- The Washington Times - Wednesday, February 5, 2003

Here is what can happen when liberty-scoffing bureaucrats and law-ignoring judges cheered on by ideological fanatics get hold of a well-meaning, superachieving law. They can twist it into something despotic, overlaying the good with huge amounts of bad, and they can sometimes get away with it even if their actions contravene the law's language.
I am not speaking theoretical case, but about Title IX, the 1972 amendment to the 1964 Civil Rights Act. It banned sexual discrimination in public and private educational institutions, and one consequence abetted by cultural change and another amendment was an enormous and healthy leap in the number of women participating in sports.
But bureaucrats in the Office of Civil Rights, fearful that someone, somewhere might not be goose-stepping in accordance with their wishes, did exactly what the law forbade. Critics note they made use of numbers showing "imbalances" in order to fix things up. More specifically, the bureaucrats implemented a proportionality system as a criterion of compliance. Under it, the percentage of women and men in sports had to be in very close ratios to their total percentage in the student body. Get out of line and you put your federal funding at risk.
Can any nonbureaucrat consider this idea for more than a couple of minutes without seeing some of what is wrong with it? What happens if a far greater percentage of men on a campus are interested in sports than women? And if you have a budget that goes so far and no further, won't you have to drop some men's program to add some women's program that are not so much desired as mandated by a numerical formula?
Scan news accounts and commentaries on the issue, and what you find is endless evidence this law that has done so much good has, in the hands of the regulators, done large amounts of harm as well. Some 400 men's teams have disappeared because of it. Thousands of male athletes mostly in such sports as wrestling, swimming and gymnastics no longer have the opportunities they once had. One sportswriter talks very sadly of the disappearance of programs that produced Olympic medal winners. And for what? To satisfy a quota system that has scant relation to the actual wishes of women to compete in athletics.
A presidential commission has come at least partly to the rescue. One proposal is to poll students on whether they want to play sports and to use those numbers in determining compliance. Another is to lean more heavily on two other criteria besides proportionality in determining compliance. Those are to demonstrate that the wish for participation is being accommodated and to have a record of extending chances for women to participate. Education Secretary Rod Paige must embrace these methods for them to be incorporated as enforcement techniques for the law. The Associated Press quotes him as being "pleased" at the commission's work.
I think the group should have gone further and scrapped the proportionality test altogether. Reportedly, there was considerable sentiment to do that, but also disagreements as to how.
Some critics seem to think the commission was phony, but it did not include members of a coaches group that filed suit to get the compliance standards overturned. That group did pronounce itself pleased with the recommendations as at least a start to more equity in how the law works. If more equity does not ensue if the proportionality test should continue in effect as it has to date it would seem to me their court case is a very good one.
The executive director of the Women's Sports Foundation is quoted as thinking great harm could be done because of the recommendations. But why because an irrational formula has been dropped? Is it just numbers that matter, or fairness and the extension of opportunities for those seeking them?
And is there no reason for those of us who believe in liberty to agree with those arguing it is an outrage that a law meant to end discrimination has been used by an overzealous government to bring about discrimination?
That is not the way America is supposed to work.

Jay Ambrose is director of editorial policy for Scripps Howard Newspapers.

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