Getting in the Game: Title IX and the Women's Sports Revolution (Critical America (New York University Hardcover))

Getting in the Game

C ri t i c a l A m e ri c a General Editors: Richard Delgado and Jean Stefancic For a complete list of titles in the series, please visit the New York University Press Web site at www.nyupress.org.

Getting in the Game Title IX and the Women’s Sports Revolution

Deborah L. Brake

 NEW YORK UNIVERSIT Y PRESS New York and London

NEW YORK UNIVERSITY PRESS New York and London www.nyupress.org © 2010 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Brake, Deborah L. Getting in the game : Title IX and the women’s sports revolution / Deborah L. Brake. p. cm. Includes bibliographical references and index. ISBN-13: 978–0–8147–9965–9 (cl : alk. paper) ISBN-10: 0–8147–9965–5 (cl : alk. paper) ISBN-13: 978–0–8147–8712–0 (ebook) ISBN-10: 0–8147–8712–6 (ebook) 1. Sex discrimination in sports—Law and legislation—United States. 2. Women athletes—Legal status, laws, etc.—United States. 3. United States. Education Amendments of 1972. Title IX. I. Title. KF4166.B73 2010 344.73’099—dc22 2010008284 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

For Charlotte and Samantha

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Contents

Acknowledgments

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Introduction: The Feminism of Title IX 1

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Separate Is Equal?

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2 Integration Rights: Girls Playing with Boys and Boys Playing with Girls

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3 The Three-Part Test and the Opportunity to Play

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4 Complicating Equal Participation: What Counts as a Sport, Which Sports Should Women Play, and Which Women Should Play Them?

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5 Cutting Men’s Opportunities to Help Women? Title IX and Leveling Down

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6 Treatment as an Equal

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7 The Dilemma of Difference and the “Problem” of Pregnancy

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8 Beyond Equal Access: Retaliation, Coaching, and Sexual Harassment

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Conclusion

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Notes

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Selected Bibliography

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Index

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About the Author

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Acknowledgments

So much time has gone into the writing of this book—and so much help has been given along the way—that it is a bit daunting to try to put my gratitude into words. So I’ll start at the beginning. I had no idea I was interested in Title IX when I graduated from law school in 1990, knowing only that I wanted to practice public interest law and work on women’s issues. After a Women’s Law and Public Policy Fellowship and a one-year clerkship with the legendary Honorable Constance Baker Motley, I was lucky enough to land a Skadden Fellowship to work at the National Women’s Law Center for two years. I eventually became a senior counsel at the Center and stayed until leaving for academia in 1998. I am grateful for the opportunities I had at the Center and for the chance to be involved in much of the Title IX litigation and advocacy work that took off in the early 1990s. I had a wonderful mentor in Ellen Vargyas, who trusted me to write briefs, take depositions, and work with clients, despite my youth and inexperience. I learned much from Marcia Greenberger, founder and copresident of the Center, and the other Center staff. Without these experiences, I would not have written this book, and my life would likely have taken other different turns, as well. None of it would have been possible had I not benefited from a generous law school loan forgiveness plan that enabled me to fulfill my wish of going into public interest law. Law students today, as then, graduate with a tremendous and often unmanageable debt, and more law schools should find a way to broaden their loan forgiveness programs so that they too can have the chance to pursue public interest careers. Once at the University of Pittsburgh School of Law, where I started teaching in 1998, I benefited from the best mentor imaginable in Martha Chamallas. I wrote three law review articles on issues related to Title IX in my first three years, and Martha improved every one of them. I have continued to benefit from her comments and conversations throughout the years, most recently from an opportunity to present a work-in-progress talk on pregnancy and sports at Ohio State University, her current academic home. Martha first suggested turning my Title IX work into a book back in 2001, and, |

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as with so much of her advice, I only wish I had followed it sooner. Richard Delgado and Jean Stefancic were instrumental in turning that idea into a reality, inviting me to submit a book proposal for their series with NYU Press and providing helpful feedback and encouragement along the way. When I finally started to make progress in writing a draft, Jules Lobel read the first two chapters and provided helpful commentary and encouragement at a time when they were sorely needed. I am grateful in general for the supportive colleagues and environment at the University of Pittsburgh and, in particular, for many conversations about the writing process and motivational strategies with Lu-in Wang. I benefited from generous support for this project from the Dean’s Scholarship Fund of the University of Pittsburgh School of Law, from stellar research support from the law school’s super-sleuth librarians, and from the equally wonderful word processing staff in the law school’s Document Technology Center. In the course of my ten years as a law professor at Pitt, I have had many research assistants who have helped with my work on Title IX in one way or another, so many that I cannot list them all. But, in particular, research assistance from Wendy Doernberg, Elizabeth Farina, Amanda Fisher, Holly Glymour, Chris Helms, Aubrey Jones, Molly Suda, and Nicole Tracy helped bring this book to fruition. One of the best things that came out of my time at the Center was the chance to make two lifelong friends in Verna Williams and Joanna Grossman, both of whom are now colleagues in the law professoriate. Much of my thinking on Title IX has been shaped by my work with Verna, including the experience of co-writing a law review article with her on the intersection of race and gender in sport (“The Heart of the Game: Putting Race and Educational Equity at the Center of Title IX,” 7 Virginia Sports and Entertainment Law Journal 199 [2008]). And Joanna Grossman is that rare friend who read every single word of a book-length manuscript, over a ridiculously short period of time, and gave thoughtful and careful editorial suggestions and comments on the entire project. It will be a long, long time before I repay that debt. In between submitting the book proposal and writing the book, I gave birth to two daughters. Those experiences more than anything else inspired me to finish this book, in the hope that Title IX will continue to change the world for the next generation of girls and young women, even as it forced me to hone my time management skills. For the unconditional love and support that allowed me to complete this project and for being an equal partner in parenting to make that possible, I am grateful to Todd Hoffman. And last but not least, I am grateful to my mother, Sandra Brake, and my father, Don Brake, for instilling in me the belief that I could accomplish whatever I set my mind to do. x

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Introduction: The Feminism of Title IX

Title IX. Those two words were blazoned on the bare backs of the members of the Yale University women’s crew team as they stood in the office of the athletic director in 1976. The women standing in that office had had enough. Although Title IX—a federal law banning sex discrimination in federally funded education programs—had been enacted four years earlier, it had yet to make a real difference in their lives. They endured appalling and humiliating conditions for the privilege of rowing for Yale, including restricted access to facilities, meager funding, and grossly unequal treatment compared to the male rowers. After each practice, in the bitter cold winters of Connecticut, they waited in their wet sweat suits on the freezing bus while the men took hot showers and dressed in the boathouse because the only bathroom and shower facilities at the river were reserved for men. Waiting on the bus, wet and cold, the women hatched a plan. On a cold day in early spring, the women called the New York Times and alerted a reporter that there would be a protest in the office of the Yale athletic director. On the announced day, nineteen members of the women’s rowing team walked into the A.D.’s office, stripped off their sweats, and revealed the words “Title IX” written across their bare backs and chests. Then they read a three-hundred-word explanation that included the following statement: “These are the bodies that Yale is exploiting. On a day like today, the ice freezes on this skin. And we sit for a half hour, as the ice melts and soaks through to meet the sweat that is soaking us from the inside.”1 To Yale’s chagrin, the protest made national news. The women’s crew team soon had access to showers and better facilities.2 The crux of their protest was these two simple words: Title IX. At the time, those words were little known among nonlawyers, beyond the few aficionados who followed women’s sports. Today, appeals to Title IX resonate broadly in American popular culture. Media coverage of every Olympics since 1996 |

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has included frequent mention of Title IX and glowing statements attributing the success of female Olympians to the opportunities created by the law. Appeals to the sentiment behind the law, that women should have equal access to sports, help sell Nike shoes and have figured prominently in the company’s advertising campaigns.3 A women’s clothing catalogue titled simply “Title Nine” markets sportswear and casual clothing to active women.4 The statute has even influenced the characters and story lines on our viewing screens in television shows and movies.5 Title IX has worked its way into American popular culture as few other laws have. And yet, for all of its influence, it is a law that is little understood. Critics blame it for going too far and hurting men’s sports, calling it a “quota” law. As explained in later chapters, it is not. Even the law’s supporters do not always grasp its requirements. Popular newspaper accounts often describe Title IX as a law that mandates equal funding for male and female sports. This, too, is inaccurate. It is a law that means many things to many people, but it is rarely fully understood or appreciated, despite its fame and notoriety. And, for all of its impact on women’s equality—in sports and in society—it is a law that has been too often neglected in feminist scholarship examining the role of law in shaping understandings of gender and producing cultural change. This is a book about Title IX. It explores how and why it has been more successful than other sex discrimination laws, at least in certain respects, in getting women into arenas traditionally reserved for men and in changing cultural norms in the process. It also examines those areas of the law where progress has been disappointing and where the law has developed in a constricted or ineffectual way. More indirectly, it is also a book about feminist approaches to law and gender inequality. Feminist legal theory is a helpful tool for understanding the successes and limitations of Title IX as a vehicle for social change. Title IX is a “feminist” law in the sense that it is animated by a desire to enable women to live more full and meaningful lives, without the stifling constraints of gender roles and discrimination. And yet, for the most part, feminist legal scholarship has not given Title IX its due. This book represents one effort to fill that void.

Feminism’s Neglect of Sport For the most part, feminist legal scholarship has ignored or marginalized sport. This has changed to some extent in the past decade, but in comparison to the attention devoted to women’s equality in other aspects of women’s lives, sport has been sorely neglected.6 2

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Introduction

The divide separating feminist legal theory from advocates for girls and women in sport has a certain logic to it. Feminist theory, like many other academic disciplines, has been influenced by Western philosophy, which treats the mind and the body as occupying opposite points on the spectrum of personhood. Western philosophy has long marginalized the body as the opposite of, and separate from, reason. Susan Bordo, one of a relatively small group of feminist philosophers who study the body and its role in shaping gender inequality, has observed that classical philosophy views the body as an obstacle to reasoning, since the body is rooted in a particular space and time, unlike thought and ideas, which (supposedly) descend from abstract principles of truth.7 This mind/body divide is further polarized by a gender dichotomy that associates the body with women and reason with men.8 As Professor Bordo explains, the construction of “the body” as female stems in part from the linkage between human bodies and women’s traditional roles—having babies, having sexual relationships with men, and caring for the bodily needs of children and family.9 Men’s traditional roles, on the other hand, link up more closely with the life of the mind. Given the aspersions Western thought casts on the body and the role of gender in creating a mind/body hierarchy, it is not surprising that feminist theorists have sought to downplay the importance of the body in feminist projects.10 A major focus of the feminist movement has been to bring women into the life of the mind as full equals. Accordingly, feminist law-related projects have given top priority to furthering gender equality in economic, civic, and political life.11 This is not to say that feminism has ignored the role that men’s and women’s bodies play in the subordination of women. Much feminist scholarship addresses issues of gender inequality in which the body plays a visibly central role, including abortion, rape, pregnancy, and childbirth. However, in these areas, the female body is the object of victimization, oppression, unique burdens, or disparagement. Feminist analysis of these topics has sought to reframe the focus away from women’s bodies and onto the disparities in social and political power that oppress women.12 In a similarly guarded stance, feminist theory downplays the significance of the body in explaining gender inequality in economic and political life. Apologists for women’s subordination have pointed to “natural” and biologically based differences rooted in men’s and women’s bodies.13 In response, much feminist legal scholarship has a social constructionist bent, minimizing the significance of the body and exposing the many ways in which society and institutions create and maintain gender inequality.14 Instead of regarding Introduction

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the female body as a source of strength, empowerment, and identity, feminist theory has kept more of an arm’s-length relationship to the body, minimizing its significance in larger gender equality struggles.15 Given this history, it is not surprising that sport has taken a back seat to other feminist projects. In the mind/body duality, sport is firmly on the side of the body. It is a largely physical domain in which active bodies figure prominently. Emphasizing the significance of sport and justifying it as an important subject for feminist attention require believing in the potential for women’s bodies to become a source of positive identity and individual empowerment. They also require overcoming any feminist ambivalence about sport and its role in society. Skeptics might view sport as such a thoroughly masculinized institution, celebrating brute force and the physical domination of others, that there is little left to salvage for women. Throw in Western culture’s disparagement of physical pursuits in favor of rationality, and feminism’s prioritizing of the pursuit of equality for women in the workplace and political and civic arenas seems predictable, if not inevitable. Feminism’s neglect of sport is not entirely one-sided. Many, and perhaps most, female athletes do not self-identify as feminists and do not perceive themselves as signing onto a feminist agenda when they play sports. Women’s sports advocates work at the periphery of the feminist movement, and many of the athletes and fans who benefit from their work show little interest in broader feminist projects.16 The reasons for this divide are complicated, but surely it is influenced by the cultural contradictions triggered by women’s participation in a traditionally masculine endeavor such as sport. If playing sports—especially playing masculine sports and playing them well—threatens to compromise women’s culturally valued femininity, disavowing feminism can help women athletes reclaim a more acceptable feminine identity. Scholars like Mary Jo Kane have termed this phenomenon “the female apologetic” in which female athletes go out of their way to provide reassurances of their femininity.17 Whatever the reasons for the breach between feminist legal theory and the women in sport movement, it is time to move gender equality in this arena to a more central place in a feminist agenda. In recent years, some feminist scholars have started down that path. Among them, the feminist sport scholars Shirley Castelnuovo and Sharon Guthrie have called for feminist theory to bridge the mind/body chasm, arguing that women’s physical liberation is a necessary step to full gender equality.18 Their approach advocates a mix of feminist strategies as applied to sport, the incorporation of liberal feminism’s emphasis on full inclusion, radical feminism’s scrutiny of how physical sub4

| Introduction

ordination maintains male dominance, and postmodern feminism’s insights into the constructed nature of the body.19 As sketched out later in this chapter, Title IX follows this prescription to some extent, taking a blended theoretical approach that draws from various strands of feminist theory to craft a hybrid, compromise model for regulating sex discrimination in sports. In writing this book, I hope to raise the prominence of Title IX as a feminist legal issue and to contribute to a greater understanding and appreciation of the law—while keeping a critical eye on its shortcomings. As a feminist legal scholar, I am especially interested in the role that Title IX can play in furthering gender equality in sport and in society more broadly. But, before turning to Title IX, it is worth surveying the potential benefits of sport in women’s lives and the case for making sex equality in sport a high priority.

The Feminism of Sport: Empowering Women and Transforming Cultural Norms At some point during adolescence, most girls learn to hate their bodies. Their bodies become a source of embarrassment, and girls begin to position themselves to take up less space. They fold their arms over their chests, cross their legs, and sink into their shoulders.20 As many parents of teen and preteen daughters will attest, girls at this age seem painfully unsure of themselves. They go from being uninhibited explorers of the world to self-conscious critics of themselves. They fixate on their looks and bemoan what they perceive as being wrong with their bodies, measured by impossible and idealized cultural standards.21 By some estimates, 40 percent of girls have dieted by the time they reach the fourth grade.22 Sport can be a powerful antidote to the self-abnegating relationship so many girls develop to their bodies. The ethnographer and scholar Jane Granskog has found, in studying women’s life histories, that sport is “a creative force in the development of identity,” providing a path to “embodied knowledge.”23 Participating in sport helps women reconnect with their bodies as a source of empowerment. Women who develop athletic competence as girls are better prepared both psychologically and physically to counter the cultural forces that turn women’s bodies into objects that exist for the use and pleasure of others.24 By developing athletic skills and interests as girls, women can use sport as a way to cope with stress as they progress through the stages of life and navigate the competing demands of adulthood. At its best, sport teaches important life skills. Through sport, girls learn to assert themselves but also to rely on others and to allow others to rely on Introduction

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them. They learn what they have control over and what they do not and practice deciding what to do about it. They develop self-reliance and learn how to reconcile it with teamwork. Sport also teaches a less-appreciated skill—how to recover from loss and disappointment, by regrouping, revising one’s goals, and rededicating oneself to meet them. Athletics can play an important role in developing girls’ leadership skills, both on and off the field. The benefits of sport to girls are well documented. They include enhanced self-esteem and feelings of self-worth,25 a lower incidence of depression and anxiety,26 greater physical health, including a lower risk of childhood obesity and a multitude of health benefits that extend into adulthood,27 and a reduced risk of suicide.28 Female sports participation is also associated with higher academic achievement and better social relationships with peers.29 There is even evidence that girls’ participation in high school sports translates into labor market gains when they enter the workforce, including higher pay and a greater likelihood of obtaining high-skilled work in traditionally male occupations.30 Participating in women’s sports also furthers the development of stronger social bonds among women. Especially in team sports, athletes develop a collective identity in which they are appreciated both as individuals and as members of the team. The relationships that form can be a source of empowerment and community throughout women’s lives. Sports participation empowers women as individuals, while at the same time promoting a strong and positive identity in being a woman, in affinity with other women. In addition to benefiting women at an individual level, girls’ and women’s participation in sports also yields societal benefits. Whether or not female athletes think of it in these terms, playing sports disrupts traditional understandings of gender. Strong, athletic women expose the myth that women’s bodies are “naturally” weak. They show that there is a range of body types and abilities and that these are not neatly categorized in a gender hierarchy that associates men with physical strength and women with physical weakness. With the increasingly high levels of performance by elite female athletes, the gender gap in athletic performance has substantially narrowed. Women’s athletic performance more closely tracks that of male athletes than many people realize, especially when differences in physical size are accounted for. For example, when the 7.5-inch height difference between Florence Griffith Joyner and Carl Lewis is taken into account, Joyner ran at a relative velocity .28 seconds faster per inch of height than that achieved by Lewis. Likewise, top female swimmers outswim men when height differences are accounted for. And, in endurance events like long-distance cycling, women have broken men’s records.31 6

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Introduction

Girls’ increasing participation in sport and the slow but steady upsurge in cultural support for it have shifted the cultural norms of girlhood. Adults of a certain age will remember a time, not so terribly long ago, when a girl who was good at sports was something of a cultural outcast. She was a “tomboy,” or, worse, a “freak,” maybe even a “dyke.” Girls today, however, are growing up in a very different world. Increasingly, success in sports is a source of popularity for girls as well as boys, putting them on a path to higher social status.32 The ideal of femininity itself has shifted from one that values quiet passivity to one that applauds strength, confidence, and athletic prowess.33 As the feminist sport scholars Leslie Heywood and Shari Dworkin have observed, these cultural changes have opened up more space for highly regarded, strong, athletic women. They laud the “the newly iconic image of the female athlete” as one that pushes back against simplistic media depictions of essential gender difference and passive, objectified images of women.34 As more and more women succeed in sport, the very meaning of gender and the understanding of what it means to be male or female is transformed. The feminist philosopher Judith Butler argues that women’s participation in sport “troubles” simplistic understandings of gender, revealing gender to be more “performance” than biology.35 As she explains, the increasing cultural acceptance of high-performing, “masculine” women athletes “not only expands the field of play, allowing greater participation, but it allows the category of ‘woman’ to become a limit to be surpassed, and establishes sports as a distinctively public way in which to enact and witness that dramatic transformation.”36 Butler uses the example of public reaction to Martina Navratilova in the 1970s and 1980s to illustrate the cultural changes that have occurred. Early reactions to Martina Navratilova depicted her as a freak, a man masquerading as a woman, not a “real” woman at all. By the 1990s, that understanding was replaced by a deep appreciation for her as an athlete and a role model. As a strong, unapologetic female athlete who, at the time, exhibited an unprecedented level of performance, Navratilova at the beginning of her career presented an image of gender that was unrecognizable under prevailing cultural understandings, provoking public wrath and ridicule. As cultural norms shifted over time, she became accepted and even celebrated, with the result that the field for being a “woman” expanded.37 In this sense, women’s sports participation has revolutionized understandings of gender and the cultural constraints under which women live their lives. For all of these reasons, female athletes participate in a feminist agenda even if they do not embrace the label. The movement for sex equality in sport has the potential to revitalize feminism, putting the “fun” back into the Introduction

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movement and appealing to a younger generation of women. Heywood and Dworkin aptly describe sport as “stealth feminism” because it promotes and capitalizes on a feminist agenda without getting hung up on who does or does not sign onto the “feminist” label.38 Working for sex equality in sport should be a high priority for those of us concerned with using the law to improve women’s lives and build a society based on gender equality.

Title IX’s Many Feminisms: Exploring the Law’s Success and Its Limitations Title IX stands out as a law that has had a transformative impact on the lives of girls and women and on society in general. It has escaped many of the pitfalls of other discrimination laws by employing measures of equality that are substantive and results oriented. As a feminist strategy, it is eclectic, representing a mix of various strands of feminist legal theory, rather than one unified theoretical approach. While some aspects of the law have been more forceful and effective than others, Title IX’s distinctive approach has enabled it to succeed in a way that other discrimination laws have not. At one point or another in its application to sports, Title IX draws from several major strands of feminist legal theory. Feminist legal theory does not prescribe any singular approach to law but hosts a number of competing and sometimes complementary models for explaining and addressing gender inequality. Liberal feminism dominated feminist legal analysis in the 1970s. Sometimes known by its critics as “formal equality,” liberal feminism presses for equal treatment on the same terms for men and women. Liberal feminists are critical of overblown claims of gender difference and adopt strategies that emphasize the relevant similarities between men and women. Liberal feminism seeks the rational treatment of individuals based on merit rather than on predefined gender roles. It promises the right to be treated as an equal, which is not necessarily the same thing as equality of results.39 Some components of Title IX reflect liberal feminist strategies. Title IX’s equal-treatment standard, for example, discussed in chapter 6, requires male and female athletes to be treated equally within existing sport programs. It does not question the ways in which sport itself is structured to better suit men’s interests, nor does it scrutinize any imbalances in the numbers of men and women who benefit from sports. It defines equality in terms of equal treatment for those women who are already similarly situated to men by virtue of their position as athletes. Similarly, Title IX’s requirement of equal opportunity in athletic scholarship awards, also addressed in chapter 6, takes 8

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Introduction

a liberal feminist approach. Men and women who are similarly situated as varsity athletes are entitled to an equal share of athletic scholarship dollars. Finally, under limited circumstances, explained in chapter 2, Title IX promises individual female athletes the right to try out for a spot on the men’s team. This, too, is a liberal feminist right. It is a right to a gender-blind tryout, not to a place on the team. The first two examples are group-based liberal feminist strategies, entitling female athletes as a group to equal treatment with male athletes. The third example, the right to try out for the other sex’s team, applies liberal feminism at the individual level, promising individual women a gender-neutral, merit-based selection process. All three are examples of a liberal feminist approach that strives for the equal treatment of men and women without questioning the male-dominated structure of sports and without recognizing or accommodating the reasons men and women are differently situated in sport. Liberal feminism has spawned a host of criticisms, and other schools of feminist legal theory have emerged with very different underpinnings. Some feminist scholars questioned liberal feminism’s strategy of highlighting men’s and women’s similarities instead of recognizing and accommodating the ways in which men and women differ. These critics pressed for strategies that take into account men’s and women’s different circumstances by recognizing and accommodating gender differences where necessary to reach a substantively equal result.40 Critics of liberal feminism branched out into different feminisms of their own. Antisubordination theorists reframed the question from whether to minimize or accommodate sex difference to whether a particular law or practice operates to disadvantage or oppress women. Their core concern is how to expand women’s social, political and economic power, and not necessarily the elimination of sex-based, differential treatment of individuals, or the adoption of accommodations to sex difference.41 Still another strand of feminist theory shared the criticisms of liberal feminism but disagreed with the antisubordination feminists’ turn away from inquiring into gender difference. This strand of theory contends that women have distinctly gendered “voices” and experiences that deserve equal recognition and valuation. Known by a variety of terms, including “cultural feminism,” “relational feminism,” and “different voice” feminism, this approach emphasizes the high priority women place on caretaking and relationships with others, as distinct from men’s more abstract and hierarchical approaches to justice. These scholars urge law and public policy to embrace and value women’s distinctive interests, needs, and experiences equally with those of men.42 Introduction

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Title IX takes a page or more from both of these more substantive approaches to equality. By breaking from the liberal feminist sex-blind selection model that governs workplace discrimination law, Title IX recognizes and accommodates gender difference in sport through its allowance of sex-separate teams. Title IX permits men and women to have their own teams, representing a rejection of a pure liberal feminist model that spurns sex-based different treatment. Chapters 1 and 2 explore the balance Title IX strikes between accommodating and minimizing sex differences for purposes of team selection. Chapter 1 argues that Title IX does a respectable job overall of grappling with the dilemmas in this area and settling on a baseline of separation, while chapter 2 points out some important shortcomings in the liberal feminist integration rights the law does recognize. Despite its shortcomings, the result of Title IX’s sex-separate opportunity structure is a legal framework that opens the door to more creative, results-oriented measures for gender equality in a sex-segregated setting. The biggest departure from liberal feminism—and the most successful equality measure, in terms of changing cultural norms—is Title IX’s threepart test for equal participation opportunities. This test concertedly aims to expand girls’ and women’s sports participation, in recognition of their historic and continuing underrepresentation in sports. The specific requirements of this test are described in chapter 3, but the overall goal of the test is to increase girls’ and women’s opportunities in competitive sports. In terms of sheer numbers, this test has been wildly successful. As chapter 3 details, the number of girls and women who play varsity sports has skyrocketed in the years since Title IX was passed. This test charts a feminist path that rejects alleged gender differences as a justification for continuing disparities in sports opportunities and takes a skeptical view of the notion that men are inherently more interested in sports. Instead, the theory behind the three-part test turns the spotlight on the structures and cultures of sport that create gender inequality and rejects asserted gender difference in athletic interest as a justification for male privilege in sports. Both antisubordination and cultural feminisms are woven throughout the justifications for the three-part test, which is in many respects Title IX’s most important legacy. Chapters 3, 4, and 5 tell the story of Title IX’s three-part test and its effects and implications. Title IX’s liberal feminist victories have been more measured. In particular, the equal-treatment standard has not lived up to its promise, considering the vast spending differentials that characterize men’s and women’s sports. Liberal feminism’s push for the gender-blind treatment of men and women has encountered difficulty as applied to a sex-segregated structure 10

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Introduction

that already recognizes sex difference as a basis for separating opportunities in the first place. Chapter 6 discusses the equal-treatment framework and its progress toward equalizing the treatment and benefits given to male and female athletes, as well as its limitations. One of the litmus tests for a sex discrimination law is how it deals with the subject of pregnancy. Here, too, Title IX strikes a creative and pragmatic approach, reflecting both liberal feminism’s approach to pregnancy, which analogizes it to other medical conditions, and a more substantive equality that requires a specific, favorable accommodation for pregnancy regardless of how other conditions are treated. Although the topic of pregnant athletes has remained largely on the sidelines in Title IX discussions, recent media coverage of this issue in an ESPN report showcased the blatant discrimination that can block athletes who become pregnant from pursuing their athletic careers. This publicity resulted in a Title IX success story that reveals notable progress in changing the cultural norms surrounding women’s participation in sports. Chapter 7 takes up this issue and explains why a blended theoretical approach that draws from multiple feminist perspectives is preferable in this instance to a pure and singular theory. While Title IX draws from liberal feminism, antisubordination, and cultural feminisms, it has been untouched by other developments in feminist theory. Postmodern feminist critiques have interrogated the category of “woman,” asking which women are implicitly included and which are implicitly excluded and exposing the instability of sex/gender itself as a category. Within postmodern feminist accounts, a critique of gender essentialism has emerged, challenging the primacy of gender in isolation as a tool for understanding and addressing oppression. Critical race feminists have shown that feminist approaches that fail to address racial injustice end up implicitly privileging white women.43 As is the case with other discrimination laws, Title IX has not absorbed these lessons, and the law’s successes have not equally benefited all women, an issue taken up in chapter 4. Recently, feminist inquiry has turned to literature on masculinities, exploring the various ways in which men, too, are subordinated by gender systems and the variation among men in how gender privilege is distributed.44 This literature has demonstrated the existence of a wide range of masculinities, with race, class, sexual orientation, and other aspects of identity influencing how men experience gender. Feminist scholars have been especially interested in how hegemonic or traditionally dominant masculinity is developed and sustains gender hierarchy.45 Scholars of sport sociology have shown that sport plays a key role in teaching hegemonic masculinity and privileging it Introduction

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over alternative masculinities.46 Unfortunately, Title IX’s approach to gender equality has made no serious attempt to expand the range of masculinities sport constructs, and it has failed to disrupt sport’s linkage to hegemonic masculinity. These limitations are discussed throughout the book and are highlighted in the Conclusion, which discusses the rift between men’s minor sports and women’s sports in debates over Title IX. Overall, Title IX has had mixed results in its ventures beyond issues of equal access to sports and into the territory of challenging gender privilege in sports. Chapter 8 takes up three issues that bear on sex equality in sports beyond getting women into the game and providing equal support and benefits: the law’s protection from retaliation, the representation of women in coaching and athletic administration jobs, and the sexual harassment of female athletes by their coaches. Each of these issues triggers Title IX’s sex equality guarantee, but with varying levels of (modest) success. A 2005 Supreme Court decision gave an important victory to a high school girls’ basketball coach who was fired after he spoke up for his athletes. That decision recognized that Title IX’s ban on sex discrimination implicitly encompasses protection from retaliation. The Court’s recognition of retaliation as a form of sex discrimination marks an important expansion of Title IX’s antidiscrimination principle to protect efforts to oppose and dismantle gender privilege in sports. However, so far, the law has not yet followed through on the full implications of this insight, and it remains to be seen whether the scope of the law’s protection from retaliation will be sufficient to enable Title IX to fulfill its promise as an effective remedy to gender discrimination. The remaining two issues taken up in chapter 8 suggest that there is less cause for optimism about Title IX as a tool for dismantling gender privilege. First, women’s share of coaching jobs has plummeted since Title IX was passed, and the law’s gender-blind, liberal feminist approach to employment discrimination does not view this as a problem of gender inequality at all. Second, Title IX is at its weakest when it comes to addressing one particular form of gender privilege in sport: sexual harassment of female athletes by their coaches. Sexual-harassment law is a creature of antisubordination feminism, but Title IX does much worse than other sex-discrimination laws in translating the insights of antisubordination feminism into legal doctrine in this area. This chapter reminds us that much work remains to be done before Title IX can fulfill its potential as a legal tool for social change. The book concludes by considering a phenomenon that plagues all progressive projects—the law’s ability to navigate and survive the inevitable 12

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backlash. Title IX is no stranger to backlash. An anti-Title IX movement has been in the works ever since the law was first enacted. It gained momentum in the past decade and a half as the courts stepped up the law’s enforcement. So far, the backlash has had limited influence; a 2005 Department of Education policy revision, for example, threatens to water down Title IX’s test for equal participation opportunities. However, all things considered, the bigger story is how little the backlash has accomplished. Despite favorable political conditions and, for many years, leaders in both the White House and Congress who shared an agenda to undermine the law, Title IX’s toughest and most effective standards have proven resilient to attacks by critics and efforts to undermine them. Title IX has remained a remarkably popular law precisely because it has been so effective in changing cultural norms to support greater opportunities for girls and women in sports. Too many parents have seen their daughters benefit from sports to turn back the clock now, even if it means their sons have to share the athletic pie. This rising level of support and appreciation for girls and women in sport has marked a revolution in the game, with spillover effects on gender relations in the broader society. With such a legacy, Title IX deserves its place as an iconic law in American culture.

Introduction

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1 Separate Is Equal?

The dominant principle in modern antidiscrimination law is that all persons should be treated as individuals, without reference to their status as members of a social group. In American law, this translates into a principle of color blindness when we’re speaking about racial equality and gender blindness when the focus is on discrimination against women. Civil rights laws on workplace equality, for example, require employers to use gender-neutral hiring criteria, with few exceptions. Once Title VII of the Civil Rights Act of 1964 went into effect, employers could no longer advertise positions for “women’s jobs” or “men’s jobs.” Instead, the law requires employers to consider men and women together for the same positions—unless the job fits into a narrow category of exceptions where sex is a “bona fide occupational qualification” for performing the job. Men have an equal right to be considered for secretarial positions, just as women can compete for jobs in law enforcement. Whether or not such gender-blind criteria actually produce a diverse mix of men and women throughout the workforce is not the law’s primary concern. Title VII is a quintessentially liberal feminist law, promising a gender-neutral process, not equal results. Title IX’s approach is markedly different from this baseline. As any college or high school sports fan knows, gender blindness is not the rule in competitive sports. Men and women generally do not compete against each other for the same sports opportunities. Title IX left the sex-separate structure of sports largely intact and opted for more substantive measures of equal opportunity rather than a rule of gender blindness. Where Title IX has had the greatest impact, in high school and college varsity sports participation, separation by sex is the rule rather than the exception. Title IX’s allowance for sex separation has facilitated a legal approach that emphasizes results over process and actual opportunities for girls and women over a more formal gender neutrality. However, the law also leaves intact a structure in which women’s sports are too often marginalized as secondary to men’s games, a poor stepsister to the “real” varsity programs. |

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The question of how to structure sport so that it fully includes and values women raises what is known among feminist legal scholars as the dilemma of difference. If women as a group are not similarly situated to men with respect to sports as they are currently played, how can sex-discrimination law best secure equality? Should it ignore gender differences, promote a gender-blind structure, and call it equality if schools have open tryouts for each sport? In this model, the best athlete, male or female, would make the team with no special dispensation for an athlete’s sex. Alternatively, should Title IX take a gender-conscious approach that acknowledges gender difference and makes sure that women have enough opportunities to play sports compared to the number of men’s opportunities?

The Dilemma: Separation or Integration? Neither model is costless. Shifting to a framework that offers coed opportunities for all athletes with no attention to gender could potentially wipe out the biggest gains Title IX has produced: the burgeoning numbers of girls and women who participate in competitive school sports. With genderblind team selection and competition, the majority of female athletes could well be relegated to second-tier teams or club and intramural games with only token representation at the varsity level. For many girls and women, such a shift would offer fewer paths to the success and status that so many female athletes have achieved under Title IX. Sport as a path to empowerment would become much narrower for most women, if not closed off completely. Although some individual female athletes might be better off with coed teams because of their ability to excel in competition with male athletes, women as a group would likely face diminished opportunities to play sports at the most elite levels. On the other hand, accommodating gender difference has its costs, too. It reinforces an ideology that has historically been used to justify the outright denial of sports opportunities to women and, more recently, to place a lower value on women’s sports. Having separate men’s and women’s teams risks sending the message that women are inherently lesser athletes. The existence of sex-segregated programs risks identifying female athletes as the second-class citizens of sport. It also sacrifices whatever benefits might be gained by having men and women, and boys and girls, compete with and against one another and the potential transformation in gender relations that might result. As the feminist sport historian Jennifer Hargreaves explains the dilemma, separatism can increase women’s control over sport, mobilize 16

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Separate Is Equal?

women to fight for equal resources, and enable them to participate in sports free from male domination, but it also re-creates social gender divisions and can exaggerate sexism, with the message that biological sex, rather than culture, defines athleticism.1 This is the classic dilemma of difference, leaving advocates for gender equality damned if they ignore gender and damned if they don’t. Title IX negotiates this terrain with a flexible and pragmatic approach. As a starting point, Title IX allows schools to offer separate competitive teams for men and women. But this baseline can be altered in narrow circumstances recognized by Title IX and, in some cases, the U.S. Constitution’s equal protection clause. The result is that individual athletes have a right to try out for an oppositesex team, but only if they meet certain criteria—criteria that strongly favor tryout rights for women over those for men. In this legal regime, gender separation is the norm, integration the exception. This chapter explores how Title IX navigates the tricky terrain of gender separation and assimilation in sports. It concludes that, although critiques of sex segregation in sport deserve our attention, Title IX has done a relatively good job of forging a pragmatic approach to structuring sports opportunities for girls and women. In forsaking gender blindness for a more gender-conscious, result-oriented model, Title IX has chosen substantive equality over formal equality. This choice has created the potential for expanding girls’ and women’s sports participation and inciting broad-based cultural transformation in society’s response to female athletes and to women’s roles more generally.

