Yesterday marked the 42nd birthday of Title IX, the statute that outlawed sex discrimination in all federally funded educational programs. Although Title IX applies to all educational programs and was not intended to be a statute primarily about equal opportunity in sports, it is nonetheless probably best known for the dramatic effect it has had on athletics funding. Numerous colleges have cut low-profile men’s sports teams in sports like swimming, wrestling, and gymnastics in order to ensure that they are offering substantially proportional athletic opportunities to men and women.

Christina Hoff-Sommers has a column in Time magazine commemorating the anniversary and describing how this law requiring equal treatment has been bureaucratically transmogrified into requiring preferential treatment for female sports teams over male teams. (In this essay for the Federalist Society’s Engage magazine, I offer a longer and more detailed history of Title IX mis-interpretations.) Hoff-Sommers argues persuasively that Title IX should be re-interpreted in the sports context to mean what Congress originally intended to mean: universities cannot discriminate on the basis of sex when deciding what athletic teams to fund, but that they can offer different numbers of athletic slots if one sex is less interested in sports than the other.

Let me add just two additional thoughts: one, women pursue some worthy extracurricular pursuits at higher levels than do men. According to Department of Education Institute for Education Sciences data from 2009, female ninth-graders are more likely than males to participate in art, music, dance or theater, religious groups, and scouting. Perhaps surprisingly given concern about gender gaps in math and science, female ninth-graders were also slightly more likely to participate in math and science related extracurriculars. Data regarding high-school seniors’ extracurricular interests from 1992 and 2004 similarly showed that women were more likely than men to take art, music, and dance classes; perform community service; or read books not required for school. Women in both 1992 and 2004 were also more likely to participate in vocational clubs, such as the Future Farmers of America or SkillsUSA. From this data, it hardly seems that women are deprived of opportunities to hone leadership skills, build self-confidence, or attain any of the other benefits generally associated with school sports.

Extracurricular budgets are finite. Even the wealthiest schools face trade-offs (although less stark ones than poorer schools do) in deciding what to fund and what not to. Money spent on sports teams that women don’t really want is money that cannot be spent on producing a musical, state-of-the-art digital photo editing software, or new library books. The “substantial proportionality” approach to Title IX has probably hurt some women by encouraging schools to divert funds away from activities that female students disproportionately enjoy.

Two, the Obama Department of Education has made matters slightly worse on this front. During the George W. Bush administration, the Department of Education’s Office of Civil Rights developed a “Model Survey” that universities could administer to assess student interest in different sports. A university with survey results indicating low levels of interest from one sex in a sport would create a rebuttable presumption that the school did not unlawfully discriminate in deciding not to fund that sport. The survey would have helped schools ensure that they are channeling resources toward where they are most valued. But in 2010, the Obama administration rescinded the survey. (Curiously, the administration has embraced surveys of university students in areas where they think they will like the results better.) The survey’s rescission means that more universities will be inclined to use the “substantial proportionality” approach in making athletics funding decisions.