Tag Archives: title ix

Maureen Mahoney for SCOTUS Justice?

Maureen E. Mahoney,” Lathan & Watkins LLP, http://www.lw.com/attorney/attorneysearch_profile.asp?attno=00571.

Maureen Mahoney,” Wikipedia, last updated 27 October 2005, http://en.wikipedia.org/wiki/Maureen_Mahoney.

Mahoney,” by Jessica Gavora, The Corner, 27 October 2005, http://corner.nationalreview.com/05_10_23_corner-archive.asp#080989.

Maureen Mahoney is an eloquent critic of Title IX, beyond the scope of her duties

Was Maureen Mahoney merely loyally representing her client (Brown University, whose case against sex quotas she appealed to the in 1997) when she went on the record with me opposing sex quotas in 2000? Perhaps. But why would she take the time to talk to me — a writer she never heard of — if she didn’t believe what she was saying? The Cohen v Brown case was long over. The Supreme Court had refused to hear it. So why didn’t she just tell me she was busy? And who opposes sex quotas but favors racial quotas? Who does that?

When I talked to her, one of the many great points Maureen made was that schools should be allowed to determine how many female and male athletes they sponsor based on interest in athletics (not quotas) — just like they determine how many single sex dorms they have based on interest in housing. So where are all the Title IX lawsuits clamoring for “gender equity” in campus housing, I asked? Here’s what Maureen told me in 2000:

There is a normative judgement going on here that underlies this whole thing. Some people have gotten together and decided that we think men and women should be equally interested in sports and therefore participation has to be fifty-fifty. But when you look at the housing situation you don’t see universities saying, “We think men and women should be equally interested in living in campus dorms.” What’s different here is women have decided that men and women should be equally interested in varsity athletics. But as a normative matter, why should we think that? Why should we prefer that women play soccer as opposed to live in a dorm or dance ballet?

Former Deputy Solicitor General Maureen Mahoney

Why does this matter? Well, some biographical information from the Wikipedia:

Maureen Mahoney (born 1955) is an appellate lawyer at the law firm of Latham & Watkins LLP in Washington, DC who has argued cases before the U.S. Supreme Court. She served as deputy solicitor general in the George H. W. Bush administration, where she was a colleague of Supreme Court Chief Justice John G. Roberts.

Mahoney clerked for Justice William Rehnquist when he was an associate justice on the Supreme Court. She also clerked for Judge Robert Sprecher of the United States Court of Appeals for the Seventh Circuit.

With ‘ recently withdrawing her Supreme Court nomination, Ms. Mahoney is being mentioned as a potential nominee to the Supreme Court.

From her corporate page:

Ms. Mahoney has handled a broad range of constitutional and appellate litigation in the Supreme Court and other courts throughout the country, representing clients as varied as the United States House of Representatives, Union Pacific Railroad Company and the Government of Saudi Arabia. She represented the University of Michigan before the Supreme Court and won the landmark case upholding the constitutionality of admissions programs that consider race as one of many factors in order to attain the educational benefits of a diverse student body. The Legal Times reported that this ruling was a “personal win” for Ms. Mahoney and called her “a skilled appellate advocate, unruffled and poised.” The Daily Journal awarded Ms. Mahoney the “Best Oral Argument” in the individual category accolade for that Supreme Court term and went on to say that she “withstood withering questioning from Justice Antonin Scalia while stressing the points relied upon by O’Connor in her opinion for the 5-4 court.” Most recently, she successfully argued her thirteenth case in the Supreme Court on behalf of Arthur Andersen in a challenge to the firm’s criminal conviction. The Legal Times described the argument in Andersen as “one of the term’s best.”

Ms. Mahoney argued her first case before the Supreme Court in 1988, when the Court specially selected her to argue a case. She won the case in a 5-4 decision, and the American Lawyer reported that “her presentation was so well-schooled, poised, and disciplined that, according to one justice, the justices passed notes among themselves during the argument praising Mahoney and asking questions about her background.” In 1993, Ms. Mahoney successfully defended a highly publicized challenge to US immigration policies. The American Lawyer reported that Ms. Mahoney used “forensic magic” in the argument, and David Broder’s Washington Post column called her argument “superb.” She also represented the House of Representatives in its successful Supreme Court challenge to the Commerce Department’s plans for the use of sampling in the 2000 census.

She was a leading candidate in July… will October be General Mahoney’s lucky month?

Supreme Court Wrong on Title IX

Whistleblowers can sue under Title IX,” Associated Press, 30 March 2005, http://www.msnbc.msn.com/id/7326283/ (from Supreme Irony).

A terrible decision from the sometimes Global Roadsters

The Supreme Court expanded the scope of the landmark gender equity law Title IX, ruling Tuesday that it shields whistleblowers who accuse academic institutions of discrimination based on sex.

