FOR YEARS, INTERCOLLEGIATE ATHLETICS HAS OFFERED interested and able students opportunities to experience the lessons of competition, develop physical and leadership skills, be a part of a team, and perhaps most important, enjoy themselves. Good intercollegiate athletics programs require competitive parity, universal and consistently applied rules, and an opportunity to participate according to one’s interest and ability. The majority of NCAA members have sought to assure the foregoing conditions, but there is considerable evidence that they have not fully succeeded with regard to women.
Because there was no assurance of equal opportunity in the range of components of education, Congress enacted Title IX of the Educational Amendments of 1972.1 The federal law stipulates that
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.2
Interestingly, an often-ignored subsection of the statute, often quoted by football coaches, provides:
Nothing contained in subsection (a) … shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance that may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area.3
In 1991, the NCAA surveyed its members’ expenditures for women’s and men’s athletics programs. The survey revealed that undergraduate enrollment was roughly equally divided by sex, but men constituted 69.5 percent of the participants in intercollegiate athletics and their programs received approximately 70 percent of the athletics scholarship funds, 77 percent of operating budgets, and 83 percent of recruiting money.4
In response to the study, the NCAA appointed a Gender Equity Task Force that submitted its report during July 1993. In its report, the Task Force defined gender equity as follows: “An athletics program can be gender equitable when the participants in both men’s and women’s sports programs would accept as fair and equitable the overall program of the other gender.”5 The report also defined the ultimate goal of gender equity as: “The ultimate goal of each institution should be that the numbers of male and female athletes are substantially proportionate to their numbers in the institution’s undergraduate population.”6
In January 1994, the NCAA members gave a lukewarm endorsement of gender equity by voting to encourage member institutions to follow the “law” concerning gender equity.7 One purpose of this article is to review the guiding regulations and cases that interpret the “law” for the benefit of those who are interested in effectively accommodating the interest and abilities of women athletes. We are concerned that the federal court decisions that have dealt specifically with Title IX and “gender equity” have generally failed to focus on the real meaning of Title IX, “fully and effectively accommodating the interests and abilities of women athletes.”8 This is due to a misguided focus almost solely on proportionality in numbers rather than on a real accommodation of athletic abilities.
Another goal of this article is to philosophically and legally examine the underlying principles of gender equity in athletics. To this end, we will criticize this “law” from a perspective based on property rights and economic freedom.
The primary sources of gender equity responsibilities are found in Title IX, the implementing regulations,9 and, perhaps more important, the Title IX Athletics Investigators Manual used by the Department of Education, Office of Civil Rights (OCR).10 Judges who are involved in Title IX cases frequently cite the OCR Manual as authority. The OCR takes several major factors into account in determining whether intercollegiate athletic programs are gender equitable. The program components are accommodation of athletic interests and abilities; equipment and supplies; scheduling of games and practice times; travel per diem allowance; opportunity to receive coaching and academic tutoring; assignment and compensation of coaches and tutors; locker rooms, practice and competitive facilities; medical and training facilities and services; housing and dining facilities and services; publicity; and athletic scholarships.11
Although all the program components are considered important, perhaps the most relevant issue is whether the university is providing an effective accommodation of student interests and abilities. The regulations require institutions that offer athletic programs to accommodate effectively the interests and abilities of students of both genders to the extent necessary to provide equal opportunity in selection of sports and levels of competition.12 The OCR uses three factors to assess the opportunity for individuals of both genders to compete in intercollegiate programs:
1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to the respective enrollments;
2. Where members of one sex have been and are underrepresented among intercollegiate athletics, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities to that sex; and,
3. Where members of one sex are underrepresented among intercollegiate athletics, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can show that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.13
Unfortunately, very few institutions, especially those with football programs, are able to meet the first test, proportionality. Additionally, a training session with an author of the OCR Investigators Manual reveals that no institution, to his knowledge, has ever met the second test consisting of a history and practice of program expansion responsive to the interests and abilities of women.14
Given that few institutions can meet parts one and two of the test, we must focus on whether the institution is effectively accommodating the interests and abilities of the underrepresented sex.
Recall that the NCAA Gender Equity Task Force defined gender equity as having the same proportion of female and male athletes as in the undergraduate student body.15 Much to the dismay of some interest groups, OCR has ruled that the third part of the test may be satisfied by the institution showing it has accommodated the interest and abilities of its female students although there may be a substantial disproportionateness of numbers between male and female athletes. According to the OCR, this may be demonstrated by showing that the opportunity to participate in intercollegiate athletics is consistent with the interests of enrolled women undergraduates who have the ability to play college sports, which can be determined by an external survey of the university’s recruiting area, including high school and junior college competition, summer league competition, and sanctioned state sports. The university need only accommodate women who have the ability to play at the intercollegiate level.16
The OCR does not generally interview undergraduates who cannot play at the intercollegiate skill level. It is clear, however, that if the undergraduate survey, or external survey of the recruiting area, suggests that potential female students who possess the required interest and ability are present, and there is a reasonable availability of competition for a team, they must be accommodated. If the conference, for example, has women’s softball, and softball interests and abilities are discovered in the undergraduate population and the recruiting area, the university must accommodate this by inaugurating a women’s softball team.
Second, there is perhaps the most misunderstood area of gender equity compliance: athletic financial assistance. OCR’s manual provides that “institutions must provide reasonable opportunities for athletic scholarships awards for members of each sex in proportion to the number of students of each sex participating in … intercollegiate athletics.”17
OCR will determine compliance with this provision of the regulation primarily by means of a financial comparison. The requirement is that proportionately equal amounts of financial assistance (scholarship aid) are available to men’s and women’s athletics programs. This rule is often misinterpreted as mandating that the amount of financial assistance to male and female athletes be proportionate to their undergraduate enrollments. For example, if a university is 60 percent female and 40 percent male, 60 percent of the financial assistance would have to go to female athletes. Fortunately, or unfortunately, depending on one’s point of view, the foregoing is not the test for compliance.
OCR measures compliance with the athletic financial assistance standard by dividing the amounts of aid available for members of each sex by the numbers of male or female participants in the athletic program and tabulating the results. Institutions may be found in compliance if this comparison results in substantially equal amounts (plus or minus two to four percent) or if a resulting disparity can be explained by adjustments that take into account a legitimate, nondiscriminatory factor.18 Because of this interpretation, the institution described above with an undergraduate enrollment of 60 percent female and 40 percent male may be in compliance if it spends equal amounts on each male and female athlete even if there are more male than female athletes. For example, if an institution has an athletic financial assistance budget of $1 million and spends $700,000 of that on 70 male athletes and $300,000 on 30 female athletes, it has complied with OCR’s requirements. Note that if 60 percent of the participants in athletics programs are men, then male athletes should receive about 60 percent of the available athletic financial assistance even if the undergraduate female enrollment exceeds the male undergraduate enrollment.
If the financial assistance provided is not substantially equal, the OCR will determine whether there is a legitimate nondiscriminatory factor to explain the difference.19 For example, the institution can justify the differences in awards by noting the higher tuition costs for out-of-state students that, in some years, may be unevenly distributed between men’s and women’s programs. These differences are nondiscriminatory if they are not the result of policies or practices that limit the availability of out-of-state scholarships to either men or women. Further, an institution may decide the awards most appropriate for program development. Often this practice may initially require the spreading of scholarships over as much as four years for developing programs, resulting in fewer scholarships in the first few years than would be necessary to create equality between male and female athletes. The OCR Investigators Manual, however, directs investigators to investigate carefully “reasonable professional decisions” when there is a negative effect on the under-represented sex.20
The regulations require “equitable” treatment for female athletes in the provision of equipment and supplies.21 The OCR defines equipment and supplies as uniforms, other apparel, sports-specific equipment and supplies, instructional devices, and conditioning and weight training equipment. In assessing compliance the OCR takes a careful look at the quality, amount, suitability, maintenance and replacement, and availability of equipment and supplies to both male and female athletes. If there is a disparity, the university is in violation. The OCR permits nondiscriminatory differences based on the unique aspects of particular sports, and the regulations do not require equal expenditures for each program. For example, the equipment for the (male) football team may be more expensive than the equipment for the women’s volleyball team.22
The regulations also require equality in the scheduling of games and practice time.23 OCR accesses five factors in determining compliance: (1) number of competitive events per sport; (2) number and length of practice opportunities; (3) time of day competitive events are scheduled; (4) time of day practice opportunities are scheduled; and (5) opportunities to engage in preseason and postseason competition.24
Considerable emphasis is placed on practice and game time. It is usual for women’s practice to be scheduled immediately before or immediately after men’s. As a result, female athletes may have to skip lunch or dinner or eat a very light lunch or dinner to effectively participate. Additionally, it is common to schedule women’s games before men’s games, starting them at about 5:30 p.m. This results in denying female athletes the opportunity to have their parents, friends, and acquaintances present at the event unless they live nearby or can get off work early. To be in compliance some programs have adopted a rotating schedule for practice and/or games. For example, every other women’s game would start at 7:30 rather than 5:30 p.m. The men’s team would alternate correspondingly.
