July 11, 2006
Op-Ed Columnist
Let the Guys Win One
By JOHN TIERNEY, NY TIMES

LINK

Suppose you’re the head of a school whose students belong to two ethnic groups, the Alphas and the Betas. The Alphas get better grades and are more likely to graduate. They dominate the school newspaper and yearbook, the band and the choir, the debate team and the drama club — virtually all extracurricular activities except for sports.

How much time would you spend worrying about the shortage of Alpha jocks?

Not much — unless, of course, the Alphas were women, the Betas were men, and you were being sued for not complying with Title IX. Then you would be desperately trying to end this outrageous discrimination.

When Title IX was enacted in 1972, women were a minority on college campuses, and it sounded reasonable to fight any discrimination against them. But now men are the underachieving minority on campus, as a series by The Times has been documenting. So why is it so important to cling to the myth behind Title IX: that women need sports as much as men do?

Yes, some women are dedicated athletes, and they should be encouraged with every opportunity. But a lot of others have better things to do, like study or work on other extracurricular activities that will be more useful to their careers. For decades, athletic directors have been creating women’s sports teams and dangling scholarships and hoping to match the men’s numbers, but they’ve learned that not even the Department of Education can eradicate gender differences.

At the University of Maryland, the women’s lacrosse team won national championships year after year but still had a hard time getting 40 players to turn out for the team. The men’s team had no such trouble, because guys were more than willing to warm the bench even if they weren’t getting a scholarship, but the coach had to cut the extra ones to maintain the gender balance. The school satisfied Title IX, but to no one’s benefit.

On or off campus, men play more team sports and watch more team sports. Besides enjoying the testosterone rushes, they have a better chance of glory — and of impressing the opposite sex. Thirty-four years after Title IX, most women’s games still attract sparse audiences. Both sexes would still rather watch men play games, especially football.

College football is such a mass spectacle that it can’t really be compared with other sports. It’s more of a war rally or religious revival. But football’s unique popularity unfairly penalizes men because colleges fear flunking the “proportionality” test, which is the safest way to comply with Title IX. If the school doesn’t have enough female athletes to offset the huge football squad, it has to cut other men’s teams — or get rid of football, as some schools have done.

Lately, though, as colleges have struggled with the declining number of men on campus, a few small schools have dared to start football teams. They argue that even if they end up with more male athletes, they’re still being fair because more men want to play sports. It’s not clear if this approach could survive a Title IX lawsuit; advocates for women’s sports complain it’s still discrimination. But the results on campus are already impressive, as Bill Pennington described in The Times yesterday.

The new football teams have helped attract a lot of male and also some female students, boosting enrollment and tuition revenues. The teams have provided publicity and excitement, bringing in donations from businesses and alumni. Most important, the chance to play football has attracted boys who otherwise wouldn’t have gone to college.

“We kind of trick them into seeing that getting an education is the real benefit,” said Mike Kemp, the coach of the football team started five years ago at Utica College in upstate New York.

Besides attracting boys to campus, football and other sports help them stay in school. Provided they’re not at a school that lets jocks get away with anything, a good coach can provide them with the discipline — mandatory class attendance, supervised study periods, required grade-point average — that male students seem to need more than female students.

I’m not suggesting that sports are a panacea for male education problems. Men are lagging behind women on campus for lots of reasons: less motivation and self-control, poorer academic skills. No matter what happens with Title IX, women will deservedly continue to outnumber men on campus and dominate the honor rolls.

But because they’re now so dominant, they don’t need special federal protection in the one area that men excel. This playing field doesn’t need to be leveled.

To the Editor:

“Let the Guys Win One,” by John Tierney (column, July 11), is an unwarranted attack on Title IX and equity in higher education.

The American Association of University Women has long been working to dispel the myth that expanded educational opportunities for women have come at the expense of men. The same applies to collegiate sports.

Research shows that most schools still fail to provide equitable athletic opportunities for women. Further, Title IX does not require equal allocation of athletic scholarships between the sexes — more men get a free ride.

Mr. Tierney says that a lot of women who are not dedicated athletes “have better things to do, like study or work on other extracurricular activities.” Such comments perpetuate the very stereotypes about women’s roles that Title IX is designed to dispel.

