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October 26, 2006

"Framing Texaco"

[Originally appeared in The American Spectator, February, 1997]

It happened that the New York Times broke the Texaco tapes scandal the same week West Coast voters passed the California Civil Rights Initiative, and for many fans of affirmative action the combination of news stories was enough to renew their faith in the Almighty. “The Texaco crisis is God’s response to California’s Proposition 209,” declared the Rev. Joseph Lowery, president of the Southern Christian Leadership Conference. Boston Globe columnist Derrick Z. Jackson agreed: “Somebody up there is trying to keep white people honest.”

Miraculous or not, the Texaco case followed a script seen many times before. The first charges of bigoted remarks cleared the room: once managers stood accused of that offense, virtually no one took an interest in going to bat for them, least of all the company, which from first day to last kept up a flow of anguished apologies that seemed only to goad its critics into raising their demands. Even the revelation that many of the charges were false did nothing to alter the tone on either side.

The uniformity of coverage and opinion was in many ways a tribute to the Times and its reporter Kurt Eichenwald, who kept the pressure up day after day with relentlessly accusatory coverage. And it worked: in less than two weeks, paper and reporter managed to bring one of the nation’s largest businesses to its knees and terrify the employer community into renewing its flagging commitment to “diversity,” not to mention break the momentum of CCRI supporters.

That the reports contained serious inaccuracies would have been troubling enough, given the explosive status of racial matters in America today. But the real scandal of the Texaco story is how little actual investigation the Times did and how avidly it appears to have accepted a prepackaged account concocted by shrewd plaintiffs’ lawyers. Those lawyers are now apparently on their way to cashing in fees that may amount to tens of millions of dollars from Texaco’s $176 million settlement -- and it doesn’t seem to matter to the Times or anyone else that to get this money they fed the paper a story which later turned out to be full of falsehoods.

Eichenwald broke the story of the tapes on November 4, but the story of how he got the story begins well before that. For some years, lawyers have been suing the giant oil company on behalf of a number of black employees around the country, filing demands for company documents and engaging in other “pre-trial” activities. Last fall, dismissed Texaco manager Richard Lundwall apparently took it upon himself to bring to the lawyers secret tape recordings he’d made, in which his colleagues discussed many topics -- among them how to respond to the lawyers’ document demands. The recordings’ sound quality was very poor in many places, but some of the passages that were relatively clear showed managers talking about withholding or even destroying documents that would have been of interest to the plaintiffs.

That sort of conduct could constitute a serious legal offense, so the story was definite news, albeit perhaps of an inside-page variety. But the transcript of the tapes that the lawyers helpfully furnished to Eichenwald contained a second and far more explosive tale. According to these transcripts, which purported to explicate various passages on the tape that were hard to make out by ear, managers had referred to black employees as “f---ing n---ers” and “black jelly beans.”

The alleged racial epithets took a somewhat interesting news story and blew it wide open. Eichenwald quoted one of the black plaintiffs in the suit as saying the remarks “sounded like a Klan meeting.” In subsequent articles, he quoted Wade Henderson, head of the Leadership Conference on Civil Rights, as saying the tapes were “the functional equivalent of the Rodney King video” and made the case “far more significant than most complaints of employment discrimination.”

After the first day, both the news and editorial sides of the Times dropped modifying words like “alleged,” and began reporting the charges as simple fact; other papers followed suit. The paper held up for special contempt retired Texaco treasurer Robert Ulrich, who had supposedly used the “f---ing n---ers” epithet; it repeated this profoundly defamatory assertion again and again, with nary an “allegedly” in sight. Texaco promptly stripped Ulrich of his health benefits, as well as disciplining other employees. Yet there were plenty of questions that should have occurred to editors at the Times:

-- Sound quality. Journalists are supposed to know the quality of pocket audiotapes is dubious. These tapes were especially bad, having been made while hidden in the renegade manager’s clothing. And the most sensational material seemed to come from the ambiguous if not inaudible sections.