The regulations require an assessment to decide whether the athletic program meets the travel and per diem allowances requirement.25 OCR assesses the following factors in deciding compliance: modes of transportation; housing furnished during travel; length of the stay before and after competitive events; per diem allowance; and dining arrangements.26
The easy way for an athletic program to ensure compliance is to treat male and female teams alike. If male athletes stay two to a room, they should house female athletes in the same manner. If the male team travels by airplane, the comparable female team should similarly travel. If they provide the male team a catered meal before the event, this arrangement should apply to the female team as well.
The regulations also require equality in the opportunity to receive academic tutoring, and assignment and compensation of tutors.27 OCR looks for the academic qualifications, training, experience, and compensation of tutors. If there is any disparity in these opportunities, the university is violating Title IX.28
The regulations require equality in the opportunity to receive coaching and assignment and compensation of coaches.29 The OCR looks at three factors in this regard: (1) relative availability of full-time coaches; (2) relative availability of part-time and assistant coaches; and (3) relative availability of graduate assistants.30
The OCR lists two factors to be assessed in determining compliance in assignment of coaches: (1) training, experience, and other professional qualifications; and (2) professional standing.31 The policy interpretation lists seven factors in determining compliance in compensation of coaches: (1) rate of compensation; (2) duration of contract; (3) conditions relating to contract renewal; (4) experience; (5) nature of coaching duties performed; (6) working conditions; and (7) other terms and conditions of employment.32
It has been difficult to determine whether opportunity to receive coaching assignments and compensation of coaches is “equitable” because of the subjectivity involved in assessing the training, experience, and professional qualifications of coaches assigned to men’s and women’s programs. Although the OCR seems to limit its investigation to the experience and qualifications of the coaches, at least one case seems to suggest that another factor—the size of the crowds and the ability to attract boosters—may be a factor in compensation.33 The regulation’s intent is that equal athletic opportunity be provided to participants, not coaches. When a coach’s compensation is based on seniority or longevity, a recognized method of paying employees, alleging that a female team coach with five years experience is somehow being discriminated against because he or she receives less than a coach with fifteen years experience is difficult to prove. This situation brings up an interesting point because it is possible for a male coach of a female team to be protected under this provision because the intent of the Act is to provide effective coaching to females.
Perhaps the most important regulation from the health and safety aspect of athletics is the regulation that requires equal medical and training facilities and services.34 In the recent past, and perhaps in some institutions today, female athletes only have access to trainers after male athletes, or access to only assistant trainers or graduate assistants. It is not unusual for the head trainer to travel with the men’s teams and a graduate assistant or an assistant trainer to travel with the women’s teams. One can be assured that the discovery of such information during the compliance review will result in a finding of discrimination in violation of Title IX. Schools must either hire a trainer for the women’s programs who possesses the same qualifications as the counterpart for the men’s programs, or have them travel with the teams on a rotating basis. There can also be other considerations; for example, some women’s team coaches prefer a female trainer because she can room with the female players and reduce expenses.
To assess compliance and provision of medical training facilities, OCR investigates five areas: (1) availability of medical personnel and assistants; (2) health, accident, and injury insurance coverage; (3) availability and quality of weight and training facilities; (4) availability and quality of conditioning facilities; and (5) availability and qualification of athletic trainers.35 The regulations specifically require gynecological care where such health problems are a result of participation in the athletics program.36
To achieve substantial proportionality in accommodating interests and abilities of both male and female athletes, it is clear that OCR will carefully review the recruitment of student athletes.37 OCR looks at three factors in assessing compliance: (1) whether coaches or other professional athletic personnel in the program serving male and female athletes are provided with substantially equal opportunities to recruit; (2) whether financial and other resources made available for recruitment in male and female athletic programs are equivalently adequate to meet the needs of each program; and (3) whether differences in benefits, opportunities, and treatment afforded prospective student athletes of each sex have a disproportionately limiting effect on the recruitment of students.38
OCR carefully checks the recruitment funds allotted to each team and compares the proportionate recruitment funds with the proportion of male and female athletes in the athletics program. In judging whether the resources are equivalently adequate to meet the needs of each program, the OCR determines the availability of recruitment resources to both men’s and women’s programs, including access to telephones, recruitment brochures, mailing costs, and travel.39
The rules allow nondiscriminatory differences in some cases. For example, the recruiting budget for a particular team—either male or female—may be increased because of a disproportionate number of student athletes who either graduated or dropped out of the program in a particular year, thereby requiring extra effort to replace them.40
In at least three instances, the federal courts have appeared to impose a more stringent accommodation test than the OCR.41 Recall that the regulations state an institution is in compliance if it can show that it “fully and effectively accommodates the interests and abilities of female students who have the ability to participate in intercollegiate sports.”42 Most federal court cases stress that the percentage of accommodated female athletes has to be proportionate to the total female undergraduate enrollment rather than relate solely to those women who have the interests and abilities to participate.
For example, in a case involving Colorado State University, the court found that there was a 10.5 percent disparity in the percentage of women athletes and undergraduate women students.43 It determined that the female participation in intercollegiate sports was not substantially proportionate to female enrollment and ordered the university to reinstate a women’s softball team, hire a coach, and maintain a competitive schedule.44
In an ongoing case involving Brown University, the court ordered reinstatement of female teams when there was about a 13 percent disparity between the percentage of female athletes and the percentage of females in undergraduate enrollment.45 Both the Colorado State and Brown University cases are difficult to square with Title IX because the opinions appear to rely solely on the proportionality test and to deemphasize the “interest and abilities test.” This strong reliance on proportionality is contrary to the OCR regulations that tend to treat the prongs of the three-part test equally.46
The statute also prohibits reliance solely on proportionality by providing that
[n]othing contained in subsection (a) … shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area.47
The question posed is whether the strong emphasis on proportionality in the Colorado State and Brown University cases is, or should be, the trend in the law. Unfortunately for this determination, the U.S. Supreme Court denied certiorari in both cases.48 To provide appropriate guidance, the question we must answer is: How will other circuit courts of appeals deal with the regulatory three-prong test, and, ultimately, what will the U.S. Supreme Court do when they eventually grant certiorari?
To answer the question, the remainder of part II of this article deals with the merits and appeals in the four separate decisions involving Cohen v. Brown University,49 the district court decision in Pederson v. Louisiana State University,50 and the recent “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test”51 distributed by the U.S. Department of Education, Office of Civil Rights.