The Development of Title IX’s Approach to Sex Equality in Sports Title IX emerged from a broader social movement seeking the recognition and vindication of women’s rights. After Congress passed Title VII of the Civil Rights Act of 1964, which banned workplace discrimination on the basis of race, color, religion, sex, or national origin, women’s rights advocates turned their attention to widespread practices of discrimination against girls and women in education. Early drafts of what would become Title IX proposed simply adding “sex” to Title VI of the 1964 Civil Rights Act, which bans race discrimination in all federally funded programs, including education programs. However, in response to extensive testimony in Congress specifically focused on sex discrimination in education, the proposal was redrafted and ultimately enacted as separate legislation. Congressional hearings on the bill barely mentioned sports, focusing instead on the discrimination women faced in gaining admission to college Separate Is Equal?

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and graduate school. At the time, many universities, if they allowed women in graduate programs at all, had quotas limiting the number of places they could fill. The theory was that women were likely to marry and stay home to raise children and should not take slots away from men, who would make better use of their degree.2 To the extent that the topic of sports came up at all in these hearings, it was raised by proponents of Title IX to allay fears that the law would go too far in radically altering male turf. Senator Birch Bayh of Indiana, a leading sponsor of the legislation, mentioned sports only twice during the hearings. The first time was to provide reassurance that the law would not mandate coed football. Senator Peter Dominick of Colorado retorted that he would have had much more fun playing football if it had been coed, prompting chuckles from the Senate gallery. The only other time the subject was mentioned was to reassure members of Congress that Title IX would not require coed locker rooms and would allow personal privacy to be preserved.3 Whatever ambivalence surrounding the law’s coverage of sports was present at the time was overshadowed by a general consensus on the need to expand women’s access to educational opportunities. The final version of the law was enacted as part of an education funding law in 1972—the same year that Congress endorsed the Equal Rights Amendment, which would later die a protracted death in the state ratification process.4 The core provision of Title IX is a broad and general ban on sex discrimination. The heart of the law says simply: “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. . . .”5 As with other similarly broad statutes, “discrimination” is a loaded and highly malleable term. It requires interpretation, and the consensus that the term generates masks what are often sharp conflicts about its meaning. Today, almost everyone agrees that discrimination is wrong, but questions about what that means, the implications of remedying it, and who will bear the costs have historically been the subject of deep social conflict. Title IX is no exception. The rosy glow of consensus quickly gave way to bitter disputes over the law’s application to sports. Although Senator Bayh’s oblique remarks about football were intended to reassure skeptics that the law would not be too far-reaching, they implicitly reflected an expectation that the law would apply to athletics. The sports establishment soon rallied to try to cabin the law’s implications for intercollegiate sports. The National Collegiate Athletic Association (NCAA) was a leader in this effort. With the group’s support, Senator John Tower of Texas attempted to amend Title IX in the early 1970s. 18

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Senator Tower first introduced a bill that would have exempted intercollegiate sports entirely. When that effort ran into opposition, he sponsored an alternative proposal to exempt “intercollegiate athletic activity to the extent that such activity does or may provide gross receipts or donations to the institution necessary to support that activity.”6 The Tower Amendment passed in the Senate, but when the Education Amendments of 1974 reached the joint House-Senate conference, the conference committee replaced it with a compromise provision that basically evaded the tough questions about how Title IX would apply to sports. Proposed by Senator Jacob Javits of New York and henceforth known as the Javits Amendment, the compromise delegated authority to the federal enforcing agency, then the Department of Health, Education, and Welfare (HEW), to issue regulations for implementing Title IX that included “with respect to intercollegiate athletics reasonable provisions considering the nature of particular sports.”7 The Javits Amendment recognized that Title IX should allow for differences among individual sports, with football and its mega-budgets and squad sizes being the elephant in the room, but it implicitly rejected the notion that a sport’s ability to raise revenue should categorically exempt it from Title IX. Still, the compromise left the details—large and small—to be worked out at another level of government. During the second half of the 1970s, the battle over Title IX shifted from Congress to federal regulators and eventually to the courts. Even before the Javits Amendment turned over the job to HEW, the agency’s Office for Civil Rights had already begun struggling with the difficult question of how to craft antidiscrimination standards to fit intercollegiate athletics. Lawyers at HEW quickly realized that the desegregation model for enforcing Title VI, which covers race discrimination in federally funded schools, could not simply be replicated in Title IX.8 They recognized that competitive sport was a particularly thorny area for developing measures of gender equality. In the vast majority of settings in which antidiscrimination laws apply, including employment and voting rights, assimilation and gender neutrality are the guiding norms and goals shared by the law’s supporters.9 For example, although American workplaces continue to have a significant degree of de facto sex gender segregation, both vertically and horizontally, employment discrimination laws aspire to dismantle this segregation and create a genderblind opportunity structure.10 In the world of sports, however, it is much less clear that integration is or should be the primary goal of Title IX. As was true in 1972, sex segregation remains the norm for sports competition today, and Separate Is Equal?

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there is no consensus, even among Title IX’s strongest proponents, that the law should aspire otherwise. When HEW was developing its proposal for Title IX regulations, some stakeholders argued for sex integration as the measure of equality. Among them, some women’s rights advocates acknowledged that temporarily separate sports programs for women might be necessary as a type of affirmative action but pushed for the ultimate goal of having men and women compete for a spot on the same team. Other stakeholders who supported sex integration, however, did so as a way of preserving the status quo. For example, during early debates over the Title IX regulations, some male athletic directors argued that colleges should be able to satisfy Title IX simply by opening tryouts to men and women, even if the end result was all-male teams with no additional female participation.11 Supporters of separate women’s sports programs vigorously resisted such proposals, arguing for a more substantive measure of nondiscrimination that would ensure meaningful opportunities to participate. The debate drove a wedge between women’s rights advocates over how best to achieve sex equality in sports. The feminist group most critical of sex segregation in sports, the National Organization for Women (NOW), argued that “separate but equal” was an inappropriate permanent baseline for sports, as for other areas of public life. But NOW acknowledged that sex-separate teams might be a necessary interim measure until the gap in training and experience closed and women could meaningfully compete with men. Other advocates of women’s sports were more comfortable with sex separation as a lasting baseline and pushed for measures of equality within sexseparate programs. The Association for Intercollegiate Athletics for Women (AIAW), for example, argued for separate teams for all men’s and women’s sports, with proportionate funding.12 The organization made the case that giving women control over their own resources would allow them to develop their own model of sports rather than simply replicate what men had designed for themselves. Separation would allow women broader opportunities in sport instead of limiting them to the sports selected for men. More important, the group hoped that women’s programs might avoid the commercialism that was already taking hold in men’s programs, and emphasized broad participation, instead of spending vast sums on a few elite athletes.13 The AIAW represented female physical educators, the vast majority of whom would have been pleased with separate teams, as long as they had sufficient resources to succeed. Sifting through the arguments in 1973, HEW’s Office for Civil Rights initially considered two very different approaches: (1) opening up team tryouts 20

| Separate Is Equal?

to all athletes, male and female; or (2) keeping sex-separate programs but developing measures of equality to ensure equal opportunities.14 By 1974, when it issued draft regulations, HEW had rejected the first option. Instead, the draft regulations issued for public “notice and comment” required educational institutions to annually gauge the athletic interests of their student bodies and to engage in affirmative action to increase women’s opportunities in sports.15 The “affirmative efforts” requirement included providing women with training and support and encouraging them to take advantage of existing athletic opportunities. The agency received nearly ten thousand sets of written comments on the draft regulations, prompting Secretary Casper Weinberger to observe, with a tinge of sarcasm, that “the most important issue in the United States today is intercollegiate athletics.”16 Various interest groups opposed the draft regulations, including the NCAA, which feared the regulations would have the effect of taking resources away from men’s sports. After sorting through the comments, HEW made substantial revisions before issuing final regulations in 1975. The Javits Amendment had given Congress a window of opportunity to block the regulations if it disapproved of them. Backed by the NCAA and the big-time football schools, members of Congress introduced several resolutions to stop the regulations from taking effect. Supporters fought back in congressional hearings on the regulations, putting forward extensive evidence on the extent and magnitude of sex discrimination in intercollegiate athletics. Among the many examples, Ohio State University was noted for spending 1,300 times more money on male than on female athletes.17 The effort to disapprove the regulations ultimately failed, and they went into effect in the summer of 1975.18 They allowed for a three-year grace period for athletic programs, requiring full compliance by 1978. The deadline passed with very little effort toward compliance, but there was much continuing dialogue about exactly what the regulations required.

Title IX’s Baseline: Separation, Not Integration The final Title IX regulations reflect the determination that gender neutrality in team tryouts is insufficient to provide real equality for women in sport. And yet, the structure of the regulation on equal athletic opportunity is itself interesting, and reflects some ambivalence about sex segregation in sports even as it rejects assimilation as the full measure of equality. The key regulation begins with a strong statement endorsing gender integration in sports. The first section states: Separate Is Equal?

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(a) General. No persons shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person or otherwise be discriminated against in any interscholastic, intercollegiate, club or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.19

After this strong statement endorsing sex integration in sports programs, the next part of the regulation reads like a jarring reversal: (b) Separate Teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport.20

Although the structure of the regulation suggests that integration is the general rule, with sex separation being the exception, in reality the reverse is true. At least at the varsity level, team selection is always based on competitive skill, which means that sex-separate teams are allowed in both contact and noncontact sports. If sex separation is the exception, then it is the exception that swallows the rule. By using the term “may” rather than “shall,” the Title IX regulation itself does not require separate athletic offerings for men and women. However, by permitting sex-separate programs under most circumstances, the Title IX regulations left intact the reality of sex-segregated sports. Moreover, it is not at all clear that a gender-blind team selection process would satisfy the regulation’s commitment to equal athletic opportunity. A separate requirement in a later provision of the regulation, discussed in depth in chapter 3, requires equal athletic opportunity in the selection of sports and levels of competition so as to effectively accommodate the interests and abilities of members of both sexes.21 In its comments on this part of the regulations, HEW explained that this provision may effectively require schools to provide separate teams for male and female athletes. In order to accommodate the interests and abilities of women, the agency advised, “an institution would be required to provide separate teams for men and women in situations where the provision of only one team would not ‘accommodate the interests and abilities of both sexes.’”22 Whether merely permitted or actually required by Title IX, sex-separate teams for women have remained the norm in the post–Title IX era. This reality fundamentally shapes the rest of Title IX’s approach to equal athletic 22

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opportunity. Within the baseline of separation, there is some allowance in the Title IX regulations for integration rights, a topic taken up in the next chapter, but coed sports are the exception and not the rule. This has generated a longstanding debate about whether sex-separate teams can ever be truly equal and whether separation is the best baseline under Title IX.

A (Locker) Room of One’s Own: The Case for Separation The case for having a baseline of separate sports for men and women dates back to the pre–Title IX years, when women athletic administrators were in the early stages of developing women’s sports. In 1963, female athletic administrators attending the NCAA annual convention asked the NCAA not to allow women to compete on men’s teams.23 They had several rationales, including a fear that women would be hurt in competition with men, a concern about a potential talent drain from women’s sports, and a desire to prevent women’s programs from developing along the same lines as men’s sports, with their scandals and commercialism. In addition, the push for maintaining separate women’s programs was based on a desire to maintain control over women’s sports by female educators, who placed a different, more educational value on sports than the administrators who ran men’s sports. Early judicial rationales for sex separation in sports emphasized physical differences and the potential for women to be injured in coed competition. However, as such rationales came to be viewed as chauvinistic and inconsistent with emerging legal norms on gender discrimination, the dominant rationale shifted to an emphasis on protecting women’s increasing athletic opportunities from male encroachment. An important test case arose in 1980. It involved a talented eleven-year-old girl, Karen O’Connor, who wanted to try out for the sixth-grade boys’ basketball team. Karen had played basketball with boys in youth sports leagues since she was seven years old. Although the junior high school she attended offered both girls’ and boys’ basketball teams, Karen believed that only the boys’ team could offer her the level of competition that would enable her to develop her skills. When school officials insisted that she try out for the girls’ team or not compete at all, as required by the school’s athletic conference, Karen’s parents sued on her behalf, bringing claims under both Title IX and the equal protection clause.24 Karen’s ability to compete with boys on the basketball court was not the issue. As the court of appeals acknowledged, “a professional basketball coach who observed her play rated her ability as equal to or better than a female high Separate Is Equal?

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school sophomore and equal to that of a male eighth-grade player.”25 Nevertheless, the appellate court reversed the lower court’s ruling that she had a right to try out for the boys’ team. Emphasizing that the teams were equal except for the level of play by the athletes themselves, the court ruled that the school district’s decision to maintain separate girls and boys teams was justified by the important objective of increasing girls’ overall participation in sports.26 U.S. Supreme Court Justice John Paul Stevens, who sided with the school district in an earlier proceeding in the case, made a similar point:27 In my opinion, the question whether the discrimination is justified cannot depend entirely on whether the girls’ program will offer Karen the opportunities that are equal in all respects to the advantages she would gain from the higher level of competition in the boys’ program. The answer must depend on whether it is permissible for the defendants to structure their athletic programs by using sex as one criterion for eligibility. If the classification is reasonable in substantially all of its applications, I do not believe that the general rule can be said to be unconstitutional simply because it appears arbitrary in an individual case.28

Justice Stevens’s remarks reflect the tension between a model of equality that prioritizes the goal of advancing the position of a social group and one geared toward ensuring that individuals are not penalized by their social group membership. His position, and that of the appellate court, prioritizes the rights of the social group, women, to maximize their overall athletic opportunities. Under this reasoning, if team selection were made on a gender-blind, individualized basis, male athletes would likely dominate sports teams, leaving fewer opportunities for women. Even if men could somehow be kept off of women’s teams, there would still be a significant cost to women’s sports. The talent drain from having the best female athletes play on “men’s” teams could slow the development of women’s sports, depriving other women of the chance to compete against the best women in the game. Interest in women’s sports might develop more slowly as a result, with women’s teams being further stigmatized for including only those women not good enough to get onto the “men’s” team. The more recent controversy over the teen golf phenomenon Michelle Wie and her effort to play in the men’s league shows that the same set of concerns still arises when elite women athletes seek to leave the women’s game to compete with men. When Wie took the game by storm as a fifteen-yearold, generating the kind of public attention and media spotlight rarely seen 24

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in women’s golf, many supporters of the Ladies Professional Golf Association (LPGA) feared that her determination to play in the Professional Golfers’ Association (PGA) would hurt the women’s league. As one sports writer described the predicament, “No wonder the LPGA is nervous about Wie. It cannot afford to lose golf ’s starlet to a man’s world.”29 Wie’s foray into the men’s game generated a great deal of press attention, but her fame quickly faded when she did not excel in that venue. Some perceived it as a slight to the LPGA, in which Wie had yet to distinguish herself as a champion comparable to the likes of Annika Sorenstam. One commentator lamented, “Michelle Wie would generate more attention for playing poorly at men’s events than Sorenstam did for winning against women. Which, of course, is a shame.”30 By choosing to compete against men, elite female athletes may send the message that competition with men is more worthy of public attention and accolades than women’s sports. The O’Connor case typifies the rationales courts use to justify sex segregation in sports. The Sixth Circuit Court of Appeals used similar reasoning in another watershed case that addressed the constitutionality of sex separation in sports, this time overturning a lower-court ruling that Title IX’s allowance for separate teams in contact sports violated the equal protection clause of the U.S. Constitution. The Sixth Circuit ruled that a school district has the discretion to offer coed opportunities where doing so furthers equal opportunity for girls, as for example where there is no comparable girls’ team in the sport. However, the court rejected the argument that Title IX’s allowance of sex-separate opportunities violates the equal protection clause. The court took a more substantive approach to equality, explaining, “[w]hen males and females are not in fact similarly situated and when the law is blind to those differences, there may be as much a denial of equality as when a difference is created which does not exist.”31 The court continued, expressing its concern for promoting real opportunities for girls: When considering the constitutionality of Title IX and its regulations, a blanket requirement of one team at each age level might result in male dominance of all teams and cause a return to pre-Title IX conditions, a result completely at variance with the statute’s purpose. It is desirable to maximize the opportunities for individual women, but a requirement that boys play only on boys’ teams while girls may compete either with the boys or in an all-girls’ program (as they wish) might have a similar undesirable effect on the fledgling women’s athletic programs; women’s athletics may be significantly harmed if the best female competition is lost to the boys’ program.32 Separate Is Equal?

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Like Justice Stevens in his opinion in the O’Connor case, this court viewed Title IX as protecting the rights of women as a group over the occasionally conflicting interests of exceptional female athletes.33 There is, of course, a significant cost to this model of equality that emphasizes what is best for women as a group. Exceptionally gifted athletes like Karen O’Connor who are able to compete with male athletes may be worse off because they are denied the chance to play at the highest level. Karen O’Connor felt so strongly about her preference for competing with boys that, after losing in court, she chose not to try out for the girls’ team and to forgo playing basketball at the school.34 Limiting exceptional female athletes to competition on women’s teams may keep the very best female athletes from developing to their full potential, depriving the public of seeing just how good top female athletes can become. Faced with this tension, Title IX sides with a group-based vision of equality, emphasizing the goal of developing strong women’s sports programs that expand women’s overall opportunities. As Justice Stevens explained, “without a gender-based classification . . . there would be a substantial risk that boys would dominate the girls’ program and deny them an equal opportunity to compete in interscholastic events.”35 Such an approach would leave many girls and women shut out of varsity sports entirely, relegated to second-tier sports competition. In such a world, there would be too few female athletes competing to shift cultural gender norms. The few women competing at high levels would be perceived as tokens and as exceptional female athletes who are recognized because of their differences from other women, thereby ultimately reinforcing the norm of female athletic inferiority rather than contesting it. As Michael Messner, a scholar of sport and sociology, has warned, mixed-sex competition under the guise of “equal opportunity” and liberal feminism “is likely to become a new means of solidifying the ideological hegemony of male superiority” by “provid[ing] support for the ideology of meritocracy while at the same time offering incontrovertible evidence of the ‘natural’ differences between males and females.”36 In other words, a shift from sex separation to a gender-blind selection process would send the message that men have “earned” their privileged status in sports, while reinforcing the notion that few women belong in sport, and only if they can compete on men’s terms. Indeed, in the battle over the meaning of equal opportunity in sports, the gender-blind approach has often been a strategy for thwarting more substantive measures of equality. When a class of female athletes sued Temple University in the 1980s for not allocating enough funding, resources, or 26

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opportunities for women to play varsity sports, Temple responded that its varsity men’s teams just happened to be filled by men. In actuality, Temple claimed, the teams are open to any athlete good enough to make them, male or female. As a result, Temple argued, the funding, resources, and opportunities provided to athletes on teams filled by men should count as programs that support female athletes, as well. This argument did not prevail, and the female athletes who brought the case eventually won an important settlement requiring Temple to put more resources into its women’s sports program. More recently, Florida’s state high school athletic association used a similar argument in attempting to defend a 20 percent schedule reduction for varsity sports that exempted football. Classifying football as a coed sport since girls as well as boys could try out, the association argued that the schedule cuts were gender-neutral. It later backed down from this argument when parents of female athletes filed a Title IX lawsuit, alleging that the exemption of football left girls bearing the brunt of the cuts. The case was settled when the association agreed to rescind the schedule changes.37 In addition to protecting large numbers of competitive sports opportunities for women, the case for sex separation also considers how best to structure sport to make it an empowering experience for girls and women. Many girls and women prefer having their own teams, where they are less likely to feel threatened, inadequate, or unwelcome.38 Research on coed sports suggests that male athletes tend to take over, keeping women from playing or fully developing their skills and confidence.39 The sports anthropologist Faye Linda Wachs explains that “when girls attempt to join boys in sports, they often find themselves ignored, placed in devalued positions (positions to which the ball is rarely hit), and they do not receive the same instruction and encouragement as the boys.”40 Her study of adult coed softball found that male athletes used a number of strategies for limiting women’s participation, including “positional segregation,” that is, the “gendering” of field positions and the placement of players into positions by gender. Through this tactic, women were more likely to be placed in “helper” positions where they would pass the ball to others, rather than make the play themselves. Another strategy identified in the study was “the switch,” in which male players temporarily switched positions with female players in order to make a play. For example, a male outfielder would run into a female player’s territory and shout, “I got it,” even if the female player was well positioned to catch the ball. Wachs explains how these kinds of practices become a self-fulfilling prophecy. Anticipating the “switch,” a female athlete will play more tentatively, unsure of whether to step in and make the play or leave it to a male colleague. If she Separate Is Equal?

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guesses wrong and misses the play, this is used to validate the “switch” in the first place. A similar confidence-draining strategy Wachs observed involved instructions that directed women to hold back, anticipating incompetence, in high-stakes moments. For example, female batters were encouraged to take “walks” at important points in the game when a male batter was up next. Even when well intentioned, such practices hinder the empowering and confidence-building potential of sport for women. Other research has also questioned whether coed sports are a site of empowerment and skills building for girls and women, even prior to the onset of physical differences that might make boys better athletes on average.41 In their study of kindergarteners playing coed T-ball, Melissa Landers and Gary Fine found that, instead of challenging gender role socialization and nurturing girls’ athletic skills, coed T-ball reinforced gender hierarchies and discouraged girls from later participation in sports.42 Both male and female coaches were more likely to demean and criticize the girls’ abilities, and they provided boys with greater instruction and encouragement. The study concluded that, rather than correcting gender inequities in coed participation, coaches and teachers often reinforced it. As a result, girls were less likely to find the game fun and were more likely to lose interest in sports.43 The case for separation also emphasizes the value of all-female spaces for creating bonds between girls and women and developing a stronger sense of identity. This is particularly valuable for young adolescents who are struggling to sort through conflicting and multilayered messages about femininity and female bodies. Instead of worrying about how boys perceive them, girls can focus on their bodies as a source of strength and functionality. All-female sports can also teach healthy interfemale competition and cooperation. Competing with and against other women in sports challenges the dominant cultural lens that tries to turn competition among women into “catfights” and has trouble understanding female competition as anything other than fighting over a boyfriend or superficial jealousy over who is more attractive or popular. By providing a setting where women play together, work together, and compete together, all-female sports can teach healthy models of competition and cooperation. Such experiences can help dispel pervasive gender stereotypes that encourage distrust of women leaders and portray female bosses as mean, petty, and difficult to work for. In terms of influencing the legal framework, the case for sex separation in sports has had much greater impact than the arguments against it. Nevertheless, there are significant downsides to the “separate but equal” model, and arguments for gender integration are not easily dismissed. 28

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The Critique of Separation: Reinforcing Sex Difference and Gender Hierarchy As a strategy for promoting gender equality in sports, Title IX’s baseline of sex separation is not without costs. Separating women from men in athletic competition sends the message that men are better athletes. After all, the judicial rationale for preserving sex separation in sports, evident in the O’Connor case, assumes that gender-blind selection would leave female athletes with fewer opportunities because they cannot hold their own against male athletes. This message is troubling and has led some supporters of gender equality to question whether sex separation should be abandoned in favor of an integrationist model. Karen Tokarz, a law professor, for example, has argued that sex segregation in sports “fosters the myth of male supremacy” and “perpetuates the sex role stereotype of women as passive and weak.”44 Another legal scholar, B. Glenn George, is also critical of sex-separate teams, arguing that separate is not equal in this context and pointing to the greater expenditures, resources, and attention devoted to men’s intercollegiate sports.45 Mary Jo Kane, a sports sociologist, has raised the related concern that separating male and female athletes makes gender a more salient and prominent category that shapes our thinking about sports. With teams divided by gender, male and female athletes are channeled into “gender-appropriate” sports, and athletes who conform to the gender continuum receive the most positive cultural attention. Female athletes in figure skating and gymnastics, for example, garner more spectator interest than the women who play rugby. Likewise, football players typically garner more status and attention than male swimmers and volleyball players. The gender division of sports thus “works to suppress evidence of a [gender] continuum,” making sex difference seem more natural, inevitable, and significant than it is.46 Speaking of sex segregation in education more generally, the feminist legal scholar Nancy Levit makes a similar point when she observes that the impact of single-sex environments on the cultural construction of gender is too often ignored in debates over sex segregation in education, and warns that separation may exalt and exaggerate perceived gender differences.47 Proponents of gender integration in sports emphasize the importance of challenging the gender ideology that views the presence of women in male sports as threatening to the gender order. Much of the resistance to gender integration in sports reflects deep-seated attachment to what sport sociologists describe as the masculinizing function of sports. When girls and women seek to join male teams, they undermine the ability of sports to teach a traSeparate Is Equal?

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ditional masculinity that defines manhood by its distance from, and superiority over, femininity. The determination not to “throw like a girl” loses its force when confronted by a girl who throws well. Some early court decisions rebuffing claims by female athletes who sought to try out for male sports teams reflect this troubling gender ideology. For example, a pre–Title IX Connecticut decision rejected a high school girl’s attempt to try out for boys’ track and cross country.48 The judge reasoned that, although “[a]thletic competition builds character in boys,” “[w]e do not need that kind of character in our girls.”49 He continued, tellingly, to proclaim that the male population is “not so decadent” as to get a thrill out of beating girls.50 The judge’s apprehensiveness about boys engaging in sports with girls reflects anxiety about a loss in status and about the ability of sports to confer that status if male athletes have to compete with girls. Beating a girl would dilute the masculinity that comes from successful athletic competition. And, of greater significance, the judge’s reaction reflects an anxiety over the unspoken question of what happens to a boy’s masculinity if he loses to a girl.51 Some of the fiercest battles to keep girls out of male sports have been fought over baseball. As the historian Sarah Fields points out, it is no accident that most of the lawsuits brought by girls seeking to compete on boys’ teams have involved baseball, a sport highly infused with national identity and masculinity.52 Organized baseball has a long and unfortunate history of fighting to keep girls and women from playing the sport.53 In one early example, the University of Pennsylvania acted quickly to bar women from playing baseball when five women spontaneously joined men in an on-campus baseball game in 1904.54 Women were also excluded from professional baseball. When a seventeen-year-old young woman, Jackie Mitchell, signed a minor league contract in 1931, she struck out baseball legends Babe Ruth and Lou Gehrig in an exhibition game. The commissioner quickly responded by voiding Mitchell’s contract and issuing new rules that barred women from the sport on the grounds that it was too strenuous for women.55 The sport was no more welcoming to younger female players. Little League began in 1939 as a summer program to teach boys masculinity and Americanism. The federal charter giving Little Legal nonprofit status, signed by President Lyndon Johnson, specifically stated its purpose as assisting “boys in developing qualities of citizenship, sportsmanship, and manhood.”56 By the 1970s, girls and their parents were questioning girls’ exclusion from Little League, and some families brought lawsuits to challenge it.

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The first such case, decided in 1973, was not successful. Ten-year-old Pamela Magill brought an equal protection challenge to the decision of the Avonworth Baseball Conference, in western Pennsylvania, not to permit her to play Little League baseball.57 The directors of the league countered that if girls were allowed to play, it would “destroy” the league because boys would not want to play against girls and would drop out of the sport. The court sided with the defendant on the ground that the conference was not a state actor and therefore was not subject to the Constitution’s equal protection clause. Adding insult to injury, the court went on to opine unfavorably on the merits of Magill’s claim, reasoning that sex differences and the nature of baseball as a contact sport made it “rational” to exclude girls from the game.58 As sex-discrimination law began to take shape in the early to mid-1970s, however, the tide was beginning to turn.59 In 1974, one year after the Magill case, a New Jersey appellate court interpreted New Jersey’s law barring discrimination in places of public accommodation to require Little League chapters in the state to allow girls on the team. The court was not persuaded by Little League’s arguments for excluding eight- to twelve-year-old girls, which were based on protectionist rationales about girls as weaker athletes, and ordered the league to admit girls.60 Little League Baseball considered appealing to the New Jersey Supreme Court, and many teams in the state decided to suspend play rather than to allow girls; however, the controversy was soon settled at a higher level of government.61 The cases caught the attention of Congress, and Congress acted to amend the Little League charter in 1974 to broaden the beneficiaries of the sport to “young people,” in place of the previously stated purpose of assisting boys in developing manhood. As a result, Little League changed its rules in 1974 to allow girls to participate in Little League baseball, while at the same time creating Little League Softball for girls—a move clearly designed to channel girls into a more feminized version of the sport. As of 2003, 360,000 girls participated in Little League Softball, and 100,000 girls participated in Little League Baseball.62 In schools today, baseball is still a sport typically played by boys, with girls playing softball. By too readily accepting sex separation in sports, critics argue, Title IX misses an opportunity to challenge the gender ideology behind the exclusion of women from men’s games. Critics of sex separation in sport also warn of its tendency to produce different rules for male and female sports. The contrast between baseball and softball is just one example of how sex separation leads to different sport rules based on the sex of the participants. Sports for girls and women have often

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been modified to make them less physically demanding, such as the allowance for “checking” in lacrosse and ice hockey when played by boys but not by girls. Basketball, too, for most of its history has been played by girls under very different rules. For many years, girls’ teams had six players instead of five, and teams played on a divided court to make the game less strenuous.63 Legal challenges to rule differences in girls’ sports have been mostly unsuccessful. For example, Victoria Ann Cape, a high school basketball player, was rebuffed in her Title IX and constitutional challenges to Tennessee Secondary School Athletic Association rules limiting women to half-court basketball, mandating six players on the court, and restricting players in certain positions from shooting the ball.64 The court of appeals reasoned that the same gender differences in athleticism that support separating competition by sex in the first place also justify the development of different rules of the game for men and women. Such reasoning, however, does not inevitably follow from the justification for sex-separate teams. One federal district court in Arkansas ruled that the state athletic association’s rules limiting girls to halfcourt basketball violated the equal protection clause, even though the court assumed that it was constitutional to have separate teams for boys and girls.65 This court recognized the disadvantage the half-court rules caused Arkansas girls in competing for college scholarships and the lack of a sufficient justification for preventing girls from fully experiencing the game. Most courts, however, have used the gender-difference rationale behind sex separation to justify different rules for conducting male and female sports.66 Athletic associations gradually brought the rules of girls’ basketball in line with the boys’ game voluntarily. Girls’ basketball has not been played sixon-six in a state-sanctioned game since Oklahoma abolished the practice in 1995.67 Nevertheless, many male and female sports continue to have different rules. Some rule differences correspond to average physical differences, such as the practice of having a lower net for women’s volleyball than for men’s volleyball. Others, however, change the game more fundamentally, such as the checking/no-checking difference in men’s and women’s ice hockey.68 In theory, rules for girls’ and women’s sports might develop differently in order to better design sports to fit their interests, skills, and bodies. As a male-dominated institution, sport has been tailored to men’s bodies and interests and has been designed to showcase men’s talents and abilities. However, a less charitable explanation may be traced back to the ideology of preserving the construction of masculinity through male sports participation. In this ideology, it diminishes the boys’ game if girls play the game in the same manner as the boys.69 32

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Another piece of the gender ideology behind keeping women off men’s teams is the fear that women’s participation will introduce an element of sexuality into sport and the desire to preserve a carefully guarded heterosexual image in men’s sports. This concern is often behind the resistance to coed wrestling. It is often expressed in terms of boys being hamstrung in their moves in an effort to avoid what might be construed as sexual contact. Opponents raise the specter that coed wrestling introduces an element of sexuality that they do not believe is present when males wrestle other males. This concern reflects an anxiety about sexuality in sports that involve close bodily contact between men. Implicit and pervasive heterocentric norms hide the intimacy of the moves when it’s “just the guys” competing, but the involvement of women in the sport heightens awareness of the intimacy of the moves involved in the sport. As Sarah Fields explains the negative reaction to girls seeking to integrate wrestling teams, “People who had never given much critical thought to scantily clad young men rolling around together on a mat suddenly had a means of deflecting concerns of male sexuality and homoeroticism.”70 This kind of “sex panic” often occurs when women seek to integrate male-dominant settings where physicality is prominent. Women’s integration into the military, for example, has often been resisted on the grounds that the presence of women in close physical quarters introduces a problematic sexuality that is otherwise presumed to be absent. The concern about sexuality often sits alongside an even deeper anxiety about men losing to women in tests of physical power. These combined concerns have led some boys (supported by their parents) to forfeit wrestling matches against girls in coed competitions, leaving the girls with fewer competitive opportunities and the message that they are not proper competitors.71 Proponents of gender integration in sport emphasize the importance of resisting these gender ideologies that underlie prohibitions on female-male competition in sport. They see a missed opportunity for the potentially transformative power of gender-integrated teams to challenge existing gender relations and redefine them on a more equal basis. The case for coed sports competition and against Title IX’s baseline of sex segregation gained prominence recently in a book by Eileen McDonagh and Laura Pappano called Playing with the Boys: Why Separate Is Not Equal in Sports.72 McDonagh and Pappano make the case against sex segregation in sports with great depth and eloquence. They argue that the gender division in sports rests on gender stereotypes and not actual physical differences and that it reinforces the view that women’s sports are a diluted version of “real” (male) sports. Their argument has its roots in liberal feminism, which Separate Is Equal?

