Stephen Reynolds has a problem: The 21-year-old college gymnast keeps losing his teams. Three years ago, when he was a freshman at Syracuse University, the men’s team on which he competed was cut from the school’s varsity sports program. So he transferred to Virginia’s James Madison University. Now, JMU is about to cut Reynolds’ team, too.

It’s not that Reynolds is a jinx. It’s that at JMU, women make up 58 percent of the student population, but only 41 percent of the school’s athletes. Under Title IX, the federal law banning sex discrimination in educational institutions that receive government funds, JMU (like Syracuse) has not achieved “proportionality” in its athletics programs — that is, the percentage of women participating in varsity sports does not mirror the percentage of women in the student body. So the school plans to cut teams to make the numbers work.

In the rush to achieve equality between men and women in school-sponsored sports, Title IX, a law intended to expand opportunity for women in the classroom and on the playing field, is now being used to restrict opportunity for both men and women. Under the law as it is interpreted today, the pursuit of equality in athletics has become a strict numbers game, with adverse and unintended consequences. Under pressure to achieve proportionality, schools are finding that by reducing the number of men in sports, the proportion of women in sports rises automatically.

The alternative, university officials say, is to risk lawsuits and a loss of funding for failure to comply with Title IX. JMU was threatened with this last year, when a member of the women’s club softball team (a self-supported, non-varsity team) went to the U.S. Department of Education and charged the school with discrimination for failing to give the team university-funded varsity status. The school can’t afford to add any more women’s teams — it already offers women 14 sports, far above the national average, and one more than it offers its men. So it is preparing to make wholesale cuts in its sports program, considering five men’s teams and three women’s teams — all standouts in their own way — for elimination at the end of the academic year. That way, though fewer opportunities to play will be offered to all students, they will be offered in the right proportion — so that around 58% of JMU’s athletes are female, and 42 percent male. In the end, opportunities for women won’t increase and opportunities for men will decline considerably — by 107 team positions. But the school will have solved its Title IX problem.

JMU’s pursuit of Title IX-required “gender equity” in sports is typical of most colleges and universities today. Schools that once worried about creating equality of opportunity for female student-athletes now spend more time trying to produce the appearance of equality — usually at the expense of male athletes. They target low-profile, so-called “non-revenue” men’s teams for elimination. Most are unwilling to touch expensive football and basketball programs, which attract money from alumni and boost a school’s profile.

Such outcomes weren’t the original intent of Title IX, which was passed in 1972 as a straightforward nondiscrimination statute, stating that: “No person in the United States shall, on the basis of sex, be…subjected to discrimination under any education program or activity receiving Federal financial assistance.” Women have certainly made tremendous gains under Title IX. In 1971, only 43% of undergraduates at U.S. colleges and universities were women; today, 56 percent are. In intercollegiate sports, women’s participation has tripled, and the average female athlete now receives more scholarship aid than her male counterpart.

Title IX itself makes no mention of intercollegiate sports or proportionality. All that was added later, by federal education officials who wrote the statute’s implementing regulation, and by the courts, which in turn interpreted that regulation. The Education Department, which enforces Title IX, is loath to admit that proportionality has become the reigning standard of compliance with the law. Department officials claim that schools need only address the “interests and abilities” of female athletes. But in the eyes of the schools, proportionality is the real standard, one that in effect creates a quota system for athletic participation that hurts men while not necessarily helping women.

“The law has forced us to look at our program,” says JMU athletic director Jeff Bourne. “When you have a program as big as ours and you’re looking at proportionality, it’s hard to come into compliance without making some cuts.”

Growing female majorities on campus are pushing proportionality further and further out of reach for many schools. Last year, in pursuit of “gender equity,” the University of Miami eliminated the men’s swimming and diving program that produced Olympic gold medalist Greg Louganis. Brigham Young University eliminated its top 10 ranked men’s gymnastics team and its top 25 ranked wrestling team. The University of New Mexico slashed three men’s teams. Miami University of Ohio eliminated 30 wrestlers, 25 men’s soccer players and 10 men’s tennis players — not just to save money (the men shared a total of eight scholarships among them), but to get the numbers right.

All the schools cited the need to achieve “gender equity” amid athletic department budget constraints as the reason for making the cuts. University of Miami athletic director Paul Dee said the school had no other way of bringing the percentage of female athletes in line with the percentage of undergraduate women. “These fine young men are being displaced for reasons…which they did not cause,” Dee said. “It is extremely regrettable that this is the necessary solution to the issues we face.”