The district court, in Brown University I, while assessing this university’s compliance with Title IX, specifically addressed whether it accommodated effectively “the interest and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.”52 The appellate court commenced by stating that it may not find a violation solely because there is a disparity between the gender composition of the educational institution and student constituency, on one hand, and its athletic programs, on the other.53 The appellate court, however, stated that subsection (b) of Title IX also provides that it
shall not be construed to prevent the consideration in any proceedings … of statistical evidence tending to show that such an imbalance exists with the respect to the participation in, or the receipt of benefits of, any such program or activity by the members of one sex.54
The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment.55 Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute,56 the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments.57 It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments.58 The court concluded that Brown University did not meet the requirements of prong one of the three-part test.59
With regard to prong two, the issue was whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex.60 Prong two illustrates that Title IX does not require the university to leap to complete gender parity in a single bound. It does, however, require an institution to show that it has a history and continued practice of program expansion to increase the number of underrepresented athletes participating in intercollegiate athletics.61 The court stated that schools may not twist the ordinary meaning of “expansion” to find compliance under prong two when schools have increased their relative percentage of women participating in athletics by making cuts in both men’s and women’s sports.62 Because Brown University had attempted to comply with prong two by reducing both men and women’s sports to equalize proportionality, the court found it had failed the prong two test.63
The court said that prong three—interests and abilities—requires a relatively simple assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to form a new team or require the upgrading of an existing one.64 Thus, if athletes of the underrepresented gender have both the ability and interest to compete at the intercollegiate level, they must be fully and effectively accommodated.65 Institutions need not upgrade or create a team where the interest and ability of the students are not sufficiently developed to field a varsity team.66
Brown University argued that “to the extent students interests in athletics are disproportionate by gender, colleges should be allowed to meet those interests incompletely as long as the school’s response is in direct proportion to the comparative levels of interest.”67 In other words, Brown University claimed that it may accommodate fewer than all of the interested and able women if, on a proportionate basis, it accommodates fewer than all the interested and able men.
The court took considerable pains to address why this reading of Title IX was flawed. Brown University argued that they could read the third prong, providing for accommodation of interests and abilities, separately from prong one, requiring substantial proportionality. This view was rejected because the policy interpretation, which requires full accommodation of the underrepresented gender, draws its essence from the statute and requires an evaluation of the athletic program as a whole.68
Second, the court stated that any argument is wrong where prong three somehow countervails the meaning of prong one. Such a position overlooks the accommodation test’s general purpose: to decide whether a student has been “excluded from participation in, or denied the benefits of” an athletic program on the basis of sex.69 The test is whether the athletic program as a “whole” is reasonably constructed to carry out the statute.70 Brown University’s proposal would be contrary to the purpose of the statute. It would determine athletic interest and abilities of students in such a way as to take into account the nationally increasing levels of women’s interest and abilities as related to their population in the student body. The court clearly did not agree that full and effective accommodation can satisfy the statute when prong-one proportionality is not found.
Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three:71 they could not use it to make that determination in the first instance.72 The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place.73 The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality.74 Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.75
Finally, the court found that far more male athletes were being supported at the university-funded varsity level than female athletes, and thus, women receive less benefit from their intercollegiate varsity programs as a whole than do men.76
Brown University appealed the district court’s order to effect changes (Brown University III)77 and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided.78 It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes.79 The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court.80 “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’”81 Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
The appellate court again stressed the importance of the proportionality “mirror” image test by observing that a school creates a presumption if it is in compliance when it has achieved a statistical balance.82 Further, when a statistical balance is not present, the school must fully and effectively accommodate women’s interests and abilities even when that requires a larger slice of the athletic department pie go to women’s programs.83
Finally, the court viewed with distaste Brown University’s argument that there is a gender-based difference in the level of sports participation interest that should be considered to allow fewer participation opportunities for women. It viewed such a position as an attempt to ignore the purpose of Title IX and to rely on an outdated stereotyping of women’s interests.84 In the court’s view, the perceived lack of interest evolves directly from the historical lack of opportunity for women to participate in sports; precisely what Title IX is designed to remedy. Several times the court pointed out that Title IX implementation deserves some credit for the showing of American women athletes in the Olympic summer games.85
Schools with football programs may find some comfort in the dissenting opinion in Brown University because, for the first time, a judge advocated that contact sports, like football, “should be eliminated from the calculus in determining membership numbers for varsity sports.”86 The judge cited 34 C.F.R. section 106.41(b), which states that a school may have separate teams for members of each sex “when selection is based on … activity involving a contact sport.”87 In counting participation opportunities for comparison of proportionality, it does not make sense to compare athletes who participate in contact sports that include only men’s teams, said the judge. He believed that not all sports are the same and the school should be able to choose those most beneficial.88
In Pederson v. Louisiana State University,89 the district court examined each prong of the three-part test in the context of whether the university had fully and effectively accommodated the interests and abilities of its female students. The plaintiffs argued that LSU failed to accommodate its female athletes by providing greater athletic opportunities to its male students at a time when sufficient interest and ability existed in its female student population to justify increasing women’s sports opportunities.90 The specific complaint concerned a perceived failure to provide a women’s fast-pitch softball team.
Relying on Colorado State and the foregoing Brown University cases, both plaintiffs and defendants asked the court to find that so long as males and females are proportionally represented in athletics as found in the general student undergraduate population and are given numerically proportionate opportunities to participate in advanced competition, the university should be deemed in compliance with Title IX. Further, if numerical proportionality is not found, the university should be deemed in violation of Title IX.91
The court rejected this proposition and specifically stated that it disagreed with the rationale of the Brown University and Colorado State opinions. “Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes.”92 Therefore, ending the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Title IX specifically does not require preferential, disparate treatment based on proportionality.93 Rather, those percentages should be considered as evidence “tending to show that such an imbalance exists with respect to the participation in, or receipt of benefits of, any such program or activity by members of one sex.”94 Consequently, the clear language of the statute prohibits the requirement of numerical proportionality and regarded the Brown University cases as a “safe harbor” for a university.95
Clearly, the pivotal element of the LSU analysis is the question of effective accommodation of interests and abilities.96 Given the foregoing, it was imperative that LSU be acquainted with the interests and abilities of its female students.
Because LSU had not conducted a survey of its female students, the court found that there was no credible evidence to establish their actual interests and abilities. LSU simply had no method, discriminatory or otherwise, by which a determination could be made. This school was, and had been, ignorant of the interests and abilities of its student population for some time.97
The trial evidence found that LSU’s student population during the relevant period was approximately 51 percent male and 49 percent female and its athletic participation for the same period was about 71 percent male and 29 percent female.98 Throughout the relevant period, LSU fielded a men’s baseball team. The court accepted evidence that women’s fast-pitch softball was the closest approximation to this sport.99
The plaintiffs established that since 1979, there was sufficient interest and ability at LSU to fill a successful Division I varsity fast-pitch softball team, and that in 1983, for some unknown reason, LSU disbanded that program. The plaintiffs also were able to establish that the interest in fast-pitch softball had increased since 1979.100 Finally, and most critically, the plaintiffs established that intercollegiate play is provided for male students with similar interests and abilities by way of the varsity baseball team.101 At the same time, LSU provided absolutely no opportunity for women to compete in fast-pitch softball at any level.
By not fielding a women’s fast-pitch softball team, LSU failed to accommodate the female plaintiffs’ interests and abilities individually because the interest and abilities to support a softball team existed in the student undergraduate population. The court’s findings suggested that sex discrimination accounted for the discrepancy.102
The court then examined the history of expanding opportunities for women athletes at LSU and concluded that the university has demonstrated a practice not to expand its women’s athletics before it became absolutely necessary to do so.103 The court could find no evidence of a workable plan of action by the university to address the failure to accommodate interests and abilities of women students and concluded that LSU was in violation of Title IX, noting that LSU was a national leader in resisting gender equity.104
In a harsh assessment of the athletic department, the court wrote that its director’s one-dimensional assessment of programs created an atmosphere of arrogance by management that had continued to be undaunted by the facts, up to the date of the trial.105 LSU’s action was seen as a direct result of the director’s belief that his “women’s athletics” program was “wonderful.”106 He equated winning teams, rather than participation, as accommodating interest and abilities. The judge interpreted the violations a result of an arrogant ignorance, and confusion regarding the practical requirements of the law, and a remarkably outdated view of women athletes which created the resistance to change.107
A comparison of LSU with Brown University clearly shows a potential split in the circuits concerning the proportionality requirement. According to the LSU court, the theory that numerical proportionality is a “safe harbor” contradicts the prescriptions of Title IX because it treats women as a class rather than as individuals.108 This decision appears to support the use of surveys to determine the unmet interests and abilities of the student body. In contrast, Brown University shows surveys are inherently unreliable because they only reflect the predetermined interest of the student body.
