How Not To Report a National Bombing Attack

By Josh Swanner

Another act of senseless violence is currently impacting the nation, coming through on the news waves. And with it, another chance for hate mongers to spew their hate, and continue to contribute to a false, ignorant fear of the other.  Today, that “other” is people of Middle Eastern descent.

After hearing about the bombings, which took place during the Boston Marathon, I immediately went to the Internet to see what I could find. So I clicked through various blogs until I happened upon this headline on Drudge in bright red—“NY POST: Suspect apprehended… Saudi national under guard at hospital…”

I immediately smelled a rat. The NY Post is known for being a bombastic news rag, leaning to the right (owned by Mr. Rupert Murdoch since 1976). And right before reading this I had just watched President Obama on CNN live at 6:10 PM, and on the bottom of the screen I read no suspect had been apprehended. Wait, what?

The article goes on to say, “Investigators have a suspect — a Saudi Arabian national” who is a “20-year-old … under guard at an undisclosed Boston hospital.” And of course, like magic, “Fox News reported that the suspect suffered severe burns.”

I searched on Google to see what other news outlets were saying. Sure enough, many articles appeared citing the New York Post—here is one local Boston outlet.*

It also seems like I’m not the only one smelling a rat. Eric Wemple at the Washington Post blogged “Boston explosions: New York Post better have good sources.” He posted pictures of headlines of major news outlets, closing with the NY Post’s headlines, adding, “Meanwhile, a spokesman for the Boston Police Department is saying that authorities ‘haven’t been notified of any arrests or anyone apprehended.’”  

In the wake of a tragedy, the impulse to believe “they” did it is strong for those already pre-disposed to being Islamaphobic.

Naturally, then, “news” outlets leaning to the right are spreading signals to those who are primed to give into their hate—here the signal being the word “Saudi.”

"Saudi" implies Muslims, who have become the “other” in American society since 9/11. That “other-ness” has peaked since President Barack Obama’s rise to power in 2008.**

That’s truly disgusting. And what’s more so is the belief that being Islamaphoic is OK, evident through the rise of violence against Muslims in America. These strong beliefs are caused by a myriad of sources, but it sure as heck should not be from “news” reports. Media reports such as the one presented by the New York Post only further cake on layers of unconscious hate towards the “other” in our society. They do us no good.

Stop it New York Post, stop it Fox News. In America we have the luxury of having a free press. Stop being the engines of hate, and start being the purveyors of facts. You call yourselves journalists, don’t you?

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*As of 10:40 PM the news article now reads, "Federal officials told NBC News that Boston police were guarding a 'possible suspect' who had been wounded in the blasts, but they cautioned that there was no information at the federal level to consider that person a suspect." This was not what I read earlier, which tells me that in a rush to get a story online, news people tend to put up what they have, then go back later and clean up their tracks after getting all the facts.

**My theory on that phenomenon? Racists in this country cannot be outright racists against Obama, but they sure as heck can be Islamaphobic. So, if the President isn’t a Christian, but a Muslim, eureka! He’s a bad man. But that's a blog post for another day. 

Pit Bull Paralysis in Annapolis

By Michael Stone

The Maryland legislature needs to focus on fixing the Court of Appeals’ poor judgment instead of fighting over small details of how it’s done.

Maryland used to be part of a dwindling minority of U.S. states that followed what is commonly referred to as “the one-bite rule”—a common-law rule adapted from English law that shields a dog owner from liability for the dog’s first bite. Most states follow a different rule, holding owners strictly liable to victims of their dog’s bites. In other words, the majority of the country requires owners pay to for the injuries caused by their dogs on their first bite, rather than give owners a free pass.

But in April 2012, the rule in Maryland changed. The Court of Appeals ruled that pit bulls were different than other dogs—they were “inherently dangerous” because of their “aggressive and vicious nature and [their] capability to inflict serious and sometimes fatal injuries.” The Court applied the new rule to “purebred” pit bulls, and held that owners of the dogs, and landlords of the property where the dogs were kept, were strictly liable for any pit bull bites.

