Weapons Modernization.

• Author: Lynch, Michael W.
• Position: Changes to Title IX

How the Clinton administration is expanding its power before it leaves town.

The Clintonites are good. One might think that, saddled with a Republican Congress, a presidential pronouncement that "the era of big government is over," and the aftermath of a distracting impeachment and trial, even the most bullish advocate of government would leave the mess behind and move on. Not so with Clinton's folks: They are as active than ever.

Committed to the idea that federal power can transform America into what they think is a better, more just place, these appointees see the waning administration as an excellent opportunity to expand state power. This is the hour to consolidate gains, and to translate the extreme views of temporary bureaucrats into lasting policy.

Take, for example, the sudden expansion of Title IX of the Education Amendments of 1972. On October 29, Clinton's civil rights crew at the Department of Justice published a little-noticed proposed rule in the Federal Register that would greatly extend the government's reach under this law.

Like most laws, Title IX is vague. Its operative clause states: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." President Ford's Department of Health, Education, and Welfare issued regulations interpreting the law in 1975. Four years later, Jimmy Carter's HEW handed down an interpretation for nondiscrimination in athletics, the now infamous three-prong test. To prove it's not discriminating against women, an institution must show one of the following: It meets the athletic needs of its female students; it is expanding to meet those needs; or its female and male students participate in athletics in percentages roughly proportionate to those of their respective enrollments.

In practice, proportionality provides the only "safe harbor" for schools that wish to avoid costly investigations or litigation. And proportionality is just a fancy synonym for quota, as Rep. Maxine Waters (D-Calif.) took some pleasure in reminding her colleagues on the House Constitution Subcommittee in June 1997. "It's the biggest quota you've ever seen," Waters said with glee during a hearing. "It is 50/50. It is a quota--[a] big, round quota."

This quota applies to both athletes and scholarship money. Since women choose to participate in sports at lower rates than men do, and since athletic budgets are limited, many schools are unable to meet their quota without cutting men's teams. From 1992 to 1997, more than 200 men's teams were cut, locking more than 20,000 male athletes out of college locker rooms. Over the same period, according to the Independent Women's Forum, institutions of higher learning added 5,800...