On January 16, 1996, the OCR released its long overdue “Clarification of Intercollegiate Athletics Policy Guidance: Three-Part Test” as an enclosure to a letter from the assistant secretary for the OCR.109 It begins by focusing on the athletics programs as a whole. This focus is interesting because the same language is adopted in Brown University and LSU as well as in the Clarification.110 The Clarification states that an institution’s failure to provide nondiscriminatory participation opportunities for the whole student body usually amounts to a denial of equal athletic opportunity.111
The Clarification appears to follow past policy interpretation concerning prong one of the three-part test. It states that
where an institution provides intercollegiate level athletic participation opportunities for male and female students in numbers substantially proportionate to the respective full-time undergraduate enrollments, OCR will find that the institution is providing nondiscriminatory participation opportunities for individuals of both sexes.112
The so-called “safe harbor” test is still safe as far as the OCR is concerned, despite the reluctance of the LSU court.113
The test for part two remains essentially the same. Under part three, OCR says that the institution must provide equal athletic opportunity to its admitted and enrolled students. Accordingly, the policy interpretation does not require an institution to accommodate the interests and abilities of merely potential students. This would appear to mean an institution need not accommodate the interests and abilities of potential female athletes in its recruiting area. How does that advance the interest of the underrepresented sex? This question is left unanswered by the policy.
Among the factors OCR uses to determine whether female interests and abilities are being accommodated are requests by students and admitted students that a particular sport be added; requests that an existing club sport be elevated to intercollegiate team status; participation rates in particular or intramural club sports; interviews with students, admitted students, coaches, administrators, and others regarding interest in particular sports; results of questionnaires of students and admitted students regarding interest in sports; and participation in particular interscholastic sports by admitted students.114
Finally, the Clarification suggests that schools have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet the appropriate requirements.115
Given the law, the Brown University case was properly decided because the university failed all three parts of the test, not just mandating proportionality. But there are several problems with both the courts’ and the OCR’s strong emphasis on a “substantially proportionate to female enrollment test.”116 First, failure to achieve strict proportionality need not be evidence of discrimination and therefore cannot be used as a short cut to determine whether an institution is unlawfully discriminating based on sex.117 Congress explicitly held that proportionality alone was not relevant when it stated that the statute should not “be interpreted to require … preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentages of persons of that sex participating in … institutional programs.”118
Second, the courts have no authority to impose liability under a federal antidiscrimination law like Title VI and VII unless a defendant has unlawfully discriminated.119 Title IX simply provided that no individual may be excluded from a federally funded program on “the basis of sex.”120 A holding, as in Colorado State, that the lack of proportionality creates a disparate impact without considering the impact on accommodating interest and ability, runs contrary to cases that indicate that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.”121 There must be a failure to accommodate interests and abilities for a violation to occur. Because Title IX provisions are virtually identical to those of Title VI of the Civil Rights Act of 1964, the court should look to Title VI cases which hold that the act only “reaches instances of intentional discrimination.”122
Colorado State and, to some extent, Brown University I, II, and IV disregard the statute’s plain meaning concerning proportionality. These decisions are not in the institutions’ best interest subject to the law nor to the intended beneficiaries, female students. Colorado State holds conduct discriminatory that the statute does not prohibit and appears to specifically permit without regard to the actual interest of female students.123 Educational and other institutions should be able to rely on reasonable implementation regulations promulgated by the responsible government agency. That agency has published regulations that contain the three-part test including accommodation of interest and abilities of members of both sexes. The OCR regulations explicitly provide that a sports team must be established when there is interest; ability to play the sport; likelihood that the team can be sustained for a number of years; and a reasonable expectation of competition within the institution’s normal competitive region.124 Admittedly, it may be difficult in some instances to fashion an instrument to achieve a good measure of the interest and abilities in the particular area. However, a properly designed and conducted study of the institution’s drawing and recruiting area can be used to accurately determine whether the interest and abilities of female athletes are being fully accommodated. Such a survey is a better, and more intellectually honest, measure of compliance with the intent of Title IX than an unreasoning reliance on numbers.
The analysis should focus on the athlete’s interest and ability to participate in college sports. One cannot seriously argue that all students have the same ability to participate at the university level. Data collected must focus on the disparity between male and female athletes who have the interest in and ability to compete, rather than on the number of males and females in the entire educational community. A simplistic percentage comparison without considering competitive qualifications for varsity athletics lacks real meaning.125 The rationale of Colorado State and Brown University IV, insofar as they are based solely on statistical disparity, does not allow the university reasonably to present possible interest and ability justifications.
Finally, a reasonable fact-finder should be able to listen to evidence and decide if a college is making a good faith effort to meet the “interests and abilities” test. In an article appearing in the Arkansas Democrat-Gazette regarding the lack of junior women golfers in the state of Arkansas, Arkansas State University’s women’s golf coach, Neil Able stated, “I would love to recruit girls from Arkansas, but they are not here. There is not a lot of emphasis on girls’ golf, nobody seems to be pushing it. It is really a shame because if a girl can shoot between 78 and 82, she can get her education mostly paid for.”126
Clearly, this kind of information would be relevant evidence of whether there is sufficient female interest and ability to justify a golf team in Arkansas. The bottom line is that when a college or university is honestly accommodating the interests and abilities of its female undergraduates and potential participants in its recruiting area, the intent of Title IX and OCR guidelines have been met.
Some athletic administrators, particularly at football-playing institutions with a majority female enrollment, have placed considerable faith, or maybe hope, in their ability to comply with Title IX by accommodating the interests and abilities of female athletes who have the ability to participate at the collegiate level. This faith, or hope, has been shattered by several courts’ perceived reliance solely on proportionality, the first of the three factors used by OCR to assess the equality of opportunity for individuals of both sexes to participate in intercollegiate programs. In Indiana University,127 Brown University II & III,128 and Colorado State,129 the courts found that the participation rates for male and female students were not proportionate to their respective enrollments. In analyzing these decisions, most commentators have focused solely on the first prong and concluded that effective accommodation always requires substantial proportionality of numbers. There has been an unquestioned acceptance that only the first part of the test is relevant.130
This analysis, however, is factually incorrect and even disingenuous. These decisions were compatible with the law: the three universities all failed to meet the participation opportunity, a history and practice of program expansion, or fully and effectively accommodate the interests and abilities test. Because the three universities failed all three parts of the test, their cases offer no precedent relevant to a school which meets the interest and abilities test.
A compelling argument can be made that a college which meets the third part of the test—that is, accommodates the interests and abilities of its male and female students—is in compliance with Title IX. The statute’s purpose is to provide equality of opportunity, as supported by Louisiana State.131 Use of the proportionality test, without considering the interests and abilities of female students, would have little value in providing equal opportunity to the actual students who have the ability to play at the college level. What is the logical extension of the proportionality argument which does not include interests and abilities? Proportionality would demand female teams even if there were no interest on the part of the women students. Should a university force female students to participate in varsity sports in which they have no interest or ability? Substantial proportionality erroneously presumes that men and women in the general student body will have the same interest and ability to participate at the same rates in intercollegiate athletics. There is no valid statistical or any other kind of evidence to support that presumption. Additionally, a strict proportionality approach violates the Supreme Court’s holding concerning the use of statistical analyses to support discrimination claims.132 Finally, the purpose of the statute and its implementing regulations is to accommodate the interests and abilities of both male and female students who have the ability to participate in intercollegiate sports, not to establish some mechanical, numerical quota based on a student population ratio. The slavish and unreasoned reliance on numbers has already created an unfavorable backlash harmful to gender “equity.”133
There is another factor that should reduce administrators’ comfortable reliance on the Athletic Investigator’s Manual and the three-part test. This is the stated goal of the NCAA Gender Equity Task Force report that the numbers of male and female athletes should be substantially proportionate to their numbers in the institution’s undergraduate population.134 This report language may soon start appearing in future decisions, given the perceived rationale of Indiana University, Brown University, and Colorado State.
