Richard Epstein Argues Against Title IX
This year marks the 40th anniversary of the adoption of Title IX, which requires “gender equity” in higher education. To read the blogs on this subject, one might think that Title IX was exceeded only by the Emancipation Proclamation in its social importance. It is common to praise Title IX for the massive increase in the number of women who participate in intercollegiate athletics, and to note that women now number a clear majority of the students in higher education, with around 58 percent, give or take, of the total enrollment.
Notwithstanding this sunny picture, Title IX should be repealed. More concretely, there are two insuperable problems with the law, which should be fatal to these overblown claims. The first of these is that the champions of Title IX specialize in committing the fallacy of post hoc, propter hoc. Many of the changes that have happened in the past 40 years are to the better, but it hardly follows that they are the consequence of adopting Title IX. All sorts of individual and market forces have exerted their influence as well. Women are not inert. They can take, and they have taken, bold initiatives in their personal and professional lives. These actions, when summed up over many people and many years, will change the landscape in both athletic and academic disputes. Many of these trends started before Title IX was passed, including the decision of most major private colleges to go co-ed. There is no reason to think that these actions stopped dead in their tracks once Title IX was put in place in 1972.
The second difficulty with the argument is that the observed changes under Title IX have not all been to the good. In the area of athletics, there are ways to increase female participation without having to kill off male participation in sports: namely, devoting more resources to these activities. Most universities have administrations that are more than sympathetic to the claims of female athletes and there is no reason to think that they would spurn any well-conceived request for an expansion of a program, especially with the large female enrollments and the substantial number of women in high places in university administration.