The Magazine

The Bush Team Punts on Title IX

And meanwhile men's college teams disappear.

Jun 10, 2002, Vol. 7, No. 38 • By MELANA ZYLA VICKERS
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THE WEATHER may be perfect for a round of golf or a nice long-distance run, but don't tell that to college athletes. In the last two months, no fewer than 14 college sports teams have given up the ghost, sacrificed in large part to campus bureaucrats' struggle to satisfy the federal requirement that the male/ female breakdown of athletes be the same as the breakdown of men and women campus-wide. Howard University in Washington, D.C., dropped men's wrestling and baseball. The University of Minnesota dropped golf and men's gymnastics. The University of Wisconsin, River Falls, dropped wrestling, men's baseball, and women's gymnastics.

This carnage brings to about 100 the number of U.S. college teams cut since the mid-1990s. But it comes at a propitious time for a lawsuit filed by the National Wrestling Coaches Association. Fed up with what it sees as twisted enforcement of Title IX, the 1972 statute barring gender discrimination in government-funded education, the association, joined by the U.S. College Gymnastics Association, the U.S. Track Coaches Association, and the College Swim Coaches Association of America, has sued the Department of Education, claiming it has given colleges unlawful and harmful advice about interpreting the statute.

The federal government responded to the lawsuit on May 29. It rejected the charge that its interpretation of Title IX is unlawful and that it has caused colleges to drop teams. It sought dismissal of the lawsuit and vowed to fight back in court.

That's an unsettling response to anyone who remembers that President Bush's assistant secretary of education for civil rights, Gerald Reynolds, was supposedly chosen for his reformist stand on, among other matters, Title IX. He was certainly pilloried by feminists and other left-leaning affirmative-action supporters. Kweisi Mfume of the NAACP called the appointment of Reynolds, a black conservative, "inconceivable." The National Women's Law Center called his views "troubling." So widespread was the criticism of Reynolds that the administration resorted to a recess appointment. Unbowed by his critics, Reynolds quickly pushed forward a Title IX reform designed to bolster same-sex education in public schools. Given this history, shouldn't Reynolds, the Bush administration, and the wrestlers now be on the same side?

In Washington things are never so simple. If the lawsuit goes forward and the wrestlers win, the result could be the very changes to Title IX that the Bush team wants--without Reynolds's having to take a pickaxe to the regulations, an attractive prospect for a recess appointee who must go through the confirmation process next year. It's an especially attractive prospect for a White House that doesn't appear to have the stomach for a foodfight on the athletics issue. Recent hints that the Department of Education would change its approach to athletics under Title IX ahead of the lawsuit came to nothing, and reforms at the regulatory level have been indefinitely shelved. For that matter, regulatory reforms haven't been the Bush team's strong suit--the administration has taken a beating and retreated from efforts to reverse some air-pollution regulations and restrictions on arsenic levels permissible in water, to name a few.

So all hopes rest on U.S. District Court judge Emmet G. Sullivan's ruling in favor of the wrestlers. Such a ruling would probably do away with the inflexible interpretations of Title IX that were issued by Democratic administrations in 1979 and 1996, breathing life back into many wrestling, track, and swim teams.

But victory for the wrestlers is no sure thing. Judge Sullivan is a Clinton appointee. The lawsuit will likely take years to wend its way through the courts. And at least six legal challenges to the athletics portion of Title IX have already failed.

The wrestlers and their lawyer, Larry Joseph of the Washington firm McKenna & Cuneo, however, argue that this challenge is stronger on the merits than previous ones. It targets the federal government rather than individual schools. And it steers clear of the gender politics of Title IX--shoals where previous lawsuits foundered--sticking instead to the fairly technical contention that the Education Department's 1979 and 1996 interpretations of the statute violate federal administrative law.

The authors of those two interpretations "didn't do what agencies are supposed to do when they write rules [interpreting a statute], so it's a promising kind of a lawsuit," says Joseph. "If they could do that, then any agency with a typewriter and letterhead could change the law." Among the Department of Education's alleged failings: No president or attorney general ever approved the two contentious interpretations, and the department has denied petitions to amend or repeal them, making them "arbitrary, capricious, [and] an abuse of discretion."