Obviously, athletic administrators and boards of trustees are presently in an untenable position because of the dramatic conflict between the provisions of Title IX, its implementing regulations promulgated by the Office of Civil Rights, and the outcome of federal court cases, particularly Colorado State and Brown University. Certainly, the safe harbor approach is to insure a strict proportionality of percentages of female athletes compared with the number of females in the total university enrollment. The recent OCR clarification clearly underscores this. The strict proportionality approach, while attractive on its face, is, in fact, counterproductive to athletes who have the ability to participate at the collegiate level, and is contrary to the meaning of the statute and its implementing regulations. Many contend that female athletes have been subjected to discrimination in the past and in many cases are still being victimized by institutions of higher learning. Even so, an unthinking reliance on proportionality at the expense of accommodating the interest of women who have the ability to participate at the collegiate level is not only contrary to the law, it is not even in the best interests of such female athletes.
When the federal courts are persuaded to carefully read the statute and its implementing regulations, and properly evaluate the intent of the statute and its impact on female athletes, as the court did in Louisiana State, they will conclude that a university may comply with the statute by effectively and fully accommodating the interest and abilities of female athletes.
The goal of this section is to take issue with the OCR and to criticize the regulations against discrimination it has promulgated. In our view, the basic premise from which government “equity” laws proceed is that absent discrimination, all groups, whether based on race, ethnicity, or, in the present case, gender, would be exactly alike in all major regards;135 that if virtually exact proportional representation of all categories of people in all activities and accomplishments has not been achieved, this is “inequitable;” and that this inequity represents an exploitation of the “victims” by the “privileged.”
This politically correct perspective is so well entrenched in legal thinking that to even question it is to call forth the charge of irrational and “outdated stereotyping.”136 It is so inviolable that to question it is to open the critic to charges of “racism” or “sexism,” which are fighting words in any person’s lexicon. The view that all groups are equally endowed with all sorts of interests and abilities is so impregnable that to even mention evidence for the opposite contention is widely seen as rude, unseemly, or in some other way improper. Such claims are refuted not by providing evidence, but through ad hominem attacks. The findings of Thomas Sowell and Walter Williams,137 which challenge this conventional wisdom, are dismissed not based on errors that have been found in the logic or empirical evidence they offer, but through personal attacks on these researchers.
Sowell points to the following facts about which “it is virtually impossible to claim that the statistical differences in question are due to discrimination:”138
• American men are struck by lightning six times as often as American women;
• Cognac consumption in Estonia was more than seven times, per capita, that of Uzbekistan;
• In the 1960s, members of the Chinese minority in Malaysia received over 400 degrees in engineering, compared to only 4 for the majority Malays;
• Afrikaners in 1946 South Africa earned less than half the income of the less politically powerful British;
• Orientals in the United States in 1985 scored over 700 on the mathematics SAT at twice the rate of whites;
• Germans were only 1 percent of the population of czarist Russia but accounted for some 40 percent of that army’s high command;
• Japanese immigrants accounted for more than 66 percent of potato and 90 percent of tomato production in the Brazilian state of Sao Paulo;
• In the 1850s, over 50 percent of Melbourne’s clothing stores were owned by Jews, who were less than 1 percent of the Australian population.139
All of these facts are simply incompatible with the “vision of the anointed” that absent anything untoward, there would be homogeneity of all groups of people over all activities. Sometimes, this basic premise has annoying, and perhaps even infuriating, results, but mostly on an intellectual plane. An example might be its influence generally in the United States at the close of the twentieth century, and particularly the debate over female participation in college athletics. At other times, however, this flawed philosophy has had far more serious repercussions. For example, the Nazi attempt to exterminate the Jews was, at bottom, due to Hitler’s resentment that this minority was more than proportionately represented among German bankers, professors, university students, playwrights, businessmen, doctors and lawyers, and was far more wealthy than the average citizen.140 It is crucial to realize that there is a notion of proportionality of representation as the norm at work in both examples.141
It is a matter of great interest that failure to register statistical homogeneity should be interpreted as discrimination in some cases, but not others. Returning to our focus on athletics, consider this statement by Sowell: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.”142 Were it not for the miasma of political correctness, this statistical disparity would occasion as much criticism as any other. That this situation is not widely resented is thus more than passing curiosity.
What are the facts of the case? Let us consider both professional basketball and football:
| White | Black | Hispanic | Other | ||
| Total Population | 73 | 12 | 11 | 4 | |
| NBA | Players | 20 | 79 | 0 | 0 |
| General Managers | 72 | 28 | 0 | 0 | |
| Coaches | 67 | 33 | 0 | 0 | |
| Staff | 77 | 17 | 2 | 3 | |
| NFL | Players | 31 | 66 | 1 | 0 |
| General Managers | 83 | 17 | 0 | 0 | |
| coaches | 75 | 24 | 1 | 0 | |
| Staff | 80 | 15 | 3 | 2 |
As indicated in the table, the roster of professional athletes includes far fewer whites than would occur were they distributed to this employment slot from a random sampling of the population; and, obversely, we must also reject the null hypothesis that blacks are randomly distributed as well. Yet there is not one person in a million who thinks that the owners of these sports leagues (100 percent white) engage in anti-white, pro-black prejudice; that they turn away better scoring, higher jumping, stronger whites to make room on their rosters for weaker, smaller, less athletic blacks. The thought never occurs that black success in this field is due to anything but the fact that blacks bring to the table a great amount of athleticism, power, strength and grace.144
Having introduced our topic with a discussion of the fallacious homogeneity hypothesis, and applied it to male sports, let us now consider how it applies to females vis-à-vis males.
First, if we are to take seriously the non-discrimination ethic, there should be no division between female and male sports programs. Given the feminist contention145 that the genders are alike (apart from unimportant biological matters), it is an egregious matter of segregation to separate the sexes into two different categories. Gender integration is now commonly practiced for children’s soccer leagues, and based on the premises of the anointed, there is no reason not to follow this practice at the university level.
The problem here is that while seven-year-old girls are reasonably competitive with boys of that age, the same does not at all apply to adult men and women. A perusal of any of the male and female world’s records in activities such as swimming, running, throwing, jumping, rowing, skiing, skating, and bicycling suggests that were there no segregation by sex, there would be virtually no females with the requisite strength, speed or other physical attributes to even earn a berth on a university team.146 In order to be competitive, males and females of very different vintages must confront one another (e.g., the famous tennis match between Billie Jean King, then at the apex of her tennis game, versus Bobby Riggs, who was long past his prime and never had attained stature among men comparable to King’s stature among women, even at the apex of his abilities). Surely it is inequitable, in at least some reasonable senses of the word, to have special categories for female athletes at all. Were there not any such categories, and universities wished to field as many athletes as they now do, there would be a large number of relatively mediocre male athletes who could instead enjoy this experience. On this basis, then, women “athletes” are favored when universities spend any money on these pursuits, for in a purely “fair” world, where slots on teams were awarded strictly in accordance with ability, few women would be able to break through the “sports ceiling.”
Clearly, we believe this state of affairs is not due to the early conditioning of “culture,” or of females by male misogynist fathers. Mothers do most of the early childhood rearing, of both boys and girls.147 Nor is it due to “self-hating” mothers, who conspiratorially undermine athletic abilities on the distaff side. Instead, there are good and sufficient sociobiological reasons why females should be weaker and slower, on average, than males, and therefore make poorer athletes.
According to scholars of sociobiology and evolutionary psychology, we are the way we are now in large part because of what it took to survive and leave progeny hundreds of thousands of years ago. In those days, and at present as well, for that matter, women were the genetic bottleneck. Or, to put this the other way around, most males were genetically superfluous. That is, one man could fertilize hundreds of women; the others were, biologically speaking, in effect, drones. In contrast, each female was precious in terms of preserving the human race, in that she could leave progeny with the genetic contribution of a single male. Suppose, a long time ago, there were two tribes of (pre-) humans: one of which sent the women out hunting (which sharply penalized non-athleticism) and accorded the men the role of staying in the relatively safer caves with the children while the other group inverted this process. Which of them would survive and leave descendants? To ask this question is to answer it. In fact, we have a name for the first (presumably imaginary) tribe: “extinct.”148 Thus, the reason men are now far better athletes than women is that males without such attributes were weeded out of the genetic stock to a far greater extent than females. Stated differently, male, but not female, athleticism contributed to evolutionary success.