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regards persons as individuals to be judged on their own merits, not defined or limited by gender. They advocate a world of competitive sports in which athletes are selected for their abilities without regard to gender. They lambast Title IX’s acceptance of sex segregation as the norm for sports, thereby “codify[ing] historic myths about female physical inferiority and foster[ing] a system which, while offering women more opportunities than ever before, still keeps them from being perceived as equal athletes to men.”73 Under their proposal, separate women’s teams could still exist on a voluntary basis to compensate for discrimination, but coercive sex segregation in sports would be replaced with a gender-blind, best-athlete model. Their position allowing voluntary separate teams for women who choose not to compete with men would likely mean that the “open to all” teams would have top-tier status, with the most resources, publicity, and school support. In other words, implicit in what these authors propose is that firstorder sports, those played at the highest varsity level, would be open to all athletes, male and female, for tryouts, while separate women’s teams could continue on a voluntary basis, with a status more akin to club or intramural sports. In advocating the integration model, McDonagh and Pappano persuasively argue that sex segregation constructs and amplifies, rather than merely reflects, sex differences between male and female athletes. They point out that there is much more variance in physical ability within the sexes than there is between them and that average sex differences do not translate into female inferiority. Some physical differences give female athletes an advantage on average. For example, women’s higher percentage of body fat helps them in endurance events. They cite, as an example, study results in which equally trained male and female athletes performed identically in races over forty-two kilometers and women outperformed men at distances over ninety kilometers.74 To be sure, other average physical differences give an advantage to men on balance, but many individual women still perform equal to or better than many individual men. Moreover, average sex differences in athletic performance are declining.75 As more women have the training, opportunity, and encouragement to perform at their full capacity, average performance gaps may shrink further or even, over time, disappear altogether.76 McDonagh and Pappano argue that female athletes will never be equal to men as long as sex-separate participation is the norm. Their book has reinvigorated the debate over separation versus integration in sports and raises troubling questions about Title IX’s baseline of sex separation as a starting point for measuring equal opportunity. 34

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Which Side Is Right? It is the nature of a dilemma that there is no singular resolution that avoids the pitfalls of the path not taken without a significant downside of its own. The choice between gender assimilation and gender integration in sports presents precisely such a dilemma. The case against sex-segregated sports is overwhelmingly persuasive—until you consider the case against sex integration as the baseline. And vice versa. Exploring this dilemma raises interesting questions without clear answers. What is the significance of the message sent by gender separation? Is it that women are weaker and men are the “real” athletes? Or is it that women’s value as athletes does not depend on their ability to compete with men, that girls and women deserve support as athletes in their own right, and that all-female competition in sport is powerful, robust, and fun? More important, whatever the message sent by sex-separate competition, how does it compare to the reality of how the choice between assimilation and separation affects real opportunities for girls and women in sports? How should Title IX weigh the importance of ideology—which is complex and difficult to discern—against concrete opportunities? Although there are no easy answers to these questions, I do not believe that gender integration as the baseline would do a better job of subverting women’s second-class status in sports than the current default of separation. At the level of ideology, it is not at all clear that integration challenges rather than reinforces messages of women’s inferiority in sports. Both sides in the argument over separation and integration rely on and reinforce assumptions of male athletic superiority. For example, in the O’Connor case discussed earlier, the argument for separating boys and girls was that boys would dominate otherwise, leaving fewer opportunities for women to play sports. But the opposing argument also drew upon and reinforced an ideology of male athletic superiority. Karen O’Connor’s reason for wanting to play on the boys’ team was that boys play the game better and she needed the challenge to fully develop her skills. Rather than subverting traditional gender ideologies, a shift to genderneutral team selection buys into the notion that, to be “real” athletes, women must compete with men and that any athletic field that does not include men is not worthy of support. It takes as a given the reality that the sports offered in our schools have been selected for and governed by men to ensure their fit with men’s bodies, interests, and abilities. Instead of weakening gender hierarchy in sports and transforming gender relations, switching to a baseline of coed play would more likely wind up reinforcing an ideology of male athletic Separate Is Equal?

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superiority, with the message that it is only the exceptional and unusual (not “real”) woman who can compete with the boys. Both sex separation and integration risk reinforcing the ideology of male dominance. More important, the debate over the cultural meaning of sex separation versus integration cannot be resolved in the abstract without attention to the effects on real opportunities for girls and women in sports. If gender-blind team selection would significantly reduce the numbers of girls and women playing varsity sports, either because they no longer wanted to play sports or because of average sex differences, the effect of gender integration, in terms of both gender ideology and real opportunities, would be much worse than that of sex separation. If female athleticism is viewed as exceptional and aberrational and male ascendancy as the natural result of merit-based selection, girls’ and women’s sports will lose their power to promote cultural change. As Paul Willis, a scholar of sport and society, explains, “Heroic sports success amongst a few women—without a massive, corresponding ideological battle to change the field of force of meaning—will not lead to greater participation regularly in schools and sports centres by girls and women, nor to a liberation in their sense of gender.”77 Two feminist authors and sport scholars, Leslie Heywood and Shari Dworkin, touch upon a similar theme when they discuss the cultural significance of the movie Girlfight, in which a female boxer struggles for recognition and success in the male preserve of boxing.78 She fights men, and at one level the movie promotes the feminist message that women can compete with men in the toughest of sports. However, the film highlights her differences from other women as much as it displays her “masculine” traits of strength and courage. Picking up on this subtext, Heywood and Dworkin reveal another layer of meaning that undercuts the film’s exterior feminist message. They ask, “Does her individual growth, then, help the status of the generic girls to whom she is contrasted, or does it merely serve to reinforce those conventions because she is presented as different?” Is her ascendance “available to all girls,” or does it bolster a form of male power while promoting the (false) ideology that it’s available to all?79 Their questions drive home the point that if girls’ and women’s success in sports is at or near token levels, the feminist gain from seeing elite women compete against men will be lost to the deeper message that female excellence in sport is aberrational. Given the conflicting ways to “read” the ideology of gender integration and separation in sports, it is better to go with the strategy that produces the greatest results in terms of the broad participation of girls and women in sports. It is through this broad participation that Title IX has had its greatest 36

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impact. As the sport sociologist David Whitson explains, in a reference to an influential feminist philosopher, “If [Iris Marion] Young is correct [about the empowering potential of women learning to use their bodies actively], the physical empowerment of more women and the entry into sport of greater numbers of women will steadily contribute toward breaking down the masculine connotations of sport itself.”80 Title IX’s effect on female sports participation has set exactly such a process into motion. Title IX’s biggest success, and its most revolutionary impact in terms of producing cultural transformation, is the huge increase in the number of girls who grow up playing organized sports, with many of them continuing to do so into adulthood. This, much more than the accomplishments of a few elite athletes, has had the greatest impact on changing the place of women in society. Although celebrity athletes also have an important influence on the culture and provide role models for other female athletes, it is the advent of girls and women participating in sport in mass numbers that has been truly revolutionary. As female athletic participation has grown, along with societal interest and excitement in women’s sports, it is no longer so clear that separate is necessarily second class for women. Gender ideology and the role of gender in shaping social life, including in sports, are constantly in flux. The past few decades have seen a remarkable upsurge of respect and appreciation for female athletes, with each new Olympics touting the extraordinary performance of women in the post–Title IX era. There is more appreciation of women in sports than ever before. Discourses about powerful women and “girl power” coexist and compete with more reactionary discourses that marginalize female athletes by highlighting their appearance or sexuality. In sports, as in other areas of social life, the cultural debate over gender continues, with competing views on what it means and how social policies should respond. Critics who would replace Title IX’s structure with gender integration do not fully grapple with the nature of the dilemma and what would be lost by retreating from Title IX’s substantive approach to getting women into sports. In their book criticizing “separate but equal” in sport, McDonagh and Pappano do a terrific job elaborating the costs of sex separation. But they do not explore the limits of gender integration. They are so steeped in the liberal feminist perspective that they do not acknowledge the pitfalls of such a strategy or the compelling critique of liberal feminism elsewhere in feminist theory. At one point, McDonagh and Pappano criticize sex segregation in sports as “not American” for disregarding the individual and instead placing emphasis on a person’s membership in a social group.81 A similar philosoSeparate Is Equal?

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phy is at the heart of the backlash against affirmative action and the push for “color blindness” and its counterpart, “gender blindness,” in law and social policy. But in a system implicitly modeled on male norms and in which gender is a continuing source of inequality, a gender-blind approach often further entrenches inequality rather than eradicates it. In using Brown v. Board of Education as their liberal model of equality, the authors gloss over the problems with this paradigm. Once race is eliminated as a device for sorting students, de facto racial segregation is perfectly lawful. Resulting inequalities in educational outcomes are then attributed to innate ability and work ethic, obscuring the structural inequalities like residential segregation and systemic poverty that leave children of color with much poorer educational opportunities than more privileged white children. The analogy to Brown is far from perfect, and certainly there was much to gain from stopping a system of stateenforced racial segregation in schools. However, color blindness on its own, like gender blindness, is a limited theory of equality that fails to grapple with the deep structures of bias and treats resulting inequalities as the legitimate result of a fair process. Title IX has been more substantive and creative, taking a more progressive tact than liberal feminism, one that has been made possible by the law’s baseline allowance for sex separation in sports. In the final analysis, Title IX has chosen the right priority: expanding girls’ and women’s participation in sports through a substantive approach to measuring equality in athletic opportunities. Although the educational value of sports is often obscured by the commercialization of elite college sports, particularly in men’s football and basketball programs, sports are in our schools because of their educational, social, psychological, and physical benefits. These benefits, and the empowerment and fun that come with them, are every bit as valuable for girls as for boys. Moreover, as a feminist project, expanding female athletic participation has the potential to empower women and to broaden their access to power in society. A strategy focused on empowering a greater number of women through sport has more transformative potential than a strategy of gender-blind sports selection. As the legal scholar Robert Post has argued, the purpose of sex-discrimination law should not be to eliminate the social category of gender but to change its meaning.82 Still, even if the baseline of sex separation is the more promising feminist strategy, the downsides to separation are nevertheless real—hence, the dilemma cannot be fully and unequivocally resolved. In the final analysis, whether “separate but equal” works as a feminist strategy in sport depends on how it is mediated by integration rights and the circumstances under 38

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which athletes can cross the gender line. Under Title IX’s legal framework, sex separation is not absolute. There are important, albeit limited, rights to cross over to a team offered to the other sex. Chapter 2 examines integration rights as an important qualification to sex-separate opportunities and evaluates how such integration rights help mitigate, if not eliminate, the downsides of sex separation. Ideally, the law should work on both fronts: maximizing the real opportunities for girls and women in sports, while at the same time critically examining the gender ideology that limits sports opportunities by a student’s sex.

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2 Integration Rights: Girls Playing with Boys and Boys Playing with Girls

In 1996, Courtney Barnett and Melony Monahan were high school juniors who shared a common interest. While most girls their age gravitated to sports like basketball, softball, volleyball, and track, Courtney and Melony competed on the varsity wrestling team. But not everyone shared their enthusiasm. In November 1996, the girls were refused permission to participate in mixed-gender matches at the North Texas Open wrestling tournament, which were forbidden by the Texas Interscholastic Wrestling Association. With their parents’ help, the girls sued under Title IX and the equal protection clause, seeking the right to compete against boys. Although they lost under Title IX, the court allowed their equal protection claim to go forward, prompting the association to switch to a policy of nondiscrimination. Courtney and Melony graduated before the court could issue a final decision, thereby mooting their case, but their challenge helped open the doors for other girls to compete against boys in wrestling.1 Although sex separation in sports is the norm, it is not always a hard and fast rule. Many girls and young women like Courtney and Melony have succeeded in integrating formerly all-male teams in sports that are not otherwise available to girls.2 While such claims have not succeeded when separate teams in that sport are offered to both girls and boys, as in the O’Connor case discussed in chapter 1, girls have successfully used the law to try out for teams in sports that the school offers only to boys. The vast majority of interscholastic and intercollegiate athletes participate on single-sex teams, but a good many female athletes have crossed the gender-line to compete on boys’ teams. Such integration rights ease some of the downsides of separation discussed in the previous chapter. How well the baseline of sex separation works to promote sex equality in sports ultimately depends on how it is mediated by intervening integration rights. |

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Title IX’s Regulatory Framework: Limited Integration Rights The right to participate in mixed-sex competition is the one area of sex equality in sports where Title IX has taken a backseat to constitutional rights. Although the Title IX regulations create a framework for asserting a right to try out for an opposite-sex team, in practice, such a right is extremely limited. As chapter 1 explains, Title IX allows schools to provide separate-sex teams where team selection is made on a competitive basis or where the sport involved is a contact sport. The same regulation that broadly permits separation also creates a set of limited integration rights. It provides for the right to try out for a sport offered to members of the other sex, but only under certain conditions. After describing the broad allowance for separatesex teams, the regulation continues: However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of this part, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact.3

This passage sets forth three conditions for recognizing a right under Title IX to try out for a place on another-sex team. First, the tryout right is limited to sports in which a team is provided for only one sex. The rationale is that where teams in the same sport are available to both sexes, equality is better served by having separate teams than by applying gender-neutral criteria for team selection.4 This restriction significantly limits the scope of Title IX’s integration rights. As a result, for example, Title IX did not give Karen O’Connor the right to try out for the boy’s basketball team since the school already had a girls’ basketball team. This prerequisite for the tryout right leaves some room for arguing about whether sports that are modified for girls with different rules and equipment are really the same sport as the boys’ version of the game. The biggest controversy in this regard is whether softball and baseball should be treated as the same sport or different ones. Aspiring female baseball players contend that they are not at all the same, given substantial differences in the 42

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size and dimensions of the fields and the balls and differences in the equipment, rules, and strategies of the games. This argument recently prompted athletic associations in Indiana and Nebraska, in response to threatened Title IX litigation, to back away from their rules barring girls from participating in baseball, whereas Massachusetts still holds fast to the position that offering girls softball is enough.5 No court decision to date has ruled on this issue, although the female baseball players have the better of the argument. As one talented female athlete who struggled to find a high school that would allow her to play baseball commented, equating baseball and softball just because they are both played with balls and bats is “like saying Ping-Pong and tennis are the same sport.”6 The second condition under the regulation is that athletic opportunities for members of the student’s own sex must have “previously been limited.” This requirement reflects the law’s antisubordination bent and the concern for correcting the power disparities that have left girls and women with fewer opportunities than men have to play competitive sports. Courts have interpreted this to mean that overall athletic opportunities at the school must have been limited for members of the excluded sex, not just opportunities to play the particular sport in question.7 For example, a boy who wanted to try out for the girls’ volleyball team could not merely show that boys’ opportunities to play volleyball have been limited. He would have to show that boys have had more limited sports programs overall at the school than girls. Otherwise, the very absence of a team for the excluded sex would make this condition superfluous—it would always be present anytime a sport was offered to members of one sex and not the other. The emphasis on limited opportunities has meant that the tryout right, in practice, is much more likely to assist female athletes seeking to compete on all-male teams than male athletes who wish to play on all-female teams. Given the reality that school sports programs have historically favored male athletes, even if not offering boys every sport offered to girls, male students will almost never meet this condition. With the exception of a formerly allgirls’ school that has recently become coed and has failed to provide boys with athletic opportunities that keep pace with their enrollment, it will be the rare case where a school has a history of providing fewer athletic opportunities to males. Third and finally, even if these two conditions are met, Title IX restricts the tryout right to noncontact sports. The regulation defines contact sports broadly to include “boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily Integration Rights

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contact.” The inclusion of basketball on this nonexhaustive list shows that a sport may be a contact sport when contact is likely or anticipated, even if it is against the rules of the game. Because so many of the sports offered to men but not women are contact sports, the contact-sports exemption has meant that Title IX’s integration rights have been of only limited help to female athletes seeking to try out for all-male teams.

The Contact Sports Exception: A Throwback to the Pre–Title IX Era The contact-sports exception has been the subject of extensive criticism— and rightly so—for reflecting the patronizing and protectionist view that women are too frail to compete in contact sports with men, regardless of their individual abilities. It is a throwback to the pre–Title IX era when girls were assumed to be too weak for the most strenuous and physical sports. The regulation’s broad view of what counts as a contact sport exacerbates the problem. Because a sport’s rules about how much contact to permit are not decisive, other considerations can come into play. The malleability of the category enables the “contact sport” label to be applied whenever the presence of women would threaten a deep-seated masculine association with the sport. Even baseball, a sport in which there is a relatively low risk of bodily contact, has been declared a contact sport by defenders of a male-only roster. Some state high school athletic associations declared baseball a contact sport in connection with rules prohibiting mixed-sex competition in contact sports in an effort to keep girls out of the game.8 In the ultimately unsuccessful effort to keep girls out of Little League, discussed in chapter 1, Little League organizers insisted that baseball was a contact sport and that including girls on the team risked injury. Such arguments ultimately failed because, unlike Title IX, the federal equal protection clause and state constitutional equality guarantees do not have an exception for contact sports.9 Today, it is far from clear that baseball would be classified as a contact sport. In fact, a recent Title IX lawsuit prompted the Indiana High School Athletic Association to back down from its rules barring girls from playing baseball where softball is available, rather than pursuing the contact-sports angle.10 Still, the fact that Little League could invoke the contact-sports argument for baseball with a straight face shows the malleability of the contactsports exception and its potential to undermine Title IX as a vehicle for opening up tryout rights to girls in boys’ sports. Title IX’s contact-sports exemption is not redeemable under any feminist theory of equality. It stops short of even 1970s-style liberal feminism and 44

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conflicts with equal protection precedents from that era that struck down sex-based generalizations that patronize women and “protect” them out of opportunities. Indeed, it represents the biggest risk of a cultural feminism that exalts women’s “differences”: that a theory of equality that encourages the recognition and celebration of women’s uniqueness will end up denigrating and devaluing the difference that is classified as feminine. The contactsports exemption buys into a construction of certain sports as fundamentally masculine and unsuitable for women. By excluding women from participating with men in contact sports, it preserves the status of certain high-power sports as masculinizing activities. Court decisions from a pre–Title IX era reflect an overt gender ideology that resists the presence of women in men’s sacred terrain. In State v. Hunter, for example, the Oregon Supreme Court rejected a woman’s equal protection challenge to a state law that not only barred women from participating in organized wrestling but actually made it a crime to do so. The court expounded at length on the unfortunate intrusion of women, who have gone from “long tresses and demure ways to bobbed hair and almost complete sophistication” into men’s sphere of activities. The court summed up by asking, “In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges?”11 The contact-sports exception represents a continuation, in only a somewhat muted form, of this ideology. It stigmatizes female athletes as fragile and in need of protection, while simultaneously defining male athleticism as vigorous and aggressive. It conveys the message that women do not belong in highly physical sports and should channel their athleticism into more “ladylike” sports. As the sport historian Susan Cahn explains, “by barring women from strength-building contact sports like wrestling or football, the sports world reaffirms the expectation of female passivity, submissiveness, and frailty—the demeaning aspects of femininity that underlie the aesthetic.”12 It is a throwback to an earlier era of gender relations and an eyesore on the landscape of Title IX. As a practical matter, the contact-sports exception restricts women’s athletic opportunities by taking Title IX out of the toolbox for most female athletes seeking to participate in sports offered only to men. For example, in Courtney and Melony’s challenge to the Texas Wrestling Association ban on mixed-gender wrestling matches, the court easily dismissed their Title IX claim, citing the contact-sports exception, leaving them to rely on the equal Integration Rights

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protection clause for relief.13 Because most sports that a school offers only to boys are likely to be contact sports—such as football, wrestling, ice hockey, and rugby—Title IX has had relatively little influence in opening doors for girls and women to play on all-male teams.14 One exception in recent years is a Title IX lawsuit brought by Heather Sue Mercer against Duke University for its treatment of her when she went out for the men’s football team. In that case, Duke’s football coach initially invited Mercer onto the team after watching her kick a winning field goal in an exhibition game. Mercer had been a star soccer player in high school and an occasional place kicker for her high school football team. Swept up in the moment, the coach publicly promised her a place on the team. However, his initial enthusiasm quickly subsided. Soon after she suited up, he derided her with sexist comments and refused her game time. “You should have gotten over wanting to play little boy games a long time ago,” he told her, and suggested that she become a cheerleader instead. According to Mercer, the coach ostracized her, treated her differently from the male players, and ultimately forced her off the team without giving her an equal opportunity to play or develop her skills.15 Mercer brought a Title IX claim against Duke for denying her equal athletic opportunity. Duke argued that Title IX had no application to a female athlete seeking to play football, the quintessential contact sport. In a firstof-its-kind decision, the Fourth Circuit Court of Appeals disagreed, ruling that, although Duke initially could have invoked the contact-sports exception to exclude Mercer from the team, once it allowed her onto the team, it had a duty not to discriminate against her on the basis of sex.16 Mercer took her case to a jury, which awarded her one dollar in compensatory damages, reflecting the absence of proof of economic or emotional damages to Mercer resulting from the discrimination, and $2 million in punitive damages, reflecting the jury’s outrage at Duke’s discrimination. Unfortunately for Mercer, the Fourth Circuit subsequently overturned the punitive damages award, ruling that punitive damages are unavailable in Title IX claims.17 Still, the case vindicated female athletes’ right to equal treatment in contact sports under Title IX, once they are permitted to try out for the team. And Duke was required to pay approximately $350,000 to Mercer’s attorneys, since “prevailing parties” that bring civil rights cases, including Title IX claims, are entitled to a “reasonable” attorney’s fee from losing defendants.18 While the ruling was a victory for female athletes in contact sports, its practical impact has turned out to be limited. The take-home message for schools was to never let a female athlete try out for the football team in the 46

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first place. Had the coach forbidden Mercer from ever joining the team, Duke would have had an easy victory under Title IX. The large punitive damages award—even though later vacated—and the award of significant attorney’s fees caught the attention of university lawyers eager to avoid such liability at their own institutions. Although treating female athletes with respect and on the basis of their ability would also do the trick, unfortunately, the easiest way for a school to avoid Title IX liability in such a case is to keep women out of men’s contact sports altogether. This may not be an option for public schools bound to comply with the Constitution’s equal protection clause. As discussed later, the equal protection clause provides much stronger integration rights to female athletes, even in contact sports. But private schools such as Duke need not worry about the equal protection clause, which applies only to state actors. For private schools, Title IX’s contact-sports exception gives them a “bye” from having to worry about providing female athletes equal opportunity in male contact sports. Although the case marked a significant victory for Mercer herself, it is not likely to have a major impact, and perhaps no impact, on opening doors to other women in contact sports—nor has it led to a deluge of female college football players.19 Although there are more than 1,300 girls playing on high school football teams nationwide, only three other women since Mercer have played in college football games, all as placekickers.20 As problematic as the contact sports exception is, a full assessment of Title IX’s impact on female participation in male contact sports requires a deeper look. Through its emphasis on expanding female sports participation, the subject of chapter 3, Title IX has indirectly put pressure on schools to allow girls into boys’ contact sports, notwithstanding the contact-sports exemption. The reason is that female athletes in any sport, even on coed teams, are counted in Title IX’s participation standards, which seek to ensure a fair balance in overall male and female athletic participation.21 As a result of this pressure to expand women’s participation, for example, some men’s wrestling teams in recent years have welcomed girls onto the team in the hope of sheltering the team from any future decisions to eliminate sports. Arkansas’s Wrestling Association, for example, recently announced a plan to accept girls onto boys’ teams in part to help boost female athletic participation and help schools comply with the three-part test for measuring female participation opportunities, the subject of chapter 3.22 More important, Title IX has fueled the culture that has heightened women’s interest in playing contact sports and society’s acceptance of them when they do. For example, although girls made up only 2 percent of high school Integration Rights

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wrestlers nationwide in 2005, their participation in the sport grows with each passing year.23 The increasing participation of female athletes in other contact sports, including football and ice hockey, both reflects and reinforces Title IX’s transformative impact on the culture.24 Still, when it comes to integration rights for female athletes in male sports, Title IX is the timid sister of the more muscular equal protection clause.

Getting Girls onto “Boys’ Teams”: Stronger Constitutional Rights Federal and state constitutional rights have played a much greater role than Title IX in enabling girls to participate in sports offered only to boys. In the early 1970s, as the standards for sex discrimination under the federal equal protection clause began to toughen, girls and women successfully pressed for the right to try out for teams in sports offered only to men. In 1972, an Indiana girl successfully challenged her exclusion from the high school golf team under Indiana’s equal rights amendment.25 That same year, two high school girls brought an equal protection challenge to Michigan state rules barring girls from participating with boys in noncontact sports, winning the right to compete in tennis, a sport not offered to girls at their school.26 A rash of cases followed in which girls won the right to try out for teams in noncontact sports offered only to boys.27 In the beginning, courts were more circumspect about opening up contact sports to girls. For example, one federal district court agreed with a female high school senior that she had an equal protection right to try out for the baseball team but went out of its way to take issue with state high school athletic rules classifying baseball as a contact sport. Played properly, the court opined, bodily contact is unlikely, since the rules prohibit body checking and collisions at the plate are infrequent.28 The court’s concern over whether baseball was a contact sport suggested that Title IX’s contact-sports exception might influence how the courts applied equal protection analysis to this area. Another court decision from the early 1970s also raised the possibility that contact sports might be treated differently from noncontact sports. In upholding a preliminary injunction that allowed two Michigan high school girls to play tennis with boys, the Sixth Circuit modified the lower court’s declaration that the ban on mixed-sex competition was unconstitutional and limited the court’s order to apply only to noncontact sports. The appeals court was careful to note that contact sports were not at issue in the case, but the court’s qualification suggested that the outcome might have been different if they had been.29 Other courts joined the bandwagon in finding an 48

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equal protection right for girls to try out for boys’ teams in noncontact sports not offered to girls while expressly noting that their rulings did not involve contact sports.30 As the decade unfolded, however, a distinction between contact and noncontact sports under the equal protection clause did not take hold. Maleonly contact sports did not survive the onslaught of equal protection challenges brought by girls seeking access to sports not otherwise available to them. Even football, the quintessential contact sport and the sport foremost in mind when Title IX’s contact-sports exception was ensconced in the regulations, was opened to girls through equal protection rulings. In 1974, a federal court in Ohio ruled that Cleveland could not exclude twelve-year-old Brenda Clinton from its Cleveland Browns “Muny Football League.”31 Applying a strong version of liberal feminism, with its goal of treating people as individuals rather than members of a social group, the court stressed, “[i]t is necessary that we begin to focus on the individual rather than thinking in broad generalities, which have oftentimes resulted in the imposition of irrational barriers, against one class or another.”32 A year later, two Washington State girls won the right to try out for their high school football team under the state’s equal rights amendment.33 As litigation wound its way through the courts in the 1970s, a body of case law developed that recognized a right under federal and state constitutional law for female athletes to try out for sports offered only to boys, including contact sports. State athletic association rules with blanket bans on mixed-sex competition quickly fell by the wayside. In one of the early and influential cases, a Pennsylvania court declared, in 1975, that its state athletic association rules barring girls from participating in contact sports with boys violated the state’s equal rights amendment.34 Two years later, the Massachusetts Supreme Court reached similar results under its state equal rights amendment, striking down a proposed statewide rule barring girls from participating with boys in interscholastic contact sports.35 Wisconsin’s state athletic association rules against mixed-sex competition in contact sports met a similar fate in 1978, as had similar rules in Colorado the year before.36 By 1985, when sixteen-year-old high school junior Jacqueline Lantz sued for and won the constitutional right to try out for the junior varsity football team at her school in Yonkers, New York, the court could confidently state that “every court which has considered questions like the one facing the court in this case has reached the same result.”37 In contrast to Title IX’s emphasis on protecting group rights and increasing women’s overall athletic opportunities, the equal protection rights in Integration Rights

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these cases are distinctly individualistic. Consistent with liberal feminism, the courts accepted defendants’ arguments that protecting female students from harm is an important government interest, but refused to allow generalizations about average sex differences to substitute for an individualized assessment of ability.38 The equal protection right recognized in these cases is not the right to actually play on the team, nor to have a certain level of female representation on the team, but rather the right to gender-blind tryouts. It is the right to a fair process, not to equal results. As such, the equal protection right differs markedly from Title IX’s test for equal participation, discussed in chapter 3, which adopts a more substantive measure of equal participation. As the court emphasized in ruling for Jacqueline Lantz in her quest to play on the junior varsity football team, the equal protection clause does not grant a female athlete an entitlement to a starting position on the team; it grants her only the right to be evaluated on her individual ability.39 This is a much stronger liberal feminism than Title IX, with its contact-sports exception, applies to integration rights, but it does not venture outside the liberal feminist model. The equal protection right is satisfied by a gender-blind selection process, even if no female athletes actually make the cut. And yet, for some women, the right to a gender-blind tryout has been enough to get them onto men’s teams, even in contact sports. As mentioned, more than 1,300 girls participate on high school football teams, thanks largely to trailblazers like Jacqueline Lantz. Although they are still relatively small in numbers, women who play contacts sports with men are active agents in resisting the structure that divides men’s and women’s sports and privileges the former over the latter. As the sport sociologist David Whitson explains, the presence of women on men’s teams threatens the opportunities for men to “rehearse their ties as men and reaffirm their differences from women.”40 As more women and girls integrate formerly all-male teams and hold their own in coed competition, their success challenges gender stereotypes and changes the very institution of sport.

What if the Girls Have Their Own Team, but the Boys’ Team Is “Better”? One of the more difficult issues raised by girls seeking to compete on all-male teams is how sex equality rights should apply when girls have their own team in a sport but prefer to play with the boys. That was the situation in the O’Connor case, discussed in chapter 1, where Karen O’Connor lost 50

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her claim to a right to compete on the boys’ basketball team at a school that offered both boys’ and girls’ basketball. The court rebuffed her equal protection challenge, prioritizing the goal of providing equal athletic opportunities to female athletes as a group over the interests of extraordinary individual female athletes.41 The various opinions in the case viewed the availability of a girls’ team as satisfying equal protection, suggesting that separate teams for girls would better preserve girls’ overall athletic opportunities. Title IX makes the same judgment in limiting its integration rights to sports that are not offered to girls. It is time to revisit that limitation. Both Title IX and equal protection law have been too quick to deny female athletes a chance to try to compete with the boys simply because they have their own team in a given sport. Although Title IX’s baseline of sex separation is still a better default strategy than the alternative of gender-blind team selection, as argued in chapter 1, integration rights are an important supplement to the general sex-separate opportunity structure. Well-crafted integration rights have the potential to ease some of the downsides of separation discussed in chapter 1. However, their positive value has been cut short by their limitation to sports in which girls have no team of their own. This section argues that, even when female athletes have their own team, gender equality is best served by granting exceptional female athletes the right to compete for a position on the men’s team. The easiest case for granting a tryout right in a sport that is offered to both sexes is where the male and female teams in that sport are not treated equally. The O’Connor case itself leaves room for recognizing a tryout right in such circumstances. In the final decision against Karen O’Connor, the district court observed that she had not identified any tangible inequality between the boys’ and girls’ teams, emphasizing that the teams were “equal in terms of funding, facilities, and other ‘objective’ criteria.”42 This leaves an opening for female athletes to argue for an equal protection right to try out for the boys’ team where the girls’ team is treated unequally, which, unfortunately, is often the case—a topic taken up in chapter 6. Although the case law does not yet firmly recognize such a right, it should. The logic of the liberal feminist equal protection cases fully supports allowing integration rights under such circumstances, since the different treatment of the teams denies girls opportunities that are provided only to the boys. Courts have not yet been presented with such a claim, but a female athlete who demonstrates that the girls’ team has the short end of the stick in resources and benefits should be granted an equal protection right to try out for the boys’ team in that sport. And Title IX’s limitation of tryout rights to sports in which the excluded sex Integration Rights

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does not have a team should not be interpreted to bar girls and women from better-funded, more favorably treated teams in that sport. The regulation’s wording limiting tryout rights to sports in which the excluded sex has “no such team” should leave room for such an interpretation. If it does not, it should be modified to allow for one. One upside of recognizing a right to try out for a boys’ team when the girls’ team is not treated equally is that it would strengthen the push for the equal treatment of women’s sports and increase the scrutiny of inequality between girls’ and boys’ sports. The equal-treatment standards, discussed in chapter 6, take a programwide approach that compares the quality of the men’s and women’s programs overall, rather than using sport-specific comparisons. Recognizing an integration right where the girls’ team is not treated equally to the boys’ team in the same sport would strengthen and supplement the programwide approach to equal treatment with a sport-by-sport comparison, at least in those cases where a female athlete sought a right to try out for the boys’ team. A school or athletic league that was determined to resist mixed sex competition in sports offered to both sexes would have added pressure to make sure that the girls’ teams are treated equally. But what if the men’s and women’s teams in a given sport are treated equally and a female athlete nevertheless wants to play on the men’s team? This is a tougher question, and one that circles back to the ultimate question of whether separate can ever truly be equal. On the one hand, intangible differences in the status of men’s and women’s sports make playing on the men’s team a very different experience, as might differences in the level of play. Critics of sex separation contend that in a world where gender is a fault line for social inequality, separate can never be equal. And yet, declaring the women’s team unequal even if given equal resources and benefits risks reinforcing the ideology that men’s sports are inherently better, the gold standard to which female athletes should aspire. If the school has not treated the girls’ program unequally in any respect, allowing a girl to try out for the boys’ team may be perceived as stigmatizing girls’ sports, sending the message that boys are inherently better athletes. An added practical worry is that if men’s teams are open to women even when the women’s team receives equal support, it will open the door to men trying out for—and taking over—women’s teams. As discussed later in this chapter, so far, courts have refused to grant men parallel integration rights to try out for women’s teams. But holding this line may become more difficult if the tryout rights of female athletes broaden to include teams in sports for which there is an equally funded women’s team.

