May 4, 2011

Repeal Title IX

Federal intervention in college sports remains a disastrous mistake

Last week, Katie Thomas of the New York Times ran a breathless expose of the devious actions that many colleges have taken to escape the mandate of gender equality under Title IX of the Civil Rights Act. The gist of her complaint is contained in the article’s headline: "College Teams, Relying on Deception, Undermine Gender Equity."

Her article then details how various colleges have in effect packed their women’s teams with nonparticipating female athletes in order to increase the available spots for men who participate for real. Thomas led with the University of South Florida, where more than half of the 71 women on the cross-country team had never participated in any race for a team that some of them did not know they were on. Not to be outdone, such elite institutions as Cornell, Duke, and Texas A&M take advantage of a "loophole" to Title IX that counts as women the men who work out with female athletes in training.

Illustration by Barbara Kelley

To both Thomas, and an indignant follow up New York Times editorial, the entire episode reveals the length to which established institutions block the advancement of women’s rights. To the Times writers, it is an unalloyed good that, by their reckoning, Title IX has increased the number of women participating in intercollegiate sports from about 30,000 in 1972 to about 186,000 today. And they lament that the efforts to undermine Title IX have only intensified now that women constitute over 57 percent of all college students, which makes Title IX’s requirement of proportionate representation of women in intercollegiate sports ever harder to achieve. The number of spots of women’s teams does not increase with enrollment, just as the number of spots on men’s teams does not decline as their enrollment decreases. So extra places have to be manufactured for female athletes to keep the same number of men in intercollegiate sports. Untroubled by these brute arithmetical facts, the New York Times has called upon Congress to close this dreaded loophole.

Are colleges that evade Title IX really undermining gender equity?

Every part of this story is wrong. On the factual side, much of the increase in women’s participation in intercollegiate sports would have happened with or without Title IX, given all the social changes. Beyond that, it is not necessarily a good thing that the high percentage of women participating in college sports is attributed to government coercion. That coercion makes it impossible for colleges to use their scarce resources wisely.

In the upside down world of Title IX, the correct social response is to applaud the efforts to remove the stranglehold that the law places on college athletic programs. Further reflection makes it clear that the best thing for Congress to do is to junk Title IX in its entirety, as one of those failed experiments by which government intervention has disrupted for the worse the successful internal management of private voluntary institutions.

But why do these otherwise respectable institutions find it necessary to resort to dubious subterfuges? The easiest explanation to eliminate is that these institutions pull such stunts because of their deep-seated animosity to female athletes. The high percentage of enrolled women in college shows that, if anything, the real crisis in higher education lies in the inability to enroll more men. It hardly shows that American colleges, virtually all of which are heavily staffed with female faculty and administrators, are hell-bent on discriminating against women. We can be confident that women who get a fair shake in every other university activity would get a fair shake in intercollegiate athletics as well if these colleges were released from their Title IX shackles.

Indeed, the best explanation for the current sad state of affairs is that all college administrators, male and female, realize that, as interpreted, Title IX has run amok. The fault in this regard does not lie so much in Title IX itself, whose key operative provision reads as follows:

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...

In and of itself, this provision seems only to require that colleges give women the same opportunity to participate in sports as men. The sensible way to construe this requirement is to hold that colleges may not shut out those female students who want to participate in college sports on the same terms and conditions as men. So read, it would be lawful under the statute for fewer college women to participate in sports simply because the demand for athletic spots is much greater among men than it is among women.

That conclusion simply reflects the differential rates of participation by sex in intramural programs, where in an unregulated market men are on average almost twice as eager to participate as women. Most specifically, the willingness for men to participate in contact sports like football has no parallel among women. On this analysis, Title IX only assures what would happen anyway: colleges would support teams in sports such as basketball, softball, swimming, tennis, and any other sport where the demand for intercollegiate athletics filters up from below. Title IX would be no more important than a rule that requires public restaurants and movie theaters not to discriminate by sex.

Men are on average almost twice as eager to participate in sports as women—and their willingness to participate in contact sports like football has no parallel among women.

