Epstein focuses on the case of Quinnipiac College. Quinnipiac, for the purposes of conforming to the mandated quota levels, categorized competitive cheerleading as a sport. Since women dominate cheerleading, the addition of that activity to the sports program raised the numerical female numbers. Why bother engaging in this absurdity? Because, otherwise, the college would be required under Title IX regulations to eliminate men’s sports in order to reduce the male numbers until the percentage quotas are reached.
A lawsuit followed Quinnipiac’s action, and a Federal judge threw out the cheerleader designation, seeing “discrimination”.
Epstein describes how Quinnipiac jumped through hoops to facilitate women’s sports, despite the fact that the interest just isn’t there on a level approaching that of men. Not enough participants are available and not enough paying spectators. Women’s sports are thus heavily subsidized, an unfair burden to impose on colleges. There is no “sex discrimination”, just the workings of the market, the demands of which Quinnipiac and other colleges are forbidden to seriously consider.
Epstein makes a good concrete case against Title IX Athletics regulations. But, so have many others over the years, to little avail. Why? He fails to challenge the basic assumptions and premises that drive them.
For example, Epstein laments that "the Office of Civil Rights has issued an aggressive administrative interpretation of Title IX that could care less about equal opportunity in all sports", but doesn't challenge the ideology behind it – egalitarianism. Egalitarianism is the rejection of all human values ... values as such. Egalitarianism views individuals as interchangeable components in a human ant colony, rather than metaphysically autonomous, reasoning beings possessing independent attributes. Egalitarianism is evil because it in contrary to the nature of man. Intellectual and physical ability, personal self-motivation, goal-directed self-determination, free will and personal preference, and other individual virtues and values mean nothing. Their purpose is not some misguided lofty goal. Their purpose is nihilism and the rejection of the laws of nature and justice. Viewed from the motives behind egalitarianism, Gender Equity is not "twisted logic", but makes perfect sense.
Epstein has no problem with Title IX itself, calling it a “great engine of sex equality”. But equality properly understood does not mean group equality, but individual equality. It does not mean equal entitlements to services such as college athletics provided by the school, but the political freedom to act in accordance with one’s own judgement. Each person, regardless of personal characteristics that fit a certain grouping, possesses certain unalienable individual rights to freedom of action. Those rights are held equally, by all people, at all times, and protected equally and at all times, by a government limited by a body of objective laws. Rights are limited only by the requirement to respect the same rights of others. A person's sex, race, national origin, belief system, etc. doesn't change that. It's either collectivized rights or individual rights. Epstein chooses the former, the driving force behind Title IX. By implication, this means the rejection of the political equality of individuals, the fundamental moral premise that sets America apart from all other nations throughout history.
Epstein comments that "Title IX looks relatively benign". Specifically, Title IX reads:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational program or activity receiving federal financial assistance.
This is anything but benign. To begin with, government funding of any private activity is based on coercion. It represents the initiation of physical force against private citizens via taxation: the very citizens whose rights - including property rights - governments are established to protect. But we're not just talking about what amounts to the legal organized crime of wealth redistribution. There is a much more sinister and dangerous element to this. By forcing private citizens to fund "federal financial assistance" to higher educational institutions, the government is forcing them to promote ideas that they may not agree with. For example, my tax dollars are being used to impose egalitarian policies. I consider egalitarianism (in its modern meaning) to be not just non-sensical but in fact evil. Yet, I am forced to financially support it.
The government is, in effect, empowering a handful of government bureaucrats and special interests to determine which ideas the people should abide by. The entrance of government into the field of ideas as a determinant of their validity or non-validity is a hallmark of a dictatorship, not of a free country or of the United States of America. “Federal financial assistance” is the wedge of statism into higher education. As evidence, I point to the above "benign" Title IX.
Government funding in any field is, in fact, a tool of coercion and enslavement. It is the means by which officially sanctioned ideas are introduced into American society, in direct contradiction to the spirit of the US Constitution’s First Amendment “Establishment” clause. For a wider discussion of why this is so, see Amit Ghate’s PJM article, Ideas and the State.
Another false premise Epstein accepts to justify government-imposed anti-discrimination rules is the necessity "to limit monopoly power". Monopoly power, properly understood, is the ability to coercively – i.e., legally – exclude competition and protect privileged economic position. That power can only emanate from the government, whether directly or through quasi-private corporations, which alone holds a legal monopoly on the use of physical force. It is the only domestic threat to a free society, which is why a constitution is needed to protect the people from the abuse of that power. Yet Epstein, the Libertarian, has no problem granting to government the power to impose restrictions and regulations on the people’s freedom to associate. Epstein approves of the expansion of government’s monopoly power of legalized physical force beyond its proper function – the protection of individual rights – in order “to limit monopoly power”!
Epstein fails to challenge Egalitarianism and Federal funding of education, and the resultant violations of the principles of individual rights and the legitimate role of government. Though he tears apart the regulations, convincingly demonstrating their unjust absurdity and impracticality, Epstein’s failure to address the underlying issues involved is the fatal flaw in his argument. The issue is not the proper implementation of anti-discrimination laws. It’s the anti-discrimination laws themselves. There is simply no way to measure “discrimination” except by numerical analysis. That means quotas. The only question then is, whose quotas (and ideas) will hold sway? Did Tiltle IX eliminate sex discrimination? No, it institutionalized it.
Government-enforced anti-discrimination laws and regulations are unjust because they place the state in the position of interfering in the rights of private individuals to act upon their own judgement. Yes, some will act irrationally. But private citizens are not a threat to anyone’s freedom, because they can not impose their views on others. Government officials can, because government is by nature an instrument of legalized physical force. As Epstein has shown in the case of Quinnipiac, there was no sex discrimination, just a college attempting to walk an impossible tightrope in order to meet the demands of the market while attempting to satisfy the irrational dictates of the government’s “civil rights” enforcers. Yet it is government, in the name of fighting discrimination, that is imposing state-sponsored discrimination against private individuals whose legitimate actions and ideas the officials don’t approve of. Government sanctions against private discrimination is itself discriminatory, because it singles out a particular group of people who are forbidden to act upon their unalienable right of free association.
Opponents of Title IX regulations are unilaterally disarmed morally and philosophically against the statists/egalitarians, by their own choice. Yet, the battle is moral/philosophical, and can only be fought on those grounds. To defeat these absurd intrusions into the lives of private citizens, only a strong and uncompromising defense of individual rights – everyone’s individual rights - will do.
Epstein ends with an objection to "unprecedented and unwarranted federal interference in the internal operations of colleges", a warning of an impending "totalitarian peace", and a call for "a renewed commitment to principles of freedom of association" (one of the basic individual rights). To achieve that last, all federal funding or "financial assistance" of higher education must stop, the doctrine of egalitarianism must be exposed as the evil that it is, and individual rights and political/legal equality must be upheld. It's all about ideas and philosophy. There must be no compromises in that area.
Instead, whether implicitly or explicitly, Epstein accepts all of the premises behind the policies he calls illogical. That is a patently ineffectual way to fight against the madness of Title IX, and it won't work. Unilateral philosophical disarmament never has.