On its face it is a minor but important set-back. Title IX should be weakened, and I am happy Bush is doing so. Clearly SCOTUS’s decision is a strengthening. But it gets worse. In other laws, Congress has to say whistleblowers are protected. Here, the Court just made it up.

Whistleblowers shouldn’t be given protection unless Congress explicitly says so, said Thomas and three other justices who voted no. They noted that other civil rights laws have specific provisions addressing retaliation.

“Jackson’s retaliation claim lacks the connection to actual sex discrimination that the statute requires,” Thomas wrote. “The question before us is only whether Title XI prohibits retaliation, not whether prohibiting it is good policy.”

Instead of interpreting the laws, the majority of the Court is making policy. It is ignoring its duty as interpreter of the laws as well as the will of the people as shown through Congress and the state Legislatures.

These sorts of rulings must be stopped. Continued control of the Congress and White House should give the Republicans enough time to restore respect to the judiciary.

Title IX Burden of Proof

Title IX: A Step Toward Less Regulation?,” by Greg, Sports Law Blog, 24 March 2005, http://sports-law.blogspot.com/2005/03/title-ix-step-towards-less-regulation.html.

A little Title IX history,” by Ted, Women’s Hoops, 24 March 2005, http://womenshoops.blogspot.com/2005/03/little-title-ix-history-three-part.html.

This is why I love the blogosphere. You may remember in my first Title IX post, I focused on the email surveys. In particular, the implication was that because email surveys have a very low response rate, it effectively ends Title IX. (Another criticism was that colleges should develop equal interests in sports, not merely reflect existing interest).

Well, both WH and SLB pick up another tangent: that the most important change may be a shifting burden of proof

My tentative sense right now is that the biggest change has nothing to do with the surveys. Rather, the big change is that while the old policy essentially put the burden of showing compliance on schools, the new policy puts the burden of showing noncompliance on women. Further, it erects a high standard for showing noncompliance.


Now, one criticism that has been raised and seems more cogent is the question of the burden of proof. Under prong 3, the burden of proof has always been on the school to show “full” and “effective” accommodation. The online survey seems to be the red herring of the new policy interpretation. The real change is the shifting burden of proof. Under the new prong 3, a school using the model survey will be presumed to be in compliance with Title IX. The burden will then shift, to the federal government or to the students, to show by a preponderance of the evidence that a school is not in compliance.

The presumption of compliance can only be overcome if OCR finds direct and very persuasive evidence of unmet interest sufficient to sustain a varsity team, such as the recent elimination of a viable team for the underrepresented sex or a recent, broad-based petition from an existing club team for elevation to varsity status.

Reasonable minds can differ about the merits of this shifting of burden of proof. The administration seems to be saying that Title IX does not need to be as stringent as in the past, due to the incredible popularity of women’s sports that is not likely to wain. Females make up nearly 60 percent of college students — they will migrate to the schools that provide equal opportunities for women. On the other hand, women’s rights groups will argue that progress has been made but equality has not been achieved. Weakening Title IX could reverse the progress that has already been made.

Title IX Across the Blogosphere

Feminists Mad at President Bush,” by Mark Noonan, Blogs for Bush, 22 March 2005, http://www.blogsforbush.com/mt/archives/004038.html.

Title IX Changes,” by Chris, A Large Regular, 22 March 2005, http://large-regular.blogspot.com/2005/03/title-ix-changes-there-seems-to-be.html.

Title IX Compliance,” by Jen, Optional N, 23 March 2005, http://optional-n.com/?p=686.

Computer Scientist blogger Jen(n) misses the point on Bush all but ending

At the time, they made no changes to Title IX, but this Internet survey is effectively the old recommendation that we ask girls and women if they want sports before we fund them. To me, that is just outright foolish, and I can’t understand seeing it as any other way. Our society and culture are biased against women in sports, and the way to encourage women to participate in athletics is to ask them if they want athletics?

She misses the point. Title IX combines the harm of affirmitive action with the insanity of federal education legislation. Among other things, the law

  • Assumes that girls and their families are too ignorant to make their own extra-curricular decisions
  • Lessens happiness, as more popular male sports are cut to make room for less popular female sports
  • Attempts to create a New Style Woman and New Style Man, like the rest of progressive politics
  • Violates the freedom of everyone involved, because colleges are prohibited from offering sports to willing (and because of tuition, paying) students because of federal legislation

Title IX is a state-heavy monolith, but fortunately it never forced true equality. Mr. Noonan is incorrect when he writes

In this case, it relates to Title IX; a law which, in feminist theory, requires schools to provide the same athletic opportunities for boys and girls. If there’s a boys wrestling team, then there must be a girls wrestling team. The fact, at a particular school, that there are no girls interested in wrestling is irrelevant. Our feminists live entirely in the world of theory, and if the facts don’t fit the theory then the facts are to be ignored.

