See, a Sober Analysis of Title IX Is Possible

Judicious  and candid as ever, Richard Epstein, professor of law at New York University and senior fellow at the Hoover Institution, writes in Ricochet “Why No One Should Celebrate Title IX.” Making the case for full repeal, Epstein argues that government intervention in athletics has caused more discrimination, not less. He says that market forces should dictate how schools build their athletic departments and distribute scholarship funds, not bureaucrats.

The American Sports Council promotes taking a different approach than Epstein to address the multitude of problems caused by the overzealous Title IX enforcement regime. We don’t advocate for the repeal of Title IX. Instead, we favor reforming regulations to ensure that the law as written is better supported and gives students more of say in their extracurricular activities.

Still, Epstein’s observations about the detrimental impact of Title IX policies in school athletics are spot-on:

The administrative interpretation of Title IX works to demand a parity in levels of participation by sex, which means that either many female athletes have to be added or many male athletes have to be cut out. The former becomes very expensive, given that the natural rate of participation in athletics is such that more men, wholly apart from brainwashing, prefer to participate in athletics than women. That is certainly what happens in intramurals.

It is also what happens given that football, wrestling, boxing and ice hockey are much more likely to attract male athletes than women. Female injury rates are higher than those for men in comparable sports, which helps explain their lower level of participation in activities that could prove harmful to their health. This point is acknowledged in professional sports, where women do not play five-set matches in tennis or 48-minute games in basketball. The owners and athletes know better.

Many feminist defenders of Title IX contend that this distribution is a function of some insidious form of social conditioning. They cannot accept the simple observation that men and women, given their different endowments, also have different preferences. Women are more likely to do ballet and dance than men, and no one thinks that this commendable preference indicates a fatal imbalance in our social order. But given that these preferences are in fact quite strong, the only way to force the system into equilibrium is to subsidize female athletics to the hilt and to penalize male athletes by the wholesale cutting of teams.

Thus, in the bizarro world of Title IX, it makes sense to give huge scholarships to fund a women’ s ice hockey team while eliminating a men’s swimming team whose eager athletes would happily clean out the pool for the change necessary to fund their program. There is no question that any given male athlete has far fewer opportunities for intercollegiate sports than any female athlete. The government manacles under Title IX have perpetuated wholesale distortions that are now impossible to remove from the system.

The larger lesson is that anti-discrimination laws do not stop discrimination. They allow the government to perpetuate the worst forms of discrimination by the use of public force. It is for this reason that one should be so worried about the mindless efforts of the Obama Administration to extend the proportionality requirements from sports in order to rectify the supposed imbalance in the sciences. There is no question that there are all sorts of gender differences in this area, but they are not evidence of any form of institutional discrimination.

A “bizarro world” of regulations, investigations, lawsuits and gender quotas, indeed.


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