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To date, courts have denied integration rights where girls have their own team in the sport, partly out of concern for preserving female opportunities from male encroachment onto girls’ teams. In addition to the O’Connor case, another test case that challenged state athletic association rules barring mixed-sex competition struck a similar balance. In this case, the Yellow Springs School District, a small school district in Ohio, brought a lawsuit challenging the Ohio High School Athletic Association’s blanket ban on girls participating with boys in contact sports.43 Yellow Springs wanted to provide mixed-sex participation in the middle school years because of its belief that boys and girls at that age have similar athletic skills and would benefit from coed play. However, when two middle school girls tried out for and made the boys’ basketball team, they were not permitted to play, since the OHSAA rule listed basketball as a contact sport. Although Yellow Springs had attempted to field a girls’ basketball team, there had not been enough girls’ teams in the area at that time—in the 1970s—to provide competition. The Sixth Circuit ruled that OHSAA’s blanket ban on coed participation in contact sports, which applied even when there was no viable team for girls, violated Title IX by taking the discretion away from schools about how best to provide equal opportunity. Essentially, the court ruled that Title IX permitted schools themselves to decide to ban coed play in contact sports, but a statewide association could not impose on schools a flat-out ban regardless of their circumstances. The court emphasized that the OHSAA rule violated Title IX in that particular case, where the girls were physically able to compete with the boys and there was no girls’ team in the sport. Had the girls had a basketball team of their own, the court indicated that it would have upheld the ban on coed play.44 Other courts have agreed that having a girls’ team in the sport eliminates any requirement that girls be allowed to try out for the boys’ team. For example, a federal court in Wisconsin ruled that state athletic association rules limiting participation in contact sports to males even when such sports were not offered to girls violated the equal protection clause.45 The court carefully explained, however, that the equal protection right was limited to where there was no team in that sport for girls or where the school did not provide the girls’ team with equal resources or support. The court specifically rejected a right to integrate a male team where the sole inequality comes from the athletes’ level of skill, since such differences were not created by the school. Courts in Pennsylvania and Colorado have issued similar rulings, striking down state athletic association blanket bans on coed competition but emphasizing that girls can be kept off of boys’ teams in sports offered to both sexes.46 Integration Rights

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To date, no court has granted a female athlete the right to try out for a boys’ team in a sport offered to both girls and boys. However, one federal judge who dissented in the Yellow Springs case made a persuasive case for reconsidering this issue. Judge Nathaniel Jones argued that girls should have an equal protection right to try out for a boys’ team even if there is a separate girls’ team that is comparable in funding and support.47 Taking the strongest version of liberal feminism yet seen in the case law on this issue, Judge Jones argued that female athletes with the interest and ability to compete on male teams must be judged on their individual ability without regard to their sex and without regard to the availability of separate and comparable girls’ teams. He rejected the argument that allowing sufficiently talented girls to compete on boys’ teams would hurt the development of women’s sports as “sheer speculation.” It could just as easily raise the status of women’s sports by increasing the appreciation of female athletes’ skill and inspiring more women to reach for the highest levels of performance, he added.48 To the argument that opening all-male teams to girls under such circumstances would lead to an influx of boys taking over girls’ teams, Judge Jones replied that this, too, was speculative. Surveying the existing case law, Judge Jones recognized a distinction between correcting past discrimination, a rationale that could support keeping boys off of girls’ teams, and the overbroad and patronizing stereotypes used to keep girls from playing on boys’ teams, which are problematic under the equal protection clause.49 Most important, Judge Jones found a legally significant harm where girls are excluded from boys’ teams even if they have a “separate but equal” team of their own. He found the analogy to Brown v. Board of Education, the 1954 landmark Supreme Court decision striking down racial segregation in public schools, to be more on point than the other judges who ruled on this issue. As he put it: I believe a stigma may attach when qualified female athletes are not allowed to compete on teams with male athletes solely because they are female. The separation could characterize female athletes as less able, less aggressive, and more fragile in a word, inferior to male athletes. This characterization would be the sort of archaic and harmful stereotype which the equal protection clause forbids.50

These arguments deserve further attention. It is time to reevaluate whether gender equality is best served by denying exceptional female athletes the right to play on the men’s team in a sport in which women have 54

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their own team. The case for expanding integration rights under such circumstances has become stronger over time, as women’s sports have grown and flourished under Title IX. Earlier concerns that “fledgling” women’s teams would be stunted if the best female athletes left the women’s game to compete against men are archaic in an era of fierce competition for athletic scholarships in women’s intercollegiate programs. About three million high school girls play varsity sports, all competing for fewer than 200,000 intercollegiate opportunities, with no shortage of talent to go around.51 Seeing the occasional female athlete compete with males would likely do more to inspire interest and participation in women’s sports than would rigid enforcement of a gender line that keeps girls and women off all-male teams when they have their own sports. The tale of Jaime Nared, who attracted national media attention recently as a six-foot-one-inch twelve-year-old sixth-grade basketball phenomenon, is a case in point. Everyone agreed that Jaime could not play against girls her own age. As her coach put it, it’s “like having Shaq on a high school team.” For a while Jaime played with sixth-grade boys. But after scoring thirty points in one game, she was informed the next day of a rule barring mixed-sex play at the private basketball facility where the team played. As a result, she was required to play with high school girls, where she continued to dominate the game. After the private facility changed hands and received a letter threatening suit from the girl’s lawyers, the decision to keep Jaime off the boys’ team was reversed, allowing Jaime to play with the boys, possibly “playing up” with boys above her own grade level.52 The initial reason given for barring Jaime from mixed-sex play had nothing to do with concerns about protecting the quality of girls’ sports. Rather, according to media reports, boys (and their parents) were upset to be beaten by a girl.53 This, too, is a problematic message, although not precisely the one flagged by Judge Jones, that girls are not good enough to play with boys. It is, rather, a message that is perhaps even more problematic: that girls should not be good enough to beat boys, and that boys’ developing sense of masculinity must be protected from a threatening female competitor. This example suggests that mixed-sex play with exceptional female athletes can do more to break down the gender ideology that sustains sex inequality in sports than excluding them ever could. Expanding integration rights to female athletes who have their own team has the added virtue of pushing back against a system of gender classification that sets up different rules and expectations for men’s and women’s sports. Seeing female athletes successfully compete under “men’s rules” calls Integration Rights

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into question whether gender differences in rules make sense for the game and unsettles stereotyped expectations for men’s and women’s games. Gender might become less critical of a line in sport, or at least more open to questioning. Finally, one important consideration that is often omitted from this discussion is how gender classifications in sport work for students who do not conform to a traditional gender dichotomy. One advantage of strengthening Title IX’s integration rights—even while maintaining a default baseline of sex separation—is that doing so would allow more room for students who do not conform to a traditional sex/gender typology to challenge rigid gender lines. Not all persons neatly fit into the dominant and polarized male/female dichotomy. For transgender students, in particular, sport, with its rigid separation of male and female opportunities, can be a painful place.54 Easing up on a strict separation of individuals by sex would give transgender students more freedom to find their way in sports. Gay and lesbian students, too, might find strictly single-sex environments less, rather than more, hospitable. Some of the most virulent antigay harassment takes place in single-sex settings, where gender stereotypes can be even more prevalent.55 Sex separation in sports should not be so rigid as to prevent gender nonconforming students from seeking out comfortable places in sport. Broader integration rights would help to further this goal. Sex-separate opportunities are still a good starting point for ensuring equal resources and meaningful opportunities for girls and women in sport. However, the downsides of separation, as discussed in chapter 1, are real. Strengthening integration rights, under both the equal protection clause and Title IX, would help mitigate some of these downsides by weakening and sometimes crossing the gender line that divides opportunities in sports. The law should strike the balance that produces the best of what both separation and integration have to offer. Separation has the advantage of broadening female participation in sport, avoiding tokenism, and enabling more creative and substantive measures of equality than a gender-blind structure would allow. Integration has the advantage of subverting the gender classification system that privileges male athletes and channels them into more “masculine” sports, while it devalues female athletes and channels them into more “feminine” sports. Yet, integration alone, with no separate and guarded space for women in sports, would be a hollow formal equality unlikely to produce the revolutionary and transformative change we have seen in the Title IX era. The best solution is to find a balance of separation as the baseline, supplemented by integration rights. In striking this balance, integration 56

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rights should be extended to female athletes with the interest and ability to compete with men if they otherwise would be denied an equal opportunity in sports—whether because of tangible differences in support for the teams, differences in the level of play, or differences in the status of the teams. The biggest difficulty with performing such a balancing act is holding the line at integration rights to make sure that male athletes do not overrun girls’ and women’s teams, thereby further narrowing the already limited opportunities for female athletes. Extending integration rights to situations where girls have their own equally funded teams in a sport may make it increasingly difficult to fend off male athletes’ efforts to play on girls’ and women’s teams. If gender-blind opportunities for all teams became the norm rather than the exception, girls and women would lose what they have gained from a separate structure—the explosion of growth in female athletic opportunities and an empowering space where girls and women can develop their interests and abilities in sports. The law’s response to integration rights asserted by male athletes thus becomes critical. So far, both Title IX and the equal protection clause have resisted efforts by male athletes to try out for girls’ and women’s teams, resulting in an asymmetrical set of rights for male and female athletes.

Asymmetrical Equality: Boys Playing on Girls’ Teams Under both Title IX and the equal protection clause, boys have had much less success than girls in gaining a right to try out for an opposite-sex team. The relevant Title IX regulation makes it a condition of an integration right that athletic opportunities for the excluded sex have been limited.56 Courts have interpreted this to mean that opportunities in the school’s athletic program overall have been limited, not just opportunities in that particular sport.57 For example, the Third Circuit Court of Appeals rejected a male student’s argument that the school’s failure to offer field hockey to boys meant that boys’ sport opportunities had been limited. The student’s interpretation would have made this part of the regulation redundant with the prerequisite that the sport not be offered to members of the plaintiff ’s sex. Instead, the court ruled that a male student seeking a right to try out for girls’ field hockey must show that the school’s overall athletic offerings have been limited for boys, not just in field hockey.58 Because of this requirement, in practice, Title IX’s integration rights are asymmetrical, effectively withholding tryout rights for boys to participate on girl’s teams. This kind of asymmetry in gender equality rights marks a big Integration Rights

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departure from liberal feminism, with its push for gender-blind equal treatment. Instead, the rationale here is grounded in an antisubordination concern about preserving and expanding athletic opportunities for girls and women, whose sports opportunities have been and continue to be more limited. Cases decided under the equal protection clause have taken a similarly asymmetrical approach. Brian Kleczek’s effort to compete on a high school girls’ field hockey team is representative. When sixteen-year-old Brian was barred from the girls’ sport, the only field hockey team offered at his high school, his parents sued the Rhode Island Interscholastic League to challenge its rule prohibiting boys from playing on girls’ interscholastic teams. Applying the state constitution’s equivalent of the equal protection clause, the Rhode Island Supreme Court overruled the trial court’s decision for Brian, explaining that the state’s interest in preserving girls’ athletic opportunities justified the rule. If boys like Brian could compete on the girls’ team, boys might displace female athletes from an already limited set of opportunities.59 Almost all of the courts deciding such cases have reached the same result, whether they relied on the federal equal protection clause, state sex equality guarantees, or Title IX.60 The only court decision striking down a rule barring boys from girls’ teams is a 1979 case brought under the Massachusetts Equal Rights Amendment.61 The case was brought by the state’s attorney general, who challenged a rule adopted by the Massachusetts Interscholastic Athletic Association that barred boys from playing on girls’ teams, notwithstanding the association’s rules permitting girls to try out for boys’ teams. The Massachusetts Supreme Court applied strict scrutiny under the state’s ERA, which it interpreted to require a higher standard of scrutiny than what would apply under the U.S. Constitution’s equal protection clause. Using this strict standard, the court ruled that the one-way ban on coed participation rested on overly broad generalizations about boys’ superior strength and ability. The court explained that there were narrower means of protecting girls’ opportunities than requiring a statewide ban, including the imposition of individualized limits based on a student’s height, weight, or skill and the creation of less sweeping rules limiting the number of boys on the field at any one time. Although those kinds of gender-based restrictions were not before the court in that case, the court suggested that they might pass the strict-scrutiny test, even though they too were based on generalizations about boys’ and girls’ abilities.62 Other than this decision, courts have consistently denied integration rights to boys seeking to compete on girls’ teams in sports not otherwise available to them. This leaves schools and state athletic associations with a great deal 58

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of discretion in handling requests by male students to participate on girls’ teams. They have responded with a variety of approaches.63 Some school systems and athletic associations, such as the Pennsylvania Interscholastic Athletic Association, permit boys to play on girls’ teams in sports that are not offered to boys.64 Others leave it up to the discretion of individual schools. The New York Public High School Athletic Association, for example, gives superintendents the final say, on a case-by-case basis, over whether to allow a boy to play on a girls’ team.65 Other school districts take a more restrictive approach, worrying that allowing male participation on girls’ teams would displace girls from opportunities to compete for athletic scholarships.66 The New Jersey State Interscholastic Athletic Association, for example, bars member schools from allowing boys to play on girls’ teams in order to keep boys from taking away girls’ athletic opportunities—opportunities that Title IX was meant to protect.67 The approach taken by Title IX and by the equal protection clause to boys’ rights to participate on girls’ teams contrasts starkly with the law’s greater protection of tryout rights for female athletes. This difference raises an important question about whether the law should so strictly police the gender line in cases where boys seek to integrate girls’ teams. Does the current approach undervalue the goals of degendering sports and resisting the gender ideology that declares some sports more suitable for girls, with the accompanying notion that some sports are less suitable for boys? Despite the increasing number of girls and women who play a wider range of sports, particular sports are still gender typed as being more appropriate for either men or women.68 The classification of a sport as masculine or feminine is driven by such considerations as the physicality of the sport, the role of aesthetics in competition, and the gender of most of the participants.69 The gendering of sports limits the ability of both women and men to develop and pursue their interests in sport. The Third Circuit decision, discussed earlier, that ruled against the male field hockey player opined that boys do not have the right to try out for teams offered only to girls “just because certain sports have traditionally been considered women’s sports.”70 Although the court’s interpretation is solidly grounded in the wording of the Title IX regulation, the court should have been more troubled by the gender ideology behind the assumption that boys belong in more “masculine” sports and that certain sports are more appropriate for women. On the other hand, the court’s concerns and the concerns put forward by the defending school district are important: girls already have fewer athletic opportunities than boys and may have fewer still if boys are allowed onto Integration Rights

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girls’ teams. If boys took up positions on formerly all-female field hockey, lacrosse, and volleyball teams, for example, girls in these sports would get less game and practice time and have fewer opportunities to prove themselves in the fierce competition for athletic scholarships.71 Some girls might lose a place on the team altogether. Opponents of allowing men on women’s teams also argue that differences in the rules of the game and the physique of the players create unfair advantages when boys play on girls’ teams. A sixfoot-five-inch high school boy raised eyebrows recently when he was permitted to play on the girls’ volleyball team, with skeptics citing the unfairness of letting him play in the front row given the near seven-inch height difference in the nets for girls’ and boys’ volleyball.72 A related concern is whether letting boys onto girls’ teams will make sport less of a fun and empowering experience for girls. Much anecdotal evidence suggests that the sports experiences of some girls suffer when boys join the game. One female field hockey player lamented, “Playing with boys is awful! When you win, people think it’s only because of the boys on your team. It’s so defeating.”73 And, from a freshman girl, after playing against a 210-pound boy in a high school junior varsity match: “I was scared, and I don’t think he has the right to come into our game and make us scared.” But, tellingly, she added, “Besides, what self-respecting guy would wear a skirt to play a game?”74 This last remark reflects the gender ideology that discourages boys from playing sports identified as “feminine.” Even competing against girls seems to hurt the masculinity of male athletes and subject them to taunts and abuse from male peers.75 This same gender ideology places boys at risk of antigay harassment and abuse if they fail to conform to the macho image of an athlete and threatens girls with the “lesbian label” if they play the “wrong” sports or are too good at sports. A strict division in what is perceived as “masculine” and “feminine” is a core part of the ideology that continues to fuel sex inequality in sports. For Title IX to have maximum transformative power, the law should seek to break down what is “masculine” and “feminine” in sport, even as it preserves and expands the opportunities girls and women have to participate in sports. Where certain sports are offered only to girls, we should not underestimate the value of destabilizing the gendering of certain sports as “women’s” sports and expanding the range of accepted masculinity for boys.76 Strict rules keeping boys off of girls’ teams in all situations risks reinforcing the gender ideology that privileges masculinity over femininity and devalues female athletes. Degendering sports is an important part of securing sex equality in sports. Particular sports become gendered not because of the inherent nature of 60

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the game but because of who plays them and how they are perceived in any given time and culture. Field hockey, for example, is a sport played primarily by men in the rest of the world, but it was “feminized” in the United States when it was introduced there by a woman in the early twentieth century.77 Its feminine origins in the United States and its development as a sport for upper-class women enabled female field hockey players to avoid charges of “mannishness” leveled at women who played “men’s” games.78 In the United States, the skirted uniforms worn by the players are a cultural sign of femininity, and the game’s foreign roots distinguish it from more “masculine” games that have greater associations with national values.79 As a result, field hockey has become identified as a “girls’ sport” in the United States and is typically not offered to boys.80 The process through which certain sports become gendered is complex, involving a combination of gender, race, and class to produce a dominant image and identity associated with that sport. Women, and in particular white women, have been channeled into sports believed to enhance middleand upper-class notions of femininity, such as swimming, tennis, and gymnastics.81 Women of color have historically been channeled away from the “country club” sports and into other sports, such as track and field, with different class and gender associations. Athletes who do not fit the gender, race, and class identities associated with the sport often face obstacles.82 Girls who play “masculine” sports—and boys who participate in sports not viewed as masculine enough—are subjected to homophobia and antigay harassment to enforce gender conformity. Such gender associations interfere with equal opportunity in sports for both male and female athletes. Despite their resilience, such gender associations are social constructions, and they are changeable; breaking down the gender typologies of particular sports should be an important part of Title IX’s agenda.83 Yet, these two goals, degendering sport and maximizing women’s athletic participation, lead to a dilemma in this set of cases. How should Title IX handle boys’ efforts to participate in “girls” sports? In my view, the answer should depend on the likely impact on girls’ athletic opportunities, the potential for subverting the gender associations of particular sports, and the benefits to be gained from challenging traditional conceptions of appropriate “masculine” activities for male athletes. Where girls have many opportunities to play sports at the school and are at or nearing parity with boys, the benefits of degendering sports should outweigh the risk that girls will lose a few sport opportunities to boys. The tryout right is limited to sports not offered to boys, so the likely candidates for such a right will usually be limIntegration Rights

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ited to a small number of sports, such as field hockey and volleyball, that are not part of the more “masculine” sport repertoire typically offered to boys. Indeed, in 2001–2002, only about four thousand boys nationwide competed in high school sports traditionally offered only to girls.84 And, a boy might be added to an otherwise all-girl team without cutting any girls or otherwise detracting from their opportunities.85 Where this is the case, school officials should be more open to allowing boys to try out for girls’ sports. However, if a school has relatively few sport offerings for girls and many more for boys, the prospect of giving up even a few girls’ spots to boys is more troubling. Balancing Title IX’s objectives of increasing female athletic participation and breaking down gender barriers in sports requires attention to the overall mix of opportunities at a particular institution. Where possible to do so without too great a cost to female athletic opportunity, easing the gender policing that keeps boys out of girls’ sports may help defuse a simmering backlash against the asymmetrical approach in this area that provides stronger integration rights to female athletes than to male ones. I have found in my law school classes on this topic that students typically see the different treatment of male and female athletes in these cases as a double standard. They argue that it is unfair to allow girls to try out for a team in a sport offered only to boys when boys cannot try out for a team in a sport offered only to girls. I see their point but remind them of the arguably greater unfairness of a system that still gives many more opportunities to male than female athletes and encourage them to question whether treating people the same when they are differently situated is a good recipe for equality. Much of the time, they are not convinced. Allowing boys to try out for sports offered only to girls, at least where possible without too great a cost to overall female athletic opportunities, could help broaden popular support for Title IX’s larger project of sex equality in sports. Granting absolute integration rights to male athletes, however, when they continue to have a substantially greater share of overall athletic opportunities, would undermine Title IX’s most distinguishing feature: its embrace of a more substantive equality that goes beyond the limits of gender-blind liberal feminism. The law’s asymmetry in integration rights seeks to preserve women’s athletic opportunities from male encroachment and to protect the collegiality and empowerment that all-female sports participation offers, an experience that might be compromised if males join in and take over. This concern requires sensitivity to the particular situation in deciding how to respond to requests from male athletes to participate on female-only teams. 62

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As with other dilemmas that arise in the search for sex equality in sports, there is no single, once-and-for-all solution that can resolve these concerns. In searching for the best solution for the present, we should explore more seriously the value of opening up opportunities to male athletes in traditionally female sports, especially if it can be done without exacerbating a pronounced gender imbalance in overall opportunities. We can perhaps accommodate legitimate and important concerns about preserving athletic opportunities and positive sport experiences for girls by measures short of simply banning boys. At most schools, there are not many sports offered to girls that are not also offered to boys. The few opportunities that might be lost by allowing boys to enter such sports could be made up elsewhere if overall athletic opportunities for girls are diverse and wide-ranging. Feminists should be more troubled than the courts have been by an opportunity structure that pegs some sports as more suitable for girls and questions the masculinity of boys who choose to play with girls, just as we are when women are refused access to male-only contact sports.

Finding the Right Mix of Separation and Integration In the final analysis, Title IX, together with the equal protection clause, does a fairly decent job of navigating the dilemma of separation versus integration with flexibility and attention to context. The law encourages a baseline of sex-separate opportunities, tempered by integration rights for girls seeking to play with boys and far more restricted integration rights for boys, who have many more athletic opportunities to begin with. The balance is pragmatic, with an overarching aim of remedying the subordination of girls and women in sports as its primary goal, supplemented by a sprinkling of liberal feminist rights for individual female athletes seeking access to men’s teams. While both integration and separation have downsides as strategies for equality, a blend of both approaches is better than either one in isolation. A pure system of gender-blind selection rules would risk relegating girls and women to token opportunities in sport, whereby only the most exceptional female athletes, those most unlike the rest of their sex, prove their worthiness for sports by their ability to compete with men. Sex separation provides an antidote to such a hollow formal equality by taking a substantive stand that girls and women deserve actual opportunities in sports. At the same time, the sex-separate structure opens up more creative and substantive measures for equality in this area, which are discussed in the next three chapters. And yet, sex separation also risks further entrenching sex as a clasIntegration Rights

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sifier in sport and reinforcing the ideology of gender difference that has long denied girls and women equal access to sports. Allowing intervening integration rights within a structure of sex separation enables the law to work on both fronts, questioning the use of sex as a gatekeeper to opportunities while still preserving meaningful opportunities and broad participation for girls and women in sport. While mostly right, the balance the law strikes between separation and integration could be improved upon. First, Title IX’s contact sports exception is an embarrassment under any plausible theory of equality. It stigmatizes female athletes as weak and fragile, sending the message that they do not belong in the more “masculine” sports. It denies women participation opportunities in sports not otherwise available to them and contributes to a gender ideology that is deeply problematic in sports and beyond. Although the equal protection clause has mitigated some of the damage done by Title IX in this area by granting women integration rights that include contact sports, it is not enough. Equal protection rights bind only state actors, such as public schools and state athletic associations. Private schools that receive federal funding are governed by Title IX but not by the equal protection clause, since receipt of government money does not by itself turn a private entity into a state actor. As a result, female athletes have weaker integration rights at private schools than they do at public schools. Until the contactsports exception is abandoned, such gaps in coverage will continue to mar Title IX’s legacy. Second, in addition to jettisoning the contact-sports exemption, integration rights should be strengthened by recognizing the right of female athletes to try out for an all-male team even in sports that are also offered to women. In many such instances, female athletes will likely be able to point to tangible difference in the resources and benefits provided to the women’s team, which proves a denial of equal opportunity even under a “separate but equal” paradigm. The reasoning in existing precedents is already expansive enough to encompass this kind of claim. However, even absent evidence of tangible inequality, differences in status and the level of play should justify extending integration rights to female athletes who have the talent and inclination to play with the boys. Finally, the existing structure correctly recognizes the greater downsides of extending integration rights to male athletes, namely the risk of displacing girls and women from sport and altering their sport experiences. Current law responds by leaving such decisions to the discretion of schools and athletic associations. Given the dilemma this issue poses, that may be the best 64

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the law can do for now. But, in exercising that discretion, decision makers should pay greater attention to the circumstances under which allowing boys to compete in female sports best serves the broad agenda of gender equality in sports. The law’s rejection of symmetrical integration rights for men and women reflects its antisubordination ideology. This ideology has enabled Title IX to succeed in transforming girls’ and women’s participation in sport. Insisting on the same tryout rights for men in every instance would miss the larger lessons of Title IX. The very existence of Title IX reflects the reality that men and women are not similarly situated when it comes to opportunities in sports. Equality is not well served by treating persons the same when their circumstances differ. Giving boys an automatic right to try out for girls’ teams just because girls have the right to try out for boys’ sports is hardly “equal” if it means girls will go from making up fewer than half the athletes at the school to accounting for an even lower share. Instead of replicating the same integration rights for boys, the law should carefully balance the competing considerations this issue raises. This requires balancing the benefits of subverting gender classifications in sports and disrupting the process that ascribes a “gender” to particular sports against the costs of potentially reducing girls’ and women’s share of athletic opportunities. Another value to consider is the benefit of easing up on rules that strictly divide sports by sex for students whose gender identity does not conform to the expectations set by their sex at birth. Allowing stronger integration rights for gender-nonconforming students would better reflect the reality of gender as a more fluid spectrum rather than viewing it as a rigid and polarized destiny from birth. Where gender integration is possible without too great a cost to female athletic opportunities, the value of subverting the gender identity of particular sports and of allowing for more fluidity in gender identification among students should tip the scales in favor of integration. Because these are difficult, fact-specific, and highly nuanced evaluations, no categorical legal rule can adequately balance all of these concerns. Given that, the law makes a defensible choice in leaving decisions about males trying out for female teams to the discretion of school officials. However, this outcome creates the need for the persons most affected by these decisions— students and their supporters—to mobilize and bring these concerns forward. Such mobilization is crucial to ensuring that the discretion is exercised in a way that furthers the goal of gender equality in sport. In this area, local grassroots efforts may have a better chance at striking the right balance than a one-size-fits-all legal rule. Integration Rights

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Even with the enhanced integration rights advocated here, sex separation is likely to remain the norm for competitive school sports in the foreseeable future. Whether because of choice or competitive skill, most female athletes will not likely abandon the girls’ team for a spot on the boys’ team. A sex-separate opportunity structure will remain the baseline against which equality is measured. Because of this, sport provides a unique setting for discrimination law, one that has enabled Title IX to take a more creative and substantive approach than other discrimination laws have done. This is especially true for the highly litigated and controversial three-part test for measuring equal participation opportunities, the subject of the next chapter.

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3 The Three-Part Test and the Opportunity to Play

Talk to female athletes today and you will find little awareness of the chasm in sports opportunities that divides this generation from that of their mothers. Today’s sports-loving girls can hardly fathom the world of their predecessors, in which women had few or no choices to play competitive sports. Even girls’ basketball, the one sport typically offered to high school girls in the pre–Title IX era, was then played half-court and with more players to minimize running, making it a game that bears little resemblance to today’s fast-paced women’s game. The biggest Title IX success story in the past three and a half decades is the law’s role in revolutionizing female sports participation at high schools and colleges throughout the country. Title IX’s success in this regard was far from inevitable, with many close calls and hurdles along the way, and it remains unfinished today. But the law’s goal of expanding female athletic participation is all the more extraordinary when it is compared to the more modest approaches taken by other laws that seek to open up opportunities for women in nontraditional fields. The story begins with a look back at the pre–Title IX days. Before Title IX’s enactment, relatively few girls and women played varsity sports. In 1971, fewer than 300,000 high school girls nationwide participated in interscholastic athletics. Today that number exceeds three million.1 During this time, the ratio of girls playing high school sports has gone from roughly one in twenty-seven to nearly one out of every two high school girls—from a rarity to a normal part of female adolescence.2 College sportswomen, too, have seen their numbers explode. There were fewer than 32,000 women who played intercollegiate sports in 1971.3 Today, more than 200,000 women compete in intercollegiate sports.4 While there is some debate over the precise role of Title IX in this growth, there is no doubt that the law has played an important role in opening up vast new opportunities for girls and women.5 |

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The Development of the Three-Part Test for Equal Participation Opportunities Soon after it was passed, Title IX was a catalyst for growth in girls’ and women’s sports. Despite early uncertainty about the law’s requirements and a three-year delay in issuing regulations, which granted an additional threeyear grace period for compliance, many schools added female sports in the mid- to late 1970s. This growth coincided with a political struggle over how to define the law’s requirements. The legal standards that emerged are unusually substantive and results oriented for U.S. antidiscrimination law. Starting from the premise that merely shifting to gender-blind team selection would not produce real equality, the regulations sought to define equality in the context of sex-separate programs. The toughest part was figuring out how to measure the “equal” side of a “separate but equal” standard. A threshold concern was how to ensure that there were enough sports opportunities for girls and women to overcome the discrimination that had long kept them from fully developing their interests and skills. This concern was addressed in a part of the regulation asking “whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes.”6 This provision, known as the “equal-accommodation” requirement, speaks to the quantity of opportunities provided, while other parts of the regulation address the quality of those opportunities. Importantly, schools must meet Title IX’s requirements for both the quantity and the quality of the opportunities provided. Quality may not be traded off against quantity, nor vice versa. Otherwise, schools might lavish resources and attention on a few female athletes but have only token female participation along with a massive men’s athletic program. The regulation’s requirement of equal accommodation foreclosed such a weak version of equality. Having recognized the need to provide enough sports opportunities to women and girls, the Department of Health, Education and Welfare (HEW) (now the Department of Health and Human Services) was left with the task of formulating a standard for determining equal accommodation. One possibility was to simply require the same menu of sports for boys and girls. If boys have football, baseball, and ice hockey, then girls would have teams in those sports, too. An obvious problem with this approach, however, is that girls and boys might be interested in playing different sports. The regulation’s focus on accommodating the “interests and abilities” of male and female students anticipated this problem and enabled the agency to select a dif68

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ferent course. HEW rightly rejected an approach that would accommodate women’s athletic interests only to the extent that they mirrored men’s interests. Although requiring identical sport offerings would have made measuring compliance easier, it would not have been the best way to support and develop women’s own athletic interests. The decision to allow a different menu of teams for men and women marks a departure from liberal feminism, which rejects gender as a proxy for interest. This part of Title IX is more in line with “different voice” feminism, which recognizes, accommodates, and equally values gender differences, whatever their source. The shift from a more typical equal-treatment approach created a good deal of confusion at first—some genuine, some a pretext for resistance to stronger measures of compliance. To address this confusion and to provide guidance for resolving the nearly one hundred complaints that HEW had received by the time the three-year grace period ended in 1978, the agency issued an interpretive document called a “Policy Interpretation” in 1979. The Policy Interpretation addresses many issues relating to Title IX compliance, but its biggest contribution to the development of the law is a three-part test that has been used by courts ever since to preserve and expand sports offerings for women. Under this test, an athletic program may comply with the equal-accommodation requirement in the Title IX regulations by satisfying any one of three tests. To comply, a school must either: 1. provide “intercollegiate level participation opportunities for male and female students in numbers substantially proportionate to their respective enrollments”; 2. “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”; or 3. demonstrate that “the interests and abilities of the members of [the underrepresented] sex have been fully and effectively accommodated by the present program.”7

To comply with part one, the “substantial proportionality” prong, a school must provide women with sports opportunities roughly proportionate to their enrollment. To meet this test, if a school’s enrollment is 50 percent female, for example, women must make up close to half of the varsity athletes at the school. Although there is no set percentage rate for this test, courts have rejected arguments that a disparity in the range of six percentage points satisfied the test, at least where the gap amounted to significantly The Three-Part Test and the Opportunity to Play

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fewer numbers of opportunities for women.8 To satisfy part two of the threepart test, the “program expansion” prong, a school must have a strong record of adding sports for women over the years, keeping pace with women’s developing sports interests. A school that has cut women’s sports in the past or has gone for long periods without adding new sports for women is likely not in compliance with this part. If a school fails both parts one and two, its last chance for complying is to show full and effective accommodation under prong three. Compliance with part three depends on a school’s keeping tabs on the interests and abilities of the underrepresented sex—usually women— and making sure that the athletic program fully meets those interests. This means that a school may not cut a viable women’s team and still be judged in compliance with part three, and may be required to add new women’s sports if there is enough interest to sustain them. As a whole, the three-part test is geared toward developing and promoting the athletic interests and abilities of women, the underrepresented sex in the vast majority of athletic programs, and has proven to be strong medicine for expanding women’s sports opportunities. It is the most radical of Title IX’s equality measures, insisting on equal results in terms of women’s actual sports participation rather than merely espousing the ideal of a gender-neutral process, as if such a thing were possible in sport. Part of the appeal in selecting the three-part test was its relative ease of administration. The process of developing Title IX standards was, from the outset, affected by the experience of formulating equality standards for race discrimination, including the shadow cast by pre–Brown v. Board challenges to “separate but equal” schooling for African Americans. In the years between Plessy v. Ferguson9 and Brown v. Board of Education10 courts were bogged down in the minutiae of comparing tangible and intangible differences in racially segregated schools. The factually detailed comparisons made the process highly labor intensive, and the three-part test has proven to be easier for courts to apply than the complex “separate but equal” standard. But simplicity was not the only consideration. A simpler measure still— and one far more radical—would have required equal sums of money for men’s and women’s athletics, with each program having control over how to spend it. This alternative, however easy to administer, was never seriously considered. Even a more diluted version of fiscal equality that would have equalized men’s and women’s expenditures on a per capita basis—thus not addressing the suppression of women’s athletic participation—was too controversial to survive the steep opposition it generated. While not as far-reach70

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ing as equal funding might have been, the three-part test has had a transformative impact on women’s opportunities in sports—much more so than the other alternative measures of equality that might have been adopted.