This rule is inherently unfair because it makes liability dependent on the dog’s breed. First, there is significant disagreement as to what exactly a “pit bull” is. The ASPCA states a pit bull “can refer to just a couple of breeds or to as many as five—and all mixes of these breeds.” Additionally, the organization mentions several breeds commonly misidentified as pit bulls, including “the Boxer, the Presa Canario, the Cane Corso, the Dogo Argentino, the Tosa Inu, the Bullmastiff, the Dogue de Bordeaux, the Alapaha Blue Blood Bulldog and the Olde English Bulldogge.” Given that the pit bull isn’t one particular breed, even DNA tests can fail to identify one.

Second, breed doesn’t necessarily correlate to the temperament of any particular dog. The American Animal Hospital Association (AAHA), in a joint study with the CDC and Humane Society of the United States over 20 years, reported dog bites revealed that no one breed of dog was “inherently more dangerous than others.” The study even showed that “the most popular large breed dogs at any one time were consistently on the list of breeds that bit fatally.” In fact, the CDC recommends education as the most effective means of preventing dog bites. The same report states that breed-specific dog regulations result can actually “result in a false sense of accomplishment.” Such regulations fail to protect citizens because they overstate the source of dog bites, and understate effective prevention methods. This makes a rule singling out pit bulls not only unfair, but misguided.

The current rule exposes pit bull owners to serious consequences. It places the burden on renters to choose between their home and their pet, and inevitably means that some dogs will be killed for unfair and misguided policy. The Humane Society of the United States reports that the impact has already been felt:

[L]andlords have sent warning notices to renters with pit bull-type dogs, condominium associations and homeowner’s associations have considered changing their policies, local governments have scrambled to address liability at city dog parks and other public spaces, and animal shelters have braced for an influx of pit bull-type dogs.

On August 21, The Washington Post reported  “one 1,500 [unit] apartment complex in Baltimore had already ordered that pit bulls would have to be removed from the premises immediately.”

The state legislature has yet to remedy this problem. The House of Delegates passed a bill that would overturn the Court of Appeals ruling. According to The Baltimore Sun, the bill struck a balance between victims of dog bites and owners, making owners presumptively liable to victims for dog bites.  But the bill allowed the owners to avoid that liability by showing the dog had no history of dangerousness. It also removed the strict liability for landlords.

Reports indicate, however, that passage of the final bill is threatened by a dispute over how much proof is required to avoid liability. The House bill requires dog owners prove the dog has no history of dangerousness by a “preponderance of the evidence,” meaning owners must show that it is more likely than not their dog isn’t dangerous.

However the Senate bill would require dog owners to prove lack of dangerous history by the higher standard “clear and convincing evidence.” The Baltimore Sun reports  that Del. Luiz R.S. Simmons of Montgomery County argues that the Senate bill “expose[s] hundreds of thousands of owners of other breeds of dog to substantially the same strict liability standard as the court applied to pit bulls.”

“Senate Minority Leader E.J. Pipkin, an Eastern Shore Republican, expressed concern that the Senate's position could result in an impasse that leaves the court decision in place,” reports Mike Dresser of The Baltimore Sun.

The legislature must act to pass a law that fixes the Court of Appeal’s mistake. Breed specific laws are bad policy, especially those that single out dogs that are not an actual breed.

This is dog discrimination plain and simple.

Dog owners should not be forced to choose between their beloved pets or their homes. Both houses appear to understand this. To let a different standard of proof derail that fix, when the worst it does is place Maryland on par with the majority of the country, is dysfunctional.

Justice O'Connor tells Jon Stewart to Read

Justice Sandra Day O'Connor

By Josh Swanner

Retired Associate Justice Sandra Day O’Connor proved she could hold her own against Jon Stewart when she appeared on the Daily Show early this March. They initially discussed her new book, Out of Order. She wrote the book to tell “some of the stories of how the Court works, giving people a glimpse into some of the things.”

Stewart remarked on the pressure justices must feel on the Court when faced with weighty decisions. Decisions regarding, for instance the franchise of the vote, that have a large impact on the future. O’Connor agreed.

Then Stewart asked, “You ever have [a decision] you wanted to back, that you put out there and then you were like, ‘dahhhh! That was a rough one.’”

“Well, if I did, I wouldn’t say,” she replied.

Stewart responded, his voice rising, “Oh, come on, Justice! Get in there!”

While everyone laughed at this exchange, it highlighted how protective Justices are of their decision-making process.

For instance Stewart asked O’Connor who is the best writer on the Court. Her response was predictable—“Oh my, I’m not going to tell you.”

“Why are the Justices so tight-lipped?” Stewart lamented.

