Re: Title IX softball case

Date: Wed Apr 19 2000 - 16:22:11 EDT

I think you make a few good points, but you repeated a few myths and are
still are missing the problem. You talk about the "excesses of men's
football and basketball" in terms of "coaches, perks, and luxury
facilities." I don't care if you cut the men's football and basketball
budgets down to one dollar spent per player, or even to one cent per
player, or for that matter to one mill per player, volunteer coaches,
etc...if boys still come out to play sports in greater numbers than girls
the college is in violation of Title IX's only active standard, the
proportionality according to enrollment standard.

Budget in this sense is not relevant, it is merely a distraction that the
Women's Sports Foundation has put out there to try to focus societal
attention away from their support of a numbers game. (Why? Americans
don't like quotas.) I don't care how many "extras" you cut from men's
major sports (which cutting I might be in favor of), it still has no effect
on the numbers of athletes, which is the ONLY compliance test that is

A good point that you make is that the law is not the problem but rather
its application is. Where we differ is that in my judgment the
misapplication is being committed by the Department of Education and by the
federal court system. The school administrators aren't the ones who say
"This school is going to be sued (or undergo an OCR inquisition) if it does
not have numbers of male and female athletes in proportion to enrollment."
It is true that the school administrators are the ones who make the final
decision "Cut the men's swim team," but it is the government that forces
them to that decision. It is Assistant Secretary Cantu who says "Cut the
men's swim team or somehow manufacture X number of women who want to play
sports." Since cloning female athletes is not an option, and conscripting
them into athletics is also not a viable option, the only choice is to
drive down the numbers of male athletes.

> The "proportionality test" is not a requirement in the law or the
> regulations. It is actually a "safe harbor" for schools. Schools that
are proportional
> do not have to worry. They can be disproportional as long as the
> are being met.

  This is a myth, unfortunatlely a far too common one. First of all, the
oft-used proportionality test is a method of compliance according to a
document called the "Policy Interpretation" issued by the Education
Department and which can probably be found online. The
myth that schools "can be disproportional as long as the interests are
being met" comes from the other two tests, most notably "effective
accommodation of interest." Unfortunately, three obstacles are
encountered. First, the Assistant Secretary has been lax at best in
recognizing these tests. Secondly, these tests when they are recognized by
the Assistant Secretary are recognized ONLY INSOFAR as they lead to
proportionality. This was confirmed by the Office of Civil Rights' Dr.
Mary Frances O'Shea. Thirdly, federal courts have gone so far as to
actually vacate these other two tests, in cases called Brown and Neal
(First and Ninth Circuits, respectively). The only test that is agreed
upon by Dr. O'Shea, Assistant Secretary Cantu, and the federal courts is
the requirement of proportionality.

> We must also realize that BOYS had 100% of the opportunities for 100

  I don't give a toot about a hundred years ago; I did not live a hundred
years ago; I was born in 1978. Unless there is also some extremely potent
medication that I don't know about that reverses aging, none of the boys in
high school or college (that I can tell) lived a hundred years ago either.

> 70% is still favoritism toward boys in any mathemetician's book, but
boys --- as documented in study after study > -- see equity as a loss.

  70% is not favoritism if boys are interested in sports at a ratio of 70%
whereas girls are interested at a ratio of 30%. The numbers do not show
favoritism, they show result. Favoritism is a human judgment evaluation,
not a numeric or a statistical one. You cannot sit down with a pencil and
paper and say okay, if z sub mu is less than or equal to z sub alpha over
two (hypothesis testing in statistics) then it is favoritism.

  You talk about a mathematician's book...sorry madam, I'm not a
mathematician. I'm an equitician, a justician, an ethicist. I'm
interested in what is right and wrong, what is fair and unfair, not what z
sub mu equals.

  Boys, and I, see "equity" as a loss when it comes by destruction rather
than addition. If I go home this summer and my house is on fire, I say,
"Oh my goodness, I should remedy this situation" and call the fire
department, i.e. stop the bad situation. (I don't actually use those exact
words but you get my point!) I do not say "Oh my goodness, I should remedy
this situation" and go get a lighter and a container of gasoline and set my
neighbor's house ablaze, i.e. keep the situation bad for me but make it bad
for my neighbor too so everything will be equal.

  Equity, indeed anything, can only be seen as positive when it yields
benefit. Two people with burnt houses is not beneficial. Stopping my
house from burning down while still allowing my neighbor's house to stay
standing is beneficial. Girls that do not get the chance to play and boys
who have their chances to play stolen is not beneficial. Raising up girls
sports while still allowing the boys the chance to participate is

  That's why I, and I think the boys as well, see this twisted form of
results "equity", or what I call "z sub mu equity" as a loss. Not only a
loss for the boys, but for the girls too and for society in general.

Amber V. DeWine

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