The Battle over Title IX’s Requirements Moves to the Courts Shortly after the 1979 Policy Interpretation went into effect, a series of legal challenges threatened to narrow the scope of Title IX. Most colleges and universities were not eager to comply with the law, and many argued that sports were outside its scope altogether. Title IX’s language covering “education programs and activities receiving federal funds,” they argued, referred only to those programs that directly received federal funds, not those that benefited indirectly from federal funds spent on other school programs. The competing approaches were dubbed the “program-specific” interpretation, advocated by Title IX opponents, and the “institutionwide” approach, advocated by the law’s supporters. The dispute finally reached the Supreme Court in 1984 in a case known as Grove City College v. Bell.11 In the early 1980s, Grove City College, a private religious college in a quiet town in western Pennsylvania, brought a test case seeking to preserve its autonomy from federal enforcement of Title IX. The college did not receive direct federal education grants, and its sole source of federal support took the form of federal loans accepted by its students and administered through its financial aid office. The college argued that Title IX did not apply to it in these circumstances. When the Department of Education presented the college with its standard form to sign, calling for it to promise compliance with federal law in exchange for participation in federal financial aid programs, Grove City College brought a lawsuit against the Department seeking a ruling that it was not bound by Title IX. In a split decision, the Supreme Court sided with the college, adopting the program-specific interpretation. The Court’s ruling, issued in 1984, effectively gutted the law’s application to sports at the time, since athletic programs do not directly receive federal funds.12 The Grove City ruling fueled a grassroots movement to overturn the Court’s decision in Congress. The movement united women’s groups, civil rights groups, and disability rights groups because the Court’s narrow interpretation applied to all civil rights laws triggered by the receipt of federal funds, including laws covering race and disability discrimination. Reflecting the extent to which cultural norms were already beginning to shift in support of women’s sports, much of the emphasis in this effort focused on the ruling’s effect on athletics. Proponents of overturning the Court’s decision The Three-Part Test and the Opportunity to Play

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argued that the ruling would turn back the clock on recent gains for girls and women in sports. Congress first considered a bill to overturn the Grove City decision in 1984, the same year the Court decided the case. Hearings focused on the widespread discrimination against women in sports and the need to address it. A broad consensus soon emerged, at least at a general level, that ending sex discrimination in sports programs was an important national policy goal. Even Senator Orrin Hatch, who was already on record as opposing the broader programwide interpretation, jumped on the rhetorical bandwagon, proclaiming, “I personally do not know of any Senator in the Senate—there may be a few, but very few—who does not want Title IX implemented so as to continue to encourage women throughout American to develop into Olympic athletes.”13 Members of Congress practically bumped elbows with one another in their rush to the floor to proclaim their allegiance to the goal of equal opportunity for girls and women in sports. The rhetoric did not reflect a true consensus on the details of how Title IX should apply, but the tenor of the debate marked an important shift in the mainstreaming of Title IX, at least at the level of taking pride in the accomplishments of female athletes. By 1987, this support resulted in the passage of the Civil Rights Restoration Act to overturn the Grove City decision and restore the institutionwide interpretation.14 President Reagan vetoed the measure, but Congress overrode the veto in 1988. During the years between 1984 and 1988, when the Grove City ruling was in effect, athletic departments were virtually immune from Title IX, even at schools and colleges that received large amounts of federal aid for other purposes. Agency enforcement also lagged during the 1980s, with minimal enthusiasm among Reagan administration officials for enforcing the law. In an example of how homophobia has often fueled opposition to equal support for women in sports, some White House staffers during the Reagan administration openly referred to Title IX as “a lesbian’s Bill of Rights.”15 Despite the administration’s foot-dragging, Title IX ultimately emerged from the 1980s with a fresh wind of popular support behind it as a result of the mobilization behind the Civil Rights Restoration Act. The 1990s saw a wave of enforcement activity that solidified Title IX’s legal standards, especially on the equal participation front. Several developments contributed to this momentum. In 1992, the NCAA formed a gender-equity task force and released its first gender-equity report. The report was remarkable less for what it said than for who said it. The NCAA, the institution most vocally opposed to Title IX in the 1970s and early 1980s, urged its member 72

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institutions to provide an athletic program that either sex would accept as fair and equitable to the program provided to the other sex. In a push to increase women’s sports participation, the group came out with a list of “emerging sports” for its members to consider adding. The list included rowing, ice hockey, team handball, water polo, synchronized swimming, archery, badminton, bowling, and squash. While the list generated a few snide chuckles (“bowling?”), the NCAA’s effort to position itself as a leader on gender equity signaled a significant cultural shift, reflecting the extent to which support for women’s sports had become mainstream. Also in 1992, a Supreme Court decision in a Title IX sexual harassment case opened the door to damages remedies in Title IX lawsuits. That case, Franklin v. Gwinett County Public Schools, had no immediate connection to sports aside from the tangential fact that the sexual harasser of the female student who brought the case was also the school’s football coach.16 The case went to the Supreme Court on the issue of whether Title IX permits a remedy of money damages. Although the Court had first recognized a private right of action to bring a Title IX lawsuit in 1979, until the 1992 decision in Franklin, judicial relief in such cases was often limited to court orders mandating compliance with the law. In my experience, the students and their parents who bring these cases are not in it for the money; they are fighting for the principle of equality for themselves and for future students. Still, making damages available was critical to Title IX enforcement for several reasons. Seeking justice through the legal process takes time, and, in many cases, the students who bring suit graduate before their case is ultimately resolved, making their claims moot.17 A plaintiff can avoid the problem of mootness by asking the court to award damages. The threat of damages also creates an incentive for schools to voluntarily comply with the law. Although, in theory, the federal government can reduce or terminate federal funding to an institution that fails to comply with the law, it has never done so in a Title IX case. Instead, the agency’s practice has been to negotiate a prospective compliance agreement, forgiving past violations in exchange for promises of future compliance. Without any real risk of a financial penalty, schools might rationally choose to wait until they are sued before making significant progress toward compliance. Finally, without the possibility of damages, it is harder for civil rights plaintiffs to find attorneys willing to represent them, especially if the case involves suing politically well-connected schools or universities. Even though a federal statute requires losing defendants to pay winning plaintiffs reasonable attorneys’ fees in Title IX and other civil rights cases, judges must approve such The Three-Part Test and the Opportunity to Play

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fee awards, and many whittle them down substantially from the time spent on the case. A portion of a damages award can go to cover attorney’s fees if court-ordered fees do not cover the attorneys’ bills, making such cases more palatable to plaintiffs’ attorneys. Even more important, as plaintiffs’ attorneys soon discovered, damages claims can be useful bargaining chips in settlement negotiations to strengthen the relief the plaintiffs want the most—more opportunities and resources for women’s sports. A final circumstance that contributed to the surge of lawsuits in the 1990s was the increasing financial pressure on colleges to cut back on sports offerings. As athletics devoured more resources—especially in men’s football and basketball—and as universities faced tighter budget constraints, many responded by cutting so-called minor sports, both men’s and women’s. Few things rile athletes like the elimination of their sport—especially when the athlete was recruited and chose the school because of its sports opportunities. With their teams on the chopping block, women stepped forward to assert their Title IX rights, seeking reinstatement of their teams and, in some cases, the addition of new ones. Men who lost their teams also brought sexdiscrimination suits against their schools, but, for reasons explained later in this chapter, their claims were as futile as the women’s claims were successful. The women’s lawsuits produced a unified body of law with an unusually substantive approach to equality.

The Three-Part Test Gains Ground in the Courts: The Legacy of Cohen v. Brown University In 1991, Brown University made what, at the time, must have seemed like an unfortunate but relatively ordinary decision to demote four varsity sports to a newly improvised “donor-funded” status. The sports cut off from university funding were women’s gymnastics, women’s volleyball, men’s golf, and men’s water polo. The change meant that these sports would have to raise their own funds to survive. It was a virtual death sentence for the women’s teams, which, as relatively new additions to the Brown athletics program, did not have a strong, longstanding donor base of alumnae to fall back on. Unbeknown to Brown’s president, Vartan Gregorian, and Beverly Ledbetter, the general counsel who signed off on it, this decision would later become a test case for the three-part test, and Brown would defend its decision, unsuccessfully and at great expense, all the way up to the Supreme Court. In 1991, Amy Cohen was a junior at Brown, captain of the gymnastics team, and suddenly facing the prospect of losing her beloved team. Cohen 74

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was no stranger to controversy in standing up to gender injustice. While in grade school, she challenged the gender differences in performance standards for the activities included in the Presidential Fitness Challenge. In high school, she challenged a decision by the school’s athletic director not to allow her teammates to leave school to attend a girls’ gymnastics meet in which she competed, while allowing students to leave school to watch a football game. Cohen felt the injustice of the cuts at Brown acutely. She described her athletic experience at Brown as “eroded with the indignities of having to raise money for coaching and security and wearing second-hand sweat suits from the men’s team.”18 Cohen was not alone in her discontent. Teammate Jen Hsu, who was a freshman when the change was made, lamented that “Club varsity meant varsity with no budget and curiously, we wondered how we were supposed to, as college students, raise our own funds to compete.”19 The team members soon lost their varsity privileges, finding themselves locked out of their locker room one day with no notice, their possessions still inside. The team went from Ivy League champions the year before the funding cuts to virtual extinction. After one of many unproductive meetings with the athletic director about the team’s status, the team members concluded that they could not remain competitive unless something was done to restore their full-fledged varsity status. Cohen and the other female athletes hurt by the cuts organized an effort to lobby Brown to reverse its decision and reinstate the teams. When that failed, the women hired a public interest law firm, Trial Lawyers for Public Justice, to represent them. With Amy Cohen listed as the lead plaintiff, the women brought a class-action lawsuit, styled Cohen v. Brown University, on behalf of female students seeking additional opportunities to play varsity sports at Brown. Over the next six years, this protracted litigation produced numerous court decisions in favor of the plaintiffs and ended with the Supreme Court’s decision in 1997 not to hear the case, leaving the plaintiffs’ wins intact.20 Meanwhile, other federal courts were reaching similar decisions, applying the three-part test to block schools from dropping women’s teams and to require them to add new women’s sports. When the Supreme Court denied Brown’s request that it hear the case, it left intact a plethora of lower-court decisions applying and upholding the three-part test.21 The rulings in the Brown litigation are representative of the lower courts’ support for the three-part test. Brown made a number of arguments that it complied with the test and, when that failed, challenged the three-part test itself. As an initial point, Brown argued that the decision to demote the two The Three-Part Test and the Opportunity to Play

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men’s and two women’s teams was gender neutral. As the courts saw it, however, the surface-level neutrality masked deeper disparities in the men’s and women’s sports programs. For one thing, the shift from university to donor funding had the effect of cutting $62,000 in annual university funding from the women’s teams, but only $16,000 from the men’s teams, which had a longer history at Brown and a stronger donor base. Even before the change, the two men’s teams were already funded primarily by donations. As a result, while the men’s teams had a decent chance of continuing, the women’s teams had no realistic chance of competing at the varsity level without university support. Although Brown made the case that the cuts were budget driven and dictated by necessity, in truth, they were more a reflection of Brown’s sport priorities than of true financial discipline. The year before it demoted the four teams, Brown spent $250,000 to buy out its head football coach’s contract midyear during a losing season.22 At the time of the cuts, Brown was spending just under $5 million on varsity sports, with three men’s sports—football, basketball, and hockey—taking up 42 percent of those funds.23 Moreover, in its zeal to fight the Title IX case, Brown likely spent close to $2 million in attorney’s fees and expert-witness fees.24 The paltry $62,000 saved by cutting the two women’s teams paled in comparison. Most important, the elimination of the two women’s teams exacerbated existing gender disparities in athletic participation.25 In 1991–1992, women made up 48.2 percent of the student body at Brown but had only 36.6 percent of the varsity participation opportunities.26 This disparity meant that Brown could not meet the first prong of the three-part test, substantial proportionality. Although this looked obvious from a straightforward application of the three-part test, Brown fought this conclusion by arguing that women really had as many or more opportunities than men if you counted the “unfilled” positions on women’s teams. Brown’s argument might have had some appeal for a court inclined to believe that lack of interest keeps women’s teams from being as large as some men’s teams. But the evidence did not back up this assertion. At Brown and elsewhere, athletic departments and coaches maintain tight control over the numbers of athletes on a team through recruiting and budgeting decisions.27 Brown’s own coaches testified that they recruited and brought onto their teams only the number of athletes the team could support.28 As a result, the court rejected Brown’s argument and instead measured compliance with prong one by counting the number of female athletes who actually played varsity sports at the school, as courts have done ever since. 76

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The evidence also showed Brown to be out of compliance with part two, which requires a history of program expansion responsive to the developing interests of women. Between 1979 and 1991, the year the lawsuit was filed, Brown added only one women’s sport, women’s track. The addition of one sport during that time fell far short of what was required to meet prong two.29 Although there had been some contraction in men’s opportunities during this time period, the court ruled that a reduction in men’s participation did not amount to program expansion for women.30 That left Brown to pin its hopes for compliance on prong three. But, having just cut two viable and successful women’s varsity teams, Brown was hard pressed to show that its existing program fully and effectively met the athletic interests and abilities of its female students. Moreover, in addition to the two teams recently demoted, the court found that there was sufficient interest and ability in club sports in three other areas—fencing, skiing, and water polo—to support the creation of varsity teams, needs that remained unserved by the university.31 Brown’s primary litigation strategy, however, was not to show that it had complied with the three-part test as written. Its strategy was to invalidate the test itself. To do this, Brown went on the offensive, attacking the test as reverse discrimination against men. The heart of Brown’s argument was that women are less interested than men in playing sports, so providing more sports opportunities to men does not discriminate against women. Brown put forward the results of multiple surveys purporting to show disparities in male and female interest in playing sports. The argument borrowed from anti-affirmative action rhetoric, calling the test a “quota” that discriminates against men. Brown’s challenge threatened to turn Title IX into a formal equality law requiring schools to treat men and women alike only insofar as they are already alike. Under such an approach, if women make up one-third of the students on campus who are interested in playing sports, they are entitled to only one-third of the sports opportunities. A problem with such an approach—and with Brown’s argument—is that it ignores the extent to which the very discrimination that the law purports to address shapes students’ expressed interest in sports in the first place. By allowing schools to limit women’s opportunities to a level that matches their relative interest in sports, Brown’s proposal would have turned Title IX into a guardian of the status quo rather than a forceful agent for change. Given the pull of liberal feminism and formal equality in other sex-discrimination laws, what is most remarkable about the Brown litigation is that The Three-Part Test and the Opportunity to Play

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the courts had so little difficulty rejecting Brown’s challenge. The case went up and down between the trial court and the appellate court twice, first on the plaintiffs’ request for preliminary relief to block the cuts and then for a trial on the merits. The plaintiffs won each time. The First Circuit’s second decision in the case, which affirmed the trial court’s judgment that Brown had violated Title IX, provides the most spirited judicial defense of the threepart test and the philosophy behind it. Instead of getting hung up on the asserted differences between men’s and women’s athletic interests, the court took a more searching approach to gender difference, emphasizing the circularity of Brown’s reasoning. Because interest is developed and not inherent, disparities in sport opportunities themselves suppress women’s interest in sports. As the court explained: Interest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience. . . . Thus, there exists the danger that, rather than providing a true measure of women’s interest in sports, statistical evidence purporting to reflect women’s interest instead provides only a measure of the very discrimination that is and has been the basis for women’s lack of opportunity to participate in sports. . . . We conclude that, even if it can be empirically demonstrated that, at a particular time, women have less interest in sports than do men, such evidence, standing alone, cannot justify providing fewer athletic opportunities for women than for men.32

The court’s conclusion was supported by much evidence at trial on the connection between interest and opportunity. In one exchange on the witness stand, after discussing the methodology of a survey of Brown students, Brown’s expert witness acknowledged that if Brown added more sports for female students, women’s level of interest in participating in sports would increase as well.33 Given the differences in opportunities for male and female athletes, the court concluded, no measure of existing interest is reliably independent of existing opportunity. As long as institutions allocate more athletic opportunities and resources to male students, the very allocation decisions being challenged will shape men’s and women’s interest in playing sports. The court also rebuffed the rhetoric used by Brown, chastising its “persistent invocation of the inflammatory terms ‘affirmative action,’ ‘preference,’ and ‘quota.’”34 As the court explained, the three-part test “discriminates” against men only if you assume that men are inherently more interested in playing sports, an argument the court repeatedly rejected. 78

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Brown took its fight to the highest level, asking the U.S. Supreme Court to hear the case and reverse the students’ wins in the lower courts. When the Supreme Court declined the invitation, it was the end of the road for the case. The lengthy litigation left in its wake a spate of decisions from other courts following the Brown precedent and rejecting similar challenges to the three-part test.35 By the year 2000, such was the state of the law that when Louisiana State University defended its allocation of 71 percent of athletic opportunities to men and 29 percent to women on the ground that “female students are less interested in participating in sports than male students,” the notoriously conservative Fifth Circuit Court of Appeals responded by proclaiming: “LSU’s hubris in advancing this argument is remarkable, since of course fewer women participate in sports, given the voluminous evidence that LSU has discriminated against women in refusing to offer them comparable athletic opportunities to those it offers its male students.”36 Like the case against Brown, most of the court decisions applying the three-part test were prompted by cuts to existing women’s teams.37 With substantial disparities between men’s and women’s athletic participation and no history of continuing program expansion for women, female students handily won these cases. The elimination of women’s teams left schools no room for demonstrating that their existing women’s sports programs fully met the athletic interests and abilities of their female students. Cases brought by women seeking to add new varsity teams posed a somewhat greater challenge. In these cases, schools have a better shot at convincing a court that their existing sports programs already meet the interests and abilities of their female students. Most intercollegiate programs, at least at the Division I level, recruit athletes using a combination of admissions preferences and financial aid to bring them to campus to fill varsity teams. Colleges rarely fill new varsity teams with students from the existing student body. But here, too, female plaintiffs have successfully used the three-part test to add new varsity teams, demonstrating interest and ability through successful club teams or strong high school programs in the region from which the school recruits. Courts have applied prong three to these cases consistently in accordance with the law’s goals of encouraging the growth of opportunities for women and nurturing the development of women’s athletic interests and abilities.38 A lawsuit brought in 1994 by female students at Louisiana State University is typical of cases seeking to add new teams. Three of the plaintiffs played club soccer, and two of them played fast-pitch club softball. They sought to The Three-Part Test and the Opportunity to Play

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require LSU to add these sports to the varsity roster. The court found that LSU failed all three prongs of the three-part test. In evaluating prong three, the court emphasized that the question was not whether there were enough talented women already on campus to field a competitive Division I team but rather whether there was enough interest to sustain a varsity team if the university provided the kinds of support typically provided to varsity sports at LSU. The Fifth Circuit rejected LSU’s argument to the contrary in remarkably strong language: Appellees argue brazenly that the evidence did not demonstrate sufficient interest and ability in fast-pitch softball at LSU and that, therefore, they cannot be liable under Title IX. The heart of this contention is that an institution with no coach, no facilities, no varsity team, no scholarships, and no recruiting in a given sport must have on campus enough nationalcaliber athletes to field a competitive varsity team in that sport before a court can find sufficient interest and abilities to exist. It should go without saying that adopting this criteria [sic] would eliminate an effective accommodation claim by any plaintiff, at any time.39

With courts taking such a realistic approach to proving unmet interest and ability, the three-part test has been a successful tool for getting schools to add new varsity sports for women, especially where there are existing club teams in that sport and a strong interest in the region from which the school draws its students.

The Three-Part Test and Interscholastic Sports Fewer cases have applied the three-part test to expand sports offerings for girls at the elementary and secondary school level. The challenges here are greater, since girls and their parents are often reluctant to take on a school district and risk ostracism or disapproval in their communities. Younger students are especially vulnerable to negative reactions from their peers and may be unwilling to “stick their necks out” for a cause. Unless college scholarships are immediately at stake, as they often are when women’s teams are cut at the college level, it may not seem worth the risk. Most of the cases brought at the high school level have involved equal-treatment claims, which are discussed in chapter 6. Such cases are brought by members of existing teams, thereby easing the difficulty of mobilizing students to take legal action, since the affected students are already organized by virtue of their participation on 80

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a team. A suit seeking to force a school to add more sports for girls requires organizing a more amorphous group of girls who are interested in playing a sport that does not yet exist. Still, some court decisions have applied the three-part test to interscholastic sports. The first was a case brought in 1992 to challenge the Kentucky High School Athletic Association’s (KHSAA) failure to sponsor girls’ fastpitch softball. Instead, the association sponsored girls’ slow-pitch softball, causing Kentucky girls to lose out on chances to compete for college scholarships at NCAA member schools, which offered only the fast-pitch game. In an important test case, the Sixth Circuit Court of Appeals applied the threepart test to the participation opportunities sanctioned by the KHSAA. At the time, the KHSAA sponsored ten sports for boys and eight sports for girls, leaving boys with 65 percent of the opportunities to play sanctioned sports in the state and girls with only 35 percent of such opportunities. The court ruled that the plaintiffs were entitled to their day in court to prove that the failure to sanction fast-pitch softball left Kentucky girls with unmet interest and violated the three-part test.40 As the case was pending, the Kentucky legislature passed a new law mandating that, in choosing between two similar sports, the KHSAA must sponsor the one that matches the version of the sport for which NCAA scholarships are available. As a result, the KHSAA changed positions and agreed to sponsor fast-pitch softball.41 An initial question in the case, however, was whether the three-part test applied to the high school setting at all. The test has its roots in the 1979 Policy Interpretation, which explicitly applies only to intercollegiate athletics. However, in describing its scope and application, the document explains that its principles may also apply to Title IX compliance at the elementary and secondary levels.42 There are significant differences between intercollegiate and interscholastic sports, including in the recruitment of athletes. In college sports, coaches actively search out and bring students to campus to fill their teams, bringing in only as many students as the team can support. At the high school level, team membership is driven more by student body interest. The notion of “unfilled slots” on teams is not quite as farfetched for high school sports as it was when Brown made that argument about a Division I athletic program—although, even in high school, sports team budgets and coaching time will support only a limited number of student-athletes. Whatever differences there are between high school and college sports, the three-part test has been applied full scale to the high school setting, and for good reason. The number of high school athletes participating in sports represents the real number of opportunities provided at that school, and deciThe Three-Part Test and the Opportunity to Play

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sions about funding, coaching, facilities, and support for the team play a big role in determining the number of students who go out for the team. Even if prong one of the three-part test is less of a perfect fit at the elementary and secondary school level, prong three of the three-part test fits much better with interscholastic sports, since they draw from the existing student body. College sports, on the other hand, rely on recruits who are admitted precisely for the purpose of playing sports. Since prong three looks at interest and ability within the student body, it is best suited to the elementary and secondary level. Sports at this level are also cheaper to add, since they are more likely to use volunteers or part-time coaches who are already employed as teachers. On the whole, the differences between the interscholastic and the intercollegiate settings were not great enough to block the application of the three-part test to high school sports. Whatever uncertainty might have initially existed about how the law applies to elementary and secondary school sports is now fully resolved. In the Kentucky softball case, the court of appeals applied the three-part test to the high school level without reservation, and other courts have followed suit.43 The Office for Civil Rights recently reaffirmed the applicability of the test to high school sports in response to a request for further “clarification” on the issue. The College Sports Council, one of several groups organized to oppose Title IX, had petitioned the Department of Education to “clarify” that the three-part test does not apply to high school sports. The Council argued that gender disparities in high school sports participation reflect different interest levels rather than school-sponsored discrimination. In March 2008, the Secretary of Education replied by reaffirming the test’s applicability to high school sports, emphasizing that federal courts have applied the test “authoritatively and unambiguously to interscholastic athletics” and that “further clarification on this matter is not necessary.”44 Although fewer cases involving elementary or secondary school sports have been litigated than those involving college-level sports, the three-part test has put pressure on high schools to refrain from cutting existing opportunities for girls and to add new ones.45 The growth in girls’ sports participation at the high school level in the post–Title IX era has been tremendous. In 2007–2008, more than three million girls played high school varsity sports, with soccer, cross county, and outdoor track and field logging the largest gains in recent years.46 More than half of all girls now participate in high school sports for at least one year of high school, whereas one in twentyseven girls did so before Title IX was enacted.47 Such gains were barely imaginable in the days before Title IX was enacted. 82

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Reverse Discrimination against Men? Not According to the Courts In a number of cases, male athletes whose teams have been cut have blamed Title IX and argued that the three-part test discriminates against men. However, courts have stood behind the three-part test in these cases, too. So far, reverse discrimination claims brought by male athletes have lost in every court that has heard them. An early challenge, and one that set the tone for future cases, was brought by male wrestlers against Drake University after it announced plans to eliminate men’s wrestling.48 Drake was more hesitant than many colleges have been about blaming Title IX for the unpopular decision. Instead, it cited financial considerations and a decline in competition and sponsorship for tournaments. The wrestlers, however, claimed that Title IX was the real reason for the elimination of their sport, and both sides argued over the extent to which Title IX compliance influenced the decision. The wrestlers claimed that, by cutting their sport, the university exacerbated a disparity in scholarship funds that favored female athletes. Although men made up 75 percent of the intercollegiate athletes at Drake, they received only 47 percent of athletic scholarship dollars. This, the wrestlers argued, violated the requirement in the Title IX regulations that universities award athletic scholarships at levels proportionate to male and female athletic participation—a disparity that cutting wrestling would only exacerbate. The court was unimpressed. It focused on the disparity between women’s enrollment, at 57 percent of the student body, and women’s share of varsity athletic opportunities, a mere 25 percent. Because men still had the lion’s share of opportunities even after eliminating wrestling, the court ruled that Drake had not discriminated against men. Even if the decision to drop wrestling could be seen as discrimination against wrestlers as a class, the court continued, male athletes as a whole still had the most sports opportunities, and Title IX does not create a right to participate in any particular sport. Addressing the claim of discrimination against men in the awarding of scholarships, the court observed, Title IX “was never intended to prevent schools from allocating resources in a way designed to encourage participation by an underrepresented gender,” and “locking scholarships in at the current participation ratio would risk locking in place the underrepresentation of women in Drake athletics.”49 The decision was a strong endorsement of the three-part test, with many such decisions to follow. And yet, it is hard not to feel sympathy for the male athletes who lost the sport they were recruited to play. According to the wrestlers, Drake had recruited them with the promise of a future commitment The Three-Part Test and the Opportunity to Play

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to the wrestling program, only to pull the proverbial mat out from under them. To its credit, Drake tried to soften the blow by guaranteeing continued scholarships for the wrestlers until they graduated. But love for a sport can be more important than money, and all but one of the wrestlers transferred to other schools in search of other wrestling opportunities.50 In these circumstances, the plaintiffs’ feelings of betrayal and loss are understandable. However, because the school’s program allocated only one-quarter of its athletic opportunities to women, it is hard to pin the blame for the loss of wrestling on a law that seeks to increase opportunities for women. Put simply, Title IX did not force Drake to cut any men’s sport. Whatever role Title IX considerations played in the decision, there were other possible paths to compliance. One of them would have been to add athletic opportunities for women. Drake’s athletes would have been better served by the reallocation of resources to support broader participation for all students, even if it meant lowering the level of funding some sports received.51 However sympathetic the plight of athletes who lose their teams, the court’s decision in the Drake case is in good company. Courts hearing such claims have used similar reasoning to reject them: as long as men have a disproportionately large share of the opportunities to play sports, cuts to men’s teams, whether for financial reasons or in the name of moving toward gender equity, do not discriminate against men on the basis of sex.52 One of the more inflammatory claims by male athletes in these cases has tracked a claim made unsuccessfully by Brown University: that the threepart test is a “quota” that forces schools to balance women’s sports participation with women’s enrollment, thereby encouraging schools to cut men as a way to comply. Such arguments, however, misunderstand the premise behind the test and the challenge of coming up with a measure of equality in a sex-segregated setting. Where separate sports are offered to men and women, cuts to any sport will be gender conscious. Instead of seeing such decisions as discrimination against men, courts have correctly focused on a comparison between the overall men’s and women’s programs. As the Seventh Circuit Court of Appeals ruled in a case brought by former male swimmers at the University of Illinois, a decision to cut men’s swimming but not women’s swimming is not sex discrimination when men still retain a majority of sports opportunities in the overall athletic program.53 The most important question presented in these cases is whether Title IX’s sex-conscious measure of equal athletic participation, reflected in the threepart test, violates a higher source of equality rights, the equal protection clause. On this question, too, the courts have steadfastly upheld Title IX’s 84

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approach. At the outset, courts have rejected the claim that the test discriminates against men. The three-part test could be said to discriminate against men only if men are inherently more interested than women in playing sports and therefore deserve a greater share of athletic opportunities. Courts have rejected this assumption for the same reasons it was rejected in the Brown litigation. Going further, courts have explained that even if the three-part test is viewed as a sex-based classification that disadvantages men, it still satisfies the constitutional test for sex discrimination because it substantially furthers an important government interest: overcoming the discrimination that has suppressed women’s participation in sports.54 Much like the landmark decision in Cohen v. Brown University, these cases endorse the view that interest and opportunity are inextricably connected. In one decision typical of such cases, the Ninth Circuit Court of Appeals rejected the argument made by former male wrestlers at California State University that the three-part test discriminates against men because men are more interested in sports.55 As that court explained: Where society has conditioned women to expect less than their fair share of the athletic opportunities, women’s interest in participating in sports will not rise to a par with men’s overnight. . . . Title IX has altered women’s preferences, making them more interested in sports, and more likely to become student athletes.56

Like the court in Cohen v. Brown, the Ninth Circuit did not stop at connecting the dots between women’s underrepresentation in sports and “mere” societal discrimination. The court took a broad view of educational institutions’ responsibility in suppressing women’s athletic interests, explaining: The creation of additional athletic spots for women would prompt universities to recruit more female athletes, in the long run shifting women’s demand curve for sports participation. As more women participated, social norms discouraging women’s participation in sports presumably would be further eroded, prompting additional increases in women’s participation levels.57

By implication, the court faulted schools for suppressing women’s sports interests through their limited athletic offerings to women. Because of this history, the court lauded Title IX for authorizing and even requiring sexconscious measures to remedy women’s underrepresentation in sports. The Three-Part Test and the Opportunity to Play

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More recently, advocates of wrestling and other men’s sports have taken their campaign to undermine the three-part test straight to the top, suing the Department of Education itself. In one such suit, the National Wrestling Coaches Association led a coalition of organizations and individuals in suing the DOE and urging the court to declare the three-part test invalid. Spurned wrestlers and disgruntled alumni from Bucknell, Marquette, and Yale universities joined the suit, claiming that each of these schools had cut or demoted wrestling at least in part due to compliance pressures created by the three-part test. In a separate lawsuit, a group calling itself Equity in Athletics, formed by athletes, coaches, alumni, and others to protest James Madison University’s 2006 decision to cut seven men’s sports and three women’s sports, sued both DOE and JMU, challenging the three-part test and seeking to force JMU to reinstate the teams. So far, both of these lawsuits have been rebuffed in the courts.58 On the whole, the Title IX case law reflects a judicial consensus that Title IX’s primary goal is the expansion of women’s interest and opportunities in sports and that any costs borne by some men in this endeavor do not amount to reverse discrimination. Importantly, courts have refused to chalk up inequality in women’s sports participation to an amorphous societal discrimination or innate sex difference. Instead, as in Cohen v. Brown, the courts have faulted educational institutions themselves for suppressing women’s sports participation through unequal athletic offerings.

The Theory Behind the Three-Part Test: Title IX’s Attention to the Structures and Cultures of Sport That Limit Women’s Opportunities As the earlier discussion shows, courts have unanimously applied the three-part test and rejected arguments that it victimizes men. Largely following the First Circuit’s reasoning from Cohen v. Brown, courts have demonstrated a relatively sophisticated understanding of the relationship between interest and opportunity. Rather than seeing interest as static and inherent, they have seen it as fluid and responsive to the opportunities available. But the case for the three-part test goes even deeper than the courts have recognized. Educational institutions influence the development of men’s and women’s interest in sports beyond how they allocate participation opportunities to men and women. Through funding decisions, marketing strategies, and the culture of sports itself, athletic programs convey implicit messages about the proper roles and boundaries for men and women in sports. 86

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Men’s athletic programs, for example, still outspend women’s programs by two-to-one margins. At the average Division I institution, women receive only 34 percent of the average athletic operating budget, even though they are 53 percent of the student body; the lion’s share of the athletic budget, 66 percent, is spent on men.59 Similar gender disparities mark athletic recruiting budgets. Among the top-tier athletic programs in Division I, only 29 percent of recruiting budgets are spent to recruit female athletes, with 71 percent spent to recruit men.60 Notwithstanding claims by some Title IX opponents that the law has tipped the scales too far toward women, the spending gap has continued to grow. Since Title IX was enacted, for every one new dollar spent on women’s sports, two new dollars have been spent on men’s sports.61 Through such spending gaps, schools continue to subsidize men’s interest in sports to a much greater degree than they do women’s sports. Sexism and homophobia in the culture of sports also distort men’s and women’s interest in sports. For men, playing sports has been a path to a celebrated hetero-masculine identity. With sports participation comes a great deal of cultural legitimacy as a man or as a boy in training to become a man. Sports were originally added to school curricula for the purpose of developing masculinity in boys. The movement to add sports to schools was driven by fears that societal changes resulting from industrialization, which shifted most men away from agricultural labor near the home and into paid work outside the home, might unduly feminize boys, who were left with greater maternal supervision.62 Sports are still regarded as a site for learning and inculcating a traditional hetero-masculinity.63 Boys who are considered “not masculine enough” because they are gay or otherwise fail to conform to masculine gender norms are often pushed into sports as an antidote. For example, in one court case involving a student’s lawsuit challenging his school’s response to antigay harassment by other students, the school principal responded to the student’s complaints by telling him, “[Y]ou can learn to like girls. Go out for the football team.”64 In some religious programs that seek to “cure” male adolescents of homosexual inclinations, part of the “treatment” involves immersion in competitive sports.65 There remain thick connections linking male sports participation and the inculcation of a traditional, dominant hetero-masculinity. Through playing sports, boys “prove themselves” and earn a higher social status.66 The role of sports in shaping the identity and social status of women and girls is more complicated. While much has changed in the post–Title IX environment, girls and women who excel in sports still face more of a conflict than their male counterparts in holding onto a culturally valued genThe Three-Part Test and the Opportunity to Play

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der identity. Although the days are gone when a girl who played sports was declared a “tomboy” and that was taken as a seriously derisive slur, female athletes still have extra work to do in order to hold onto their feminine bona fides if they excel in sports too much or play the “wrong” kind of sport. The lesbian label is still used as a weapon to police when, where, and how girls and women play sports.67 The potential for sports participation to compromise a female athlete’s hetero-femininity is reflected in the way women’s sports are “sold” to the public. Public relations campaigns to promote women’s teams are as likely to emphasize an athlete’s femininity and heterosexuality as they are her athletic ability.68 The sport scholars Leslie Heywood and Shari Dworkin have dubbed this “the babe factor,” referring to the need for popular women’s teams to have high-profile attractive, “feminine” athletes in order to gain a following.69 Female athletes still receive much less media coverage than male athletes, and most of it is reserved for traditionally “feminine” sports in which aesthetics play a central role in competition.70 Of course, schools are not entirely responsible for this situation, but neither are they entirely innocent of reinforcing the messages that de-emphasize women’s athleticism. For the most part, schools have done little to change a sports culture that links hetero-masculinity to athleticism. Coaches of boys’ and men’s sports too often look the other way when their athletes act out expectations of sexual access to women, and they collaborate in promoting the image of men’s sports as enhancing athletes’ hetero-masculine credentials. Coaches rarely intervene in locker-room joking and bragging about sexual exploits with women, and they are sometimes active participants in a banter that disparages femininity and juxtaposes it with a masculine athleticism. Demeaning or belittling remarks about girls and women in a sports environment speak volumes about the role of sport in inculcating masculinity. The still-used pejorative phrase “throw like a girl” explicitly equates athletic excellence with masculinity. And the derogatory use of feminine language, including the use of the pronoun “she” to refer to poorly performing male athletes, reinforces the understanding that being good at sports is a necessity for having solid masculine credentials.71 A more subtle example of an athletic department colluding in the cultural linkage between sport and masculinity is found in a recent controversy over the University of Iowa’s decision to paint the locker room used by the school’s football opponents pink.72 The university had a decades-long tradition, started by a former football coach, of housing visiting football teams in a locker room painted entirely pink. When Iowa rebuilt the visiting locker 88

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room in 2005 as part of a nearly $90 million stadium renovation, it kept the pink theme for the visitors’ locker room, replete with pink walls, lockers, carpeting, sinks, urinals, and shower floors. Two law professors at the university, Erin Buzuvis and Jill Gaulding, pointed out that the choice of pink had unmistakably feminine connotations, with the intent and effect of demeaning the masculinity of the visiting team members by surrounding them in pink. When Professor Buzuvis raised the issue of the gendered significance of the color choice during Iowa’s NCAA Gender Equity certification process, she received outraged responses from Iowa football fans, including hate mail and even death threats. The emotional intensity of the reaction to the professors’ observations revealed the depth of the implicit and unspoken connections between athletic excellence and masculine identity.73 These connections are so deeply ingrained and accepted that challengers risk ostracism—or worse— in pointing out the obvious. The messages linking athleticism and masculinity, which are often reinforced by schools, make it clear that boys and men have everything to gain from excelling in sports and that it behooves a boy to be interested in sports (or at least to act as if he is). At the same time, educational institutions have not done enough to challenge the cultural conflicts that compromise women’s participation in sports. For example, marketing materials that highlight players’ femininity feed into the message that women who are good at sports have some explaining to do—some reassurance to provide that they are still “real” women. The female basketball coaches who race up and down the sidelines in high heels and the glossy brochures that schools send out showing the women’s basketball team dressed up, with styled hair and makeup, subtly claim a hetero-feminine image for their sport.74 A recent article in the New York Times about Candace Parker, who led the University of Tennessee’s women’s basketball team to yet another national title and was a WNBA top pick, included almost as much about Parker’s femininity and attractiveness as it did about her unprecedented role in introducing dunking into the women’s game.75 The 850-word article included descriptions of Parker as a “sweet feminine girl,” remarking upon her “resplendent smile” and “pretty face,” and emphasized that she is very “articulate and attractive.” It also highlighted her relationship with her fiancé, a former men’s basketball star at Duke. It is hard to imagine an article about such an accomplished male basketball player placing such a premium on the athlete’s looks and relationship with his significant other. The perceived need to hold onto a culturally legitimate femininity for women’s sports can create an environment in which players and coaches who are, or are perceived to be, lesbian feel unwelcome in their sport. Likewise, The Three-Part Test and the Opportunity to Play

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women who participate in sports that do not project a traditionally heterofeminine image are at risk of having their femininity and sexuality called into question.76 In the case against LSU, for example, one of the plaintiffs testified at trial that the athletic director, Joe Dean, told her that the school had dropped softball in the 1980s because of the “sexual preference” of the team’s members.77 Dean was somewhat more receptive to student requests to add women’s soccer, explaining that he preferred soccer over softball because it was a more “feminine” sport and that the players would look “cute” running around in their shorts.78 The emphasis on female athletes’ “girliness” can make women who do not fit the norm feel like persona non grata for validating cultural fears that sports masculinize women and that only masculine women can succeed in sports. Many professional leagues, including the LPGA and the WNBA, go out of their way to tout the heterosexuality of their straight players, showcasing them in media appearances with (or talking about) their husbands and children. In its most virulent form, homophobia polices women’s sports participation overtly by excluding women who do not fit a heterosexual feminine ideal.79 A recent Title IX case against Pennsylvania State University exemplifies how the push to “feminize” women’s sports can fuel homophobia. In 2005, head coach Renee Portland cut three players from Penn State’s women’s basketball team, including Jennifer Harris, allegedly for reasons related to team performance, work habits, and commitment to the team. However, Harris claimed she was cut because Portland believed that Harris was a lesbian and did not conform to the feminine appearance Portland wanted team members to project. Harris sued under Title IX, alleging gender discrimination in Portland’s use of gender stereotypes to limit participation on the team. Reports that coach Portland enforced a “no-lesbians” policy on the team had circulated for years, dating back to comments she made to media outlets in the 1980s and 1990s, including one blatant statement reported in the Chicago Sun-Times in 1986 that she did not allow lesbians on the team. A 1991 Philadelphia Inquirer article quoted former and current team members and other coaches as stating that Portland tried to shelter her players from the stereotype that female players are gay and from the potentially negative reactions if lesbians were allowed on the team. The fact that no lawsuit was filed challenging Portland’s stance until 2005 is a testament to how difficult it is for an athlete to assert legal claims against her coach and school. A Penn State investigation in response to the suit found evidence that Portland had cre-

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ated a “hostile, intimidating, and offensive environment” because of Harris’s perceived sexual orientation. The case was settled on confidential terms, and Portland no longer coaches at Penn State, although the university president characterized her departure as voluntary and not part of the settlement.80 The case should discourage similar antigay messages and policies that police the hetero-femininity of female athletes. Nevertheless, subtle pressures remain on female athletes to prove that they have not compromised their femininity through participation in sports. While boys and men have everything to gain from playing sports when it comes to solidifying a culturally valued gender identity, girls and women still have something to lose. Female athletes have to struggle not only to be taken seriously as women but also to be taken seriously as athletes. The cultural messages that signal men’s greater belonging in sports, often condoned or reinforced in school athletic programs, are everywhere. Even the language we use to talk about sports signals the primary position of men and the secondary role for women. No one needs to say that the NCAA “Final Four” refers to the men’s game. It is simply “The Final Four.” It is the women who need a gender modifier, hence, the “Women’s Final Four.” The gendered naming of athletic teams at some schools sends the same message about the inherent “maleness” of sport. Here at the University of Pittsburgh, we have the Panthers and the Lady Panthers. When we play Penn State, our men play the Lions and our women play the Lady Lions. A quick look at the names of men’s and women’s basketball teams from around the country reveals this as a widespread—though far from universal—norm.81 At times, the juxtaposition of the gender modifier for the women’s team with the supposedly gender-neutral but actually male team name is downright goofy. One high school girls’ team calls itself the Lady Warriors. Why the need to signal that these girls are ladies even while they are warriors? Do they serve tea to their vanquished opponents? The incongruity is highlighted by the cultural implausibility of a comparable gender qualifier for the boys’ team. “The Gentlemen Warriors”? Don’t expect to see them play anytime soon. Deep-seated messages about women’s secondary place in sports continue to percolate throughout American culture, despite being challenged by the increasing numbers of girls and women who play sports and find acceptance as athletes. The increases in female sports participation over the past decade have greatly weakened the connection between sport and masculinity, but they have not broken it altogether. Girls pick up these messages, which become part of the universe of forces shaping their interests and expectations.

