Back in 1818, Daniel Webster appeared before the Supreme Court to argue the famous case of Dartmouth College v. Woodward. Looking squarely at Chief Justice John Marshall, the New England orator delivered a line that lives at Dartmouth to this day:
"It is, sir, as I have said, a small college, and yet there are those who love it."
The incident came to mind a few months ago when Stephen Neal filed a petition in the high court. Neal is captain of the wrestling team at California State University in Bakersfield. Intercollegiate wrestling is a small sport, but evidently there are those who love it, for Neal has mounted a strong argument against what he regards as patent injustice. We will learn in October if the court will hear his case.
Webster's argument turned on a seldom-cited clause in the Constitution: "No state shall pass any law impairing the obligation of contracts." Neal's suit turns on a better-known provision of federal law that is cited simply as Title IX. The Office of Civil Rights within the Department of Education has issued regulations under Title IX intended to increase opportunities for female athletes. The effect, he contends, is to discriminate against male athletes because of their sex.
The government's regulations plainly have stimulated women's participation in sports. At Bakersfield, where 64 percent of the students are female, women today have nine varsity teams; men have six. Women's teams have more scholarships and larger operating budgets than corresponding teams for men. Membership is capped for men's teams but not for women's teams. One result, Neal argues, is that the caps "reduce male opportunities without providing any benefits to females." The system thus "does nothing to increase females' athletic participation."
The pending suit had its genesis in August 1997, when the university reduced the size of the wrestling team from 32 to 25. The cutback was part of a broad effort to achieve "proportionality." By capping men's sports and encouraging women's sports, the university would move toward a goal of per-capita equality — roughly 64 percent of varsity teams would be female, 36 percent would be male. Neal and his brother plaintiffs view the goal as nothing more than a gender-based quota system. Congressional sponsors of Title IX denied that the act would lead to that result.
In 1999, Neal and others sued the university. Judge Robert E. Coyle granted them an injunction in U.S. District Court, but when Neal's case reached a panel of the 9th Circuit, Judge Cynthia Holcomb Hall reversed. The Bakersfield arrangement, she held, was permissibly a "remedial" action, though in the absence of willful discrimination it was not clear what unlawful conduct was being remedied. No female athlete had been denied anything.
Even so, Hall looked back to the 1992-93 academic year, when male students took 61 percent of the university's spots on athletic rosters and claimed 68 percent of athletic scholarship funds. The manifest imbalance had prompted the National Organization for Women to sue the California State University system. The suit ended in a consent decree that required each Cal State campus to have a proportion of female athletes that was within 5 percentage points of the proportion of female undergraduates at each school.
In her opinion Hall relied principally on Cohen v. Brown University (1993), in which the 1st Circuit laid down the rule of proportionality. To meet the 14th Amendment's requirement of "equal protection," universities would have to provide "athletics opportunities in proportion to the gender composition of the student body," not in proportion to the expressed interests of men and women.
Turning to the professed anguish of the Bakersfield wrestlers, Hall noted that despite the cap of 25, the team had finished first in its conference and third nationally. She also remarked upon the huge crowd that had turned out for the Women's World Cup soccer finals in 1999 in Pasadena. Many people now realize that "women's sports could be just as exciting, competitive and lucrative as men's sports . . ."
Anyone who has followed women in tennis, gymnastics and ice skating — and most recently in women's golf — will agree. I react automatically against "quotas" based on sex or race, but in the context of Title IX at the level of college athletics, there's a good deal to be said for the maxim that good comes out of ill. Let's hear it for the ladies.
Universal Press Syndicate. E-mail Jack Kilpatrick at firstname.lastname@example.org