-- Context. One of the few journalists who sat down in the story’s early days and actually listened to the tapes was Wall Street Journal columnist Holman Jenkins, who not only found the alleged slurs inaudible but also noted Ulrich “remarking with satisfaction on the advancement of women and minorities” and heard discussions of how the company could best recruit blacks while laying off white employees. Jenkins later found a lawyer who’d crossed swords in an earlier case with the plaintiffs’ lead attorney, and said that in that case also his opponent had come up with a self-serving and disputable transcript of taped conversations.

-- Mysterious candy references. Eichenwald presented as racial slurs the tapes’ numerous references to jelly beans, black and of other colors; yet those familiar with corporate diversity training recognized the imagery as that used by Roosevelt Thomas, Jr., a widely known diversity expert who had instructed Texaco executives.

-- Privacy issues. The Times straightfacedly reported Lundwall’s claimed motive in making the secret tapes (to insure that his minutes were accurate) and prudently refrained from raising questions about the role of covert surveillance as a litigation tactic.(1)

Texaco finally obtained a copy of the tapes from the government and gave them to Carl Ginsburg, the audio-enhancement expert who deciphered the FBI’s recordings of the Branch Davidians. After applying enhancement techniques to the tapes, he reported back that the alleged epithets were nothing of the kind. The “f---ing n---ers” remark, which was uttered amid a discussion of winter holidays, turned out to be a reference to St. Nicholas. Ginsburg said that the attorneys’ transcript was riddled with other errors as well. One widely condemned remark -- “you know how black jelly beans agree” -- was instead “we don’t have black jelly beans and green,” he reported. Another supposedly odious remark about how the black jelly beans appeared “glued to the bottom of the bag” came from the secret taper himself, and appeared to deplore, rather than ridicule, minorities’ trouble in winning promotions.

Aside from a highly obscure passage supposedly involving St. Nicholas’s beard -- not on its face racially oriented and almost certainly a corruption of an original statement -- the only crumb remaining for the outrage-mongers was pretty mild: Ulrich’s “I’m still having trouble with Hanukkah -- now we have Kwanzaa.”

Oddly, once the company had evidence in hand dramatically calling into question the credibility of the Times’s reporting, it then proceeded to make that evidence public by releasing it to the Times itself. A source close to the company believes part of the explanation was that the company is a local institution -- it has been in Westchester County for twenty years and was in New York City before that -- and feels it’s “going to have to live with this newspaper.”

The Times did run a reasonably prominent article on the second transcript November 11 -- but put that article in only some of its editions. The next day, a tiny page-two item advised readers who missed the previous day’s article that they could write in for it. When the Times omits a story from some editions, even a light human-interest story, it often re-runs it the next day at the risk some readers will see it twice. But it didn’t bother to do so with an article implicitly retracting large parts of its most sensational civil-rights story of the year. Among readers who get early editions of the Times and never saw the corrective piece are many in the New York suburbs, including Texaco’s own Westchester County, and in places like Washington, D.C.

Standard journalistic procedure, when a secondary story begins to emerge about a newspaper’s coverage, is to assign that second piece to another reporter. But the Times left Eichenwald to report on the reaction to the revelations about his own misreporting. His new articles proceeded to push the theme that the new revelations really weren’t important. “With or without” the epithet, he quoted Wade Henderson as saying, it was the overall episode that was damning. The changes “made little difference” to civil-rights groups or plaintiffs’ lawyers, he wrote in the paper’s “Week in Review.” The plaintiffs’ lawyers variously called the new transcript “much ado about nothing” and said it changed things not “one iota.” This was of course wildly self-serving on all sides, yet it soon was in place as the official line: it didn’t matter after all whether or not white managers used phrases like “f---ing n---ers.”

The rest of the American press did no better. The Wall Street Journal, which had trumpeted “racist remarks” in big headlines, buried its correction in the sixth paragraph of a related story. Business Week found space for a piece headlined “Get Serious About Diversity Training,” but none to mention that its previous week’s report of “blatantly racist” epithets had been in error. Indeed, four days after the new transcript the Associated Press was again referring to “racial slurs” by Texaco executives. The November 18 Wall Street Journal reported that the “derogatory comments” on the tapes had “shocked” most whites while confirming black fears. Everyone had agreed to proceed as if the original charges were true.

