As Prof. Epstein notes,
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...
Illustration by Barbara Kelly
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.This has resulted in universities around the country terminating men's athletic programs and taking bizarre steps to exploit loopholes in the regulatory structure. Prof. Epstein suggests ending these farcical incentives and repealing Title IX:
[Congress] 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.