The Twisted Logic Of Gender Equity

By  - Richard A. Epstein 
In the midst of all the current tumult over health care, banking and taxation, it is useful to return for a moment to a persistent thorn in the sides of all colleges: the gender equity requirements for athletics that emerged under Title IX of the Civil Rights Act of 1964. The current cause-célèbre is a much hailed decision by Judge Stephan R. Underhill in federal District Court in Connecticut in Blediger v. Quinnipaic. As the story is relayed in the press, the crux of the case was the judge's determination that "competitive cheerleading" did not count as a sport for the purposes of the gender equity rules of Title IX. On the strength of that finding, he concluded that Quinnipiac had to reinstate its women's volleyball team that had been slated for extinction.

On its face, Blediger looks like another case of an unscrupulous college using shenanigans to undermine Title IX's great engine of sex equality. The backstory, however, reveals a different picture--one of a university that turned cartwheels to meet the demands of its students without running afoul of the Title IX juggernaut. On its face, Title IX looks relatively benign when it provides: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving federal financial assistance."

This provision has provoked little litigation with academic programs. But it has generated a firestorm of controversy over intercollegiate athletic programs. Read literally, it would require that all athletic teams be open to men and women equally, at which point there would be no female athletes. Race-blind athletics works well; sex-blind athletics does not. So the statutory command had to be fixed to meet the problem. So the once dreaded phrase of "separate-but-equal" became the measure, so that there can be both women's and men's team in sports like volleyball and basketball.

But it hasn't worked out that way. For starters, note that Quinnipiac has no men's volleyball team to cut, which is hard to square with the Title IX requirement that all educational programs or activities be open equally to men and women. Nonetheless, since 1979, the Office of Civil Rights has issued an aggressive administrative interpretation of Title IX that could care less about equal opportunity in all sports. Rather the OCR rule looks solely to the numbers, by decreeing that colleges will be deemed to discriminate by sex unless the proportion of women engaged in sports, relative to enrollment, is the same as it is for men.

That external constraint massively distorts the face of college athletics. First, in many colleges (but not Quinnipiac) men's football is the dominant revenue source, which has no female equivalent. Football teams carry large squads. Impose strict numerical equality and all other men's sports get wiped out, along with the revenue source for women's sports. So we wink at that one.

Football aside, the participation rates of men in all voluntary programs are higher than they are for women, by close to a 2 to 1 ratio. That's the ratio for intramural sports, and for all other measures of participation outside college settings. Hence for colleges with the same number of men as women, we should expect close to twice as many men to participate in sports. To meet proportionate participation rates, men's sports have to cut ruthlessly and women's sports have to be heavily subsidized.

The shifts are still more powerful because women constitute by around 60% the enrollment of American colleges. That reality hits Quinnipiac hard, so that it has 13 sports programs for women and only 7 for men. Blediger arose when Quinnipaic cut its men's golf team, its men's outdoor track and its women's volleyball team. Right now, women can participate in both indoor and outdoor track. Men can participate in neither. The proposed cuts of the two men's team helped get the numbers right, so they passed muster without the object. But the cut of women's volleyball raised the whelps when the nonsport of "competitive cheerleading" was put in its place.

The imbalance between men's and women's sports opportunities has nothing to do with either student demand or budget. If the Quinnipiac alumni offered to paid in full for a new men's wrestling team, the school could not start one even if the men lined up 10 deep for each place on the team. Don't blame the harried officials at Quinnipiac, who have resorted to all sorts of gimmicks to open more places to meet the unsatisfied demand for men's sports. They require women's teams to meet certain minimum numbers--to make way for more men. They require men's teams to meet maximum numbers--to cut down on the need to draft women. They count any woman who does cross-country, indoor track and outdoor track separately for each sport. Men count once because they can only compete in cross country.

This ill-fated law suit only makes matters worse. Judge Underhill issued a judgment that discrimination has reared its ugly head once again in college sports. His judgment thus will spur women's advocates and key organizations like the National Collegiate Athletic Association, and American Association of University Professors (AAUP) to stress once again the necessity for strict enforcement of Title IX. The Obama administration will surely follow suit.

In fact, American colleges should be allowed to move rapidly in the opposite direction. The proper role for an anti-discrimination rule is to limit monopoly power, which used to be common in transportation, communication and power, but is much harder to create maintain in the face of modern technical innovations.

In dealing with universities, however, the effect of anti-discrimination laws is almost always perverse. The color-blind requirements for race are utterly incompatible with the private demand for affirmative action programs. It took some fast-stepping by the Supreme Court to allow voluntary affirmative action programs, which have generally worked tolerably well without government policing. A similar willingness to allow voluntary action for intercollegiate sports also would have worked just fine. But the hugely coercive impact of Title IX requires every college to deviate from sound principles or internal governance to meet these inexorable government demands.

Now that Quinnipiac has gotten its come-uppance, it will take time before any other college finds the gumption to challenge this unprecedented and unwarranted federal interference in the internal operations of colleges across the land. A totalitarian peace will rule the land. Yet what is needed right now is a renewed commitment to principles of freedom of association that today is in all too short supply in our public discourse.

Richard A. Epstein is the Laurence A. Tisch Professor of Law, New York University School of Law, the Peter and Kirsten Bedford Senior Fellow, The Hoover Institution, and the James Parker Hall Distinguished Service Professor, The University of Chicago.