He remarked that Associate Justice Sonia Sotomayor recently stopped by the show and that she too would not open up about the Court's process. “I feel like there is something very deep that people who serve on the Court are protecting. There’s a veil—"

“Yes,” O’Connor interrupted. “I think we respect the institution. We served on it, we respect it, we admire it, and we don’t want to do some damage.”

“Really?”

“Really,” O’Conner asserted, “we don’t.”

“Do you feel like if we knew more about it, we would respect it less or more?"

“Well I think more.” O’Connor’s voice rose. “And you do know a lot about it because we explain, in detail, every decision.”

Stewart: “Well, that’s reading…” [laughter]

O’Connor: “Nobody else explains it like that…yeah, that’s reading!”

Stewart: “And it’s very complicated.”

O’Connor: “It is complicated.”

Stewart: “It’s extraordinarily complicated!”

“The Supreme Court,” O’Connor later explained, “is the one branch of government that has written explanations for everything it decides and does. That’s pretty impressive. No other branch of government, no member of Congress has to write some written explanation of everything.”

“That’s such a good point.”

Jon Stewart Performing at “Stand up for Heroes”

“Yes, not bad.” O’Connor quipped.

“In some ways, this is going to sound crazy,” Stewart switched his hat to reporter-therapist, “do the Justices, after doing that job for a while, feel judged? And therefore that, is that why you’re somewhat protective?”

“I think you do feel judged. You do feel judged. You feel that everything you do is under scrutiny, everybody in the country who has an interest in it, they can see it, and look at it…


“Any idiot can like, make fun of it on a show,” Stewart said.

“Correct.” The audience laughed.

“Make a joke of it, or whatever.”

O’Connor laughed, “Right! That’s not fair.”

“Well,” Stewart’s voice dropped, “if I see somebody doing it, you can be sure I will stop them…as it goes.”

Money Matters: McBurney v. Young Oral Argument Recap

By Chris Simmons

In the 21st century, data is a commodity. Businesses need information to survive, and access to public records is often an integral part to their continued success. However, three states currently limit the availability of records under their state Freedom of Information Acts to their own citizens.

On February 20, the Supreme Court heard arguments challenging the constitutionality of Virginia’s freedom of information law that limits such access to Virginia residents only. The justices did not seem concerned about a fundamental right to public information. Instead, their interest focused on the rights of non-residents to access public records of other states if it affects their business.

The case, McBurney v. Young, challenged the Virginia law. Several non-Virginia citizens sought records through the Virginia Freedom of Information Act, but the commonwealth denied their requests because they were not Virginia citizens.

Deepak Gupta, the attorney challenging the restrictions, argued that Virginia’s law affects not only individuals attempting to access personal information, but also businesses and media that compile public records. One of the challengers to the Virginia law ran an information services business and attempted to access Virginia’s tax assessment records for real estate, but was denied because he was a resident of California. By banning access to out-of-state companies, laws like Virginia’s “disrupt this national information market . . . and aversely interfere with a number of important commercial and government activities,” according to a brief filed with the Court by industries that rely on access public records.

Business could still access the records, but faced barriers to doing so. As several of the justices pointed out, a non-resident of Virginia could still obtain the records if they hired a Virginia resident to request them. Chief Justice John Roberts wondered why the state did not simply allow everyone to access the records if they could get them anyway and Virginia could recoup the costs. “It doesn’t seem like that big a deal,” he said.

Virginia’s State Solicitor General E. Duncan Getchell, Jr. argued in defense of the commonwealth’s law. He stated that there was a cost to maintain and build the database of records. Even though the database already exists for Virginia residents and would not add costs, Associate Justice Antonin Scalia noted that Virginia taxpayers did fund the construction of the information bank. Scalia pondered why the commonwealth could not limit access to benefits from a service created by Virginians. “Is it the law,” he asked, “that the State of Virginia cannot do anything that’s pointless? Only the federal government can do stuff that’s pointless?”

Getchell argued that the law should be upheld because it was not written as a law to affect businesses, but as a civic measure to allow Virginians monitor their own government. Scalia argued that it was okay to limit the records because Virginia only wanted its own residents to “muck” around in its government. Gupta responded to this reasoning, arguing, “You don’t look to uncover the original legislative purpose. You look to whether there is discrimination.”