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Work by two scholars of gender and sport illustrates how such messages are absorbed and operate to shape girls’ interests in sport. Leslie Heywood and Shari Dworkin organized a series of “focus groups” with fifth- and tenthgrade students. When the girls in these groups were first asked about sports, they downplayed their interests, highlighting their femininity instead and displaying negative attitudes toward overly muscular women. But after Heywood and Dworkin showed the girls photographs of celebrated female athletes in athletic poses, something interesting happened. The girls responded to the images by expressing more positive views about sports, including the belief that they could learn to play sports, too, and voicing their desire to become athletes. The authors interpreted the change in the girls’ reactions as evidence that athletic skills and interest are not inherent but are shaped by social and cultural forces, including insufficient opportunities to develop an interest in sports. 82 None of this means that girls and women are mere pawns in the march of culture, destined to absorb society’s sexism like sponges. They are agents in their own right and make their own choices—within the constraints that surround them. Cultural forces are filtered by many influences, including an individual’s prior experiences, upbringing, and character, and they have a wide range of possible effects. Some girls and women rise above all obstacles to become bold athletes, while others do not, for a complex mix of reasons. It hardly detracts from the power of women who have excelled in sport to point out that many external forces shape women’s interests. Any measure of female athletic interest that does not take into account social, institutional, and cultural constraints provides a distorted picture. Certainly much has changed in American culture as it affects girls’ and women’s sports experiences in the more than three and a half decades since Title IX was enacted. But, in a world where the dominant image of a sporting event is still a field populated by male athletes with female cheerleaders on the sidelines, it is impossible to speak of an inherent ratio of men’s and women’s relative interests in playing sports. What is remarkable about the development of Title IX is that the courts have grasped this important social reality and have rebuffed a more superficial approach to gender equality in this setting. The decisions in Cohen v. Brown University and in other cases that adopted and defended the three-part test recognize that taking existing measures of men’s and women’s interest as a given and using them as the benchmark for allocating opportunities would effectively gut Title IX. By rejecting such an approach, the courts have made Title IX a transformative tool for reshaping sports to make space for girls and women. 92

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An Island of Substantive Equality in a Sea of Formal Equality Title IX’s nuanced approach to the social and institutional forces that shape interest is what sets it apart from other antidiscrimination laws. The three-part test is results oriented, putting pressure on schools to add more female athletes, with an emphasis on ending the subordination of women in sports. It is most responsible for Title IX’s biggest success story, the use of the law to expand girls’ and women’s participation in sports, and it is what distinguishes Title IX from other sex discrimination laws that take a more modest approach. Under Title VII, for example, employers’ arguments that women’s lower level of interest accounts for their underrepresentation in nontraditional jobs have succeeded in defeating sex-discrimination claims.83 Similar assertions of “real” gender differences have succeeded in defeating equality claims under both Title VII and the Constitution’s equal protection clause.84 By contrast, rather than accept evidence of men’s greater athletic interest as a justification for providing them more opportunities, Title IX digs beneath the asserted gender differences to ask how institutions have shaped them through the opportunities they have provided. In other settings, courts have been more receptive to legal challenges to gender-conscious or race-conscious measures designed to increase opportunities for underrepresented groups, typically attributing inequalities to societal influences and ruling that societal discrimination is not enough to justify such measures.85 Courts that have applied Title IX, in contrast, have refused to hold educational institutions blameless for the low representation of women in their sport programs and have rejected arguments that gender inequality in sport is either innate or the product of diffuse societal discrimination. And, unlike the Court’s treatment of race-conscious measures in higher education, the Title IX cases have permitted the consideration of sex in structuring athletic opportunities, even when the athletes’ sex plays a decisive factor in deciding which teams to cut and which teams to keep or add.86 Title IX’s three-part test takes a more substantive approach than is typical for sex-discrimination law, which generally insists on gender blindness and the similar treatment of men and women. The liberal feminist model that animates so much of the law is more readily used as a tool by men in other settings to challenge gender-conscious measures designed to raise the status of women. The typical liberal feminist approach is also less results oriented than Title IX’s three-part test. Part of the reason for Title IX’s distinctive approach is the uniqueness of the sex-separate opportunity structure in the athletics setting. Because sports programs are sex segregated, courts have The Three-Part Test and the Opportunity to Play

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recognized the need for Title IX to employ sex-conscious compliance standards that go beyond gender-neutral standards. But the sex-segregated nature of sports does not fully explain Title IX’s rejection of gender difference as a roadblock to equality. In theory, a court might recognize the need for a sex-conscious equality standard and still accept arguments like Brown’s assertion that such a measure should be calibrated to reflect sex differences in the level of interest in sports. In the history of women’s rights litigation, similar arguments have often succeeded in blocking equality claims.87 So why do courts fault educational institutions, instead of women themselves or society generally, for women’s lower levels of expressed interest and participation in sports? Partly, the answer lies in the importance of education in building new skills and interests and the necessity for educational institutions to do more than just respond to existing ones.88 But mostly the answer can be found in the massive cultural shifts that have increasingly made room for and celebrated the achievements of female athletes. The court in Cohen v. Brown rhapsodized about women’s Olympic successes in the post–Title IX era, signaling its recognition of the cultural changes still in the works. In large measure, the success of Title IX is a result of the changing cultural norms that increasingly value female athletes— changes that Title IX itself has helped to spur along. As a feminist legal tool, Title IX’s three-part test has been a success, in terms of both its progressive theory of gender equality and its impact on women’s participation in sports. Women’s athletic participation has skyrocketed to ever-increasing heights in the post–Title IX era, and women’s interest in sports has surged, as well. In the five years between the filing of the complaint against Brown University in 1992 and the Supreme Court’s decision not to review the case in 1997, colleges and universities added 1,162 new women’s intercollegiate teams.89 Our experience with Title IX in recent decades serves as empirical evidence that the court’s instincts in Cohen v. Brown University were right on the mark: if you build it, they will come.

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4 Complicating Equal Participation: What Counts as a Sport, Which Sports Should Women Play, and Which Women Should Play Them?

This chapter considers three questions that have arisen in applying the three-part test and assessing its impact. First, what counts as a sport for Title IX purposes? In particular, should cheerleading count in adding up the numbers of female sports opportunities? Second, once we figure out which sports count, are some sports more worthy contenders for addition to the women’s program than others? Does (or should) Title IX take a position on which sports to press for in the push to expand women’s opportunities? In particular, should the law do more to add opportunities for women in contact sports? Finally, has Title IX left women of color behind? Some critical observers have noted that girls and women of color have not shared equally in the gains made through Title IX. And yet, if Title IX is to fulfill its promise, it must expand athletic opportunities for all girls and women.

What Counts as a “Sport”? The Case of Cheerleading One way Title IX departs from liberal feminism is by eschewing an approach that would define equality as providing an identical menu of sport offerings to men and women. As mentioned earlier, such an approach would have serious flaws in this setting because women’s athletic interests and abilities would be accommodated only to the extent that they matched those of men. Instead, Title IX takes a different tack, much closer to a brand of feminism known as “different voice” feminism (also sometimes called “cultural feminism” or “relational feminism,” in reference to a women’s “culture” that values relationships and connections with others). This approach to equality accepts the existence of gender differences and seeks to accommodate |

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and equally value women’s distinctive “voices” and experiences. In this vein, Title IX seeks to ascertain women’s athletic interests and then offer sports to match them, however different they may be from the sports men want to play. In taking this path, Title IX is agnostic about which sports are offered to women as long as the overall opportunities for both sexes are equivalent and in compliance with the three-part test. However, Title IX is not entirely value-neutral about accommodating men’s and women’s interests because applying the three-part test requires some judgment about what counts as a sport in the first place. Clearly, marching band, painting, and dance do not, even though these might be worthwhile activities for both men and women.1 But some activities fall more in a gray area. The biggest controversy in recent years over what counts as a sport is what to do with cheerleading. Cheerleading has historically been viewed as separate from sport, an activity that supports sports but is not one itself. It is also an activity that, at least in the recent past, has not been closed off to girls and women who want to participate. Quite the contrary: girls have been channeled into cheerleading as an alternative to sport, one with the added appeal of enhancing rather than detracting from their femininity. For example, in Heather Sue Mercer’s case against Duke University (discussed in chapter 2), the aspiring female football player was rebuked by the head football coach, who told her she should go out for cheerleading instead. Like sport itself, cheerleading is not inherently a gendered activity. In fact, it was not always considered to be a feminine activity at all. The cultural meaning of cheerleading has come full circle over time. From the mid- to late 1800s and through the 1930s, cheerleading was regarded as an exclusively male endeavor associated with athleticism and civic leadership.2 Women were not allowed to participate as cheerleaders until the early 1940s, as part of women’s broader entry into masculine fields to fill the vacancies left by enlisted men during World War II. The same historic circumstances opened up some sports opportunities to women, too, including a feminized version of professional baseball, the subject of the hit movie A League of Their Own. As with baseball, the end of the war coincided with efforts to reclaim cheerleading as a male endeavor. By that time, however, women had a strong foothold in the activity. When subtle forms of resistance to female cheerleaders failed, some schools tried overtly banning women from cheerleading in the early 1950s. Unlike baseball, however, cheerleading never reverted to its earlier male-dominated status. The ties to nationalism and masculinity were much weaker for cheerleading, a more recent and less established institution than baseball. Despite sporadic efforts to ban female participants, cheerleading 96

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became increasingly feminized in the 1950s. As more women became cheerleaders, the nature of the activity itself changed from emphasizing leadership skills to projecting enthusiasm and unconditional support. As cheerleading became a female-dominated activity, it became more feminized and sexualized in dress and performance, albeit within certain boundaries of propriety. With moderately revealing uniforms, smiling faces, and cheerful support for others, cheerleading became a quintessentially feminine activity.3 So thoroughly had cheerleading become a “girl thing” that by the time Title IX arrived on the scene, men were the ones who faced an uphill battle to become cheerleaders and had to endure the costs of gender nonconformity if they participated. Men did not return to cheerleading in significant numbers until the late 1970s. Even today, cheerleading is an activity overwhelmingly dominated by girls and women, with far fewer male participants.4 When men do participate as cheerleaders, they assume a sharply sex-differentiated role. As the sociologist Laurel Davis has explained, male cheerleaders engage in very different physical activities, such as tumbling and lifting the female cheerleaders, who dance and perform more feminine activities. Rather than challenging the dominant image of cheerleading as a feminine activity, the sex specialization of roles has meant that coed cheerleading performances serve only to reinforce the femininity of the female cheerleaders. The male cheerleaders “show off ” the femininity of the female cheerleaders. And, even with this gender specialization of activities, male cheerleaders still risk being perceived as “feminine” or gay, further reinforcing the gendering of sport as masculine and cheerleading as feminine.5 Just as the “real” cheerleaders are female, the (hetero) sexually charged dress and performances of cheerleaders reflect the assumption that the cheered-for athletes are male. Despite Title IX’s requirement that schools provide equal support to male and female teams, cheerleaders often have a greater presence at male sporting events than at female ones.6 Moreover, as Laurel Davis has observed, even when the cheered-for athletes are female, the gender of the athletes does not change the cultural understanding of cheerleading as a traditionally feminine activity and sport as traditionally male. Instead, the cheerleaders serve as a reminder of a more feminine role for women, in contrast with the compromised femininity of the female athletes on the field. Even when women are on both sides of the line, as athletes and as cheerleaders, the public still perceives cheerleading and sport as differently gendered activities.7 Like the cheered-for athletes, the spectators who view the cheerleaders are also presumed to be male—heterosexual males in particular—thereby furComplicating Equal Participation

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ther solidifying the cultural understanding of sporting events as masculine endeavors designed primarily for the participation and enjoyment of men. As Davis explains: “[T]he male view of a cameraman often helps to frame female cheerleaders as erotic objects. This type of camera work objectifies and sexualizes females, and it is based on and reinforces the notion of male voyeurism as natural and heterosexuality as universal for all men.”8 The cultural image of the cheerleader as female seductress to the male sports spectator was on full display in the 1999 hit-movie American Beauty, in which Kevin Spacey plays a middle-aged father who becomes obsessed with his high school daughter’s cheerleading friend (played by Mena Suvari) after watching her perform at a boys’ basketball game. The portrayal of the father is simultaneously comic and sympathetic, as the cheerleader represents the embodiment of idealized, irresistible, and flirty sexuality combined with, in the end, an underlying innocence and vulnerability. And yet, despite these historical and cultural associations, we should not be too quick to dismiss today’s cheerleading as an activity that reinforces a subordinate role for girls and women in sports. As Title IX has made more space for female athleticism, cheerleading as an activity has changed, too. By the mid-1970s, cheerleading began to shift from a hand-clapping, pompom-shaking show of support on the sidelines to a more acrobatic activity requiring great skill and agility. Cheerleading competitions began to emerge, with cheerleaders facing off against one another rather than just supporting others in competition. Today, cheerleading cannot be classified simply as either a retro-feminine subordinating activity or a full-scale sport with equal potential to other sports for empowering women and challenging limited conceptions of gender roles. The reality is more complex. In their study of cheerleading in a middle school environment, the sociologists Natalie Adams and Pamela Bettis found that cheerleading played a complicated and sometimes contradictory role in participants’ lives and in their surrounding culture.9 On the one hand, cheerleading can provide girls with a path to popularity, leadership, and confidence in meeting cultural standards of attractiveness. But, at the same time, it has connotations of superficiality, lack of seriousness or intelligence, and sexual objectification. Adams and Bettis argue that the cultural meaning and experience of cheerleading have shifted somewhat in recent years, so that participating in cheerleading today partially liberates girls from traditional female roles but at the same time reinforces, or at least does not subvert, traditional femininity. It is, these authors suggest, a safe place for “testing” the boundaries of femininity without paying the social price of doing so. Cheerleaders 98

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can celebrate their strength and bolster their own power and leadership roles, while still staying safely within the bounds of female attractiveness and heterosexuality. The middle school girls in the Adams and Bettis study held complex understandings of their experiences with cheerleading. Being cheerleaders “allow[ed] them to dabble with the traditional markers of masculinity without having to give up those feminine characteristics they deem enjoyable and desirable.”10 At the physical level, “[d]isciplining the body is an integral part of cheerleading,” which requires “assuming a stance of invulnerability to pain” and being a “fierce athlete.”11 Talking about what cheerleading meant to them, the girls emphasized their athleticism while showing off their muscles and playing up their powerful and aggressive attitudes. The girls interpreted the smile cheerleaders wear as an exterior display of discipline, toughness, and resilience and not as an indication of frivolity or a desire to please others. Notably, the girls rejected a view of cheerleading as having a primary function of supporting other teams and did not view themselves as passive participants on the sidelines. Instead, they regarded their performances as attention-grabbing main events, a place to show off their skills and control the crowd and players.12 For many of the girls, the public nature of cheerleading made it a path to leadership and social status without risking the stigma of being “too masculine.”13 But this qualification is precisely the problem: the enduring lure of cheerleading for girls reflects the continuing power of homophobia in sport and the connections between sport and masculinity that continue to constrain female athleticism. These influences make it harder to view girls’ interest in cheerleading as an authentic choice. Moreover, alongside cheerleading’s empowering potential exist more subservient and traditionally feminine messages. One of the teachers and cheerleading coaches interviewed in Adams and Bettis’s study described her understanding of the importance of cheerleading as follows: Cheerleaders are still very feminine, and we work on those characteristics. We have rules, no burping, no farting. You are young ladies. But we build, we jump, we try to get a balance because cheerleading does prepare them for later on in life. They’ve got to be strong. They’ve got to bear pain and to have children. . . . They’ve got to be able to stand on their feet and make decisions when it may be mom, or dad, or husband, who’s laid out there and you’ve got to do what is the right thing to do. You’ve got to support. You’ve got to lift up. That’s the whole role of being an adult woman.14 Complicating Equal Participation

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This view of cheerleading, emphasizing its self-denying, caretaking, female-support role, clashes with the meanings the girls themselves assigned to being a cheerleader. From this complexity, Adams and Bettis conclude that cheerleading is a “performance” with room for interpretation by the participants and not so simply a pure object of male voyeurism. It can also be a source of power for girls and women and a way to try on other identities. Precisely because the experience and message of cheerleading are not easy to distill, it is hard to resolve the question of how Title IX should treat the activity. As a result of its shift in recent decades from pure smile and spirit to an emphasis on more athletic feats, cheerleading today is closer to traditional sports than it has been in the past. Although cheerleaders still tend to perform in makeup and sexy costumes, their aggressive athleticism challenges notions of girls as weak and timid. And yet, cheerleading is unlike other sports due to its traditionally supportive and aesthetic role, which stops short of transgressing or disrupting gender boundaries in sport. From this complexity emerges a dilemma: should cheerleading, a very physically demanding activity, be counted as a sport for the purposes of Title IX? Or should it be defined as separate and distinct from sport because it supports other sports and reinforces rather than challenges the subordinate roles of women? Counting it as a sport risks reinforcing women’s subordinate place in sport and channeling resources away from other sports with greater potential for empowering women. On the other hand, not counting cheerleading because it is “different” or “subordinating” arguably adopts a male baseline for what qualifies as a sport and patronizes the women who prefer cheerleading to other athletic activities. At its core, this dilemma involves a clash between different voice feminism, which seeks to equally value women’s choices, wherever they come from, and antisubordination feminism, which strives to end the subordination of women, including sexual objectification, and questions whether women’s preferences for subordinate roles are truly authentic. At a practical level, one problem with counting cheerleading as a sport is that it gives an easy “out” to schools that otherwise offer too few female sports to comply with Title IX. Counting the cheerleaders is an enticing and cheap way to boost women’s athletic participation numbers without adding other women’s sports.15 Allowing schools to do so under these circumstances would undercut Title IX’s ambitious agenda to overcome the historic forces that have suppressed women’s sports participation. Title IX responds to this complexity by taking a more nuanced path instead of an either/or, categorical approach. A longstanding interpretation by the Office for Civil Rights takes the position that cheerleading is not a 100

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sport.16 However, more recent guidance from OCR leaves room to consider the question on a case-by-case basis, allowing for the possibility of counting cheerleading as a sport if it is restructured to focus on competition rather than providing support to other sports.17 In a recent court decision, one federal court has deferred to OCR’s approach, citing the factors the agency uses to determine whether cheerleading counts as a sport.18 In that case, Quinnipiac University had announced the decision to drop women’s volleyball from its varsity lineup and replace it with a women’s team in competitive cheer. The plaintiffs, members of the volleyball team, sued under Title IX, seeking to block the school from cutting their sport. The court ruled in their favor, granting a preliminary injunction enjoining the university from cutting volleyball until the case could be decided on the merits. But the court was not receptive to one of the plaintiffs’ arguments, the contention that competitive cheer is not a sport for the purposes of Title IX. Instead, the court explained, “although not presently an NCAA-recognized or emerging sport,” competitive cheer “has all the necessary characteristics of a potentially valid competitive ‘sport.’”19 The court noted the “rigorous training” and “high level of athletic and gymnastic ability” involved in cheerleading and the opportunity for high-level competition. Significantly, Quinnipiac’s plan for elevating the team to a varsity sport involved separating cheerleading into two distinct teams, one for sidelines cheering (which would not count as a varsity sport) and another focusing exclusively on competition.20 The separation of the competitive “sport” of cheerleading from the supportive function of cheering for other teams conforms to OCR’s emphasis on competition as the primary purpose of a sport. Title IX’s approach to cheerleading represents a pragmatic compromise between different voice feminism and antisubordination feminism. A pure different voice approach would equally value whatever athletically oriented activities women choose, including cheerleading, however traditionally feminine they may be and regardless of what forces have shaped women’s choices. A pure antisubordination approach, on the other hand, would refuse to count cheerleading if doing so furthered a subordinate, sexualized, and feminized role for women in sport. Title IX charts a middle path, rejecting a highly feminized, supportive version of cheerleading as a “sport” but leaving open the possibility that a more competition-oriented version of the activity might count as a sport. In 2003, the University of Maryland became the first Division I college to follow this prescription, adding competitive cheer as a varsity women’s team, complete with athletic scholarships and the same support given to other varComplicating Equal Participation

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sity teams.21 Maryland took this path after consulting with the Office for Civil Rights and deciding to add two women’s varsity sports, competitive cheer and water polo, while passing over women’s club teams in ice hockey and rowing.22 To satisfy OCR, Maryland split its existing cheerleading team into two separate teams: the spirit team, which cheers at games and does not count as a sport, and the competitive cheer team, which does not cheer at games and has a full competitive season. Only members of the latter team are on the varsity competitive cheer team and are counted as athletes for Title IX purposes. To some cheerleading aficionados, the shift away from cheering at games is too great a price to pay to achieve varsity status as a sport. But, for others, the exclusive focus on skills, athleticism, and competition are a welcome change. As Mandy Shaw, a recruited member of the Maryland competitive cheer squad, reportedly said, “It’s like cheerleading taken to the next level for people who take it a lot more seriously. I don’t like cheering at games, but I love competing.”23 So far, Division I schools have been slow to follow Maryland’s lead.24 The NCAA’s nonrecognition of competitive cheerleading as a sport and its failure to sponsor a national cheerleading championship, combined with the absence of a nonprofit governing body that sets standards for scoring competitions, have made other schools reluctant to follow suit.25 But with Maryland as an example, more colleges and universities will likely consider this option in the future, especially as competitive opportunities in cheerleading expand.26 As they do, the “nature” of cheerleading as an activity will likely shift further away from the more traditional feminized, objectifying version of the activity. At the high school level, there has been greater movement toward counting competitive cheerleading as a sport. So far, fifteen states have recognized competitive cheer as a sport and sponsor state championships in the event, with more states considering such a move.27 The National Federation of State High School Associations, which collects data on high school sports participation, reports that 111,307 girls participated on competitive spirit squads in 2007–2008.28 These are large numbers, to be sure, but hardly overwhelming when compared to the more than three million high school girls competing in varsity sports. Nor does the popularity of cheerleading seem to detract from girls’ interest in sports. More than half of the girls who are cheerleaders in high school also participate in varsity sports.29 The path taken by Title IX, neither automatically counting cheerleading as a sport nor foreclosing this status if competition is the primary purpose of the activity, is a good compromise given the complexity of how cheerleading 102

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is experienced and the tensions in Title IX’s feminist goals as they intersect with this issue. Title IX’s history reveals a goal of overcoming the forces that have suppressed female athleticism, a goal that tilts against counting cheerleading as a sport. As the Quinnipiac volleyball coach testified in the volleyball players’ lawsuit challenging the school’s plan to replace volleyball with cheerleading, cheerleading is one of the few physical activities that have long been open to young women.30 But at the same time that it seeks to open doors to historically closed-off opportunities, Title IX also refuses to limit women to the same sport choices as men, allowing them to develop their own athletic interests and requiring schools to accommodate them. This goal, more in line with different voice feminism, weighs in favor of counting cheerleading as a sport if women select it over other alternatives. As a way of mediating between these objectives, Title IX’s insistence on having a primary purpose of competition and excising the support function represents a fair compromise. Still, for this compromise to best fulfill Title IX’s goals, schools should add cheerleading as a varsity sport over other women’s sports only if doing so best responds to women’s athletic interests. At Maryland, cheerleading had a strong competitive history and had sought varsity status for many more years than the other sports considered for the move.31 In contrast, it would not serve Title IX’s objectives to allow schools to elevate cheerleading primarily because they see it as a cheap and easy way to boost women’s participation numbers, using it as an alternative to adding other, more established sports that better correspond to women’s interests. It would distort the goals of different voice feminism to steer women into a traditionally feminine activity in order to serve schools’ own interests rather than in response to the authentic choices of women themselves. Moreover, it would be a shame, and contrary to the antisubordination goals of Title IX, if the elevation of competitive cheerleading as a sport reduced women’s opportunities to pursue other, less “feminized” sports. As the sociology professor Laura Grindstaff observes, it is important for women to have options in sports other than cheerleading: This is not to deny cheerleading respect or even the label “sport.” But even high-caliber, competitive cheerleading offers a particular type of athletic experience for women that reinforces a particular view of femininity. Sports for women is important for many reasons, not the least of which is the need for broader, more expansive expressions of what it means to be female. Playing hard at basketball, soccer, hockey or any number of “masculine” sports does not rob women of their femininity, it simply redefines the term.32 Complicating Equal Participation

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Ideally, both women and men should have a wide range of sport opportunities that enable them to try on new identities and reap sport’s many benefits. This concern—that the recognition of competitive cheerleading as a sport should not deprive women of other sports they want to play—leads to another issue lurking behind the three-part test: should Title IX do more to encourage women to play nontraditional sports that have historically been the most closed off to women? This question brings us back to the terrain of contact sports, discussed in chapter 2, but this time in the context of asking not whether women should compete with men in such sports but whether Title IX should affirmatively seek to provide women with their own teams in contact sports. On this question, Title IX has been less influenced by antisubordination feminism and more passive in deferring to women’s existing preferences, despite the many forces that have constrained them. By and large, Title IX has not done much to challenge the constraints that have suppressed women’s opportunities to play the most “masculine” of sports, contact sports. This observation leads to the question of whether it should do more.