Pitting one sex against the other is not a “winning goal” in the larger issue of improving education.

Ruth Z. Sweetser

President, American Association of University Women

Washington, July 11, 2006

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To the Editor:

John Tierney cites the “myth” that “women need sports as much as men do” to justify his call to roll back certain provisions of Title IX.

But the real myths about Title IX are that it requires identical athletic programs for men and women and that it mandates that the same amount of financing be devoted to men’s and women’s athletics. In fact, only on scholarships does Title IX require that the same dollars be spent proportional to participation.

Title IX was a landmark victory for equal opportunity. It created an even playing field, giving women a fair shot at college scholarships and thus aiding the steady rise in the number of female doctors, lawyers, professors and corporate executives.

While there may be legitimate concerns about a possible gap in educational achievement between young men and women, ganging up on the girls on the playing field by eviscerating Title IX is neither a winning nor a sporting strategy.

Carolyn B. Maloney

Member of Congress, 14th Dist., N.Y.

Washington, July 12, 2006

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To the Editor:

Women have a right to play this game, too. Women may not be able to throw a football for 60 yards, but they believe in teamwork, working hard, playing fair and winning. And they do it knowing they won’t be treated as gods, as male athletes are.

When they come off the field, women may get only hugs and pats on the back, but I’m betting that a lot of those hugs will come from supportive fathers and brothers.

That’s why I say women should not throw this fight. We won the battle in 1972 to have the same opportunity to develop our athletic talents and earn college scholarships as men do, and if John Tierney and his supporters want to take Title IX away from us, they should have to fight for it.

I hope you boys got game.

Jennifer Prather

Durham, N.C., July 11, 2006

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To the Editor:

Title IX forbids sex discrimination throughout any educational institution, including classes, hiring and admissions, if the institution receives federal funds. Intercollegiate athletics, the subject of John Tierney’s lament, is a minor if much-debated section of the law.

Given Title IX’s broader goals, sports ought not to be the last bastion for men, who are struggling in other areas of academia. Indeed, schools and colleges are still struggling to figure out how to encourage male and female students to take advantage of the educational opportunities before them — in their academics, in extracurricular activities and certainly in sports. Welch Suggs

Atlanta, July 11, 2006

The writer is the author of a book about Title IX and college sports.

More on Title IX:

Title IX

Title IX: Title 20 U.S.C. Sections 1681-1688

Gender Equity in Sports

Justices Say Law on Sex Bias Guards Against Retaliation, Too
By LINDA GREENHOUSE (NYT) 1150 words
Published: March 30, 2005

WASHINGTON, March 29 - The Supreme Court ruled on Tuesday that the federal law barring sex discrimination in schools and colleges also prohibits school officials from retaliating against those who bring sex discrimination complaints.
The 5-to-4 ruling resolved conflicting interpretations in the lower courts over the scope of the law, Title IX of the Education Amendments of 1972.

While the margin was narrow, the language of Justice Sandra Day O'Connor's majority opinion was sweeping. For Title IX's advocates, who have been placed on the defensive in recent years by complaints from critics that the law's obligations are too burdensome, the ruling was a decisive victory.

Most significantly, the court held that the law's protections extended beyond those who are themselves the victims of sex discrimination in the usual sense, applying as well to third parties who complain about sex discrimination on behalf of others.

The plaintiff in this case was a male gym teacher, Roderick Jackson, who lost his position as a girls' basketball coach at a high school in Birmingham, Ala., after he complained that the girls' team had to play and practice under inferior conditions compared with the boys' team.

'Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination,' Justice O'Connor said. She added, 'The statute is broadly worded: it does not require that the victim of the retaliation must also be the victim of the discrimination that is the subject of the original complaint.'

The decision, Jackson v. Birmingham Board of Education, No. 02-1672, gives Mr. Jackson the opportunity to go back to Federal District Court in Birmingham and try to prove that his dismissal as a coach was, in fact, retaliation for his complaints. He has remained at the high school as a gym teacher, but his removal as coach in 2001 cost him extra pay and credits toward retirement.