Gupta also argued that these limitations could not stand because “like lawyers depend on courthouses or truckers depend on roads, [the data collection] industry depends on access to the public archives.”

The challengers to the law argued that these laws run afoul of a constitutional provision known as the Privileges and Immunities Clause. This prevents a state from discriminating against fundamental rights of citizens from other states in favor of its own citizens. The Court has also found under the Constitution’s Commerce Clause that states cannot discrimination against outside citizens in engaged in business in their state.

Getchell opened his argument by saying that the purpose of the statute is political, not commercial. In response to a question from Associate Justice Anthony Kennedy asking if there was no commercial value to the records, Getchell reiterated this claim. “I am totally agnostic on this record because we don’t have any data on that,” he said. “This was not a regulation of commerce, it is a governmental action.”

After the argument, reporter Lyle Denniston of SCOTUSblog suggested Getchell’s refusal to acknowledge that public records have an effect on commerce may be costly. Denniston said he had “put his case in considerable jeopardy by pretending not to know something that most of the Justices seemed to treat as obvious.”

According to The New York Times, an analysis of the Supreme Court under Roberts shows the Court to favor striking down economic regulations, but less likely to vote for people claiming discrimination or violation of their civil rights.

Brian Wolfman, one of the attorneys asking to strike down the restrictions, said after the oral argument that a broader appeal for a right to access information was not needed if the Court would strike down the law due to its effect on business. He thought that the effect on commerce was a stronger argument since the Court has become business oriented.

With the Court becoming more business-oriented in recent years, the law’s challengers seized the opportunity to underscore the law’s unfair impact on business, while Virginia stuck with its original position that the law was a political initiative. If the Court decides to strike the law down as unconstitutional, it will be because the challengers realized how to appeal to this current Court’s economic sensitivities.

John Kerry’s right to be stupid

Recently, newly minted U.S. Secretary of State John Kerry spoke at a town hall meeting in Berlin, Germany. Taking a moment to address America's First Amendment rights, he defended them as a "right to be stupid."

Speaking to an audience of German college students, Kerry urged religious and political tolerance for ideas that others may find offensive. Writing for the Boston Globe, reporter Matt Viser observed that “the most profound moment of the meeting came when a woman in a light blue headdress rose and asked Kerry what he thought about when he saw people like her—and what he viewed as the difference between Muslims in Germany and the United States." (Part of the dialogue can be found here.)

"In America," Kerry replied, "sometimes you have somebody who's…not as tolerant as somebody else, and that happens anywhere."

He added, "But as a country, as a society, we live and breathe the idea of religious freedom and religious tolerance."

Kerry further continued, stating that, "In America, you have a right to be stupid if you want to be," and, "you have a right to be disconnected to somebody else if you want to be. And we tolerate it." According to Kerry, "[t]hat's a virtue. I think that’s something worth fighting for."

That’s a ham-fisted way to explain and defend a crucial right.

In America, a person is left alone in their ignorance only as a secondary consequence of the protection of a crucial freedom: the right to perceive, think, and speak the truth without the threat of force. Under the First Amendment, any modern day Galileo can point his telescope up into the sky and report what he sees knowing that his freedom to speak is protected.

Why? Because the truth of a Galileo is infinitely valuable to human life—even if he is utterly alone in speaking it.

If untruth gets protected along the way—it's not because it’s untruth, but because the freedom to speak the truth is crucial to our existence. We cannot afford and do not tolerate some leviathan vetting every statement for truth, or decreeing what ideas are right and wrong. Instead, America’s founders left free and independent minds to sort fact from fiction. The result is generally unrestricted discourse and the abolition of physical violence from the realm of ideas. This is the peaceful ideal for which we fight—and not merely the "right to be stupid" as Kerry referred to it.

So no, let's not wax on about the right to be stupid. Let us proudly proclaim that in America, all speakers have the freedom to speak, and that our people decide for themselves what is foolish and what is smart.

Obama's Guantanamo Bay

By: Virginia Reed

Six years ago this month my brother-in-law Jeff came back from serving in Guantanamo Bay as an Army prison guard. My memory of his return is slightly tainted because it was soon followed by widespread media reports condemning Guantanamo Bay. The ethics of holding combatants indefinitely without trial became a focal point of the media, and a political talking point. Closing Guantanamo Bay became a feature of Barack Obama’s presidential campaign. Despite the honorable service of people like Jeff, the President-Elect labeled Guantanamo Bay as a “sad chapter in American history.” Many social, religious, and political groups agreed.
 

