Austin American-Statesman: Yes to women in sports. No to rigid quotas in Title IX enforcement
A recent piece in the Austin American-Statesman asked: “Who decided girls don’t really want to compete?” But no serious commentator disputes that plenty of women enjoy competing, even at the highest levels of sport. The real policy question is: Who should decide how athletic opportunities are allocated?
Should federal bureaucrats impose a stifling quota regime, ignoring students’ actual stated interests? Or are high schools and colleges capable of allocating athletic opportunities based on where student interest lies?
For far too long, the federal government has relied on the former approach, despite not being actually legally authorized to do so. As my Pacific Legal Foundation colleagues and I have argued, the government should abandon its quota-driven enforcement policies and return decision-making about athletics back to schools and students.
Title IX of the Educational Amendments of 1972 prohibits sex discrimination in education programs receiving federal funding. The Congress that enacted it into law barely discussed sports. On the other hand, its sponsors were clear that gender quotas were “exactly what this amendment seeks to prohibit” and that the “thrust of the amendment is to do away with every quota.”
Nonetheless, in 1979 the Department of Health, Education and Welfare issued a guidance document transforming Title IX into a quota statute. It said universities comply with Title IX if they meet any prong of a three-part test. Prong one requires that athletic opportunities be “substantially proportionate” by sex to enrollments. Prong two required a “history and continuing practice of program expansion” in athletic opportunities for the underrepresented sex. Prong three required schools to demonstrate that the “interests and abilities of the members of the underrepresented sex have been fully and effectively accommodated.”
While universities can theoretically demonstrate compliance under any prong, often demonstrating compliance under the first is the only practical option. Under prong two, for example, the question arises: how much of a history of continuous expansion is enough? How long until the university can stop and accept unequal numbers as nonetheless good enough? In practice, the answer is: when proportional representation is achieved.
Similar problems exist under prong three. How is a school to determine when students’ interests are finally met? Students often express initial interest in an extracurricular activity and then don’t follow through; should universities credit every expression of interest, knowing many students change their minds? What if different measures of interest cut in different directions?
Commonly, men’s teams are cut to achieve gender quotas. Some male athletes have sued, claiming that eliminating a team just because of its members’ sex is itself a violation of Title IX and, at public universities, a constitutional violation.
Creative athletic accounting to please the Department of Education has also become commonplace. Some have reclassified cheerleading as a varsity sport to please regulators. Others have figured out that classifying cross country, indoor track, and outdoor track as three separate sports allows them to pass off a team of 30 female runners as 90 female slots.
Has all of this even helped women? The number of women participating in extracurricular athletics had been rising in the years before Title IX. Rising participation after Title IX likely represents a continuing trend.
Women collectively are also more interested in non-athletic extracurricular activities like art, theater or choir than men. Perversely, proportionality guidance demands that universities take an “if you build it, they will come” approach to funding female athletics, while shifting resources away from the artistic pursuits that interest actual women.
It’s time for the Department of Education to end its failed experiment in substantial proportionality and let schools and students decide how to allocate athletic opportunities by themselves.
This op-ed was originally published in Austin American-Statesman on August 20, 2026.