So -- readers must wonder -- can Mr. Ulrich sue for defamation, and wind up replacing the Sulzbergers as owners of the paper of record some day down the road? Probably he’ll run into trouble if he tries this, and one major reason is that -- it’s one of the nastiest secrets of litigation journalism -- papers can print all sorts of defamatory allegations with impunity, including those that later prove false, so long as those allegations have previously appeared in official court documents. In this instance, lawyers had filed the transcripts the Friday before Eichenwald’s Monday morning piece.

The doctrine granting reporters immunity in printing the contents of court documents is an extraordinarily convenient one for lawyers, of course, because they naturally enjoy so much of a hand in shaping what will become official court documents: they draft affidavits, elicit deposition testimony, describe their opponents’ supposed conduct in the course of filing complaints, and so on; they also arrange for the transcribing of recordings. It makes them the perfect negative source: not only does a lot of material damaging to their opponents fall into their hands naturally, but they can generate more such material simply by arranging for factoids to make their way into a court record. Once they do, their friends in the press can print them.

USA Today, virtually the only paper to question this kind of manipulation in the Texaco case, asked Times business editor John Geddes whether the paper had been “used by plaintiffs in the case to promote a faulty but more inflammatory transcript.” His response? “Not unless the court was used.” You might think it had never occurred to the business editor of the New York Times that lawyers interested in promoting dubious information in the press might long ago have discovered the best carom-shot technique for getting it there: promote it in a court paper first.

“Genuine or not,” Newsweek said with fine indifference when publishing the Hitler diaries hoax, “it almost doesn’t matter in the end.” Maybe, as Derrick Jackson of the Globe would have it, the Texaco case signifies that someone up there is trying to keep white people honest. Too bad no one down here is doing the same for trial lawyers and journalists.

(1.) There was a wider story here too, about the epidemic of secret taping by litigious employees in the American workplace. A few years back a West Coast lawyer who represents fired employees suing their bosses told the Wall Street Journal that about one in five of his clients tell him they’ve secretly taped conversations. Many courts have encouraged the trend by letting workers pocket awards based on covert taping (“exclusionary” rules generally apply only to prosecutors, not private litigants). Thus a federal appeals court approved a wrongful-firing award to a Connecticut paper-company executive who’d worn a wire into meetings with his supervisors, although dissenting judge Ellsworth van Graafeiland thought it unfortunate that “every disgruntled employee in the Second Circuit henceforth will feel free to report for work with a tape recorder hidden on his person.” (Judge van Graafeiland also said he thought it unlikely that his fellow judges would be so understanding were their clerks to begin surreptitiously bringing in recorders to monitor their deliberations.)

"Ending racial gerrymandering"

[Originally appeared in the New York Post, July 2, 1993]

The joke about North Carolina's 12th Congressional District is that if you drove down I-85 with your car doors open, you'd kill everyone in it.

Tarheel lawmakers used a filament of land 160 miles long to string together portions of scattered Piedmont cities. The idea was to gather enough black voters to elect a black representative, and it worked. In the eastern part of the state they produced a second black-majority district whose shape recalls a bug splattered on a windshield. The state's remaining districts variously resemble a pterodactyl, a rag doll, a broken nutcracker and the lymphatic system of a chipmunk.

On Monday, the Supreme Court rubbed its eyes and said: When you do this sort of thing, please be prepared to explain why. By a vote of 5-to-4, it said blatant racial gerrymandering -- already clearly banned when it harms minority interests -- does not become immune from Constitutional scrutiny simply because it purports to help them.

Until this week's ruling in Shaw v. Reno, all the momentum had been toward racially obsessive line-drawing. In recent New York districting battles, for example, the goal of maximizing minority strength, under threat of Voting Rights Act lawsuits, has overridden almost every other value, such as holding neighborhoods together or tracking borough lines and other natural boundaries.

When individuals get treated as mere units in racial marching teams, dehumanizing touches are inevitable. Black New Yorkers who lived too far from designated black districts were said to be "wasted". Planners fretted over the Hispanic "dispersion problem", this being the inconvenient tendency of many Hispanics to live mixed in among other New Yorkers without ghettoizing.