Because the district court dismissed his lawsuit in a decision affirmed by the United States Court of Appeals for the 11th Circuit, in Atlanta, Mr. Jackson has not yet had a chance to make his case. He is seeking compensatory damages as well as an injunction requiring the Birmingham schools to comply with Title IX.

Marcia D. Greenberger, co-president of the National Women's Law Center, which represented Mr. Jackson, called the decision 'a slam-dunk for everyone who cares about equal opportunity.' The Bush administration had entered the case on Mr. Jackson's behalf, defending a federal regulation adopted shortly after Title IX became law that interpreted the statute as protecting against retaliation.

While Justice O'Connor took account of the federal regulation in her opinion, she said there was no need to rely on it because 'the statute itself contains the necessary prohibition' against retaliation.

Title IX was written as a condition on the receipt of federal money; by their acceptance of federal money, schools and colleges agree not to discriminate 'on the basis of sex.' Unlike Title VII of the 1964 Civil Rights Act, which explicitly prohibits retaliation against those who complain about discrimination on the job, Title IX does not actually mention retaliation.

That silence led Justice Clarence Thomas, in a dissenting opinion, to describe the outcome of the case as contrary to the language of the statute. Because the law does not refer to retaliation, he said, retaliation could be prohibited conduct only if it came within the law's definition of discrimination 'on the basis of sex.'

But that could not be, Justice Thomas continued, 'because retaliatory conduct is not discrimination on the basis of sex.' He said that 'Jackson does not claim that his own sex played any role, let alone a decisive or predominant one, in the decision to relieve him of his position.' Rather, Justice Thomas said, Mr. Jackson's claim was 'founded on the attenuated connection between the supposed adverse treatment and the sex of others.'

Addressing that objection, Justice O'Connor said that 'because Congress did not list any specific discriminatory practices when it wrote Title IX, its failure to mention one such practice does not tell us anything about whether it intended that practice to be covered.' She said that looking at the context and structure of the statute, it was clear that 'where the retaliation occurs because the complainant speaks out about sex discrimination, the 'on the basis of sex' requirement is satisfied.'

The majority opinion was joined by Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer. Chief Justice William H. Rehnquist joined the dissent, as did Justices Antonin Scalia and Anthony M. Kennedy.

When the case was argued in November, Walter Dellinger, representing Mr. Jackson on behalf of the National Women's Law Center, emphasized that it was important to protect third parties like coaches and teachers from retaliation for reporting sex discrimination because these adults are in a better position than school children to detect problems and bring their complaints forward.

Justice O'Connor endorsed this argument in a wide-ranging discussion of the policy behind the statute. 'Teachers and coaches such as Jackson are often in the best position to vindicate the rights of their students,' she said. Addressing the retaliation issue generally, she said: 'Reporting incidents of discrimination is integral to Title IX enforcement and would be discouraged if retaliation against those who report went unpunished.' She added that 'without protection from retaliation, individuals who witness discrimination would likely not report it, indifference claims would be short-circuited, and the underlying discrimination would go unremedied.'

In a second decision on Tuesday, the court ruled in favor of a small upstate New York city, Sherrill, in a property tax dispute with the Oneida Indian Nation.

In the late 1990's, the Oneidas purchased property in Sherrill that had once been contained within the tribe's original reservation but had not been owned by the tribe since 1805. The tribe then refused to pay property taxes on the ground that the parcels of land should now be treated as 'Indian country' and immune from tax liability. To the alarm of a number of upstate communities, the federal district court and the United States Court of Appeals for the Second Circuit upheld the Indians' argument.

The Supreme Court overturned the Second Circuit's ruling in an 8-to-1 opinion by Justice Ginsburg. She said that 'in light of the long history of state sovereign control over the territory' and the Oneidas' long delay in reacquiring the properties, the tribe should not be allowed to pursue such a 'disruptive' remedy for long-ago wrongs. Justice Stevens dissented from the opinion, City of Sherrill v. Oneida Indian Nation, No. 03-855.

Bush Weakens TITLE IX While the Supreme Court Prevents Sex Disrimination and Protects Whistleblowers

US Supreme Court Will Hear Arguments on Retaliation for Alleged Title IX Sex Discrimination in Several US Schools