Contact Sports and Cultural Ambivalence: Should Title IX Push Harder for Contact Sports for Women? The greatest increases in women’s sports in the post–Title IX era have been in noncontact sports such as soccer, softball, crew, and volleyball. Schools have been much more likely to add these kinds of sports in an effort to comply with Title IX than they have been to add contact sports for women. And, courtesy of the contact sports exception (discussed and criticized in chapter 2), Title IX has not been much of a vehicle for enabling women to play contact sports on men’s teams either (although, as discussed earlier, the equal protection clause has been successfully used to win tryout rights at public schools for women who wish to compete in contact sports offered only to men). In pressuring schools to add women’s sports, Title IX does not explicitly disfavor contact sports; rather, the three-part test is agnostic about which sports women play. Prong one, which requires substantial proportionality in men’s and women’s athletic offerings on the basis of enrollment, can be met through offering women contact sports, noncontact sports, or any combination of the two. Prongs two and three are also neutral as to which sports women play. Title IX has helped somewhat to promote the growth of women’s contact sports, but in a limited way. A different part of the 1979 Policy Interpretation 104

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than the section establishing the three-part test creates a right, under certain circumstances, to gain new teams for women in contact sports when such sports are offered only to men. This section states: Effective accommodation means that if an institution sponsors a team for members of one sex in a contact sport, it must do so for members of the other sex under the following circumstances: (1) The opportunities for members of the excluded sex have been historically limited; and (2) There is sufficient interest and ability among the members of the excluded sex to sustain a viable team and a reasonable expectation of intercollegiate competition for that team.33

This provision creates a group right for women to acquire their own team in a contact sport if the conditions outlined above are met. The document goes on to state that schools may be required to “actively encourage” the development of such competition, but there is no further guidance on what sort of encouragement might be required.34 In practice, since girls and women have so few opportunities to develop interest and ability in contact sports, Title IX’s impact in this area has been more modest than revolutionary. However, there have been some notable successes by female athletes using this part of the Policy Interpretation to gain female teams in contact sports. In the early 1990s, members of a women’s club ice hockey team successfully used Title IX to prod Colgate University, long a bastion of men’s ice hockey, to add a women’s varsity ice hockey team.35 In that case, the women had proven their mettle by competing successfully at the club level for years. Because Colgate supported varsity ice hockey for men and because women’s sport opportunities at Colgate had historically been limited, Title IX required Colgate to add the sport for women in light of their demonstrated interest and ability and the existence of sufficient competition for the team.36 A similar Title IX complaint filed with the Office for Civil Rights resulted in the University of Minnesota’s elevating its women’s club ice hockey team to varsity status. Numerous colleges and universities in regions where ice hockey is popular have followed suit, adding women’s varsity teams in the sport. In 1990, only 149 girls’ and women’s ice hockey teams were registered with the national governing body for amateur ice hockey in the United States. By 1999, that number had jumped to 1,406.37 Still, Title IX’s influence in expanding women’s contact sports has been cut short by the lack of opportunities for girls and women to develop interest Complicating Equal Participation

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and ability in contact sports. Title IX requires schools to add a women’s team in a contact sport offered to men only when there are already enough female athletes at the school willing and able to fill the team and there is a reasonable expectation of competition for the new team. As a result, Title IX has not been a forceful tool for requiring schools to expand women’s opportunities in contact sports. Title IX would come closer to fulfilling its transformative potential if it took a more active role in getting women into contact sports and other sports that are not widely available to them. As presently interpreted, the law does not require schools to proactively develop women’s interest and ability in contact sports—not even by granting an individual woman the right to try out for a contact sport offered only to men. Women’s interest in playing contact sports has been suppressed by the gender associations that code contact sports as “masculine” and hence not appropriate for women. Sports involving contact and characterized by a high degree of physicality are widely viewed as masculine sports that are inappropriate for girls and women to play.38 Studies have shown that women who play such sports face social penalties, including being seen as less attractive and having lower social status among their peers. These costs suppress women’s entry into contact sports.39 Title IX’s laissez-faire approach to women’s demand for contact sports contrasts sharply with the courts’ understanding of the three-part test, which emphasizes that interest follows opportunity and not the other way around. Title IX should place a greater emphasis on adding nontraditional sports for women and make a more concerted effort to break down the gender barriers that label the more daring, risky, and physically aggressive sports as too “masculine” for girls and women to play. Such a goal, however, would likely run into deep-seated resistance. Outside the basketball arena, the presence of women in contact sports triggers a great deal of ambivalence in the culture at large and even among some feminists. Does getting more women into contact sports represent a challenge to the gender order, or does it simply buy into the hypermasculine values in sport set by men? Would it transform gender relations to have women’s teams in “men’s sports” like boxing, wrestling, ice hockey, and football, proving that women can also be athletic “warriors”? Or would it merely bolster the gender hierarchies that value masculine qualities over feminine ones and violent sports over ones that emphasize teamwork, skill, and coordination? This is a debate that continues to percolate. Despite massive shifts in attitudes in the post–Title IX era, significant resistance remains to female athletes competing in the most “masculine” of sports. 106

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The mixed reaction to the growth of women’s boxing in recent years provides a good example of the depth of cultural anxiety about women in “warrior” sports but also of the strides that have been made toward accepting women in these roles. Boxing is generally not offered as a sport in schools, so it is not likely to be subject to Title IX, but the ambivalence about seeing women in boxing reflects a more general resistance to women’s participation in contact sports. The response to women in boxing is therefore instructive in understanding Title IX’s struggle to navigate the complex reactions to women in contact sports. Boxing is the ultimate contact sport, so much so that, as Sarah Fields observes, Americans have “a complicated mixture of enthusiasm and revulsion” towards the sport.40 There are some undercurrents of resistance to boxing even when men do it, although Fields believes that the race and class dynamics make the male violence in the sport more palatable. She contends that there is more tolerance of the sport because it often showcases a pair of black men beating each other up or a contest between white and black boxers that plays out a racial drama. Boxing’s identification as a lower-class and working-class sport also increases its acceptance among middle- and upperclass spectators who can view the violence from some social distance.41 Whatever unease boxing generates when men fight men is greatly amplified when the boxers are women. The spectacle of women fighting clashes with gender ideologies that expect women to have a civilizing influence, acting as peacemakers or persons in need of protection, not as the ones who inflict violence. Even some feminists express disapproval of women’s boxing, much as they do about the influx of women into other warrior roles such as military combat, and question whether such shifts really mark progress toward equality or a downward spiral into men’s worst excesses. An example of these complicated reactions to women in warrior sports can be found in the 2004 Academy Award winning film Million Dollar Baby. The protagonist in the film, Maggie Fitzgerald (played by the Oscar-winner Hilary Swank) is an underdog amateur boxer bent on becoming a professional boxer, with nothing but raw talent and determination behind her. She convinces a washed-out but formerly greater trainer, Frank Dunn (played by Clint Eastwood), to coach her. The two embark on a dramatic journey in which Maggie fights her way through the ranks of the women’s boxing circuit. In what will turn out to be the final match of her career, Maggie reaches her goal of qualifying to fight the current women’s welterweight champion in a packed Las Vegas stadium. But the consequences are tragic. In an illegal move, the champ delivers a blow to Maggie that causes her head and neck to Complicating Equal Participation

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hit the corner stool before it can be removed from the ring. Maggie is paralyzed from the neck down. After a grueling rehabilitation offers only limited improvement, Maggie relentlessly tries to convince Frank to help her end her life. He initially refuses but, after much soul-searching and in what appears to be a final act of love, reluctantly complies. At one level, the film is a liberal feminist triumph. Maggie becomes an accomplished boxer against all odds, proving that she has what it takes to succeed in a male sport. She even wins over Frank, her initially skeptical and always hard-boiled father figure, who had insisted that boxing was no place for a woman. The film celebrates Maggie’s triumph as she proves herself to be a first-rate boxer. Even after the tragic accident, Maggie admits no regrets. She still sees boxing as the sport that let her “be somebody,” giving her a way out of the dead-end street her life otherwise offered. The promise of women’s boxing as a path to empowerment is a theme that is also taken up by the sport scholars Leslie Heywood and Shari Dworkin in Built to Win: The Female Athlete as Cultural Icon. They discuss the “boxing as empowerment” thesis in connection with another movie about boxing, Girlfight, although the protagonist in Girlfight fights men. As Heywood and Dworkin put it: “Though one might raise the question of whether ‘what it takes to be a boxer’ is ultimately of any value for either men or women, for Girlfight women’s participation in sports like boxing is one of the few ways to gain respect from those around them.”42 This is also the case in Million Dollar Baby, where Maggie’s working-class roots and lack of family support or resources leave her with few, if any, other options for seeking success or status. For women with limited options, sports such as boxing may provide an alternative to being a “nobody” or merely an objectified and sexualized body. By forging new paths for women, sports like boxing enable their participants to reject the role of victim and transform their oppressive circumstances. And yet, even as Million Dollar Baby celebrates Maggie’s grit, strength, and character, the final story line may be more backlash than celebration. It seems to nudge the viewer and say, “See what happens to women when they want what men have?” Maggie’s death is tragic and hardly feels empowering. On the other hand, the backlash reading may be too simplistic. There is ambiguity in whether Maggie’s death represents an indictment of women’s suitability for the sport, an indictment of boxing itself as a sport that no one is suited for, or an indictment of discrimination against women in the sport. In support of the latter reading, the film suggests that the fateful match was not well refereed and that there was a failure to provide the support and resources that might have prevented such a tragedy. 108

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Not surprisingly in our postmodern world, there is room for alternative interpretations. Did Maggie find empowerment and self-realization through boxing? In some respects she did, including by finding the strength to stand up to her manipulative and abusive family, who show up at her bedside after the accident and seek to goad her into giving them control of the assets she won through boxing. There may even be some empowerment in finding the strength of purpose to end one’s life under such tragic and difficult circumstances. In the Clint Eastwood paradigm, she “went out tough” instead of reconciling herself to being a woman who lies in bed for the rest of her life. Even in the end, Maggie is unapologetic about being a boxer, contrasting what her life would have been like without boxing. But her unregretful stance is tough to reconcile with the undeniable fact that boxing was also the cause of her demise. The film’s ambivalence about what role boxing played in Maggie’s life reflects the anxiety in American culture about women competing in “men’s sports.” It is part celebration, part cautionary tale. Title IX steps into this quagmire somewhat sheepishly. Because of the combination of the contact sports exception, which blocks women from opportunities to develop their skills and interest in contact sports by competing with men, and the requirement that sufficient interest, ability, and competition already exist before a school is required to field a women’s team, Title IX has rarely required schools to add contact sports for girls and women. It should do more. Getting rid of the contact-sports exception would be a small but significant step in this direction by increasing girls’ and women’s access to coed play in contact sports and hence their opportunities to develop skills and interests in these sports. In addition, the Office for Civil Rights should issue more detailed guidance on how schools should encourage the development of competition for girls and women in contact sports offered only to men. The requirement of proving the existence of a “reasonable expectation of competition” first, before a school has any obligation to add a sport, creates a chicken-and-egg problem. Until more schools start offering the sport, there can be no reasonable expectation of competition. Making progress in this area requires collective action. If there is not enough interest at an individual school to support full-fledged varsity teams in a women’s contact sport, a group of schools in the same community or competitive league could experiment with creating hybrid start-up teams combining female athletes from nearby schools to compete on the same team. Several similarly drafted teams could compete in a limited number of events as a transitional way to develop skills and interest in contact sports. Complicating Equal Participation

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Title IX should also be applied more forcefully to athletic associations, not just individual schools, in order to overcome the chicken-and-egg problem of a reasonable expectation of competition. The broader question of Title IX’s applicability to athletic associations is taken up in chapter 6. In order to spur growth in women’s contact sports, it is important for athletic associations to sanction such sports for women and to offer women’s championships in them. Once competitive opportunities exist, interest and ability will likely follow. Despite the law’s shortcomings, Title IX has indirectly fueled expansion in women’s contact sports through its influence on the cultural norms surrounding women in sports generally. Along with greater acceptance and appreciation of female athletes overall, support for women in contact sports has grown too, albeit more gradually. As the ideologies and practices that have suppressed female athleticism have been contested, women’s interest in participating in sports, including contact sports, has expanded. One notable increase in female contact sports participation in recent years has been in wrestling. In the past few years, girls’ and women’s wrestling has experienced remarkable growth, partly as a strategy of men’s wrestling coaches to keep male wrestling teams from being cut, but also as a reflection of female athletes’ growing interest in the sport. Women’s freestyle wrestling was added as an Olympic sport in 2004, prompting a spike in female participation in the sport. Five thousand girls participated in high school wrestling in 2006–2007, a more than threefold increase from ten years ago. In California, for example, girls’ high school wrestling is growing faster than any other girls’ sport in the state. Some of these girls compete against boys on a single coed team, while others participate on separate teams if there are enough interested girls to field their own team. Perhaps signaling a preference for girls to have their own teams, the fastest growth in girls’ wrestling has occurred in states that sponsor separate girls’ wrestling championships, including Hawaii, Texas, and Washington. Colleges have been slower to add the sport, with most women’s wrestling teams being offered at smaller colleges. Very few NCAA Division I institutions offer women’s varsity wrestling, although more offer coed wrestling as a club sport. Although growth has been slower at the college level, the trajectory of interest makes wrestling a likely candidate for using Title IX in the future to add contact sports for women.43 The increasing support for women’s sports has led to other recent successes in expanding nontraditional sports for women, as well. For example, an Indiana high school girl, Tori Allen, successfully used Title IX to get the 110

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Indiana High School Athletic Association (IHSAA) to sponsor pole vaulting competition for girls. Allen had won the boys’ Marion county title as a high school freshman but wanted the IHSAA to add pole vaulting in girls’ track and field. “I realized I didn’t want to compete against the boys anymore,” she said, adding, “I think girls should have a chance to pole vault.” After Allen sued the IHSAA in 2003, the case settled out of court, with the association agreeing to add the girls’ event. By 2005, pole vaulting was a scored event at the girls’ state championship meet. Although not technically a “contact sport,” pole vaulting’s reputation as a daring and dangerous sport causes many people to perceive it as unsuitable for girls. Before Allen got the IHSAA to change its position, a 2003 survey by the association found that 70 percent of its member schools opposed having a girls’ pole vaulting event.44 However, as opportunities expand and more women compete in a diverse range of sports, such resistance gives way to respect and support for the women who compete in such predominantly male sports. Since the IHSAA added girls’ pole vaulting to the state competition, it has become a popular event. As one coach said of the sport, “[i]t’s grown a lot, by leaps and bounds. . . . We started out with only a few girls.”45 The refrain “if you build it they will come” works for contact sports, too. With Title IX now in its fourth decade, more women are playing contact sports than ever before. As they do, the resistance to women in contact sports shows signs of weakening. Since 2000, there have been two professional women’s football leagues. Although they run on shoestring budgets and offer minimal or no stipends to the players, they have brought new status and attention to women playing tackle football.46 As one sports writer observed of the women’s game, “while you clearly won’t confuse the product on the field with the NFL, the quality of football is surprising to those who figure the sport as the last bastion of masculinity,” adding, “[a]nd the respect for women’s football continues to grow, if incrementally.”47 Women’s interest in the sport is not limited to adult leagues. Although they are not likely to have their own varsity teams any time soon, there are more than 1,300 girls playing on high school football teams nationwide.48 Despite lingering ambivalence about women in contact sports, these developments are a good thing and an important piece of Title IX’s gender equality project. Notwithstanding the massive growth in women’s sports participation, understandings about the gender appropriateness of particular sports have changed little in recent years. Contact sports are still viewed as the purview of men, and women who seek to participate in them pay a high price. Further progress toward gender equality in sports requires not Complicating Equal Participation

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just further increasing the numbers of women who play sports but breaking down the gender associations that divide sports into masculine and feminine activities. This will happen only when girls and women enter “masculine” sports in greater numbers.49 Watching women play contact sports subverts the very categories of “masculine” and “feminine” used to define particular sports and limit their participants. Part of Title IX’s agenda should be to degender sports so that they are open to all. The transformative potential here outweighs the risk that opening such sports to women will further glorify “masculine” values and violence. If a sport really is too violent for women, then it is probably too violent for men. As one high school girl responded to her wrestling coach when he told her he was afraid she would get hurt, “Aren’t you afraid the boys will get hurt?”50

Sports for Women, but Which Women? Title IX’s Gains for Women and Girls of Color Like other discrimination laws, Title IX addresses one form of discrimination—discrimination based on sex—as a discrete category of bias separate from other forms of discrimination and inequality. A different law, Title VI of the Civil Rights Act of 1964, addresses discrimination based on race in federally funded programs, including schools, but without attention to gender. When sex and race combine to produce unequal outcomes, neither law succeeds in fully remedying the problem. Feminists who are concerned with racial justice, including “critical race feminists” who are influenced by both feminism and critical race theory, have analyzed this problem as a limitation of “single-axis” discrimination laws that seek to remedy one category of bias without attention to how it intersects with other forms of bias. As they have demonstrated in numerous contexts, single-axis laws that address sex discrimination as a discrete and separate category from other forms of oppression, such as racism, tend to benefit the most privileged women first and foremost, usually white women. This critique raises some important concerns. Evaluating Title IX’s success in expanding sports opportunities for women requires paying attention to who we mean by “women.” A focus on women as a generic category risks submerging those women who face challenges in sports opportunities because of a combination of their race and gender. Title IX’s successes are too often discussed without attention to race, as if female athletes have no race or at least no racial divisions or disparities among them. Attention to racial 112

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justice reveals a more complicated picture of which women have benefited from Title IX and how much.51 Until recently, relatively little attention has been paid to racial inequality in college sports and even less to the question of how it affects female athletes. The NCAA began to collect comprehensive data on race and ethnicity only in 1999. A 2003 report by the Women’s Sports Foundation provides the first comprehensive look at female athletic participation by race at the intercollegiate level.52 The report shows a mixed bag. On the one hand, women of color have many more athletic participation opportunities than they had before Title IX. There are 22,541 female athletes of color playing intercollegiate sports, a 955 percent increase over their estimated numbers of slightly more than 2,000 in 1971.53 To be sure, many more women of color attend college today than they did in 1971, so not all of that growth can be attributed to Title IX. In fact, A. Jerome Dees, a law professor, makes a persuasive argument that Brown v. Board of Education and other court rulings that allowed black students into all-white educational institutions have had more of an impact than Title IX in expanding black women’s sports opportunities.54 But there is no doubt that Title IX opened the doors to a greatly expanded set of athletic opportunities for women, and many women of color walked through them. In doing so, they reaped the benefits of intercollegiate athletic participation, not the least of which includes the $82 million of athletic scholarships awarded to women of color in 1999, a huge increase over the less than $100,000 they received in 1971.55 At the same time, however, women have not all shared equally in many of the post–Title IX gains. Women of color remain significantly underrepresented in intercollegiate athletic participation; they make up 25 percent of female undergraduates but just 14.8 percent of female intercollegiate athletes.56 According to the Women’s Sports Foundation, black women are just over 10 percent of all female intercollegiate athletes. Hispanic women are slightly below 3 percent of female college athletes and non-Hispanic white women are a substantial majority at 77 percent.57 In contrast, men of color have a share of men’s athletic opportunities that matches their share of male undergraduate enrollment; both are at approximately 22 percent.58 Part of the reason for the disparity is that much of the growth in women’s sports in recent years has been in sports that are disproportionately played by white women. On balance, athletes of color, both male and female, face greater obstacles to playing certain sports than white athletes. The terms “stacking” or “clustering” refer to the uneven distribution of athletes of color in particular sports. For example, about one-third of women’s basketball Complicating Equal Participation

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players in Division I are black, but black women are only 2.7 percent of the scholarship athletes in all other Division I women’s sports combined.59 A whopping nine out of ten black women who play intercollegiate sports are concentrated in either basketball or track and field.60 Black men also have widely varying rates of participation by sport, representing more than half of all scholarship athletes in football, basketball, and track but very small percentages in other sports.61 Even within sports, racial stereotypes may limit athletes of color to certain positions. In one study, an African American female athlete reported that her coach told her that she would never be a pitcher because she was not blonde or blue-eyed and that she would have to content herself with being just another “thrower” in the field.62 Because women of color are clustered in two sports that were typically added to women’s intercollegiate programs long ago, they have not gained as much from more recent efforts to use Title IX to add new women’s intercollegiate sports. The women’s sports with the most growth in recent years are the so-called country club or suburban sports, which are played primarily by girls from suburban, largely white communities and are less available in urban areas and poorly funded high schools. High-growth sports like rowing, soccer, softball, swimming, and lacrosse frequently require large investments of time and money outside school and are inaccessible to many students.63 Although women of color are beginning to break into such sports, inspired in part by celebrity athletes like Venus and Serena Williams and Tiger Woods, they still are a disproportionately small minority of college athletes outside basketball and track. For example, the ten women’s intercollegiate sports that experienced the most growth between 1995 and 2004, listed in order from most to least growth, and followed by the percentage of participants who are women of color, are soccer (7 percent), rowing (7 percent), softball (12 percent), swimming (5 percent), lacrosse (5 percent), golf (8 percent), ice hockey (2 percent), water polo (9 percent), equestrian (2 percent), and volleyball (15 percent).64 Farther down the list is bowling, a sport in which women of color account for 80 percent of female participants. However, because bowling has added only 260 new intercollegiate participation opportunities in that ten-year period (soccer, in contrast, has grown by 4,880 new opportunities), it has done little to narrow the gap. Many of the new women’s sports added in recent years are sports girls grow up playing in private club and youth sport programs rather than in public schools.65 In fact, most of the high-growth women’s sports are not offered in public schools at all, and especially not in public schools in urban areas with high concentrations of minority students.66 114

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And yet, despite these disappointing numbers, it would be a mistake to blame Title IX for suppressing sports opportunities for women of color. Title IX did not introduce racism or racial disparities in access to sports, nor did it worsen these problems. Rather, the law neglects racial inequality in sports in its quest to equalize women’s opportunities. But if Title IX is to fulfill its goal of sex equality in a way that benefits all women, Title IX advocacy must go beyond a male-female comparison to challenge the systemic inequalities that have given some girls and women steeper obstacles to playing sports than others. Verna Williams and Kristen Kalsem, both law professors, have urged feminists to practice “social justice feminism,” a term they use to differentiate liberal feminism, with its narrow emphasis on individual opportunity and gender equality in isolation from broader structural inequalities. They criticize feminist strategies “focused primarily on a white, middle class, heterosexual female subject, examining her status when compared with her male counterpart.”67 Instead, they advocate a strategy they call social justice feminism, which “is structural in its orientation, identifying issues that contribute to systemic subordination and developing theories and strategies for change.”68 Title IX advocacy could use a dose of social justice feminism to ensure that it maximizes sports opportunities for all girls and women. To take up this challenge, women’s sports advocates must pay greater attention to access to sport in the younger years, especially for children in urban areas and lowerincome communities. At the elite level of intercollegiate athletics, a lack of prior sport experience is a virtually insurmountable roadblock to competing at the college level, with the exception of rowing.69 Women’s rowing has been a popular sport for colleges to add precisely because it adds large numbers of women and does not require many years of prior experience. However, it is the exception, and, as indicated earlier, it is not a sport with significant participation by women of color.70 It generally takes many years of competitive play to have the necessary skills to take advantage of the sports opportunities Title IX has created at the college level.71 And yet, most of the litigation and enforcement activity surrounding Title IX have occurred at the college level.72 Enforcement at the high school level has been hampered by the lack of mandatory data collection on athletic participation and budgets, which colleges are required to report to the U.S. Department of Education under the Equity in Athletics Disclosure Act. The lack of data has made it harder to address gender equity problems in the younger years.73 By applying most forcefully at the college level, Title IX enforcement has left behind many girls, and disproportionately girls of color, who will not make it that far in their educational careers.74 Moreover, it has Complicating Equal Participation

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left many college-bound women of color without the base of athletic skills and interests instilled by the private and suburban schools and surrounding community groups that provide more opportunities, leaving them unable to take advantage of the athletic opportunities colleges provide. The pronounced inequality in access to sport opportunities for younger children is a major obstacle to equally sharing the fruits of Title IX. The U.S. educational system is deeply stratified along racial and class lines. This divide plays out in athletics as well as in other educational programming. Students of color are less likely to have access to the numerous and varied sport offerings that are available at suburban schools or the network of private community sports leagues that are more prevalent in suburban areas and that require money, transportation, and time.75 A 2008 report released by the Women’s Sports Foundation found that the gender gap in youth sports (including both school-sponsored sports and non-school-based community sports) is widest in urban, immigrant, and nonwhite communities. For example, only 59 percent of third- to fifth-grade girls living in urban areas were involved in sports, whereas 80 percent of boys in those areas participated.76 In interscholastic sports specifically, the gender gap is widest in urban school districts, which serve primarily minority and low-income communities. Nationally, about half of all girls participate in at least one sport, but that figure is much lower in urban areas. In New York City, for example, only 35 percent of girls but 51 percent of boys played sports .77 This disparity is typical for city schools. A 2007 survey found that, in urban areas, 56 percent of boys but only 36 percent of girls described themselves as “moderately involved” in sports. The same study found roughly equal sports participation for girls and boys in suburban schools, with 54 percent of boys and 50 percent of girls describing themselves as “moderately involved” in sports.78 Largely because of the urban/suburban divide, girls of color are underrepresented in sports. Data on sports participation at the elementary and secondary level are sparse because of the lack of national reporting requirements, but all indications point to a significant racial gap in girls’ participation. For example, a USA Today study of Department of Education survey data found that only 36 percent of Hispanic sophomore girls played interscholastic sports in 2001–2002, whereas 52 percent of non-Hispanic white sophomore girls did so.79 The 2008 Women’s Sports Foundation report paints the most accurate picture to date of the racial breakdown in girls’ sports participation, including both school-based and community youth sports.80 According to this report, white girls make up the large majority of school-age girls participating in youth sports at 60 percent. African American girls are 15 percent of these 116

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athletes, Hispanic girls are 17 percent, and Asian girls are 8 percent. Perhaps more significant, the report found that race was a significant predictor for girls in determining who was not an athlete. Girls of color were much more likely to be nonathletes than white girls, with 36 percent of African American girls, 36 percent of Hispanic girls, and 47 percent of Asian girls not participating in sports. In comparison, only 24 percent of white girls did not participate in youth sports. For all racial groups, the percentage of nonathletes was significantly higher for girls than for boys, especially between girls and boys of color, with the largest gender gap among Asian youth (47 percent of Asian girls were nonathletes, but only 22 percent of Asian boys were so classified).81 Because of the influence of race and socioeconomic status, even if gender equality is achieved with the help of Title IX, it will have less of an impact in urban schools, where sport offerings are slimmer even for boys. Urban schools and schools with higher populations of students of color typically lack the financial resources and physical facilities necessary to accommodate large sports programs.82 As the law professor Regina Austin has observed, “urban schools . . . lack adequate recreational facilities; playgrounds may be taken up with trailers to relieve overcrowding . . . or they may be poorly maintained and dangerous.” 83 At these schools, security concerns are also more likely to keep children inside instead of playing outdoor sports, and girls are more likely than boys to respond to this concern by staying indoors.84 The severe inequalities between school districts combined with the reality of racial stratification in schools and neighborhoods contribute to a stubborn racial gap in girls’ sports participation. Underfunded urban schools have fewer sports offerings than richer suburban schools with expansive facilities and space for sports fields, and they report a wider gender gap in the sport opportunities that are available. Even physical education, which teaches athletic skills and cultivates sport interest in younger years, is on shakier ground in urban schools under extreme pressure to raise test scores.85 A two-part series in the New York Times on girls “left behind” in the movement for sports equality observed that “the revolution in girls’ sports has largely bypassed the nation’s cities, where public school districts short on money often view sports as a luxury rather than an entitlement.”86 The first article in the series chronicled the challenges faced by one middle school girls’ basketball team as it strove just to play, including improvised transportation, ambivalent family support, out-of-pocket expenses for uniforms and equipment, lack of paid coaching staff, and makeshift schedules with no guarantee that both teams will actually be able to show up for the game.87 Boys who attend urban schools also face great challenges to play their sports, but they often Complicating Equal Participation

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have more community and parental support for staying involved in sports, and they have benefited more from the youth sport programs and other resources that supplement thin school sports programs.88 Greater Title IX enforcement alone will not solve these problems, especially at schools with resources stretched to the breaking point. Broadening Title IX’s gains to extend equally to all girls and women would require a concerted effort to get at the root of these disparities. For starters, elementary and secondary schools should strengthen physical education programs that have been pushed out or marginalized by shortsighted administrators. Unless girls learn athletic skills at a young age, they are likely to be embarrassed by their lack of athletic ability and will not have the confidence necessary to go out for a team when they are older. In addition, schools, community groups, and athletic leagues should strive to reach a diverse group of girls when they select new sports and ensure that there are widely available opportunities to develop skills and interests in the sports selected. New York City did this recently in adding three new girls’ sports to its public high schools, including competitive double Dutch—a sport frequently played by city girls with limited open spaces—alongside lacrosse and golf.89 In addition to efforts by schools, community youth sports programs and private organizations that serve youth should work together to get girls involved in physical activity. This is currently happening in Boston, where, after a Harvard School of Public Health study showed large gaps in boys’ and girls’ sports participation in city schools, community groups launched a coordinated effort to get girls involved in youth sports and other physical activities.90 Stronger Title IX enforcement at this level also requires more information about and attention to the gender gaps in younger years, especially in urban schools, where those gaps are the greatest. Proposed legislation now pending in Congress would extend disclosure requirements to high schools, which would help parents and advocacy groups monitor and respond to gender disparities in sports opportunities for these students.91 Finally, the racial gap in girls’ sports opportunities will not close until the deeper, systemic inequalities in our educational system are addressed. That is a long and intractable battle, to be sure, but Title IX advocates should not see their struggle as separate from the broader push for racial equality in education. The issues discussed in this chapter reveal the complications involved in and the resulting mixed success of Title IX’s effort to secure equal sports participation opportunities. The next chapter takes up an even thornier issue that has arisen in evaluating the legacy of the three-part test—the question of whether cuts to activities for men add up to equality for women. 118

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5 Cutting Men’s Opportunities to Help Women? Title IX and Leveling Down

Rarely if ever does passing a law launch a neat and linear path to progressive social change, and Title IX is no exception. Lurking within the dominant theme of growth in women’s sports are some dissonant notes. Although the three-part test remains a successful measure of compliance all things considered, it has encountered some bumps in the road while charting a course toward equality. The elephant in the room with Title IX is the effect it has—or is perceived to have—on men’s sports. A critical but often unexamined question in this debate is whether women really benefit from Title IX if schools choose to comply by cutting or capping men’s sports instead of adding more women to their athletic programs. Critics of Title IX have used examples of schools cutting men’s sports to comply with the law as ammunition for attacking the three-part test. So far, supporters of the law have mostly fought off these efforts, but the battle rages on. And deeper issues remain about whether cutting men’s opportunities as a method of compliance is truly consistent with a law aimed at ending discrimination against women.

The Case of Slippery Rock University: Cuts, Roster Management, and Cynical Compliance Strategies In January 2006, Slippery Rock University, located in rural western Pennsylvania about an hour north of Pittsburgh, announced that it would soon eliminate eight varsity sports: men’s and women’s swimming and water polo, women’s field hockey, men’s golf, men’s wrestling, and men’s tennis. The student-athletes on these teams were devastated. Many of them had chosen Slippery Rock precisely because of its sports opportunities. They would now have to decide whether to transfer and disrupt their college careers to |

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continue competing or stay and finish college while forfeiting an intercollegiate athletic experience. It was an unhappy predicament. For some, including Elizabeth Choike, a co-captain of the women’s water polo team, transferring would mean delaying graduation, which she could not afford to do. To Choike, the emotional costs of transferring were also significant. As the daughter of a Marine, she had lived in twelve different places in nineteen years and was looking forward to staying in one place for four years. At the time Slippery Rock announced the cuts, it had a total of twentythree varsity sports. In deciding which teams to cut, the university explained that it had considered a range of factors, including the costs and revenue associated with each team, the competitiveness of each team, the academic performance of the student-athletes, the quality of the coaching staff, and the condition of the facilities. Interestingly, and indicative of the higher burden women often face in justifying their sports opportunities, administration officials required the women’s teams to have a higher grade point average than the men’s teams in order to be ranked “exceptional” on the academic performance criterion, on the grounds that the academic average for women athletes exceeded that of men. The academic performance factor was therefore applied in a gender-discriminatory way against the women’s teams.1 The cuts seemed unfair for other reasons as well. They were not easily explained by budget limitations, at least not by the budgets of the targeted sports. The minimal budgets allotted to the women’s aquatics and field hockey teams, for example, paled in comparison to the amount spent on many of the school’s other teams. The swimmers received only one swimsuit per season and paid out of pocket for new warm-up suits. The field hockey players wore inexpensive short-sleeve uniforms and had to pay for their cold-weather wear, warm-ups, sticks, and mouth-guards. To travel to away games, the field hockey team crammed its twenty-two players, two coaches, and equipment into a small shuttle bus. Other teams, not slated for cuts, traveled on more expensive charter buses and spent much more money on gear and uniforms. The school had recently invested substantial sums in new facilities for the football and baseball teams, while leaving the facilities for women’s teams as they were, in poor condition. When the students whose teams were cut asked how much they would need to fundraise to keep their teams, Slippery Rock’s president told them that any fundraising efforts would be futile.2 Elizabeth Choike and her teammates filed a lawsuit arguing that the decision to cut the women’s teams violated Title IX. The case was patterned after the Cohen v. Brown University lawsuit, asserting that the cuts exacerbated the school’s noncompliance with the three-part test. A gender-equity study 120

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undertaken by Slippery Rock University in 2000 helped the women make their case. The study found that with women composing about 56 percent of the student body but only 41 percent of the varsity athletes, female students at Slippery Rock did not have equal sports participation opportunities. However, the university did not act on the report’s recommendation to add another women’s sport. The students asked the court to grant a preliminary injunction blocking the cuts until the case could be tried.3 On July 21, 2006, the court granted the plaintiffs’ request for a temporary order barring the university from cutting women’s swimming and water polo for the 2006–2007 academic year, thereby preserving the teams until the case could be decided. The court noted a strong likelihood that the students would ultimately succeed on the merits of the case because of Slippery Rock’s apparent noncompliance with the three-part test. As was the case in Cohen v. Brown, the cuts to the women’s teams would have left unmet interest and ability in women’s sports.4 Slippery Rock agreed to a settlement in April 2007, which required it to bring its athletic program into compliance with the three-part test before it could take any steps to eliminate any women’s team.5 The agreement committed Slippery Rock to bringing women’s varsity athletic participation up to a level within two percentage points of women’s enrollment. The university also agreed not to cut the women’s swimming and water polo teams for one academic year after achieving this benchmark.6 In announcing the settlement, the president of the university acknowledged that the administration had made a mistake in cutting women’s sports programs before it had put in place a plan to bring the program into compliance with Title IX.7 The settlement required Slippery Rock to spend an additional $300,000 on women’s sports over the next three years and to increase that amount if it missed the two-percentage-point benchmark for women’s participation and to monitor women’s share of participation opportunities. The sums paid out by the university under the settlement would go toward ensuring gender-equitable treatment in the allotment of uniforms, travel, equipment, publicity, trainers, coaches’ compensation, and recruitment for its women’s sports.8 In the immediate aftermath of the settlement, the plaintiffs were elated. Their sports were saved, and significant new sums of money were funneled into women’s athletics. For icing on the cake, they were honored by the Women’s Sports Foundation and Pennsylvania’s chapter of the National Organization for Women for their “extraordinary commitment in pursuit of gender equity, civil rights, and social justice in sport.”9 But their initial excitement about the settlement was soon dampened by subsequent events. Cutting Men’s Opportunities to Help Women?

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At Slippery Rock’s urging, the judge qualified her order by conceding that the ban on eliminating women’s teams would be lifted if the university demonstrated that a “roster management” approach could succeed in producing substantial proportionality under prong one of the three-part test. Roster management refers to the practice of manipulating squad numbers to reduce the size of men’s teams to a minimum level necessary for competition while maximizing the size of women’s teams. If roster changes are significant enough, a school might move from noncompliance to compliance without adding, cutting, or reinstating a single team. In other words, if Slippery Rock could use roster management to make women’s sports participation proportionate to women’s enrollment, it could still follow through on implementing some or all of the proposed cuts. With the judge’s permission, Slippery Rock came up with a plan to reinstate women’s field hockey and elevate the women’s club lacrosse team to varsity status, while still eliminating women’s aquatic sports beginning in the 2008–2009 school year.10 Although women’s aquatic sports were strong programs with rich histories at Slippery Rock, field hockey and lacrosse were less costly sports for the school to maintain.11 Under the new plan, Elizabeth Choike and her teammates would lose their beloved women’s swimming and water polo teams despite having won their lawsuit.12 In an effort to forestall this result, the plaintiffs raised a number of objections. They argued that Slippery Rock’s roster management approach artificially inflated the women’s numbers by directing the women’s coaches to maximize roster sizes and by counting participants at the beginning of the season. However, counting at the beginning of the season resulted in unreliably high numbers of female athletes, many of whom did not stick it out for the rest of the season once they realized that the larger team size would allow them little or no playing time.13 By inflating women’s rosters at the beginning of the season, the university attempted to take credit for “paper” increases in opportunities for women.14 Despite these arguments, the judge agreed with Slippery Rock that it could reach substantial proportionality through whatever fashion it chose, including by increasing women’s rosters and capping men’s rosters. With the court’s approval, Slippery Rock proceeded to increase women’s share of athletic participation by ten percentage points. It did so by increasing the roster sizes of the women’s cross country, soccer, softball, and tennis teams, while retaining women’s field hockey and adding women’s lacrosse, which played its first season in the spring of 2007. At the same time, the school went ahead with the cuts in the five men’s sports included in the initial January 2006 announcement. It also instituted caps on roster sizes for the remaining men’s sports.15 122

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By February 2008, Slippery Rock announced that it had achieved substantial proportionality and would proceed with plans to cut women’s water polo after the 2007–2008 season and women’s swimming after the 2008– 2009 season.16 The court did not interfere. Despite the plaintiffs’ victory in settling their Title IX lawsuit, women’s aquatic sports would soon become a memory. Elizabeth Choike, the lead plaintiff in the case and a member of both teams, was disheartened: “I’m concerned about the other girls that might be affected if SRU decides to cut the teams. We’ve worked so hard; it would be upsetting to lose the team.”17 Despite such criticism, Slippery Rock remained wedded to this approach, offsetting the lost opportunities from women’s swimming and water polo with larger squad sizes on the remaining women’s teams. The university’s method of compliance did not make the Title IX lawsuit popular on campus. Reacting to the effect on men’s teams, some student government members wore “End Title IX” T-shirts to a student government meeting—a gesture that upset some of the plaintiffs in the case.18 As often happens when schools drop men’s teams and blame Title IX, the cuts mobilized opponents of the three-part test. In January 2007, when Slippery Rock was finalizing its plan for compliance, a group calling itself “Save Slippery Rock Wrestling,” composed of the wrestlers who lost their team and prospective students who might have participated, mobilized to challenge the cuts. They sought to intervene in the case to block the settlement. The group raised now-familiar claims other wrestlers have unsuccessfully asserted— that the school’s elimination of men’s wrestling violated Title IX and the equal protection clause of the Fourteenth Amendment. The court denied the motion as untimely, leaving the settlement undisturbed.19 Even if timely, the wrestlers’ claims likely would have failed for the reasons explained in chapter 3. When viewed from the standpoint of the women who were intended to benefit from the settlement, the Slippery Rock story raises a more complicated question. Given the university’s rocky path to compliance, did the lawsuit result in a victory for women? The answer is a qualified yes, but the qualification deserves some attention. The end result was surely an improvement over the initial announcement of the planned cuts since the university ended up retaining field hockey and adding women’s lacrosse, which played its first varsity season in the spring 2007. The choice to add lacrosse instead of keeping one of the women’s aquatic sports was not exactly a benevolent one, however. It appears to have been driven more by strategic and financial considerations than by a groundswell of interest in the sport.20 Cutting Men’s Opportunities to Help Women?