It seemed that before long modern computer-tracking technology would overcome the last such obstacles and allow districting lines to invade apartment houses and perhaps even homes and bedrooms, bisecting the Sealy Posturepedics of interracial couples.

South Africa's parliament has long reserved seats for Asian Indians, voters of mixed race, and so forth. But this country used to recognize segregation-in-voting as an obstacle to racial amity.

No one doubts that if the North Carolina legislature had produced its Jackson Pollock map with the declared aim of shifting power toward whites, as opposed to blacks, the Court would have struck it down. In a 1960 case, the city of Tuskegee, Alabama had altered its boundaries "from a square to an uncouth 28-sided figure" so as to exclude blacks. The Court struck down the remap. Other cases point the same way.

Of the four dissenters, Justice John Paul Stevens is the most explicit: he says there's an OK sort of racial gerrymandering, which helps minorities, and a non-OK sort, which doesn't. Justices Harry Blackmun, David Souter and Byron White offer slightly different arguments, which boil down to much the same thing.

But a court majority decided that equal protection protects both ways, thus sending some diversity buffs into conniption fits. The New York Times, in a remarkably intemperate editorial, claimed to see "a full-scale assault on the Voting Rights Act" intended to "punish" blacks and "sustain all-white politics". And it personalized the issue into an attack on Justice Sandra Day O'Connor, who wrote the majority opinion, for her supposed "willful disregard" of history, calling her arguments "disingenuous and ahistorical", "surreal", and so on.

"The civil rights community", it proclaimed, "should bring all its political leverage and legal expertise to bear against" this monstrosity -- a marked departure from the usual talk about the need to respect the law of the land once the Court has spoken on a constitutional issue.

Earth to Planet Times: you got off easy. The Shaw decision is quite narrow on its face, applying only to cases where district lines are so "bizarre" as virtually to advertise on billboards that everything other than race has been ignored. The Court earlier upheld a Brooklyn plan, challenged by Hasidic plaintiffs, where the racial factor was present but less egregious.

If it were up to some of us, the Court would go a lot further to question voting-law doctrine. It might ask, for example: why is the racial mix that's considered mandatory in school districting prohibited in voter districting, and vice versa? Why not provide that any arrangement required for the one is at least okay for the other?

The most important part of the Shaw ruling isn't the immediate practical effect, but O'Connor's calm, yet forceful, language. "Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," she warns. "Racial classifications of any sort...reinforce the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin."

Those words may bring her flak from a few predictable quarters -- but they ought to make her the heroine of the hour for the rest of us.

A scary Texas legal system

[Originally appeared as an op-ed in the Houston Post under the title, "Some of the very bad reasons our legal system is well-known", Feb. 20, 1993].

Not long ago the New York Times ran a story about a lawsuit between two big companies. The subject of the dispute seemed dry: cases like it were going on all over. But the writer said this suit was like "a horror movie monster", with Wall Street "sitting up and taking notice" of the potentially "devastating" damage it could do.

What made this legal case so frightening to business readers?

It was going to trial in Texas.

"On the mind of almost everyone involved in the case is the reputation of Texas juries," explained the Times' writer. Since the Pennzoil-Texaco affair, he wrote, national businesses have "lived in fear" of Texas courts.

Are your ears burning yet?

They should. People around the world are talking about Texas' legal system, and what they say isn't flattering.

"The big verdicts in the Lone Star State are a plaintiff lawyers' dream," the National Law Journal reported last month. "...many defense lawyers feel the game is rigged against them." Of 15 mega-verdicts (over $100 million) covered by the magazine in the past four years, seven have come from Texas.

It's one of the big negatives in what ought to be a great business climate.

"It might be prudent to move operations to another state altogether," an article in London's Financial Times warned after Dow v. Alfaro, the famous decision that invites people from all over the world to bypass their boring old hometown courts and sue here.

The Texas Supreme Court thought it was being very progressive in Alfaro, but other states didn't follow its rule. Nor was there a great rush to emulate the extreme Texas rule against "protective orders", under which lawyers can obtain internal memos and secrets from their opponents and use them to recruit more clients and stir up more litigation even if the opponent is never found to have done anything wrong at all.