With success, of course, comes interest. That is, there tends to be a positive correlation between what we do well at and what we are interested in. Nerds and geeks tend to be interested in computers and mathematics because they succeed in mastering their intricacies. And, of course, there is a positive feedback loop between them where interest breeds success which, in turn, leads to yet greater involvement. Likewise, those who achieve in athletic arenas tend to focus on them and are positively reinforced for doing so. This being the case, it should not occasion any surprise that boys are not only better at sports, but also more occupied with them as well.
But sociobiology is merely an explanation of the human (and other species’) condition. We can transcend our “selfish genes”149 if we wish. That is, this academic discipline can only account for the fact that girl students would have less interest and ability to pursue intercollegiate competition than boys. However, it is not at all prescriptive. Just because female athletes are vastly inferior to their male counterparts does not mean that their desires to indulge in such activities, lesser though they be, should not be accommodated in modern society. On the other hand, given these sociobiological insights, it is difficult to credit the findings of various courts that lesser support for female athletic programs is evidence of sexist discrimination on the part of university administrations.
How, then, would the more limited interests of females in athletic pursuits be accommodated, absent the Office of Civil Rights, Title IX of the Education Amendments of 1972, the Civil Rights Law of 1964, Gender “Equity” Task Forces, and all the rest of the panoply of government intervention into private arrangements? Access to athletics would be allocated through the free-enterprise system, just as access to health clubs and golf courses is now allocated in the world beyond colleges.
Even though men have very little interest in wearing women’s clothes, this has not prevented a gigantic industry from arising, dedicated to satisfying women’s desires in fashion. Industries which provide makeup, hair styling, nail polish, hair removal, and weight loss services are similarly “biased” in the direction of females: they disproportionately serve women. These phenomena would be very difficult to understand on the feminist model that female wants are ignored or deprecated in the male’s favor.
Why is it that the market is led by “an invisible hand”150 to provide goods and services for women, who are not “dominant,” or “aggressive” and are thought to be “victims” of discrimination? It is based on profit and loss. The market provides goods and services in proportion to the dollars which are “voted” in their behalf.151
If, for example, females have 55 percent of the spending power, then this proportion of the GDP will tend to be allotted to their demands, and 45 percent to that of males. This can be proven by the following considerations. Suppose that, given this division of income, the market has somehow produced 70 percent of its wares according to males’ tastes, and only 30 percent in the direction of female wants. This would imply relative satiety for things such as golf clubs, baseball bats, power boats, and beer, but an under-supply relative to demand for makeup, high-heeled shoes, and jewelry. Profits would rise in the latter industries and fall in the former ones. Entrepreneurs would be led by Adam Smith’s invisible hand into producing more products that appeal to females and fewer that appeal to males. If they failed to do so, there would continue to be more bankruptcies among firms serving preponderantly male needs.
A similar analysis applies to male and female sports programs at the university level. Assume that such spending for each gender was on a 50:50 basis. Suppose, for argument’s sake, that the optimal proportion of expenditure for women’s and men’s teams is 25:75 in terms of actual demand. Then, on the assumption of private schools which are subjected to the market forces of profit and loss, educational “firms” (e.g., universities) would be led to conform their practices to this proportion. The same principle applies no matter what the statistical assumption. If tastes somehow change, and women athletes now are willing to spend, say, 70 percent of the sports dollar, and men only 30 percent, then a similar shift would again occur, this time in the direction of more money for female teams.
The assumption of private universities is crucial for the case that government intervention is not needed to fully accommodate the demand for intercollegiate sports teams. To the extent that there are public institutions of higher learning, we can no longer rely on market forces to bring about any such result. Thus, any feminists who pay attention to economics should advocate the privatization of higher education.152 In public universities, there is no economic profit and loss oversight to counteract any tendencies toward anti-female discrimination.
So far, we have been discussing sexual discrimination from a biological and economic perspective. Let us now conclude with a normative analysis. Setting aside the causes and effects of gender discrimination, and the issue of whether it exists on college campuses (or is due to lesser female interest in sports teams), let us ask the question of whether schools should have a right to discriminate in this regard. Nondiscrimination rules apply to “public” accommodations,153 such as stores, hotels, and movie theaters, but not to certain private choices. That is, it is illegal for a commercial firm’s owner to discriminate on the basis of sex,154 race, ethnicity, etc., but this may be done, and commonly is done, in dating, friendship patterns, and marriage. If discrimination is such an utter evil, why should it be countenanced in any realm of human endeavor?
Second, even within the area of commerce, there is a curious lack of symmetry. Customers are allowed to discriminate between, say, restaurants selling Chinese, Italian, Indian and Mexican food, while none of these establishments would be allowed by law to reciprocate in a similar manner. That is, none of them could legally restrict their clientele to any one ethnic group, or, indeed, exclude any of them.155
So the philosophical premise upon which gender equity is built, far from being impregnable, is, in our view, intellectually incoherent. Perhaps, then, an alternative may one day come to take its place: the right of free association. According to this doctrine, people should be free to associate with whomever they wish, on whatever basis they choose; there should be no law compelling them to deal with those they wish to avoid. Strong historical and moral precedent exists for this approach. It is the philosophy upon which the anti-slavery movement is built.156 The kidnapping of innocent people is the paradigmatic case of the violation of the law of voluntary association. Forcing individuals to interact with one another when it is not on a mutually agreeable basis is a form of slavery. This basic principle still resonates widely, even in this benighted age of gender “equity.”
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Roy Whitehead, Walter Block, and Lu Hardin, University of Toledo Law Review 30, no. 2 (Winter 1999): 223–69.
1 Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681–1688 (1972).
2 20 U.S.C. § 1681(a).
3 Id. § 1681(b).
4 National Collegiate Athlethic Association, Final Report of the NCAA Gender-Equity Task Force I (1993) hereinafter “The Report.”
5 The Report, p. 2.
6 Id. at 3.
7 Amendment No. 2-1, Principle of Gender Equity, NCAA Convention, January 1994.
8 34 C.F.R. § 106.41(c) (1992).
9 34 C.F.R. § 106, effective July 21, 1975.
10 Valerie M. Bonnette and Lamar Daniel, Title IX Athletics Investigator’s Manual (Washington, D.C.: U.S. Department of Education, 1990), hereinafter “The Manual.”
11 34 C.F.R. § 106.41; 34 C.F.R. § 106.37.
12 34 C.F.R. § 106.41(c)(1).
13 Id.
14 Lamar Daniel, Office of Civil Rights, (remarks to the Gulf South Conference Meeting, Birmingham, Ala., Jan. 26, 1994).
15 See text accompanying note 6.
16 The Manual at 21–28. See also 34 C.F.R. § 106.41(c)(1) (1992).
17 The Manual at 14.
18 Id. at 14–20.
19 Id. at 19.
20 Id. at 20.
21 34 C.F.R. § 106.41(c)(2) (1992).
22 The Manual at 29.
23 34 C.F.R. § 106.4 1(c)(3).
24 The Manual at 35–42.
25 34 C.F.R. § 106.41(c)(4).
26 The Manual at 43–48.
27 34 C.F.R. § 106.41(c)(5) (1991).
28 The Manual at 49–50.
29 34 C.F.R. § 106.41(c)(5)–(6).
30 The Manual at 55.
31 Id.
32 Id.
33 In the case of Stanley v. University of Southern California, the court found that evidence of the male coach’s greater responsibility in raising funds and level of responsibility justified the disparity in salary. See Stanley v. University of Southern California, 13 F.3d 1313 (9th Cir. 1994). The court said that the men’s team “generated greater attendance, more media interest, and larger donations” and that the men’s coach, George Raveling, has fund raising duties not required of the women’s coach (id. at 1322). The court found that the university was not responsible for “societal discrimination in preferring to witness men’s sports in greater numbers” (id. at 1323).
34 34 C.F.R. § 106.41(8) (1992).
35 The Manual at 72–80.
36 34 C.F.R. § 106.39.
37 34 C.F.R. § 106.41; The Manual at 97–101.