A 1997 NCAA gender equity study showed that more than 200 men’s teams and 20,000 male athletes disappeared from the ranks of America’s colleges between 1992 and 1997. A 1999 study by the General Accounting Office found that men’s opportunities had declined by 12 percent since 1985. Meanwhile, during the same period, the number of boys playing high school sports increased by about 400,000.

Title IX proportionality doesn’t hurt just men. Despite high student interest, colleges and universities that have reached proportionality often freeze their athletic programs at the minimum number of teams required for membership in the NCAA — all for fear of upsetting the mathematical balance. Officials at JMU had resisted making this compromise. While other schools in its conference offer an average of 18 teams, JMU features a whopping 27. But even though they have more teams, female students at JMU compete at a lesser rate than men, reflecting a nationwide pattern.

Although NCAA schools offer more sports teams to women than to men — 553 more, to be precise — more men choose to participate in sports. Women constitute only about 40% of college athletes. For whatever reason, the squad sizes for women’s teams tend to be smaller than those of men’s teams. Many women’s coaches prefer smaller team rosters, and fewer women than men are willing to “ride the bench” all season without getting a chance to play, coaches say. But the federal regulators who enforce Title IX are only concerned with bodies on the playing field. The losers are schools like JMU, which considers sports to be part of a well-rounded education experience. With lots of teams, but relatively low female participation rates, complying with Title IX means eliminating men’s teams to get the numbers right.

The courts, with the backing of Clinton administration officials, consistently upheld the right of female athletes to be given preference over men when their numbers don’t reflect their percentage of the student body. No aggrieved female party has ever lost such a court challenge, and since 1991, when Brown University was sued under Title IX for failing to maintain a 50% female ratio in its athletics program, not a single women’s team has been eliminated in Division I collegiate athletics. Meanwhile, participation by men in the same division declined 10% between 1991 and 1997.

JMU’s proposed cuts have generated an outpouring of support for the threatened athletes on campus. Students, male and female, have formed an ad hoc committee called Save our Sports (SOS), which has proposed redistributing funds from other programs to pay for additional sports, even suggesting an increase in student fees. But Michelle Cooligan, a junior on the women’s club softball team that filed the complaint, feels she and her teammates on the squad are being blamed unfairly for the situation. “As far as I know, JMU is way out of compliance with Title IX,” she says. “This was going to come about anyway.” At the same time, like the majority of her fellow students, she regrets the remedy her school is being forced to consider. “We’re very excited that we have a chance to try out for the varsity team,” she says. “But we don’t want this opportunity at someone else’s expense.”

At JMU and on other campuses, students and faculty alike have a seemingly genuine desire for fairness. But no one questions the twin fallacies that underlie the current implementation of Title IX: that the failure of women to participate in sports at the same rate as men means that something is “wrong,” and that achieving proportionality means everything is “right.”

“Universities are supposed to be places of inquiry, but some subjects appear closed to scrutiny,” says JMU English professor Robert Geary. “Students seem caught in a vise of bureaucratic rules which are combatting ills that may well not exist at all.”

The fact that the current version of Title IX was written by federal officials and expanded by judges, and is not the work of elected members of Congress, means that a new administration in Washington has the opportunity to change the way the law is being implemented. This, at least, is the hope of officials at JMU. “We would hope that rather than just doing a head count or implementing a quota, Title IX compliance would be measured through taking into account opportunities for women,” says JMU’s Bourne. “We don’t want to go back to where we were 20 or 30 years ago. We just want a system that is equity-based and fair to every sport.”

Title IX has played a significant role in a great national success story of women in education, on and off the field. But while the law has never been amended in the 29 years since its passage, its enforcement under the Clinton administration changed dramatically. The time has come to return to the original intent of Title IX — ensuring equal opportunity for both men and women in the nation’s schools. The new Administration and Congress should make it clear that the law was never intended to force schools into mindless proportionality. When the facts show that women are being discriminated against, the law must be enforced. But when the numbers show that men and women aren’t behaving the same way, schools should be left alone. 

Otherwise, men will continue to lose so that universities can show the federal government the illusion of gains for female athletes. “If we stay where we are and the interpretation is the same, we will have to look at eliminations,” Bourne says. “We don’t determine what the law is, but we are required to live with it and enforce it.”

This article originally appeared in the Washington Post. Jessica Gavora is the former Director of IWF’s Title IX project and is currently working on a book about Title IX to be published in the fall by Encounter Books.