Last year, another Texas jury, in a case the New York Times says "sent chills through defense lawyers," found an energy company liable for the "wrongful dismissal" of a manager. They ordered it to pay $124 million in damages -- a number they might have plucked from a spinning barrel. The company reportedly settled by paying a mere $9.5 million. It's like a state lottery, only with higher overhead.

One way to improve the chances of keeping your corporate treasury from being handed over to disgruntled ex-managers is to keep your management jobs out of Texas.

Other states know that, too. Angling for relocation business, they boast of having legal systems where it's considered just as important to keep innocent parties from getting dragged through litigation as it is to give everyone a swing at the solvent defendant's pinata. Lawmakers around the country are enacting legal-reform packages, amid talk of not wanting their states to be like Texas.

Of course, we also hear some lawyers talk as if suing people is a wonderful new industry in and of itself.

Last year, after filing a suit in Orange County on behalf of more than 1,700 Alabama residents claiming injury from asbestos, the plaintiff's lawyers told the Beaumont Enterprise-Journal that the mega-suit would do wonders for the area's economy: "Lawyers, expert witnesses, doctors from all over the world will by flying in and staying in Orange motels, eating at Orange restaurants and buying gas at Orange stations."

In Austin, word seems to be getting through, just in time before the last lawyer in River Oaks leaves. SB 4, which would overturn Alfaro, passed the Senate 31-0 and may go before the House Monday.

But even if the Legislature, or the Texas Supreme Court, cleans up a few of the problems, they'll face the same problem Mario Cuomo has with the New York income tax: do away with a few of its worst features and it still won't make it up to number 49 in the rankings.

For that, something more systematic is needed. Maybe a way of picking judges that doesn't leave them so dependent for campaign money on lawyers who practice before them. Maybe a further reform of punitive damages, now awarded under a very vague standard for finding gross negligence. Maybe more frequent sanctions against wrongful lawsuits, or even the germ of a "loser-pays" principle, the way Alaska (and most foreign countries) do it.

Until something like that happens, Texas courts will go on deserving their reputation as a place where out-of-state defendants get barbecued, carved up and served with paper napkins. And while a few lucky clients and hungry lawyers munch out, the rest of the state will go on paying the bill.

Good Standing?

[Originally appeared in City Journal, Autumn 1993]

One of the less edifying reactions to the Ruth Bader Ginsburg nomination came when a New York Post columnist lambasted the Brooklyn-born judge for having spent a good bit of effort trying to straighten out the tangled law of "standing" -- the law on who, if anyone, can sue when the government or someone else misbehaves. A nominee with a truly Big Heart, writer Sidney Zion seemed to think, would not have wasted her time on such a purely technical area. Which calls to mind the definition of a loophole as a feature of the tax code 1) whose function is not apparent at first glance, and 2) which benefits someone else. At law, it's usually the technical concepts like standing that make all the difference.

Take the issue of who can sue to challenge allegedly improper state fiscal practices. On May 11, 1993, New York's highest court casually broadened citizens' standing to file such suits -- and sent state financiers scrambling in panic. The result could be a long-overdue reform of state budgeting. But in this case, as in so many, one should not hope for too much public benefit from even well-intentioned lawsuits.

New York's borrowing methods have long insulted the spirit (at least) of the state's constitution, which prohibits Albany from borrowing money without voter approval. The state does that all the time, by channeling debt through its sprawling network of public authorities. The excuse is that since the state is not formally obligated to pay interest on the bonds of its authorities, they don't count as actual borrowing which voters would have to approve.

The theory is bad enough, but the practice is worse. Backdoor borrowing now accounts for no less than $17 billion of state debt, compared with $5 billion obtained through the front door. And since investors demand higher yields on unguaranteed authority bonds than on direct state bonds (to compensate for the lack of formal obligation) officials wind up paying many millions of taxpayer dollars in added interest for the privilege of evading voter scrutiny.

State officials more or less openly admit that they resort to authority bonding to get money for purposes voters would probably turn down if put on the ballot. In one famous deal, the Urban Development Corporation raised $230 million in bonds without voter approval, which it slipped into the state's hands by buying Attica prison and leasing it back to the state. "The Thruway Authority is doing canals," points out analyst Michael Brooks of Sanford C. Bernstein & Co. "These things have lives of their own."

