“Imagine a hypothetical gourmet grocery store chain,” my Minding The Campus short piece on Title IX begins. (At the moment its links aren’t working, but they will some time after Thanksgiving.) Why, you might ask, would a discussion of Title IX begin with a reference to a hypothetical grocery store chain? I could tell you, but it would be better if you simply clicked and read the piece.
That piece deals primarily with the controversy over using surveys to determine the level of interest female students have in various sports offerings, since at least in theory colleges can remain in compliance with Title IX if they can demonstrate a lack of interest in sports programs they don’t offer. Title IX’s most vociferous defenders argue, of course, that such surveys are a fraud — in the words of Marcia Greenberger, founder and co-president of the National Women’s Law Center, ”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.” (I assume skirt the law was not a pun.)
The argument that “underrepresentation” of any minority group, or women, is everywhere and always proof of discrimination — proof, not evidence — did not begin with Title IX. In fact, it has been a staple of the modern, i.e., post-colorblind equality, civil rights movement for a generation. It was explicitly and emphatically argued, for example, in the EEOC v. Sears, Roebuck and Co. case in the 1980s, a case with which I had years of experience and have written about at some length here. Alice Kessler-Harris, a prominent professor of women’s history who testified for the EEOC, as I noted in that old post,
submitted written testimony actually stating that “where opportunity has existed, women have never failed to take the job offered…. Failure to find women in so-called non-traditional jobs can thus only be interpreted as a consequence of employers’ discrimination.” Kessler-Harris further testified that responsibilities for family and children placed no greater burden on women than men workers, and that women’s own choices and interests have nothing to do with the jobs they take. In fact, she was so hostile to the idea that the system leaves women any room at all to choose that she insisted on placing the terms “choice” and “women’s interests” in quotes, and even went so far as to deny that women themselves choose their own major subjects in college or that women business owners choose the types of businesses they own.
The EEOC lost at trial and lost on appeal, but its argument lives on in the screeds against surveys by Title IX activists.