The road that took Title IX from a classically liberal antidiscrimination law to an illiberal gender-quota regime began in 1996 with an innocent-seeming “Dear Colleague” letter written by federal education officials in the Clinton administration. The letter targeted colleges and universities struggling to answer the difficult question of what constitutes (unlawful) discrimination under Title IX in sports programs that are already segregated on the basis of sex. It instructed schools that quotas—equalizing the participation of men and women in athletics, despite demonstrated disparities of interest—were the way to comply with the law.
Activists who had been instrumental in creating the new standard took the federal guidance and ran with it. Aided by the trial bar, they initiated lawsuits that enshrined the new bureaucratic “guidance.” The case brought against Brown University in the early 1990s by a coalition of feminists and trial lawyers set the stage. It alleged that Brown—which offered more women’s sports teams than men’s at the time—had violated the law by downgrading two women’s teams. The university produced reams of data showing that women at Brown had more opportunities to play sports than men, but more men than women played intramural sports by 3 to 1 and club sports by a whopping 8 to 1.
To the applause of the Clinton administration, the court ruled that such data didn’t matter. The responsibility of the school wasn’t to provide equal opportunity to participate in sports—it was to educate women to be interested in sports. In effect the ruling said that Brown women didn’t know what they wanted. They only thought they were dancers or actors or musicians. They had to be taught that they were really athletes. They didn’t know what was good for them but the government did.