Two weeks ago, the referee in an ongoing contest between girls and boys made the game much more fair. But the U.S. Department of Education’s new guidelines  for Title IX of the Education Amendments of 1972, which requires colleges to offer gender equity in intercollegiate athletics, has met with nothing but jeers from fans of the old rules.
At least on paper, the guidelines for complying with the student participation element of Title IX are pretty clear. Universities need to meet one of three prongs to be in compliance: They must either (1) ensure women are represented in athletics in numbers proportionate to their presence in the student body; (2) demonstrate continued efforts to expand athletic opportunities for the underrepresented sex; or (3) show they are fully accommodating women’s athletic interests.
The third prong is at the center of the current debate. How does a school show it is providing intercollegiate athletic opportunity on par with women’s interest?
The answer, one would think, is obvious: You ask them. In practice, though, it has been far from that simple. Guidance from the Department of Education over the years has been unclear, and colleges have faced a constant threat of litigation for falling short of anything less than "proportionality."
With its new guidance, the Department of Education is finally trying to let schools to use the common sense solution, enabling them to comply with Title IX by e-mailing a survey to all students asking them about their interest in participating in intercollegiate athletics, and judging schools by how closely what they offer matches what women want. It makes sense. So what’s the problem?
Like a home crowd whose team just had a touchdown called back, Title IX’s proponents pounced on the department’s new rules. In an Inside Higher Ed commentary  last week, for instance, Nancy Hogshead-Makar, an Olympic gold-medal swimmer and an assistant professor at Florida Coastal School of Law, and Donna Lopiano, executive director of the Women’s Sports Foundation, ripped into the new guidance, saying the department is “thumbing its nose at the law and the female athletes it is charged with protecting.”
Of course, home crowds are typically biased -- they want their team to win, after all -- so it’s little surprise that Title IX’s fans are raising questionable objections to the new guidance. Among the weakest, but most important, is the assertion that surveys can’t gauge women’s interest in athletics relative to men because, according to Hogshead-Makar and Lopiano, "culturally, men are simply more likely than women to profess interest in a sport ... women are less likely to profess an interest in sports, even if they are interested!"
Apparently, we’re supposed to give activists like Hogshead-Makar and Lopiano the policies they demand because they say women want to play sports at the same rate as men, but just won’t admit it. Were such logic applied on the playing field rather than in the policy world, it would be like awarding a team points for invisible shots they say only they can see go in the goal.
But let’s suppose women really are unwilling to state their true interest in athletics. Let’s believe Hogshead-Makar and Lopiano when they write that “professing interest in a sport does not predict behavior...." If that’s true, we should find that while lower percentages of women than men profess an interest in putting on their cleats, when it actually comes time to play, women are just as likely to lace ‘em up.
It turns out that contrary to what Title IX activists tell us, what women say does indeed translate into what they do. For instance, according to the Higher Education Research Institute’s report "The American Freshman: National Norms for Fall 2004," between 2.7 and 5 percent of men (depending on the type of college in which they were enrolled) participated in no exercise or sports in a typical week of their senior year in high school.
In contrast, between 4.7 and 16.1 percent of women participated in no sports or exercise.On the high end, between 11.6 and 17 percent of men reported having spent more than 20 hours participating in exercise or sports as high schools seniors, while only between 5.5 and 7.6 percent of females spent that much time.
The findings of "The American Freshman" are corroborated in Taking Sex Differences Seriously, by the University of Virginia’s Steven Rhoads. Rhoads reports that despite the fact that anyone who wants to can play on college intramural teams, typically three to four times more men participate than women.
Surprisingly, the “women want to play as much as men, they just won’t say it” argument might not be the weakest objection to surveys. In a recent Inside Higher Ed article,  Neena Chaudhry, senior counsel at the National Women’s Law Center, argued that sending e-mail surveys to students, in which a non-response indicates no interest in sports, is unfair because "a lot of those e-mails won’t even be opened."
Apparently, the women who are supposedly dying to play sports aren’t even sufficiently motivated to keep an eye out for an interest survey, or to open it when it comes. What coach would even want players with so little enthusiasm for their sport on their team?
Perhaps the one argument with which Title IX defenders score a legitimate point is that a survey will fail to capture the athletic interest of incoming students. Hogshead-Makar and Lopiano argue, for instance, that colleges need to examine the interests not only of current students, but of prospective students, who are often recruited by schools based on their athletic abilities.
It’s a decent argument, but it’s ultimately a losing proposition for Title IX supporters. Because women’s interest in athletics really isn’t proportionate to that of men, sooner or later women’s athletic slots might be offered, but no one will be there to fill them. It's one of the reasons colleges have been forced to cut men’s sports, rather than increase women’s sports, to achieve proportionality.
Unfortunately, as long as government is involved, college sports will continue to revolve around political, rather than athletic, contests, and only the most politically skilled will win. Until now, that’s been supporters of Title IX, who have succeeded in persuading policymakers to require that colleges accommodate a demand for women’s athletics opportunities that can’t even be shown to exist. It’s a game Title IX supporters have liked because the referee -- the government -- has usually been on their side.
But real fairness requires a neutral referee, which political solutions simply can’t provide. Take the government out of the game, though, and colleges and students -- not politicians -- will decide the winner. In other words, abolish Title IX, and let supply and demand take over the referee job.
Importantly, in such a system women will almost always control the ball. They can choose the schools that offer what they want -- athletic opportunities, artistic outlets, good academics, or anything else -- and can run past those that don’t.
Schools that discriminate will be penalized not by the government, but by prospective students who choose to enroll in competing institutions. It’s a competition that will be stacked against sexist institutions: According to the National Center for Education Statistics, 56 percent of college students are women, and their majority status has been growing. Women are a powerful market force.
Unless they really are as incapable of acting on their desires as supporters of the status quo seem to suggest, women will get what they want out of their colleges. But if they continue to cede power to special interests and government, while some women will still win, most everyone else will lose.