Unfortunately, Title IX has been twisted beyond recognition by administrative rulings that now require colleges to strike a proportionate balance between women's and men's participation in intercollegiate sports, wholly without regard to student demand. There are only two ways in which this hopeless search for perfection can be maintained in strict accordance with the law. The first is to expand the number of women who engage in intercollegiate sports until, on a percentage basis, they roughly approximate the number of men. The second is to cut back on the number of eligible men until the participation rate is as low for men as it is for women.

Both strategies come with huge costs. The only way to boost the number of women in intercollegiate sports is through massive efforts to induce reluctant women to participate. That approach requires expensive recruitment and substantial scholarships. At the margin, thousands of additional dollars are poured into persuading one more woman to join a team. Those same dollars could easily fund a dozen or more men who are so eager to participate. Right now there are no men’s swimming teams at many major colleges. The number of college wrestling teams has been cut in half over the past 30 or so years. And earlier this week, the New York Times reported that the University of Delaware plans to cut its men’s varsity track team in order to comply with Title IX, even before it had fallen out of compliance with the statute. Does anyone think that these steps were taken for a want of student demand or college funds for these activities? No. It is the Title IX scythe that cuts out these opportunities.

In hard times, budget dollars are still scarcer, so the pressure to cut men’s teams becomes even greater. That pressure hits minor sports harder because of the large number of spots that colleges have to reserve for football. At some point, sensible college administrators recognize the fatuity of bribing women to participate in intercollegiate sports while forcing men to sit out. As a result, some conscientious college administrators will look for any means, fair or foul, to get more men into intercollegiate sports to meet that unmet demand. Not every administrator will opt for the risky strategies mentioned in the Thomas article. But some will see the sense in inflating, at little or no cost, the number of supposed female athletes in order to allow a greater number of men to participate in sports.

Congress should junk Title IX in its entirety as a failed experiment in government intervention.

Just how these efforts to accommodate male students' genuine athletic interests undermines Title IX’s commitment to gender equity is anybody’s guess. What’s really happening is that these phony strategies are desperately needed to level the playing field by giving men the opportunity to participate in sports, without denying that opportunity to any woman. If Congress does not abolish Title IX altogether, it should at least turn a blind eye toward these covert efforts by colleges to correct the imbalances that Title IX creates.

But indeed, Congress should do just that: it should junk the entire Title IX edifice—even in its original form. A key flaw of the modest antidiscrimination provision is that it does not take into account the costs of providing the various sports or the revenues that they generate. Any well-run university will consider the possibility that heavy investments in men’s college football will generate revenues, some of which can be used to increase the number of subsidized opportunities available to women. Surely anyone but the sourest egalitarian would prefer a system in which 1000 men and 600 women participate in intercollegiate sports to one that carries only 700 men and 550 women. Narrowing the gap in the relative rates of participation for men and women athletes has the deplorable consequence of leaving both groups worse off.

It should be clear that the major vice of even the ideal version of Title IX is that it assumes that government regulators have a better understanding of the complex internal dynamics of undergraduate colleges than the administrators who run the schools. It is, however, sheer fantasy to think that a Big Ten university and a small liberal arts college should address participation in intercollegiate sports in the same way, or that the federal government, staffed with ideologues and political appointees, can rid these institutions of their supposed biases. Right now, the reason we do not have the same nonstop controversy over affirmative action programs is that the federal government rarely intrudes in this area to tell colleges which students to admit and why. These schools go through a difficult balancing act, which is not made any easier by the occasional and erratic government intervention into this area.

The same colleges and universities that are smart enough to handle explosive issues of race internally do not become inarticulate incompetents when it comes to sex discrimination in athletics. What Thomas should have concluded is that the dubious devices used to evade Title IX offer powerful evidence as to why that misconceived and misapplied statute should be promptly repealed.

Richard A. Epstein, Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, Laurence A. Tisch Professor of Law at New York University, and senior lecturer at the University of Chicago, researches and writes on a broad range of constitutional, economic, historical, and philosophical subjects. He has taught administrative law, antitrust law, communications law, constitutional law, corporate law, criminal law, employment discrimination law, environmental law, food and drug law, health law, labor law, Roman law, real estate development and finance, and individual and corporate taxation. His publications cover an equally broad range of topics. His most recent book, published in 2013, is The Classical Liberal Constitution: The Uncertain Quest for Limited Government (2013). He is a past editor of the Journal of Legal Studies (1981–91) and the Journal of Law and Economics (1991–2001).

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