Clinton's Cantu Law : Government by bullying

National Review, Dec 20, 1999 by Kate O'Beirne

WHEN conservatives talk about the importance of the presidential election, they always mention possible openings on the Supreme Court. But too often they overlook an equally important issue: the need to stop the abuse of executive power. A Democratic victory could, potentially, change the balance on the Supreme Court. But the Clinton administration has already succeeded in eroding the justice system-by making unprincipled use of the president's ability to issue regulations and enforce laws.

The Clintonites' most aggressive abuse has been ignoring the law to impose their own agenda on civil rights: No Republican president would appoint someone like Norma Cantu to enforce civil-rights laws.

Since 1993, Cantu has been assistant secretary for civil rights at the Department of Education. During her tenure, she has devoted her 700 employees and $66 million budget to enforcing gender quotas and propping up race preferences. She has been a perfect illustration of the maxim that personnel is policy: Charged with enforcing the same laws, her predecessor in the Bush administration properly challenged minority-only scholarships as discriminatory.

Under Cantu, the Education Department's civil-rights office has, among other things, imposed gender quotas on athletic teams and forced a standardized test to add a new section of questions that favored girl test-takers over boys.

The problem is, the gender quotas and preferences imposed by Cantu violate the clear words of the statute she is charged with enforcing. Title IX of the Education Amendments of 1972 states that the law shall not be interpreted to require schools "to grant preferential or disparate treatment to the members of one sex" just because the percentage of persons of that sex who participate in a given activity is different from that sex's percentage of the general population.

For 20 years, college athletic programs were considered in compliance with the statute if the school had a history of expanding athletic opportunities for the underrepresented sex, or could demonstrate that it was accommodating that sex's interests. But for Cantu, this hasn't been enough: She has demanded that the ratio of male to female athletes match the ratio in the student body.

Her insistence on strict proportionality has led to the elimination of hundreds of men's sports programs. The number of men who can participate in sports is effectively capped; it can't be any higher than the number of women on campus who want to join sports teams. Cantu's approach has created opportunities for some 6,000 female athletes-but only at the price of eliminating some 21,000 slots for male athletes.

Cantu's feminist friends sue a university like Vanderbilt because only 41 percent of its athletes are women, while 47 percent of its undergraduates are women. But they are wrong in believing that it's lack of opportunity that is keeping women off the playing field. Just look at the low level of interest in athletics at all-female colleges: A study by the Independent Women's Forum (IWF) revealed that at Smith, only 12 percent of the women play sports; at Wellesley, only 7 percent. They are, quite obviously, not being crowded out by men; they're just not interested.

Despite the lack of evidence that women's lower participation in sports is the result of discrimination, Cantu is now turning her attention to the disproportionate number of boys' teams at the high-school level.

And-not content with leveling the athletic field by prohibiting thousands of men from engaging in sports-Cantu is complaining about gender imbalances in the classroom as well. Education Department bureaucrats welcome the fact that women now earn half of all college degrees, but Cantu is unhappy with women's choices in the degrees they pursue. Women are less likely than men to earn bachelor's degrees in computer science, engineering, or physical sciences. Here-just as in athletics-we can expect that no allowances will be made for women's choices and interests.

A possible "remedy" for this imbalance lurks in a proposed rule published by the Clinton administration in late October. The rule warns colleges that they have to be sure that any class with a substantially disproportionate number of individuals of one sex is not the result of discrimination. Further, the rule permits the imposition of affirmative- action programs to remedy discrimination, and encourages recipients of federal funds to adopt voluntary affirmative-action programs even when there has been no prior discrimination.

The IWF's analysis of this regulation warns that it would "dramatically expand the scope of Title IX to cover even non-educational activities of federal, state and local agencies, as well as private institutions and businesses dealing with those agencies." This concern is quite realistic: Under threat of losing federal funding, the College Board has already altered the PSAT to make it more favorable to girls. The new regulation targets the SAT by prohibiting the use of tests or other admission criteria that have a disparate impact on a particular sex.