The law forced equal participation across sports, but not in any one sport. A better example would be if there was a guy’s wrestling team, there head to be a gal’s volleyball team.

Last, while Chris is incorrect when he says Title IX was not a bad idea in itself, he does offer a compromise

The solution in my eyes has always been to make cheerleading a varsity sport.

OK – are you done laughing or thinking I’m a chauvinist pig?

I’m serious. Cheerleading is not easy. My sister in law teaches gymnastics and is also a high school cheerleading coach. Her cheerleaders work just as hard as most of the varsity players they cheer and their practice is just as physically demanding. Most cheerleaders but not all will be girls whereas 100% of football scholarships go to the guys. All the other seasonal sports match up equally. Men’s basketball and women’s basketball, baseball and softball, men’s and women’s volleyball, etc, etc. It is football that throws things out of whack. If cheerleading was a varsity sport then the number of football scholarships could be equaled off with cheerleader scholarships.

Hey if cheerleading was good enough for the President then it should be good enough for Title IX compliance.

Update: Pilight offers a contrarian view:

I think it’s much ado about nothing. If anything, it makes Title IX more enforceable

As for conservatives and anti-feminists, well they’re beating the hell out of that straw man. Schools have never been required to show proportionality and it’s always been the least used prong for compliance. Interest in college wrestling was already on the decline before Title IX was enacted and the slide has only accelerated. The eliminated programs almost certainly would have been eliminated anyway, some people just like to have someone or something besides themselves to blame.

New Rules Substantially Weaken Title IX (Good)

Surveys can be used to show Title XI Compliance,” by Kathy Kiely, USA Today, 22 March 2005, http://www.usatoday.com/sports/college/2005-03-22-title-ix-survey_x.htm (from K.J. Lopez at The Corner).

New federal guidelines for compliance with Title IX, the law that has helped get more women involved in sports, permit schools to avoid adding more athletic opportunities for students if an Internet survey indicates they are not interested.

This is another reason I am a Republican. Instead of massive federal social engineer at the college level.. let colleges offer opportunities that interest people. A pretty shocking development!

Critics say the guidelines, issued Friday with no public fanfare by the Department of Education, represent a significant weakening of the 33-year-old law banning sex discrimination at schools receiving federal funds.

They’re finding a way to weaken Title IX,” said Neena Chaudhry, senior counsel of the National Women’s Law Center. “This allows schools the easy way out.”

And with the Iraq War, Bush found a way to “weaken” the Ba’athi Regime. I hereby create a “Neena Chaudhry Award for Obvious Statements.”

Not that that will prevent bureaucrats from denying any shift

Education Department officials adamantly denied the charge, termed “bogus” by spokesman Susan Aspey.

This is simply an additional clarification. This is not a new way of doing business,” said James Manning of the Education Department’s Office for Civil Rights. “We’re trying to help schools.”

And de-Ba’athification was simply an additional clarification on who is eligible for public sector jobs in Iraq.

At least he is right that the new rules help schools.

The heart of the matter…

The new guidelines say schools can show they’re offering adequate opportunities by periodically asking students to fill out an Internet survey designed to determine what sports interest them. The Education Department says schools may notify students of the survey via e-mail.

What makes this news very, very wonderful:

Even if many students don’t fill out the surveys, schools will be able to use them to argue they don’t need to create new sports teams for the underrepresented gender, usually women. The Education Department acknowledged “rates of non-response may be high with the e-mail procedure” but added it “will interpret such non-response as a lack of interest” by the underrepresented gender.

Wow! If I’m reading that right, as long as the response rate is less than the fraction of athletes who are female, Title IX is null. Wow!

The only sad news is that this was proposed years ago, but vetoed by a faint-heart

Two years ago, a presidential commission reviewing Title IX considered proposals to permit schools wider use of surveys to prove compliance. Then-Education Secretary Rod Paige rejected those proposals.

Update: Doug Petch adds some legal details, and then comments…

Once and for all, then, the OCR has confirmed that a school is not required to offer an equal competition opportunity to both men and women in a particular sport if a competent survey indicates the absence of “unmet interest sufficient to sustain a varsity team in the sport(s).”


Update 2: Women’s Hoops wonders what real changes will be, but takes time to call tdaxp conservative and anti-feminist. Maybe he gets that idea because of this post? Off Wing Opinion likes WH’s view, and highlights…

The political story, on the other hand, is clear enough.

Act One: in an atmosphere of candor and open debate, conservatives push for a change but end up rebuffed by public pressure. Act Two: conservatives bide their time, wait till everyone has forgotten all about the issue, and then make the change quietly — without debate, without fanfare, without a press release. They successfully bury the story. Several days pass before anyone even knows that a change has been made.

Act Three has yet to be written.

It’s hard to argue with that last conclusion, as I don’t think we’ve heard the end of this story. Stay tuned.