Officials argue that such practices are lawful under existing precedent. In the 1970s, a Brooklyn Law School professor named Leon Wein filed and lost a number of suits challenging backdoor financing. The Wein cases are still good law, say the agencies. On top of that, until May, New York courts had maintained a restrictive attitude toward standing in cases of this sort -- meaning that it was hard for anyone to get into court to challenge the state in the first place.

None of which discouraged taxpayer activist Robert L. Schulz. Filing on his own behalf without a lawyer, the 53-year-old semiretired engineer has launched more than twenty challenges to the state's bonding practices. At first, like many of his pro se brethren, Schulz seemed a mere nuisance. Indeed, in 1992 a lawyer representing the state Democratic party and Governor Cuomo's campaign committee sought a permanent injunction barring the Glens Falls resident from filing any more of his putatively frivolous lawsuits.

But the do-it-yourself litigant -- who gained experience as he lost early cases -- was beginning to score some victories. Among them was a challenge to the state's practice of spending tax money to publish brochures touting the merits of bond issues pending before the voters. And last year he secured a ruling, overturned on appeal, that $531 million in deficit notes were unconstitutional.

Schulz is not planning to join the Establishment any time soon. One of his suits demanded that Tax Commissioner James Wetzler be mulcted to the tune of $1,000 "from his personal account" for having led a dubious foray into New Jersey to catch sales-tax evaders. And along with "prospective" relief restraining the state from issuing new bonds without voter approval, Schulz has also asked courts to unravel done deals, which would force the recall of already-sold bonds. By frightening investors, tactics of this sort have already backfired against the interests of taxpayers. Schulz's temporary victory last year on the deficit notes is said to have nicked the state's reputation badly in credit markets, forcing interest payments higher. "As investors demand higher yields, the state and taxpayers lose millions of dollars," former Comptroller Regan told The Bond Buyer.

Which is why even many who sympathize with Schulz's aims stop short of endorsing his banzai litigation campaign. Regan, who calls New York's borrowing practices the worst in the country, has said Schulz "should get moral support from anyone who cares about debt reform," but "one of these days, he's going to win one...and that would be a disaster for this state."

This May, with his standing victory, Schulz came a giant step closer. The Court of Appeals threw out the two claims under consideration as having been made too late, but declared that Schulz (and anyone else) would enjoy liberal standing to pursue such claims in the future. Only weeks later an Albany judge handed down a temporary order in a Schulz case, restraining the Metropolitan Transit Authority and Thruway Authority from proceeding with a multibillion-dollar financing plan. The move was more symbolic than anything else, since the two agencies weren't planning to issue bonds right away, but the symbolism was noticed.

The case for liberal standing is clear enough: without it, a good deal of misconduct in government would be unreachable by judicial review and would have to be corrected by other means, if at all. "When the courts make it impossible for people to challenge the behavior of government, you have despotism in the extreme," as Schulz puts it.

The problems with liberal standing are less obvious but just as real. It places the power to litigate issues of general interest -- which often amounts to the power to set the public agenda -- in the hands of whoever is most dissatisfied with current policy, even if that person's views are shared by few others. "We lawyers know well," wrote one of the great ones, Frederick Pollock, "and may find high authority for it if required, that life would be intolerable if every man insisted on his legal rights to the full." Skillful politicians can hammer out, say, a redistricting plan that satisfies nearly all participants; but it winds up in court anyway, and whoever stayed out of the original compromise gets the visibility and leverage of being the plaintiff with citizen standing.

There is a wider paradox: if the vast body of voters or taxpayers are imperfectly represented by the state's elected governor and legislature -- as they inevitably are -- how much more imperfectly will they be represented by Schulz, who, for all his evident zeal and sincerity, has never had to face the voters? Is there some way to preserve the corrective promise of taxpayer suits while making sure they serve actual taxpayer interests? Perhaps Justice Ginsburg can return to her home state one of these days and offer some advice.