But when Obama took office a curious thing happened. Guantanamo Bay was downsized, secret CIA detention centers were made illegal, and drone strikes increased significantly.  Some have suggested that downsizing Guantanamo Bay and closing CIA detention centers have led to an increase in drone use to kill enemy combatants. But are drone strikes a moral alternative to holding centers like Guantanamo Bay? Why aren’t more people asking this question? 

Using drones raises moral questions and legal questions about killing innocent people and executing combatants without trial.  But how often do we hear about these questions in the American media? I mean, lots of people know what Guantanamo Bay is, but do you know what a “signature strike” is? How about the “double tap” strategy? These are two common and controversial features of drone warfare. But most Americans don’t even know what they are. This is a problem.

Most drone strikes involve "signature strikes" where the individual identities of the “targets” are not determined. Instead, the strike is based on a subjects’ repeated behavior, or signature. A missile is fired upon a group of unidentified people who appear to be engaging in terrorist signature activities. An example of signature behavior may be satellite information showing a group of militants meeting together at an Al Qaeda compound. These strikes are often followed by a "double tap" strategy. Once the original missile is fired, a second missile is fired as the rescuers converge on the injured victim. 

It is clear that since this drone warfare has increased, innocent people have been killed. According to an article in the UK paper, The Independent, conservative estimates claim that in recent years, 20% of the deaths caused by U.S. drones have been non-militants. Other studies suggest that as much as 98% of the deaths from drone strikes have been non-militants; of the total deaths only 1 in 50 is a true combatant. Gabor Rona, international legal director for Human Rights First, explained the reason for the increase in innocent killings was that drone targets are non-state armed groups, who “do not wear uniforms and are often difficult to distinguish from the civilian population.”  Non-militant civilians in places like Pakistan, where drone strikes have been common, overwhelmingly disfavor the drone strikes. According to a 2012 study by the Pew Research Center’s Global Attitude project, 83% of Pakistani civilians thought drone strikes were bad policy.

Clearly these methods deserve moral scrutiny. There are questions about innocent people being killed, and the ethics of striking those not engaged in combat. As with Guantanamo Bay, the fate of potential combatants is decided without trial. But, for some reason, the American media has generally not raised these questions to the same scale or degree as they did with questions about Guantanamo Bay. 

Admittedly, there have been some reports regarding recently released State Department “White Papers.” The White Papers refer to a CIA memo that describes the criteria for a drone strike against an American citizen. There were some reports about the issue of killing Americans without due process and some suggestion that a tribunal be formed for review of killing American citizens. Compared to the critiques about drone strikes on American citizens, or of Guantanamo Bay, the critique of the overall use of drones have been strikingly subdued in the American media. 

I believe that if people were asked about the morality of drone strikes, most would say they needed more information. But if drone strikes might be immoral, we need to know now. There is no doubt that innocent people have been killed. There is no question that combatants are killed without a trial. The American people need to hold the media to a higher standard of reporting truth. This is particularly important when the truth is strong enough to change policy, like in Guantanamo Bay.

How Do You Do It?

By Rachael Dirzuweit

In 2011, a movie starring Sarah Jessica Parker titled “I Don’t Know How She Does It” came to theaters. I was so excited to see it after I saw one of the posters. It featured Parker, dressed like businesswoman, holding a teddy bear and briefcase, and the background was a to do list. I wasn’t excited to see the movie because I enjoyed the acting of anyone starring in the feature, or because it was supposed to be a comedy—I was seeking an explanation. I wanted to know how to answer people when they asked me how I balance what’s on my plate.
 

You see, I’m a law school student. I’ve been a student, if you count my undergraduate education, for seven of the last nine years. I have a nine-year-old son, and have been employed since I was 15. I was a single mom for the first three of those years, as well. When I decided to go to law school in September of 2008, we moved back in with my parents and siblings because of the reduced income. Nobody in my family has the type-A personality I do. In seeking perfection, instead of cooking and cleaning and caring for my family of three, I had to do it for a family of nine.

And I do it still. I work a part time job, I volunteer at my son’s school, I cook and clean for nine people, I do well in law school, and (most of the time) I do it all with a smile on my face. I know why I do these things (because if I don’t, nobody else will), but I don’t know how I do these things. So when I’m asked, I usually just smile and say “It’s not that bad.”

