CHICAGO - One argument for the University of Michigan's affirmative action program was that universities should be free to choose the students they need to achieve their goals.
For the courts to tell schools they can't consider race, we were advised, not only would hurt minority applicants but also would impoverish the campus experience and intrude on academic freedom. Outsiders should therefore pause before mucking around in such matters.
A brief submitted by Yale, Harvard and other elite schools said these policies "have served compelling pedagogical interests" and urged the Supreme Court "not to eviscerate the capacity of universities ... to determine how to fulfill their profound responsibility." Banning race-conscious admissions policies, they said, would mean "replacing the benefits of competition, experimentation and heterogeneity with the dead hand of a stifling uniformity."
The Supreme Court takes that argument seriously. In the 1978 Bakke decision allowing the use of race in admissions, Justice Lewis Powell expressed respect for "the freedom of a university to make its own judgments." In its decision last week upholding the Michigan law school's "diversity" efforts, the court said that sometimes we have to let the people who run our colleges do what they're trained to do.
But liberals who are happy to defer to conscientious administrators in this realm take the opposite approach on another contentious matter. Title IX, which bans sex discrimination in education, has taken almost all discretion away from university officials when it comes to collegiate sports.
No one favors discrimination on the basis of sex, but no one who favored the law when it was passed in 1972 wanted to force colleges to set quotas on athletic participation. Yet that's what Title IX has done.
In the 1970s, Brown University, an Ivy League school with a progressive reputation, added teams in women's tennis, basketball, crew, field hockey, squash, swimming, volleyball, cross country, lacrosse, soccer, softball and track. But none of that was enough to avoid a 1993 lawsuit after it tried to drop four sports - men's golf and water polo and women's gymnastics and volleyball.
The courts noted with alarm that women made up 51 percent of Brown undergraduates but only 38 percent of varsity athletes. They found the school guilty and said it could comply with Title IX by "cutting men's teams until substantial proportionality" is attained. The Office for Civil Rights of the Education Department notes helpfully that proportionality is a "safe harbor" - the surest way to stay out of trouble.
But why should the government tell university officials how to run their business? If male students are more interested in sports than female students - as all evidence suggests - a sensible school will tailor its athletic programs accordingly. (Brown's intramural teams, which took all comers, attracted eight times as many men as women.) If women are more interested in dance, theater, music or journalism, a sensible school will offer ways for them to pursue those interests.
America's universities are not hostile to female aspirations. Women now greatly outnumber men among undergraduates. They get 46 percent of the degrees in fields such as science and engineering that have long been dominated by males. And the administrators who strive to preserve minority representation are also committed to equal opportunity for women. In a competitive market dominated by female customers, they have to be.
Yet Title IX still hovers over every school. The law presumes, writes University of Chicago law professor Richard Epstein in a forthcoming issue of The Michigan Law Review, "discrimination is so rampant and so pernicious that government intervention should be regarded as the finger stuck into the hole in the dike, even though any university official who announced an intention to discriminate against women would have a tenure measured in hours, not days."
The law interferes with exactly the kind of decisions that ought to be left to individual schools.
"The champions of Title IX wish to minimize the differences in participation levels between men and women because they supposedly know best what the ideal distribution should be," writes Mr. Epstein. "The directors and officers of most universities wish to maximize the benefits to all students, which is quite a different function."
And they know how to achieve that goal better than anyone else.
You could argue that when it comes to ensuring equal athletic opportunities for female collegians, we should throw off the "dead hand of a stifling uniformity" and rely instead on "competition, experimentation and heterogeneity." But who would ever believe that?
Steve Chapman is a columnist for the Chicago Tribune, a Tribune Publishing newspaper. His column appears Tuesdays and Fridays in The Sun.