38 The Manual at 97.
39 Id. at 99.
40 Id. at 100.
41 See generally Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993); Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995); Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993); Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 322 (3d Cir. 1993).
42 34 C.F.R. § 106.41(c)(1) (1992); The Manual at 21.
43 Roberts v. Colorado State Board of Agriculture, 998 F.2d at 830.
44 Id. at 834.
45 See generally Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (Brown University I), aff’d, 991 F.2d 888 (1st Cir. 1993) (Brown University II).
46 34 C.F.R. § 106.41(c)(1) (1992).
47 20 U.S.C. § 1681(b) (1972).
48 See generally Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004 (1993); Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997).
49 Prior to trial on the merits of the Brown University cases, the district court granted the plaintiffs a preliminary injunction, ordering the women’s volleyball and gymnastics teams be restored from club to university-funded status. See Brown University I, 809 F. Supp. at 1001. The first circuit upheld the district court’s decision after reviewing the district court’s analysis of Title IX and the implementing regulations. See Brown University II, 991 F.2d at 906. On remand, the district court found that Brown’s intercollegiate program violated Title IX and the supporting regulations. See Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III). Brown University appealed and on November 21, 1996, the First Circuit affirmed. See Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
50 912 F. Supp. 892 (M.D. La. 1996).
51 Letter from Norma Cantu, Assistant Secretary for Civil Rights, U.S. Dep’t of Education, to Colleges and Universities (Sept. 20, 1995) (on file with author).
52 Brown University I, 809 F. Supp. at 985.
53 Brown University II, 991 F.2d at 895.
54 Id.
55 Cohen v. Brown University (Brown University II), 991 F.2d 888, 897 (1st Cir. 1993).
56 Id.
57 Id. at 898.
58 Id.
59 Id.
60 Id.
61 Id.
62 Id.
63 Id. at 906.
64 Id. at 898.
65 Cohen v. Brown University (Brown University II), 991 F.2d 888, 898 (1st Cir. 1993).
66 Id.
67 Id. at 899.
68 Id.
69 Id. at 899–900.
70 Id. at 900.
71 The Manual at 9.
72 Brown University II, 991 F.2d at 901.
73 Id.
72 Id. at 902–03.
73 Cohen v. Brown University, 991 F.2d 888, 903 (1st Cir. 1993) (Brown University II).
76 Id. at 904.
77 Cohen v. Brown University, 879 F. Supp. 185, 186 (D.R.I. 1995) (Brown University III).
78 Cohen v. Brown University, 101 F.3d 155, 167 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
79 Id. at 162.
80 Id. at 174.
81 Id.
82 Id. at 175.
83 Id. at 176.
84 Id. at 179.
85 Id. at 180.
86 Id. at 188 (Torruella, J., dissenting).
87 34 C.F.R. § 106.41(b) (1992).
88 Cohen v. Brown University, 101 F.3d 155, 188 (1st Cir. 1996) (Brown University IV) (Torruella, J., dissenting).
89 912 F. Supp. 892 (M.D. La. 1996).
90 Id. at 904–5.
91 Id. at 913.
92 Id. at 914.
93 Id. at 913.
94 Id. (citing Title IX, 20 U.S.C. § 1681(a) (1972)).
95 Id.
96 Id. at 913–15.
97 Id.
98 Id. at 915.
99 Pederson v. Louisiana State University, 912 F. Supp. 892, 915–16 (M.D. La. 1996).
100 Id. at 915.
101 Id. at 916.
102 Id. at 916–18.
103 Id.
104 Id.
105 Id.
106 Id. at 919.
107 Id. at 916–18.
108 Id. at 913–14.
109 Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Washington, D.C.: U.S. Department of Education, 1996), hereinafter “The Clarification.”
110 Id. at 1–2.
111 Id. at 2.
112 Id. at 5.
113 See note 108 and accompanying text.
114 The Clarification at 6.
115 Id.
116 Id. at 192.
117 The Supreme Court has strongly cautioned lower courts against comparisons to the general population when special interests or qualifications are required. See Hazelwood School District v United States, 433 U.S. 299, 308 n.13 (1977). In a recent voting rights case, the Supreme Court held that proportionality cannot serve as a shortcut to determine whether a set of districts unlawfully dilutes minority voting strength. See Johnson v. Florida, 512 U.S. 997 (1994).
118 20 U.S.C. § 1681(b) (1972).
119 St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 514 (1993) (interpreting a Title VII employment discrimination claim). See also Cannon v. University of Chicago, 648 F.2d 1104, 1109 (7th Cir. 1981), cert. denied, 454 U.S. 1128 (1981) (stating that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation. We shall therefore adopt that standard under Title IX.”).
120 20 U.S.C. § 168 1(b).
121 Cannon, 648 F.2d at 1109.
122 Alexander v. Choate, 469 U.S. 287, 293 (1985). Additionally, Title IX is patterned after Title VI. See Grove City v. Bell, 465 U.S. 555, 566 (1984). By setting up the same administrative structure and using virtually the same language, Congress intended that the interpretation of Title IX was to be the same as Title VI. See Hearing Before the Subcomm. on Post Secondary Education of the House Comm. on Education and Labor, 94th Cong. 16, 150 (1971).
123 The Roberts Court was apparently relying on Guardians Association v. Civil Service Commission of New York to justify a holding that a federal agency, or in this case a court, may proscribe, as discriminatory, conduct which the statute itself does not prohibit. See Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir. 1993); Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 584 (1982). The court’s reliance is misplaced because the Guardians court found that the authority was delegated to the agency by statute. Unlike Guardians, Congress in Title IX specifically withheld authority to take action on account of a statistical imbalance between the sexes. See 20 U.S.C. § 1981(b) (1972).
124 34 C.F.R. § 106.41 (c)(1) (1992).
125 City of Richmond v. J.A. Croson Co., 488 U.S. 469,501 (1989); Mayor of Philadelphia v. Educational Equity League, 415 U.S. 605, 620 (1974).
126 Todd Traub, While Footing the Bill: Football Also Creates Title IX Imbalance, Arkansas Democrat-Gazette (Little Rock, Ark.), November 14, 1996, p. C1.
127 Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 322 (3d Cir. 1993).
128 Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (Brown University II); Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III).
129 Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993).
130 See generally Denise K. Magner, “Judge Blocks Cal-State Bakersfield’s Plan to Cap Size of Wrestling Team,” Chronicle of Higher Education, March 12, 1999, p. A44.
131 See generally Pederson v. Louisiana State University, 912 F. Supp. 892 (M.D. La. 1996).
132 See, e.g., Hazelwood School District v. United States, 433 U.S. 299 (1977); Castaneda v. Partida, 430 U.S. 482 (1977).
133 For example, the backlash in football has been very strong. See generally Bob Holt, “Court Ruling Raises Alarm on Title IX: ASU’S Dowd Calls Decision ‘Idiotic,’” Arkansas Democrat-Gazette (Little Rock, Ark.), Apr. 22, 1997, p. C1. Unfortunately, some schools have helped justify their decisions to cut men’s sports by blaming Title IX, according to NCAA president Cedric Dempsey, and a recent GAO study shows a drop in men’s participation in NCAA sports. See generally, “GAO Study Shows Drop in Men’s Participation, but Reason Is Unclear,” NCAA News, July 5, 1999, p. A1; Erik Lords, “More Women and Fewer Men Participate in Intercollegiate Athletics, Study Finds,” Chronicle of Higher Education, July 9, 1999, p. A40.
134 The NCAA Gender-Equity Task Force Report states that it should be the ultimate goal of each institution that the numbers of male and female athletes are substantially proportionate to their undergraduate population. See The Report, note 4, p. 3. The Report also stresses that maintaining current revenue-enhancing programs like football is essential to enhancing opportunities for women athletes (see id).
135 The conventional wisdom does make one set of exceptions in the case of sex: it “concedes” that men and women have different biological characteristics, and that only females can become pregnant and give birth. We applaud this concession to reality.