BUT IT IS. It’s horrible. It’s more work than one human being should have to perform in a week, and I’m doing it in a day. I was conditioned as a single mother working full time and going to college full time to function on little sleep. But that’s not the kind of answer people want to hear. I’m not sure what they want to hear, but “I don’t sleep anymore” is not it. Trust me.

So when this movie came out, I thought “Here’s my chance! Maybe they’ll explain this in a way people can understand!” Needless to say, I was disappointed. Parker was a working mother with a stay-at-home husband who felt the regular pressures that having children and working at the same time brings. But I saw her life as somewhat of a vacation when compared to mine.

She had a small family to take care of, not nearly as large as mine. Her husband, while loving and supportive, is unemployed when the movie begins. When she gets a promotion at work that requires more travel, he gets a job offer he can’t turn down. “Here’s where it will get good,” I thought. But her life unravels, and she moves to the country with her husband and quits her job. And they never showed how she did it. “REALLY, SHE GIVES UP?!” I thought. This made me stop and think more about how I do it (without giving up). There has to be an answer—I’m that kind of person. Every question has an answer.

I may be the most organized person in the world. I know where everything in my house is at all times, mainly due to a photographic memory that helps me remember where I put things. I make lists before I make lists. And in fact, despite having a to-do list in the movie poster, no actual to-do list made it into Parker's portrayal of doing it all.

Give me a break!

Once a month I make a monthly dinner menu and shopping list that is broken down into weekly trips based on the menu. We don’t always stick to the menu, but when I get the inevitable “What’s for dinner?” and nobody knows what they want, I can look on the fridge and see what it’s going to be. When I’m cleaning the house, I write down everything I want to do in a room. I plan down to the minute, I write my daily to do list the night before.

I always lay clothes out the night before, have lunches packed and have everything in its place for the morning. I am NOT a morning person. The insane organization quirk I have developed helps with that. Knowing where everything is equals no yelling in the morning. My smartphone with its Post-It app and personal assistant crucially forces me to take notes and update my calendar. Laundry day is Tuesday and Friday. ALWAYS. When I worked weekends, I did homework during the week. Now I work during the week, so my weekends are for homework (mostly). I organize what I need to do based on when it is due, and I go through it that way.

I don’t sacrifice fun or spontaneity because of the lists and the schedule. Sometimes something less important is bumped to make room for other, better things. This weekend we went shopping. All day. There was plenty on the list for Saturday, but I moved it to Sunday’s list.

It feels great to check things off these lists. Sometimes I write things I’ve already done on the lists just to have the satisfaction of crossing them off. These were all things I started noticing after I sought to answer the question of how to do it all, when the movie didn’t provide the answer.

Well, it looks like maybe that movie showed me how to answer the question, after all.

Disappearing Opportunity In Men's Sports

By Virginia Reed

Earlier this month, one of the greatest Olympic athletes of all time, Baltimore’s own Michael Phelps, cheered for his friend and mentor Ray Lewis at Super Bowl XLVII. Millions cheered along with him. Amid the cheering, many had already begun to ask who the next Ray Lewis will be. But with Michael Phelps, the question is different. It isn’t who will be the next Michael Phelps but whether there will be another Michael Phelps. The likely answer isn’t something to cheer about.

The prospect of there being another Michael Phelps is dim because colleges are cutting men’s athletic programs. As a former NCAA Division I college swimmer, I’ve observed first hand just how critical the college stage is for most Olympic swimmers. But for men, these programs are disappearing rapidly.

While Phelps’ original Michigan team remains for now, two other teams in Michael Phelps’ Big Ten conference have been recently cut. Additionally, his 2012 Olympic teammate Scott Weltz’ college program was cut less than two years after Weltz graduated. UCLA cut its men’s swimming program in 1994 after producing over 22 Olympic swimmers. The Division I team I swam on at Rutgers cut their men’s program in 2006 despite bringing two swimmers to Olympic trials in 2004. My sister’s University of Miami team cut their men’s program in 2000 despite having two Olympians on the team at the time. Even the University of Maryland, with two swimmers at Olympic trials in 2012, cut their men’s team just last year. These cuts are just part of a larger trend that, according to NCAA data, has is seening over 60 men’s college swimming programs cut in the last 30 years.

