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WASHINGTON -- The mutation of Title IX is fresh evidence of the federal government's penchant for turning silk purses into sows' ears.

Title IX was enacted to expand opportunities for young women who had long been discriminated against. It has become an affirmative-action program, employed not merely to open opportunities but to engineer statistical outcomes. As a result, in many instances it is having the perverse effect of destroying opportunities for men without expanding them for women.

Few federal acts in the last quarter-century have affected as many people in as many communities as beneficially as that 1972 act. It has sparked stunning improvement in the participation of women in athletics. Last year about 44,000 women participated in Division I intercollegiate athletics, up 22 percent from just four years earlier. In 1994, 2.24 million girls participated in high school sports, up from 300,000 in 1971, partly because of the new visibility and prestige of college women athletes.

Lower courts' construing of Title IX warrants correction by the Supreme Court. Last week, however, the court refused to review what lower courts have done in this controversy, which began when some women gymnasts and volleyball players at Brown University sued the university for cutting financial support for their teams.

In Title IX, Congress said that no one in an educational institution receiving federal funds may be discriminated against "on the basis of sex." Meaning what, precisely? In today's vast regulatory state, Congress often supplies only aspirations and sentiments; administrative agencies later supply meanings. The courts that have ostensibly been construing Title IX have really been construing the 1979 elaboration of Title IX by the Department of Health, Education and Welfare.

A three-part test

HEW's three-part test, as it affects women, is: An institution is nondiscriminatory if females are approximately the same proportion of varsity athletes as they are of the undergraduate student population; if it has a "history and continuing practice" of expanding opportunities for female athletes; if it "fully" accommodates the "interests and abilities" of female athletes.

Given the second and third tests, Brown's defense, in a case triggered by contraction of athletic opportunities, was inherently problematic. Never mind that Brown, which added 15 women's varsity teams between 1971 and 1982, has more such teams than most universities.

The principal problem is the first test. Lower courts have upheld it even though it contradicts Supreme Court precedents.

By the logic of many Supreme Court decisions in discrimination cases, the proper way to test for discrimination in athletics is to compare the gender composition of an institution's varsity athletes with the composition of the pool of persons who are interested and able to be athletes. For example, in cases concerning accusations of discrimination in hiring teachers or awarding contracts, the Court has said the proper comparison is not between the number of minority teachers or contractors and the entire minority population in the area. Rather, the proper comparison is between the number of minority teachers or contractors and the pool of interested and able minority teachers or contractors.

Brown submitted abundant and uncontradicted evidence that many more male than female students want to participate in varsity athletics. However, Brown's accusers successfully argued that such evidence is not pertinent to one of Title IX's purposes, which is to modify young women's aspirations and behavior.

The lower court, agreeing, held that measuring compliance with reference only to a qualified pool of potential athletes would undermine Title IX's "remedial purposes." The presumption is that the pool is smaller for women than for men because women's athletic interests have been stunted by a history of failure to provide opportunities and encouragement, and that expanding the supply of women's programs will expand demand for them.

That presumption is not foolish. And that failure is as indisputable as the transformative effect of athletics on young women schooled in assertiveness on the playing fields of America. However, given the disparity between the levels of male and female interest in varsity athletics, the easiest and often the only practical way for most institutions to produce cosmetic gender equality of participation in varsity athletics is to eliminate varsity opportunities for males. Hence the cancellation of hundreds of men's gymnastic, wrestling, baseball, swimming, tennis and other teams.

Congress should do what the court declined to do -- direct that Title IX be applied in accordance with court precedents concerning proofs of discrimination. But that would require Congress to actually write the law, and to annoy the most militant faction of feminists. Not likely.

George F. Will is a syndicated columnist.

Pub Date: 4/27/97

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