October 21, 2006

Title IX from Outer Space

Title IX from Outer Space: How federal law is killing men's college sports

Reason, February 1998

"Giving Women a Sporting Chance: Cal State Plan Could Be a Template for Nation" jubilated a Los Angeles Times editorial. The month was October 1993, and the California State University system had just agreed to settle a National Organization for Women lawsuit by adopting a quota system for varsity sports participation, promising that women's share would come out within 5 percentage points of female enrollment at each of its 19 campuses.

According to the Times, this "welcome commitment" would put Cal State in the "vanguard of reform," for which its administration was "to be commended." "Gender fairness in sports is really not that difficult to comprehend," explained the Times, with that touch of condescension that so grates on non-feminist ears. "Too many athletic departments just don't"--can you tell where this sentence is headed?--"get it."

The settlement's compliance deadline was set for fall 1998, and by mid-1997 one of its results had become clear: massive cuts in men's sports throughout the Cal State system. In June, Cal State-Northridge dropped its baseball team, which had ranked among the nation's top 20, along with soccer, swimming, and volleyball. Cal State-Bakersfield drastically curtailed its outstanding wrestling program. San Francisco State, Fullerton, Hayward, Chico, Long Beach, and Sonoma all got out of football.

The Cal State-men's-sports massacre made news from coast to coast, and for good reason: As the Times headline predicted, it is going to serve as a model for the rest of the country. Last April, the U.S. Supreme Court declined to review a court decision against Brown University, leaving in place an interpretation of the federal Title IX law that has already begun to devastate such men's sports as track, wrestling, swimming, and diving nationwide. A survey by the National Collegiate Athletic Association found colleges have axed 200 men's teams in recent years, with 17,000 slots lost. Gymnastics teams, which numbered 133 as recently as 1975, are down to 32 overall. Even golf, a sport whose popularity in the outside world has soared, is hard hit.

The next targets for Title IX enforcers are elementary and secondary schools. Already, many high schoolers in Florida face a ban on all athletic competition because their schools haven't done well enough at equalizing sports participation. Armed with a 1992 Supreme Court decision which allows complainants to demand cash damages as well as lawyers' fees, litigators and regulators are swarming around the field house.

The premise of the gender-equity movement is simple: Women's sports should get just as much money, attention, and participation as men's. It's a lovely ambition, acceptable in the end to most college administrators as well as most social reformers. Only two obstacles remain: the fans and the participants.

College football, to begin with, is a huge business, generating fortunes in alumni donations, gate receipts, and broadcast fees. Yet it won't have a real female equivalent as long as women are free to avoid it. (Neither forced watching nor forced playing has yet arisen on the Title IX agenda.) Even aside from male-female differences in strength and stature, extremes of physical competition and the buzz of danger just don't play the same role in women's lives as in men's, either as players or as spectators. As National Review's Kate O'Beirne has pointed out, men made up a substantial majority of the television audience for the women's NCAA basketball finals.

In questionnaires of prospective Brown students, 50 percent of the men but only 30 percent of the women expressed interest in trying out for athletics. Intramural sports were open to all at Brown, but eight times as many men took part as women. Nor is it easy to argue that the dead hand of bygone male supremacy is the problem. Women at Vassar participate in varsity sports at a rate 13 percent lower than do men, even though Vassar was a women's college until 1969.

"Including football in counting the numbers is unreasonable," Olympic high jumper Amy Acuff told one reporter. "At my school [UCLA], they cut men's swimming and gymnastics so they could start water polo and soccer for women. It broke my heart because those men's teams were really good, and a lot of the women they brought into the new sports weren't serious athletes." (The defunct UCLA diving and swimming program had garnered 16 Olympic gold medals and 41 individual national titles.)

Tough, say the hard-liners at the U.S. Department of Education's Office of Civil Rights, which "has exhibited an astonishing indifference to the destruction of athletic opportunities for males," according to University of Chicago wrestling coach Leo Kocher. Anyone at all can file a complaint that triggers an OCR investigation, and such probes, as Pittsburgh Post-Gazette sportswriter Lori Shontz observes, are not always known for their sophistication and subtlety. Staffers who swooped down on Johns Hopkins University, for instance, demanded to know why the women's basketballs were smaller than the men's, not realizing that "women's basketballs are smaller by design to accommodate smaller hands."

