have different perspectives and motivations. Strangely, feminists like to point out that women do things differently than men, and one of the things they seem to tout is how women like to decide by "consensus" and are not as prone to desire power or dominance. But at the same time, we are supposed to believe that girls are just dying to get into competitive sports? There is an inherent inconsistency there.
    Believe me, I am personally plenty competitive (I grew up with 5 older brothers), but I am happy to say I have other traits that are more feminine and, frankly, Im perfectly happy with that state of affairs.
    Your post raises an interesting question: how many sports teams are the all-women's colleges putting out, and what proportion of their student body plays sports? I would be curious to know if the ratio of female-athlete-to-female-student is significantly different than the same ratio at co-ed colleges.

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