The force behind this trend is the need for compliance with Title IX. Title IX was a well-intentioned part of the Education Amendments of 1972, designed to encourage gender equality in all extra-curricular activities. The original purpose of the law was to end gender discrimination in schools receiving federal funds. Indeed, many women's sports teams have been added since the rule’s inception, and women’s participation in college athletics has steadily increaseed up to the present day. However, more recent compliance guidelines for athletic programs have caused significant cuts in men’s athletic teams. This alarming trend frustrates the law’s purpose.

The problems began in 1979 when the Office of Civil Rights gave college athletic programs compliance guidelines in the form of a three -prong test. The first prong of the test set up a proportionality requirement , and the second and third prongs mandated that schools consider interests of and opportunities for the under- represented sex. Because proportionality is the most easily measured prong, it’s is the primary focus of enforcement. It is also the primary cause of problems.

Under the proportionality requirement, schools must have the number of athletes by gender in the same proportion as their overall student population. This means that if 60% of the student body is female, then 60% of the school’s athletic positions and scholarships must be for women. With women now increasingly a majority at most universities, men’s athletic teams are being cut in order to comply with the proportionality requirement of Title IX.

Swimming is not the only team sport impacted by the proportionality requirement. The University of Maryland cut their track team less than a month after Maryland’s track coach Andrew Valmon’s lead the 2012 US team to Olympic gold. Since 1972, 355 men’s college wrestling teams have been cut, along with 212 men’s gymnastics teams. In total, more than 2,200 men’s collegiate athletic programs have been cut since Title IX proportionality requirements began. The impact of these cuts on men’s Olympic performance is clear. In the 2012 games, U.S. women’s teams won gold medals in soccer and in water polo and won a silver medal in volleyball. Yet the traditionally strong men’s teams didn’t win a single medal in any of these sports for the first time in 12 years. The 2012 Men’s Olympic team had 50 fewer Olympic qualifiers than 2008. Because college programs feed the Olympic teams, this downward trend in the Olympics will likely continue as more men’s college programs are cut.

Many supporters of Title IX recognize this negative trend. In response, Nancy Hogsehead-Makar of the Women’s Sports Foundation suggests schools “ re-prioritize their athletic budgets” and cut back football programs. However, this solution doesn’t account for the profits brought in by football teams to athletic departments. In a 2012 interview with Game Changers Live, Kathy Deboer, Executive Director of the American Volleyball Coaches association, says most Division I football teams have earned increasing profits. She explained that “in the last 10-15 years the amount of profit has skyrocketed due to television deals.” These profits are used to fund both men and women’s programs.

At the same time, eliminating football to satisfy the proportionality requirement doesn’t address the differing interest levels in playing college sports. Kathy Deboer notes, “We know a lot more about women’s interest in playing sports than we did in 1972…if you just throw a bunch of kids out there, boys and girls mixed evenly, there’s going to be more boys that are interested in participating in competitive activities.” The lack of recognition of varying interest levels leads to unfair results. Leo Kocher, University of Chicago wrestling coach, explains, "If they have 100 girls who want to play sports and they have 1,000 boys who want to play sports, the law says you must give opportunities to those 100 girls and 100 opportunities to those 1,000 boys. In the end, 100 percent of the girls are fully accommodated, but only 10 percent of the boys are taken care of." This uneven level of accommodation seems inconsistent with the Title IX goal of equality.

Still, rational approaches to ensure equal athletic opportunities for women and men do exist. One possible solution is to suspend the proportionality requirement in favor of a student-interest based approach. The student-interest approach involves assessing the desire and likelihood of a student population to participate in sports. From that assessment, schools then design equitable athletic opportunities for men and women. After a specified amount of time, an independent body evaluates colleges to determine whether they have created equitable athletic opportunities in accordance with the second and third prong of Title IX. A student-interest approach is essential to determine that genuine opportunities are offered to all potential participants.

Genuine opportunity is more important now than ever as more and more men’s teams are being cut. In the face of disappearing men’s programs, Kathy Deboer asks the inevitable question, “Is there going to be another Karch Kiraly? Is there going to be another Dan Gable?” Indeed, where is the next Michael Phelps? The future is uncertain. However, the image of Michael Phelps among the thousands of cheering fans suggests an increasingly likely answer:— the next great male athletes are sitting right next to us with no place to play.