136 See generally Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (Brown University I).
137 See generally Thomas Sowell, Civil Rights: Rhetoric or Reality (New York: William Morrow, 1984); Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggles (New York: William Morrow, 1987); Thomas Sowell, The Economics and Politics of Race: An International Perspective (New York: William Morrow, 1983); Thomas Sowell, Ethnic America (New York: Basic Books, 1981); Thomas Sowell, Pink and Brown People (Stanford, Calif.: Hoover Institution Press, 1981); Thomas Sowell, Race and Culture: A World View (New York: Basic Books, 1994);Thomas Sowell, Race and Economics (New York: Longman, 1975); Thomas Sowell, The Vision of the Anointed (New York: Basic Books, 1995); Walter E. Williams, South Africa’s War Against Capitalism (New York: Praeger, 1989); Walter E. Williams, The State Against Blacks (New York: McGraw-Hill, 1982); Thomas Sowell, “Preferential Policies,” in Thinking about America: The United States in the 1990s, Annelise Anderson and Dennis L. Bark, eds. (Stanford, Calif.: Hoover Institution Press, 1988); Thomas Sowell, “Weber and Bakke and the Presuppositions of ‘Affirmative Action’,” in Discrimination, Affirmative Action, and Equal Opportunity, Walter Block and Michael Walker, eds. (Vancouver, British Columbia: Fraser Institute, 1982); Walter E. Williams, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” in Discrimination, Affirmative Action, and Equal Opportunity.
138 Sowell, The Vision of the Anointed, p. 33.
139 Id., pp. 35–57.
140 See generally Steven Farron, “Prejudice is Free but Discrimination has Costs,” Journal Libertarian Studies 14, no. 2 (Summer 2000): 179–245.
141 One might expect Jews to be among the most vociferous opponents of affirmative action, given their historical experiences with this phenomenon. Why this is not the case is explored by Walter Block, “The Mishnah and Jewish Dirigisme,” in International Journal of Social Economics 23, no. 2 (1996): 35–44; Milton Friedman, “Capitalism and the Jews,” in Morality of the Market: Religious and Economic Perspectives, Walter Block, Geoffrey Brennan, and Kenneth Elzinga, eds. (Vancouver, British Columbia: The Fraser Institute, 1985), pp. 429–42.
142 Sowell, The Vision of the Anointed, p. 35.
143 Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21.
144 Ibid., p. 20. It is often charged that while blacks are hired as players in professional sports leagues, there is in effect a “glass ceiling” which prevents them from rising to management, coaching, and other staff positions after they retire as athletes. This contention cannot be supported by the reported facts. Blacks comprise only 14 percent of the U.S. population. See U.S. Census Bureau, Statistical Abstract of the United States: 1998, p. 14, table 13 (1998). Thus, they are statistically overrepresented in the NBA and NFL not only as players, but also as managers, coaches and staff. Therefore, were employment equity strictly applied to the professional athletics industry, at least insofar as these two leagues are concerned, there would be a massive firing of blacks as players, as well as roughly half of the black general managers and coaches in the NBA, and coaches in the NFL would have to be dismissed.
145 For antidotes, see generally Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Michael E. Levin, Feminism and Freedom (New York: Transaction Books, 1987).
146 Golf may well be an exception. If so, and to that extent, its pedigree as a legitimate athletic event comes into question. In other words, we may perhaps distinguish between “real” sporting activities and mere “play” on the basis of whether adult males and females are competitive with each other. True, female Olympic athletes of 1998 can swim rings around males of an earlier era (e.g., Buster Crabbe, Johnny Weismuller), but records have been significantly improving over the intervening decades. These two swimmers, Crabbe and Weismuller, who later played the role of Tarzan in the movies, could best their female contemporaries of the day by similar margins as men now outdistance women in the pool.
147 Lillian B. Rubin, Families on the Fault Line: America’s Working Class Speak About the Economy, Race, and Ethnicity, 1st ed. (New York: Harper Collins, 1994); Rodney Stark, “Socialization and Social Roles,” in Sociology, 7th ed. (1998), pp. 160–62.
148 See generally Robert M. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984); David M. Buss, The Evolution of Desire: Strategies of Human Mating (New York: Basic Books, 1994); Richard Dawkins, River out of Eden: A Darwinian View of Life (New York: Basic Books, 1995); Richard Dawkins, The Selfish Gene (Oxford University Press, 1989); R.H. Frank, Passion within Reason: The Strategic Role of the Emotions (London: Norton, 1988); Donald Symons, The Evolution of Human Sexuality (Oxford University Press, 1979); Robert Trivers, Social Evolution (Menlo Park, Calif.: The Benjamin Cummings Publishing Company, 1985); E.O. Wilson, Sociobiology: A New Synthesis (Cambridge, Mass.: Harvard University Press, 1975); Robert Wright, Moral Animal: The New Science of Evolutionary Psychology (New York: Vintage, 1994); R. Axelrod and W.D. Hamilton, “The Evolution of Cooperation,” Science 211 (1981): 1390–96; John Tooby and Leda Cosmides, “Evolutionary Psychology and the Generation of Culture,” Ethnology and Sociobiology 10 (1989): 375–424; John Tooby and Leda Cosmides, “On the Universality of Human Nature,” Journal of Personality 58 (1990): 17–67; R. Wright, “Feminists, Meet Mr. Darwin,” New Republic, Nov. 28, 1994, p. 43.
149 Dawkins, The Selfish Gene, p. 1.
150 See generally Adam Smith, An Inquiry in the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1965). The invisible hand was thought by Smith to be God’s ordering of the human condition such that we are automatically led, by selfish interest and even greed, to do that which is in the best interests of our fellow human beings.
151 For an economic account of male/female earnings differentials in terms of unequal sharing of family, household, and child rearing tasks, see generally Walter Block and Michael A. Walker, Focus on Employment Equity: A Critique of the Abella Royal Commission on Equality in Employment (Vancouver, British Columbia: The Fraser Institute, 1985); Walter Block and Walter Williams, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research 2, no 2 (Fall 1981): 385–88. But doesn’t this just put back the real question? The claim might be made that women have fewer dollar votes in the first place because of male discrimination in the labor market. Even if, then, goods and services are provided according to spending power, females still get the short end of the stick due to this prior injustice.
This may well be the popular view, but it is erroneous. Wages tend to be proportional to productivity, and male and female productivity is roughly equal. Why, then, do women earn less in the market? This is not because of favoritism toward males. Rather, it is due to the fact that females have less attachment to the labor force, and have invested in less work-specified human capital. And the explanation for this state of affairs, in turn, is the unequal sharing of child rearing and household tasks in marriages. Again there are good and sufficient sociobiological reasons why this should be the case, but whether or not this explanation for unequal household duties is true, it is a bit of a stretch to blame this state of affairs on the market, or capitalism, or employers, or discrimination, or any other of the feminists’ whipping boys.
152 This is on the assumption that the feminist agenda is actually one of promoting the welfare and best interests of women. An alternative hypothesis emanates from the Public Choice School of Economics, according to which there may be, in addition or possibly instead, a hidden agenda. The disparate treatment accorded President Bill Clinton and Supreme Court Justice Clarence Thomas suggests that it is to promote Democrats, or socialists, at the expense of Republicans, or conservatives, and not at all to help females. See generally James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1971); Christina Hoff Sommers, Who Stole Feminism? How Women have Betrayed Women (New York: Simon and Schuster, 1994).
153 This is a bit of a misnomer, since enterprises of this sort are privately owned. Nor are they necessarily “open to the public.” On the contrary, this is precisely the point at issue.
154 Both heterosexuals and homosexuals discriminate in their choice of bed partner on the basis of gender. Of all groups, only bisexuals are completely without sexual bias. The law, if logically consistent, would thus impose this practice upon us all. But even bisexuals discriminate on the basis of other characteristics: beauty (they are guilty of “lookism”), talent, sense of humor, intelligence, etc. It would appear that there are no people innocent of prejudice in this regard. Perhaps all of humanity ought to be incarcerated on this ground.
155 Civil Rights Act of 1964, 42 U.S.C. § 2000c to 2000c-17.
156 The Antislavery Argument, W. and J. Pease, eds. (New York: Bobbs-Merrill, 1965), citing William Lloyd Garrison, Declaration of Sentiment of the American Anti-Slavery Convention (Boston: R. F. Wallcut, 1833).