Title lX: How a Good Law Went Terribly Wrong

A weary wrestling coach once lamented that his sport had survived the Fall of Rome, only to be vanquished by Title IX. How did an honorable equity law turn into a scorched-earth campaign against men’s sports? This week is the 42nd anniversary of this famous piece of federal legislation so it’s an ideal time to consider what went wrong and how to set it right.

Title IX was signed into law by President Nixon on June 23, 1972. In 37 momentous words, it outlawed gender discrimination in all publicly supported educational programs. Before its passage, many leading universities did not accept women and law schools and medical schools often used quotas to limit female enrollment. As for sports, female student athletes were rare — and received precious little support from college athletic programs. The logic behind Title IX is the same as that behind all great civil rights legislation: In our democracy, the government may not play favorites among races or religions or between the sexes. We are all equal before the law — including students in colleges and universities receiving public funds.

Title IX applies to all areas of education but is best known for its influence on sports. Women’s athletics have flourished in recent decades, and Title IX deserves some of the cheers. But something went wrong in the law’s implementation. The original law was about equality of opportunity and indeed forbade quotas or reverse discrimination schemes. But over the years, government officials, college administrators and jurists — spurred on by groups like the National Women’s Law Center and the Women’s Sports Foundation — transformed a fair-minded equity law into just such a quota-driven regime, with destructive results.

Women’s groups strongly object to the “q” word. “Title IX does not in any way require quotas,” says the National Women’s Law Center. “It simply requires that schools allocate participation opportunities non-discriminatorily.” That can mean many things, but in the hands of bureaucrats and advocates, this diffuse requirement somehow came to mean that women are entitled to “statistical proportionality.” That is to say, if a college’s student body is 60% female, then 60% of the athletes should be female — even if far fewer women than men are interested in playing sports at that college.

Title IX defenders will tell you that there are several ways that schools can satisfy the non-discrimination standard other than proportional representation. That is true on paper but false in practice. The regulations are murky and ever-changing, leaving most schools to scramble to the only safe harbor: Proportionality.

Schools have cut back on male teams and created new women’s teams, not because of demand but because they fear federal investigations. Since football is a money-generating male sport with large rosters, Title IX quotas have all but decimated smaller less lucrative sports such as men’s swimming, diving, gymnastics and wrestling. More than 450 wrestling teams vanished since 1972, with only 328 remaining.

Then why not say that men’s sports were a casualty of football rather than Title IX? Because women’s groups have consistently rejected reasonable solutions to the football challenge. College football is qualitatively different from sports like diving, rowing and tennis. It is a mass spectacle, loved by millions of students, and integral to the identity and history of colleges and universities everywhere. It requires a large number of players and has no female counterpart. So why not just take it out of the Title IX mix? That one concession would have saved hundreds of small male teams. But no such concession was offered. Football is not destroying men’s teams; intransigent women’s groups and their “proportionality gap” bear most of the blame.

Look what happened at Howard University in Washington, D.C.: The school’s student body is 67% female, but women constitute only 43% of its athletic program. In 2007, the Women’s Sports Foundation, a powerful Title IX advocacy group, gave Howard an “F” grade because of its 24% “proportionality gap.” Howard had already cut men’s wrestling and baseball and added women’s bowling, but that did little to narrow the gap. Unless it cuts almost half of its current male athletes, Howard will remain under a Title IX cloud and legally vulnerable. The school’s former wrestling coach, Wade Hughes, summed up the problem this way: “The impact of Title IX’s proportionality standard has been disastrous because … far more males than females are seeking to take part in athletics.”

But the Women’s Sports Foundation disagrees. Girls are every bit as interested in sports as boys. According to its Title IX Myths and Facts, “Given equal athletic opportunities, women will rush to fill them; the remaining discrepancies in sports participation rates are the result of continuing discrimination in access to those opportunities.” And many well-meaning judges and government officials have agreed with them.

But there’s overwhelming evidence that women, taken as a group, are less interested than men in competitive sports. In 2012, a group of psychologists analyzed men’s and women’s propensities by looking at how many of them pursue team sports in their leisure time. Intramural sports are recreational games that college students can play just for the love of the sport. The researchers found that only 26% of intramural participants are women. They also studied recreational activity in 41 public parks in four different states. Lots of women were exercising, but only 10% of those playing competitive team sports were women. A 2013 ESPN report on youth sports found that 34% of girls in grades 3-12 say sports is a big part of who they are; for boys the figure is 61%.

No matter how much the Title IX activists and government officials want to pretend otherwise, the sexes are different. Overall, women care far less about athletics, both as participants and spectators. Sports Illustrated for Women, first published in 2000, was marketed to females between the ages of 18 and 34 with a “passion for sports.” The magazine lasted less than two years. The Women’s United Soccer Association and the American Basketball League were supposed to appeal to this same passionate demographic: Both folded after a few seasons. There is no call for magazines such as Vogue, Allure and Cosmopolitan, or websites like Jezebel, to include stories about draft picks, photographs of awesome plays and up-to-date information about fantasy teams and brackets.

Meanwhile, men by the legion (and a small percentage of women) support a vast network of sports magazines, websites, radio shows and fantasy teams. More than half of young men are sports-obsessives, and many would give their right arm to play competitive sports in high school or college — or even to sit on a bench all season with only a remote chance of playing.

“Build it and they will come,” says the National Women’s Law Center. But they don’t come. At least not many. So colleges are going to absurd lengths to achieve gender balance. It is not an easy task when women now far outnumber men on many campuses—thereby raising the proportionality hurdle—yet far fewer of them aspire to play varsity sports. Many schools solve the problem by axing men’s teams or limiting their rosters. Padding the women’s numbers is another common maneuver. As a 2011 story in The New York Times reported, nearly half of the fencers on Cornell’s women’s fencing team were men. Because of some loophole, male practice players counted as women. And, according to the Times, players don’t actually have to play to be counted as members, so at many schools dozens of girls are technically on teams — but never play. Some —like several women that were on the University of South Florida’s cross-country roster — didn’t even know they were listed.

Title-niners treat women’s underrepresentation in sports as an injustice that must be aggressively targeted. But areas where men fall behind raise little concern. They cannot have it both ways. If Howard University’s 24%sports gap (favoring males) warrants federal intervention, then its far more serious 34% attendance gap (favoring females) should warrant a Congressional investigation.

Instead of more investigations, restrictions, closed opportunities, bean counting, number fudging and gender politics, we should follow the advice of the novelist (and former wrestler) John Irving: “Keep Title IX: eliminate proportionality.” I know of no better way to celebrate this intrinsically good law on its 42nd anniversary.

Christina Hoff Sommers is a resident scholar at the American Enterprise Institute. She is the author of several books including The War Against Boys and hosts a weekly video blog The Factual Feminist . Follow her @CHSommers