As usual in Washington, the quota-enforcers heatedly deny that quotas are actually mandatory, insisting that schools can comply by passing one of two other tests. They can show that women are satisfied with existing offerings--but then a complaint itself is apt to serve as evidence of dissatisfaction. Or schools can show a pattern of continued expansion of women's programs, which is to say continued progress toward proportionality. In practice, according to the American Football Coaches Association and other critics, proportionality is the "primary emphasis of enforcement," and the other two tests, though they may furnish the regulators some facade of deniability against quota charges, offer no enduring safe harbor of compliance.

In the Brown case, the federal court rebuffed the university's effort to offer evidence that men were more interested in athletics. Are women's teams undersubscribed and men's oversubscribed? Then a university must have fallen short in finding ways to make the women's programs attractive. Is it easier for women at a given level of achievement or commitment to obtain athletic scholarships than it is for men? Too bad: The university may lose anyway, unless it's brought the overall head count into line.

Nor can educators necessarily get off the hook by pointing to other demographic or behavioral variables. The student body at Cal State-Bakersfield, reports Elizabeth Arens in Policy Review, is 64 percent female and includes many women in their 40s and 50s who are upgrading their education after launching families and disinclined to pursue varsity sports.

"The women's advocacy groups strongly oppose any effort to survey interest in athletics because they do not like the results," charges Chuck Neinas, executive director of the College Football Association, who says the current state of legal interpretation "will make it difficult, if not impossible, for those universities that sponsor football to comply with Title IX."

Feminist litigators make little secret of their animus toward football, many evidently agreeing with University of Wisconsin-Milwaukee professor Margaret Carlisle Duncan that it's "an institution that promotes male dominance." Where it can't be axed entirely, they favor at least reducing the number of players on rosters, as Cal State-Fresno and other institutions have reluctantly done. College teams play with larger rosters than the pros, partly because they can't rely on mid-season signups or trades to replace sidelined regular players.

Ironically, colleges with standout football teams, being flush with revenues for scholarships and equipment, have the easiest time expanding women's sports. Although top-division football as a whole makes money, it is made unevenly, with some strong teams raking in the receipts and others running deficits. Title IX activists urge colleges to boot money-losing pigskin teams, though it seems unlikely that a conference whose cellar-dwellers dropped out could for long achieve a Lake Wobegon effect and consist entirely of teams with favorable win-lose records.

In any event, the head count, not money, is what's often really at legal issue. Wrestling is among the least expensive sports to sustain. Princeton refused to accept a $2.3 million alumni gift intended as an endowment to save its 90-year-old men's wrestling team, just as the University of Southern California did when alumni tried to save its men's swimming program. Roster cutbacks for "big" men's sports, a common feminist proposal, aid compliance efforts not so much because they save pots of money--the non-star "walk-ons" dropped are typically already playing without scholarships, travel, or equipment subsidies--but because they keep down the number of male bodies.

Of course, the Equal Employment Opportunity Commission can't resist making things worse. Last October, it put out new guidelines arm-twisting colleges to pay coaches of women's teams as much as they do men's. The guidelines do start with a token concession that not every volleyball coach may be entitled to the salary of a Big Ten football wizard, but from then on it's mostly bad news. Comparisons between dissimilar sports? No problem. Offers based on market rates or current pay levels will be suspect: "Cultural and social factors may have artificially inflated men's coaches' salaries."

The guidelines hint that if colleges can't show that they've advertised and promoted men's and women's squads equally, women's coaches should win salary-dispute cases. Of course, to hype a fanless team may be to throw good money after bad: In one well-known case, the USC men's basketball program brought in 90 times as much revenue as the women's. The agency also suggests a college may lose a case if it "sets up weekly media interviews" for a red-hot men's team but not its languishing female equivalent.

In the whole Title IX controversy, incidentally, it appears next to impossible to find anyone willing to criticize the law in principle. Sure, enforcement has gone haywire and the results are crazy, but everyone hastens to add that of course they just adore the law itself.

As for the old idea that universities in a free society should be entitled to make their own decisions--well, that notion, like so many men's track teams, is on its last lap.