Imagine a hypothetical gourmet grocery store chain -- let's call it Wholly Wholesome Foods -- that serves haute cuisine specialties at sushi/deli/lunch counters only in its stores located in upscale neighborhoods. Now imagine the long zealous arm of federal, state, and local enforcers accusing WhoWhoFoo of discriminating against inner city residents and forcing it to open its lunch counters in all of its stores, even those located in areas where extensive and intensive studies have shown there is no unsatisfied desire to pony up for counter service for WhoWhoFoo's fancy foods.
Anyone who thinks my hypothetical is too far-fetched need look no farther than America's college campuses to confirm that it isn't a hypothetical at all. It's been happening in real life (or the college campus version of real life) for years in ongoing disputes over implementing Title IX's requirement that "athletic programs are operated in a manner that is free from discrimination on the basis of sex."
The central, unresolved conundrum of Title IX, as with so many controversial civil rights issues, is lack of consensus over the definition and meaning of the "discrimination" from which these programs must be free. Do colleges discriminate against women by not offering sports programs in which few women are interested? Does "equal opportunity" require eliminating programs in which men are interested in order to have an equal number of programs available to men and women?
A few days ago Inside Higher Ed published yet another report of Title IX supporters reacting in outrage to yet another new study arguing that "it may be a mistake to base Title IX implementation on the assumption that males and females have, or soon will have, generally equal sports interest." Title IX activists reply, in effect, so what? Thus Erin Buzuvis, a law professor at Western New England University who runs the Title IX Blog, wonders,
why are we surprised, in a world where there's still sex discrimination, that women's participation in sport is lower than men's? Women have inferior opportunities and they have to do so against the cultural grain.... It doesn't say anything at all about what interest levels would be there absent discrimination and absent these strong cultural forces.
In any event, claims Nancy Hogshead-Makar, a law professor at Florida Coastal School of Law, colleges can remain in compliance "by demonstrating that the interests and abilities have been fully accommodated by the present program and there is no unmet demand (via student surveys and such)."
Hogshead-Makar's claim is at best disingenuous, since Title IX proponents always ferociously attack any attempt to measure women's interest in college sports offerings as, in the words of a senior executive at the NCAA quoted by the Chronicle of Higher Education in 2007, "contrived to show that females are not interested in participation." Similarly, in a 2010 Inside Higher Ed article, Marcia Greenberger, founder and co-president of the National Women's Law Center, denounced interest surveys as "simply an underhanded way to weaken Title IX and make it easy for schools that aren't interested in providing equal opportunity for women to skirt the law."
That Title IX activists aren't actually opposing discrimination was nicely revealed by Myles Brand, the late president of the NCAA. No survey, he said in the same Inside Higher Ed article, could adequately measure women's interest, "nor does it encourage young women to participate." If that's what Title IX is about, then the purpose of Title II's requirement of equal, non-discriminatory access to public accommodations must have been to encourage more blacks to sleep in hotels and buy ham sandwiches at lunch counters.
Title IX, in short, has nothing to do with ending discrimination. Like so much of what passes for civil rights these days, it is all about promoting "equity," i.e., proportional representation in college sports, whether or not the interests of men and women students is proportional.