The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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Sunday, September 28, 2003

Title IX - how Stalinist can you get?

The US, at one level, is a puzzle set for the amusement of those of us doomed ever to suffer from a crick in the neck from gazing up to the City on a Hill.

Gunnar Myrdal's American Dilemma is but one of a myriad of conundrums [1] offered to the discerning foreigner. Why, for instance, is it rank socialism and unAmerican (or is that Unamerican?) to finance health care from general taxation, but the most American thing in the world to do the same for education?

I doubt that even the reddest of governments around in the continent of the Axis of Weasels believes these days in equality of outcomes: under the lash of competition from Uncle Sam, on the whole, a rather beneficial stimulant, equality of opportunity would tend to be the most on offer (and that in the spirit of the Declaration of Independence's life, liberty and the pursuit of happiness.)

But, if I understand it aright, that's what Title IX offers [2]. Forget Michigan and its shilly-shallying points system nudge nudge, wink wink methods: in practice, Title IX provides [3] the very crudest of quotas: in Spencer Tracy's immortal line from Pat and Mike,
Five-oh, five-oh.

I can't pretend to have traced it all through: the best starting point I've got is this DOJ page which links into the various regulations that fill out the detail. But the meat seems to be in para (c) of .450 of the main regulations on Title IX [3]: it says (in (c)(1)) that
A recipient that operates or sponsors...athletics shall provide equal athletic opportunity for members of both sexes
and goes on to enumerate various factors to be taken into account.

And in (c)(2):
For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.

A USA Today piece from last year talks about a three-part test applied by the Office of Civil Rights of the Department of Education [4] that addresses similar issues to the regulation, but in a different way.

The upshot is, however, that equality rules: although both the regulations and the three-part test ostensibly allow for flexibility, a Gresham's Law of risk aversion makes college authorities prefer the draconian but safe solution of strict equality. And, things being what they are, that means levelling men's sports down to the level of female.

And - what got me looking at Title IX just now - a WaPo piece (September 27) has the University of Maryland
promoted part of its cheerleading squad to varsity status this year to create more scholarships and playing opportunities for female athletes on campus.

Next, it'll be ballroom dancing and aerobics! Anything to make the Title IX quota without slashing the men's teams [5].

Surely a system more in tune with the values of Uncle Joe than Uncle Sam?

  1. Conundra is popular etymology without foundation; the word is not a Latin neuter Second Declension noun - it's not in Lewis & Short, at any rate.

  2. For the further amusement of the audience, Title IX is customarily used (Google racks up 373,000 items, not all relevant, of course) without further qualification. We shmucks are thus left to guess that it is not, as I long supposed, Title IX of the Civil Rights Act of 1964 (does it have a Title IX?) but of the Education Amendment Act of 1972. And, since, so far as I'm aware, there is no online facility for tracing Federal statutes to the US Code, it is pure chance that you find that the main provision of Title IX is, in fact, 20 US 1681. Only with that open sesame! is it possible to find the text for today's sermon.

  3. 65 Fed Reg 52857. The section dealing with athletics is .450. (These regulations, I see, apply to various Federal instrumentalities - but not to the Department of Education!)

  4. I think this is the one. I can't trace specific legislative backing for the three-part test; presumably, therefore, it is merely an interpretation of 20 US 1681.

  5. Though the piece says that the OCR of the DoE doesn't recognise cheerleading as a sport for Title IX purposes. So why bother?

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