Title IX is a good law. The way it’s regulated, however, is not only unfair but unconstitutional. The law precisely states that “...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…”

But men don’t enjoy equal protection of the law.  Enacted as an anti-discrimination statute, Title IX has been converted to a rigid quota system that has denied men sports opportunities.  

To enforce the law, the Office of Civil Rights (OCR) devised regulations that include a three-part test to assess Title IX compliance as it pertains to athletics.  When it comes to litigation, though, part one is the only one that stands up in court. 
 
Part one requires that opportunities for male and female athletes be “substantially proportionate.” After the precedent-setting 1995 gender-discrimination case of Cohen v. Brown University, proportionality became the safe harbor for compliance. Proportionality essentially means that if a school is, for example, 56 percent female, then 56 percent of its athletes must be female (allowing for a 5% variance).

Using a rigid quota system dictated by raw enrollment numbers has changed the way college athletics is run. It ignores individual athletic interests and assumes they’re exactly equal between men and women everywhere – younger and older, on all campuses. Not all women want to participate in athletics, nor do all men.

When schools have too few female athletes (i.e., the percentage of females enrolled exceed the percentage of athletes), they’re presumed non-compliant. They’re then forced to create the illusion of substantial proportionality by denying men the opportunity to participate. This means that many women’s teams have not been helped, but rather, men have been hurt.
 
Applying a rigid quota system to athletics without regard to individual student interests and abilities is illogical and discriminatory. A participation gap, Congress said in 1972, is acceptable as long as it’s not a product of sex discrimination. The regulations for Title IX disregard the language of the law. Unfortunately, they allow males to be excluded from participation on the basis of their gender and thereby deny males their constitutional right of equal protection of the law.  

Editor's Note: This column appeared in the March issue of Congressional Quarterly Researcher