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The extra funding allocated to women’s sports represents a more clearcut victory and should help ease some of the starker hardships and inequalities under which the school’s female athletes had labored. But the additional money will not erase the plaintiffs’ disappointment at losing women’s aquatic sports. Nor does it change the unfortunate reality that most of the university’s progress toward reaching substantial proportionality under the settlement was made through manipulating team rosters and cutting men’s sports, rather than by adding new athletic opportunities for women. Roster management has become an increasingly popular practice in recent years because it enables schools to raise women’s participation numbers without the expense of adding new teams and to cut back on men’s numbers without generating the resistance and anger caused by eliminating entire teams. However, as the Slippery Rock experience demonstrates, such a strategy is in some tension with the purpose of Title IX to expand women’s opportunities in sport. One recent federal court decision, decided after the court’s approval of Slippery Rock’s compliance plan, recognizes this tension and holds promise for using Title IX to set limits on this practice, at least where it is used to artificially inflate women’s squad sizes or manipulated to hide the real numbers of male athletes.21 The case began when Quinnipiac University announced plans to drop women’s volleyball and two men’s sports and to add a varsity team in competitive cheer, while using roster management to raise the squad sizes of the women’s teams and cap the sizes of the men’s teams until it achieved substantial proportionality. Since dropping women’s volleyball would put the university out of compliance with prong three of the three-part test and make it unlikely to meet prong two, which requires a continuing history of program expansion, Quinnipiac’s compliance strategy hinged on meeting substantial proportionality. The plaintiffs, members of the volleyball team, sued to save their team, arguing that, even with counting cheerleading as a sport, the numbers did not add up to substantial proportionality.22 Their strategy depended on looking behind the university’s proffered squad numbers to show that the men’s numbers undercounted athletes and the women’s numbers artificially inflated them. After taking a close look at the numbers and the practices used to arrive at them, the court agreed. Finding the plaintiffs likely to succeed in demonstrating that the plan left Quinnipiac out of compliance with the three-part test, the court issued a preliminary injunction ordering the university to maintain women’s volleyball as a varsity sport while the case was pending. Soon after this order, Quinnipiac agreed to keep volleyball as a varsity women’s sport and to pursue a different route to compliance.23 124

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The court’s reasoning should assist other courts in setting limits on the use of roster management to comply with the three-part test and in ensuring that such practices adhere to the objectives of Title IX. The court saw two problems with Quinnipiac’s use of roster management. First, the men’s squad size numbers did not include numerous male students who were added to the team after the day of the team’s first competition, the date used for submitting participation numbers to the U.S. Department of Education under the Equity in Athletics Disclosure Act. Quinnipiac opted to use these same numbers for purposes of counting athletes under Title IX. However, the record showed numerous instances where male students were cut from the official roster shortly before the date of first competition and then added back to the roster after that date, thereby avoiding being counted on the official squad lists. This manipulation enabled the school to undercount the true number of male students who were benefiting from an intercollegiate athletic experience.24 The court found a different problem on the women’s side of the numbers, one that also invalidated the university’s effort to use roster management to comply with Title IX. The target numbers for women’s squads were set without input from the women’s coaches and, in some instances, above what the team resources and coaching staff could meaningfully support. Some women’s coaches responded to the new requirements by adding women they would not otherwise have taken, only for these extra women to drop the sport after the date of first competition when the official rosters were in. Even if they officially stayed on the team, the athletes who were added for the purpose of getting the numbers up did not have an authentic athletic experience, the court concluded. The court emphasized that for the roster numbers to count, they must reflect “genuine” participation opportunities and not merely padded, artificially inflated numbers created for the purpose of hitting a numerical target.25 On the other hand, the court approved certain of the counting methods used by Quinnipiac that are commonly used by other schools. The court saw no problem with triple counting track—that is, counting indoor track, outdoor track, and cross-country as three separate sports for purposes of counting men’s and women’s participation opportunities, even if there is substantial overlap in the athletes who participate in them.26 And the court approved the common practice of counting each sport a student plays as a distinct participation opportunity and not just counting the number of individuals who participate in one or more sport.27 This can make a difference if, for example, women at a particular campus more often participate in more than one sport. Cutting Men’s Opportunities to Help Women?

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Another federal court recently agreed with the duplicate counting approach, allowing a university to satisfy substantial proportionality by counting each sport in which an athlete participates (and to count the three kinds of track as three different sports), even though the singular counting of the individuals who participated in sports, without duplicating their numbers if they played multiple sports, would have left the school out of compliance.28 Still, the court’s well-reasoned opinion in the case against Quinnipiac University provides helpful guidance to other courts and litigants seeking to ensure that compliance with the three-part test does not become an exercise in the artful and manipulative management of rosters. Since this is the first court decision to set explicit limits on roster management as a method of Title IX compliance, it remains to be seen whether other courts will follow suit. But the court’s decision stands as a cautionary warning to universities contemplating cheap compliance strategies that focus solely on the numbers and not the actual athletic experiences of the women and men on their campuses.

An Anti–Title IX Poster Child: James Madison University—But Is Title IX to Blame? The Slippery Rock case illustrates the complications that can arise in eking out a Title IX victory when a school uses roster management, capping men’s teams while pressing coaches to add to women’s rosters, as a method of compliance. A more controversial case, and one that quickly became a poster child for the anti–Title IX movement, arose at James Madison University (JMU). In September 2006, JMU announced that it would cut ten of its twenty-eight varsity teams at the end of the academic year. The ten sports slated for cuts included seven men’s teams (archery, cross country, gymnastics, indoor track, outdoor track, swimming, and wrestling) and three women’s teams (archery, gymnastics, and fencing), representing a total of 144 student-athletes. Although JMU was not then the subject of a Title IX lawsuit, it claimed that the cuts were necessary to bring the school into compliance with Title IX. JMU, formerly an all-women’s school, had a student body that was 61 percent female, but women had only about half of the school’s intercollegiate athletics opportunities. After the cuts, women would occupy 62 percent of the varsity lineup, in substantial proportionality with women’s share of enrollment.29 The size of the cuts, coupled with the announcement pinning the blame on Title IX, fanned the flames of the anti–Title IX movement. Soon after the 126

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decision was announced, disgruntled students, led by the College Sports Council, a group formed to oppose Title IX, descended on the Department of Education in Washington, DC, to stage a protest. The group urged the Department to rescind Title IX’s three-part test, which it called, echoing Brown University’s rhetoric some fifteen years earlier, “a quota system.”30 Like other instances where schools have cut sports and blamed Title IX, JMU’s story does not bear out the anti–Title IX message put forward by the law’s opponents. The reality of what lay behind the cuts is more complex than the “Title IX made me do it” mantra. JMU chose its compliance strategy for meeting the substantial proportionality test because, it claimed, it could not afford to add the sports for women that would be necessary to comply under prongs two or three. However, JMU’s inability or unwillingness to find the resources needed to add women’s teams had little to do with Title IX and everything to do with the university’s budgetary priorities. Ellen Staurowsky, a professor of sport management and media at Ithaca College, reviewed the financial data from JMU’s athletic department and found that JMU’s professed inability to fund new sports for women was not borne out by the data. Although the school claimed that there was “no way [it] could add more women’s programs and afford it and be in compliance,” it managed to afford a new $10 million athletic center while it was considering the cuts. Although donations covered a significant share of the cost of the center, the school had to cough up $3 million to make up the shortfall. The center was built primarily to support the varsity football team. JMU’s football team, which won the 2004 NCAA Division I-AA national championship, carried an $800,000 deficit for the academic year before the cuts were announced. The ten sports eliminated saved a total of $550,000. JMU spent more of its resources on football than the average school in its division— accounting for 33 percent of the total athletics budget (other NCAA Division I-AA schools averaged 27 percent). As Professor Staurowsky observes, “the institution’s level of tolerance for program deficits was contingent on the program.” Her review of the numbers led her to conclude that the cuts were really about “a corporate restructuring process within the athletic department” and not Title IX.31 Setting aside the grounds for skepticism about the school’s professed inability to afford more women’s sports, Title IX clearly bears no responsibility for the decision to cut three women’s teams. Indeed, the law has served as a bulwark against eliminating women’s varsity sports where women’s enrollment exceeds their share of sports participation opportunities. Even if JMU had no money left for adding new teams, it could have avoided cutting Cutting Men’s Opportunities to Help Women?

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so many men’s sports by not cutting any women’s sports. By cutting three women’s sports, JMU had to cut significantly more men’s opportunities to make male and female opportunities proportionate to enrollment. The cuts to the women’s teams were obviously driven by concerns wholly apart from Title IX. After the controversy erupted, JMU’s athletic director admitted that the cuts to the three women’s teams were about future program management and not Title IX. The women’s teams that were eliminated competed in less prominent conferences than the Colonial Athletic Conference, where the school sought to focus its future efforts. At the same time, the school was positioning itself to compete in a new, more competitive football conference scheduled to begin in the fall of 2007.32 Like other schools before it, JMU opted to scapegoat Title IX to cover up its own questionable choices about how to govern its athletic program. This is a common strategy for deflecting blame from schools and toward federal lawmakers. Blaming Title IX for cuts to men’s teams shields from scrutiny the athletic management decisions that squeeze out “minor” men’s sports and make them vulnerable to cuts. On average, almost 75 percent of men’s sports budgets go to support two sports, football and men’s basketball.33 If those budgets are untouchable, there is little fat left to cut from other men’s sports when it comes time to consider adding sports for women. Even if financial resources are too tight to add more women’s teams, there are usually other ways to achieve compliance without cutting men’s teams. For example, JMU carried ninety-nine men on its football roster. Capping the team at seventy could have saved several men’s sports in the push to reach substantial proportionality, while still leaving many more players on the football team than in the NFL, which caps its teams at fifty-three.34 In addition, there are abundant opportunities for cost-cutting in most athletic programs.35 And yet, JMU has a lot of company in its decision to overlook its mostprivileged men’s sports in the effort to tighten belts. The extravagant treatment of football, men’s basketball, and, occasionally, other men’s sports is so ingrained in athletic culture as to be virtually invisible. As a result, it is all too easy to position Title IX as the culprit, even when the law leaves universities with many choices besides eliminating men’s teams. In the wake of the JMU controversy, an organization calling itself “Equity in Athletics” took legal action to try to block the cuts. The group filed suit against both the U.S. Department of Education and JMU, arguing that the three-part test and JMU’s decision to cut men’s sports discriminated against men in violation of the statute and the Constitution’s equal protection clause. So far, these arguments have been no more persuasive than identical 128

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arguments brought by other disappointed male athletes who have challenged the three-part test when they have lost teams. Both the district court and the Fourth Circuit Court of Appeals denied the group’s request for a preliminary order blocking the cuts, citing the low likelihood that the group would ultimately prevail on the merits in its case.36 As the Fourth Circuit summarized the state of the law, “Courts have consistently rejected [the] claim that equal opportunity under [Title IX] should be tied to expressed interest rather than actual participation.”37 It added that courts have unanimously rejected similar constitutional challenges to the Title IX regulations and the three-part test. Barring either a drastic change in how courts interpret Title IX or action by either Congress or the U.S. Department of Education to rescind or alter the three-part test, legal challenges along the lines of those made by Equity in Athletics appear destined to fail. For the reasons discussed in chapter 3, courts have unanimously rejected claims that either the three-part test itself, or cuts made to men’s teams as a method of complying with the test, discriminate against men. Behind this unanimity, however, lies an issue that has not garnered enough attention: how compliance strategies based on cutting men’s opportunities affect women, the purported beneficiaries of the law.

“Leveling Down” and Its Place in Discrimination Law Despite their intensity, debates over whether Title IX is responsible for hurting men’s sports mask a deeper and ultimately more fundamental issue: whether a discrimination law like Title IX should allow cutting men’s opportunities as a means of securing equality for women. Cutting men’s sports to comply with Title IX is a classic “leveling down” remedy. “Leveling down” refers to the choice to make the favored group worse off instead of bringing the disadvantaged group up to its level. Leveling down is not a problem unique to Title IX—it is endemic to discrimination law in general. One of the most notorious leveling-down responses occurred during the height of the civil rights era in the 1960s, after African Americans in Jackson, Mississippi, challenged the racial segregation of the city’s public swimming pools. Of the city’s five public swimming pools, only one was open to African Americans; the other four were restricted to whites only. And, as was characteristic of the “separate but equal” era, the one pool open to African Americans was not actually “equal” to the white pools in amenities and facilities. The plaintiffs argued that the racial segregation violated the equal protection clause of the U.S. Constitution, as interpreted in the 1954 landmark case of Brown v. Board of Education, which pronounced state-mandated racial segCutting Men’s Opportunities to Help Women?

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regation inherently unequal. By 1962, when a federal district court ruled on the question, this principle was well established, and the court agreed that Jackson’s racial segregation of city pools violated the Constitution.38 However, the ruling did not prompt Jackson officials to open the pools to all persons without regard to race. Instead, the city decided to close the pools altogether. It was a classic leveling-down response to a discrimination claim, depriving everyone of the sought-after benefit rather than extending it to the group that had been excluded. In a second round of litigation, in a case known as Palmer v. Thompson,39 African American residents challenged the pool closures as another violation of the equal protection clause and a far cry from a remedy to the prior unconstitutional segregation. This time, the courts disagreed with the plaintiffs. The federal district court, the court of appeals, and even the U.S. Supreme Court all upheld the city’s actions as a legitimate response to the earlier equal protection violation.40 As the Supreme Court viewed the matter, Jackson’s black residents were not being treated worse than whites as long as everyone was denied access to the pools. At the time that the Supreme Court decided the Palmer case, it was not yet clear whether such superficially neutral, evenhanded measures might nevertheless violate the Constitution if they were based on a demonstrably racist intent. Later precedents resolved that question in the affirmative, so, today, laws and policies that are facially neutral on the surface, including leveling-down responses to inequality, violate the equal protection clause if they can be shown to be based upon a discriminatory intent.41 However, proof of discriminatory intent is almost always hard to come by when leveling down has occurred. An alternative explanation, such as the desire to cut back on resources or a shift in priorities, is usually plausible, and courts are loath to find that defendants acted out of a discriminatory intent. Even Palmer itself, a case in which the racial hostility behind the leveling-down response was barely beneath the surface, was later described by the Supreme Court as a case in which proof of a discriminatory racial intent was absent, so that the pool closures did not violate the equal protection clause.42 The leveling-down problem, as reflected in the Court’s acceptance of the pool closures as a legitimate response to inequality, is endemic to discrimination law, including both statutory law and constitutional law. There are very few exceptions to this rule, limited to a small subset of discrimination statutes that explicitly prohibit leveling-down remedies in their statutory language. The Equal Pay Act, for example, bars an employer who violates the act from lowering men’s wages to remedy a violation for paying women less.43 130

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Instead, the employer must raise women’s wages to make up the difference. Unusual among discrimination laws, the Equal Pay Act took the levelingdown approach off the table. The vast majority of antidiscrimination statutes, however, including Title IX, neither forbid nor require leveling down in response to inequality. For these statutes, as with the equal protection clause after Palmer, courts generally accept leveling down as an adequate, if unfortunate, remedy to discrimination. But the problem is worth a deeper look. Sometimes what looks like equal treatment on the surface actually harbors the stinging message of secondclass citizenship, a message fundamentally at odds with the purpose behind discrimination law. A poignant example of just such a message can be found in a largely unknown case involving Title IX’s application to extracurricular activities other than sports. Elisa Cazares was a fifteen-year-old high school student at the Tohono O’Odham High School on the Tohono O’Odham Nation reservation in western Arizona when she became pregnant. A stellar student and a student leader, Cazares was a shoo-in for induction into membership in the school’s branch of the National Honor Society—that is, until school officials became aware that she was pregnant. The school’s selection committee then determined that Cazares lacked sufficient moral character to be admitted to the honor society since she was pregnant and unmarried. Cazares consulted a lawyer and sued the school district under both Title IX and the Constitution’s equal protection clause, alleging discrimination based on pregnancy and gender. A federal district court agreed and ordered the school to include Cazares in any National Honor Society induction ceremony. Taking its cue from Jackson, Mississippi’s strategy of resistance from an earlier era, the school district responded by cancelling the ceremony altogether and terminating its participation in the National Honor Society. If Cazares had to be included on the stage, school officials preferred to have no honors ceremony at all.44 Like the city of Jackson decades earlier, school officials at the Tohono O’Odham high school fixed the discrimination by leveling down. The Ninth Circuit Court of Appeals made it clear that it disapproved of the school’s response but did not view the cancellation as unlawful under either Title IX or the equal protection clause.45 The courts’ uncritical acceptance of leveling down as a remedy to discrimination is unfortunate. As the Cazares case illustrates, along with the more famous Palmer case, sometimes the withdrawal of benefits from everyone as a method of curing inequality only exacerbates the harm of the original discrimination. Surely Elisa Cazares was no less stigmatized by the cancellation of the honors ceremony than she was by her initial exclusion from it— Cutting Men’s Opportunities to Help Women?

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maybe even more so. The message came through loud and clear that not only did school officials see her as unfit for membership, but they deemed her so unworthy that they preferred to cancel the honors program completely rather than induct her as an honoree. She was positioned as the scapegoat and the reason for the disappointed expectations of the students who otherwise would have been honored. When discrimination law accepts such a result, it sides with a principle of formal equality, requiring only identical treatment, rather than a richer, more substantive theory of equality. And, because it allows everyone to be made worse off, rather than making the less fortunate better off, it can have the effect of draining popular support for equality rights. The use of leveling-down remedies in the Title IX athletics context in particular has fueled the movement to rescind the three-part test—a subject taken up in the Conclusion—with Title IX’s critics pointing to cuts in men’s sports as a reason for abandoning the three-part test and cutting back on Title IX enforcement. As the Palmer and Cazares cases illustrate, leveling-down strategies for fixing inequality are by no means unique to the Title IX sports setting. They are sometimes selected by defendants over other, less draconian remedies, and courts generally accept them as consistent with nondiscrimination mandates. Title IX is no exception to this unfortunate state of affairs. As in other settings, defendants in Title IX claims have sometimes responded by threatening to reduce or by actually reducing men’s sports opportunities as an alternative to expanding sports opportunities for women.

Leveling-Down Responses in Title IX Litigation In the landmark case of Cohen v. Brown University, Brown threatened just such a leveling-down response. After finding Brown in violation of Title IX, the district court gave the university the opportunity to come up with its own plan for a remedy. In doing so, the court noted the great flexibility that Title IX, like other discrimination laws, gives defendants to comply, even acknowledging that Brown “may eliminate its athletic program altogether” if it so chooses.46 At the same time, however, the district court sounded a note of skepticism about Brown’s repeated threats throughout the litigation to cut men’s sports if it was forced to comply with the law. In a show of frustration with Brown’s litigation posture, the district court wrote: “I feel compelled to point out that an institution has much flexibility, even within a finite resource base. . . . Thus, defendant’s plea that ‘[t]here is nothing further Brown can do except cut, cap or eliminate men’s teams,’ . . . is simply not true.”47 132

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Instead of cutting men’s teams, the court encouraged Brown to consider lowering the standard of living for its existing teams in order to pay for added opportunities for women. When Brown spurned this advice and failed to come up with a plan that the district court could approve, the school turned the long-hovering threat into a plan to remedy the Title IX violation by eliminating men’s opportunities until they reached parity with women’s opportunities. Under this proposal, Brown would fix the Title IX problem without adding a single new athletic opportunity for women. At this point, the district court’s patience was exhausted. In a heated opinion rejecting the plan and imposing its own remedy, the district court explained that Brown would have to cut 213 men from varsity sports in order to reach compliance under its proposal, a measure the court characterized as “extreme” and “entirely unnecessary.” Instead, the court explained, Brown could reach compliance by upgrading the women’s gymnastics, fencing, skiing, and water polo teams to varsity status, which would create varsity positions for approximately forty women. Financing the forty new positions would certainly not require the extent of the cuts Brown had proposed. As the court saw it, this alternative would be in the best interests of both women and men and would be much more consistent with Title IX’s purpose to expand women’s opportunities in sports. Finding that Brown’s foot-dragging and ominous threats of cuts did not amount to a “good faith” effort to comply, the district court imposed the remedy it viewed as most consistent with Title IX: adding several new varsity women’s teams.48 The district court’s valiant attempt to remedy the discrimination in a manner that best fulfilled Title IX’s goal of expanding opportunities for women was short-lived. A higher court, the First Circuit Court of Appeals, saw the problem differently and more in line with cases like Palmer and Cazares. The appellate court fully agreed that Brown was out of compliance with Title IX and had to adopt a course of action that would remedy the violation. But it faulted the district court for imposing its own remedy instead of allowing Brown the discretion to decide for itself how to comply, even if it meant cutting men’s sports until they reached parity with women’s opportunities. As the First Circuit explained, cutting men’s sports, while unfortunate, is a permissible means of complying with Title IX. Other courts have agreed that Title IX’s mandate of equal athletic opportunity may be achieved by leveling down as well as by leveling up.49 Brown ultimately backed off from its threat and settled the case with an agreement to bring women’s sports participation within close range of women’s enrollment, without specifying how it would get there. Rather than make the massive cuts that it had threatened in the litCutting Men’s Opportunities to Help Women?

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igation, Brown complied with the settlement by upgrading several women’s sports and practiced roster management to more finely tune its participation numbers to mesh with enrollment. In the end, men’s sports did not take the massive hit that Brown had insisted would be necessary if it had to comply with the court’s interpretation of the three-part test.50 Some schools, however, have cut men’s sports in recent years, although, as the JMU example illustrates, it is far from clear that Title IX is behind such decisions. Nancy Hogshead-Makar, a professor of law, and Daniel Marburger, a professor of economics, examined the economic realities of intercollegiate athletics and the data on fluctuations in sport offerings and concluded that Title IX is not responsible for declines in men’s nonrevenue sports.51 But, even if concern about Title IX compliance is one factor in such decisions, it would be a mistake to blame the law itself for a school’s decision to cut men’s sports. The fact that some schools choose cutting or capping male athletes’ opportunities rather than expanding opportunities for women as their method of Title IX compliance does not mean that Title IX is forcing the cuts, any more than the courts’ allowance of the pool closures in Jackson, Mississippi, meant that the Constitution was responsible for depriving white people of swimming pools. Title IX, like other discrimination laws, including the Constitution’s equal protection clause, is agnostic about which path a defendant chooses to follow so long as it stops discriminating, either by improving the opportunities for the disadvantaged group or by reducing them for the favored group. The blame heaped on Title IX for forcing cuts to men’s teams is sorely misplaced. The law does no such thing. Instead, it gives schools a choice of how to comply, either by leveling up or leveling down. In fact, if anything, Title IX goes a bit farther than most discrimination laws in trying to discourage leveling-down remedies. The Department of Education’s Office for Civil Rights, the federal agency charged with enforcing Title IX, has tried to send the signal that cutting men’s sports is a disfavored means of compliance and that the agency looks more favorably upon adding opportunities for women as a potential remedy. OCR’s most recent policy statements expressly state that cutting men’s teams to comply with Title IX is a disfavored practice.52 The agency’s informal responses set the same tone. When the JMU cuts prompted public attention, a Department of Education spokesperson, Chad Colby, sounded a disapproving note, stating: The department’s Office of Civil Rights is always concerned when schools choose to eliminate or reduce opportunities for [their] students and has strongly discouraged such actions as a means of complying with Title 134

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IX.… The elimination of teams diminishes opportunities for students who are interested in participating in athletics instead of enhancing opportunities for students who have suffered from discrimination. It is contrary to the spirit of Title IX.53

In actuality, however, the agency’s disapproval is more rhetoric than reality. As presently interpreted, Title IX, like other discrimination laws, does not take a substantive position on leveling down versus leveling up, as long as the differential treatment ends. Nor does the law authorize the Department of Education to impose a penalty on schools that choose to comply by cutting men’s sports rather than adding women’s sports. Likewise, in negotiations to bring a school into compliance with Title IX, OCR does not have the power to take a leveling-down option off the table, although it has stated that it will seek to negotiate remedies that do not involve cutting men’s opportunities.54 The law’s agnosticism about how to remedy a Title IX violation cuts both ways. Just as Title IX does not insist on adding opportunities for women as the remedy for a Title IX violation, neither does it necessitate cutting or capping men’s opportunities. The pressures that might lead a school to cut men’s activities instead of adding programs for women are internal ones, imposed by a model of sport that places a premium on spending for a few elite men’s sports, such as basketball and football, in order to keep pace with the arms race in expenditures for these sports.55 Rather than cut athletic budgets to free up funds to add more women’s teams, some schools choose to leave their budgets intact or, more likely, continue to increase them in elite men’s sports, while cutting opportunities in the more marginalized men’s sports. Cutting men’s teams allows schools to comply with Title IX without putting new resources into their sports programs or reducing the budgets of existing teams. Title IX is not the ship’s captain that steers schools onto this course. Decisions to cut men’s opportunities are the result of setting internal priorities on maintaining the standard of living for existing teams, especially the best-funded men’s teams, rather than expanding participation opportunities for women.

Searching for Limits on Leveling Down: Should Discrimination Law Take a More Critical Look? The fundamental question that is rarely asked in the debates over cutting men’s teams is whether Title IX should break from discrimination law’s norm of neutrality about leveling up or down and take a more critical approach, disfavoring leveling-down remedies in reality and not just in OCR rhetoCutting Men’s Opportunities to Help Women?

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ric. This is a difficult question because there are times when leveling-down remedies are consistent with the purposes of discrimination law. Sometimes there simply would not be enough of the sought-after benefit to go around if everyone were to receive the larger portion currently going to the mostfavored group. And sometimes the extra benefits are excessive anyway, even if there were wealth enough for everyone to share in them. To use a simple example, if a teacher gave a few favorite students five cookies each and everyone else in the class just one cookie a piece, the shortchanged students might rightly complain that the teacher had not treated them equally. But that does not necessarily mean that the only way or even the best way to cure the inequality is to give each student five cookies. The extra four given to the teacher’s favorites might be seen as unjustified “perks”—and who really needs five cookies? The injury to the less-favored students probably would not be compounded if each student were to receive only one or two cookies, as long as everyone received an equal portion. This example seems unobjectionable enough as far as it goes, but is inequality in cookies really the same as in sports? The short answer is, sometimes it is and sometimes it is not. Unlike the contrived cookie example, there are times when leveling down is inconsistent with the purposes behind antidiscrimination law. Leveling down is most problematic when it is done to punish and deter people from challenging discrimination in the first place. That is why Brown’s proposal to cut 213 men’s varsity positions as its method of complying with Title IX so raised the district court’s ire. Brown had raised this specter from the outset of the litigation, practically laying down a gauntlet to the young women who filed suit. It was as if Brown said to them, “If you keep this up, nothing good will come of it.” The threatened cuts were not necessitated by a budget crisis and appeared calculated to ensure that the women bringing the suit would not benefit from it. Before I entered academia, I worked as a public interest lawyer for the National Women’s Law Center. I had many conversations with female student-athletes who were considering bringing Title IX complaints against their schools. Their number one concern was whether the school would simply cut male athletes’ opportunities instead of doing anything to improve the women’s program. No one wants to be blamed for making others worse off, and there was nothing more chilling to the students’ desire to enforce Title IX than the specter of being scapegoats, the spoilsports who brought down men’s sports. Used in this way, leveling down functions as a kind of retaliation, punishing complainants for bringing a discrimination claim and making sure that they are no better off—and are possibly worse off, because of the likely social ostracism—for having done so. 136

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Leveling down is also inconsistent with the purposes of discrimination law when it sends the stigmatizing message that the challenger is less worthy of the benefits than the group that had received them. When the Tohono O’Odham school district decided that it would rather not honor any student if it had to include Elisa Cazares among the honorees, it compounded rather than remedied the harm originally inflicted on Cazares by her exclusion. The school district’s cancellation of its participation in the National Honor Society under these circumstances sent the unmistakable message that it regarded Cazares as a second-class citizen who was less worthy than the students it had planned to honor. Far from remedying the injury caused by the discriminatory exclusion, the cancellation amplified the message of dishonor by showing the depth of the district’s feelings about her. Discrimination law has always been concerned with status harms that send a message of secondclass citizenship, which is why it does not require the challenged deprivation to rise to a level of fundamental importance. Exclusion from a voluntary honor society is just as much a violation of discrimination law as is a denial of access to core curricular offerings. For this reason, the leveling down that occurred in the Cazares case should have been treated as inconsistent with the purposes of discrimination law and ruled impermissible.56 Similarly, the closing of the swimming pools in Jackson, Mississippi, in order to avoid racial integration should have been treated as inconsistent with the principles of the equal protection clause. The city’s decision sent a clear message of second-class citizenship. So great was the aversion of white elites to the presence of African Americans in the whites-only pools that they preferred to deprive everyone of the pools rather than have mixed-race swimming. Not only did the city’s decision fail to remedy the stigma caused by the segregation, it made the message of stigmatization all the more loud and clear. The empty pools stood as unmistakable reminders of the lengths to which the city would go to block African Americans from mingling with whites in such an intimate setting. As with the Palmer and Cazares cases, there is a risk that the message of second-class citizenship will attach to leveling-down decisions in the sports setting, as well. When cuts to men’s sports are not dictated by financial necessity and are selected as the preferred alternative for complying with Title IX instead of adding new opportunities for women, they signal the higher value the institution places on preserving existing budgetary priorities and “perks” for male athletes than on expanding athletic opportunities for women. As Marcia Greenberger, co-president of the National Women’s Law Center, responded, upon learning of JMU’s insistence that Title IX was behind its Cutting Men’s Opportunities to Help Women?

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decision to eliminate ten sports teams, “The cost of adding two or three women’s teams would have been just as minuscule [as the amount saved by the cuts]. I think it shows how little they value women’s teams.”57 If the men’s teams on the chopping block were valuable enough to support before Title IX enforcement became a pressing concern, why aren’t women worthy of a comparable level of opportunities when Title IX is considered? Is adding opportunities for women really so out of reach financially that cutting men’s sports is the only option for compliance? Where that truly is the case and there is no fat left to trim from existing budgets without undermining the core athletic experiences of existing athletes and no new resources to put in the mix, cutting men’s athletics may well be above reproach in terms of the purposes of Title IX—an unfortunate turn of events, to be sure, but necessary if the pie is too small to carve out additional slices for women. But rarely are financial constraints so determinative. More likely, as with Brown’s threat to cut sports for more than two hundred men, when a school decides to cut men’s teams rather than add women’s teams in order to comply with Title IX, it has deemed sports opportunities nonessential for women, even though they were worthy enough to offer to men for many years. Brown’s proposal to cut two hundred men’s spots rather than add forty new opportunities for women sent the message that it would rather sacrifice a large group of male athletes than make room for a smaller number of additional female athletes. The threat signaled that Brown did not deem female athletes worthy of the resources needed to support opportunities that had been provided to its least-valued male athletes, much less a reallocation of the resources that finance its most-favored men’s teams. Proposals like Brown’s plan to cut its way into compliance should be looked at more skeptically to determine if they are consistent with Title IX’s underlying message that sports opportunities are just as valuable for women as they are for men. In many instances, cuts to men’s sports send a problematic message: that supporting more female athletes is not worth the added cost, especially if it means cutting back on the perks provided to the most elite male athletes. Nevertheless, I would not rule out leveling down as a remedy to gender discrimination in sports under all circumstances. Sometimes leveling down is the best path to equality where the existing level of treatment for male athletes reflects an inflated privilege that was set using an exclusionary standard. In other words, some leveling down may be called for to find a sustainable level of treatment that can be equally shared with women. Some of the privileges extended to male athletes, such as hotel stays for entire football teams on nights before home games and lavish treatment of recruits, could never 138

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be extended equally to women’s teams, nor should they be. In such cases, the level of treatment has been set precisely because it has been reserved for a select group of men—it is the very excess that has made such practices valued for the elite status they confer. The goals of discrimination law would be better served by taking away such perks and reallocating resources to broaden sports participation rather than extending those same perks to women. As another example of when leveling down is acceptable, a school might fund such an extraordinarily large male sports program that the full extent of those offerings could never be replicated for women without cutting resources to a degree that would deprive participants of the core experience of varsity athletics. In such a case, some leveling down in the form of cuts to a few male sports may be necessary in order to free up resources to expand on the women’s side. Differentiating between leveling-down responses that are compatible with discrimination law and those that are not is certainly more difficult than the current approach, which permits leveling down without any real scrutiny of the reasons behind it or the messages it sends. But ease of administration should not be the only consideration. More careful scrutiny of leveling-down responses would better ensure that Title IX serves its purpose of equally valuing men and women, as students and as athletes. A message that proclaims “We don’t want to provide these opportunities any more if we have to provide them to you” is not compatible with the purposes of Title IX. The current approach runs counter to the theory of equality behind the three-part test, which focuses on ending women’s subordination in sports and equally valuing their sport experiences. When it comes to leveling down, Title IX— like antidiscrimination law generally—is stuck in a weak liberal feminist, formal equality mode. It prioritizes treating people the same over all else. But treating people identically is not necessarily the same thing as treating them equally. All prospective swimmers may have been turned away by the pool closure signs in Jackson, Mississippi, but everyone understood that the racial insult was directed at African Americans. Title IX’s animating philosophies of empowering women through greater opportunities in sports and equally valuing their sporting experiences would be better served by more critical scrutiny of leveling-down responses. By allowing leveling down as a remedy to discrimination without qualification, Title IX has permitted some disappointing results. However, it is important to understand that this is not a shortcoming that is unique to or even particularly pronounced in Title IX. It inheres in discrimination law as a whole, with very few exceptions. It is time to revisit the law’s agnosticism Cutting Men’s Opportunities to Help Women?

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with regard to leveling down—not because Title IX is forcing schools to cut men, but because discrimination law generally is too forgiving of leveling down, especially when it undercuts the goals and animating principles of the law. At a minimum, the law should do more to make sure that leveling down is not used as a strategy for deterring women from challenging discrimination by warning them that enforcing their rights will only hurt men. For Title IX to function as a tool for transforming women’s opportunities in sports, there must be an effective legal strategy for countering such tactics—one that does not betray Title IX’s core assumption that women are equally deserving of opportunities in sports. By re-interpreting Title IX to take a closer look at leveling down, the law might even play a role in counteracting the internal pressures that lead schools to cut men’s opportunities instead of adding them for women. Instead of blaming Title IX for cuts to men’s programs, disappointed athletes and their advocates should direct their scrutiny onto the institutions making the choices about how to achieve Title IX compliance. At a fundamental level, the choice to cut men’s sports instead of expanding women’s sports reflects a clash between the business model of sports and the educational model of sports. Most of the time, the decision to cut men’s sports instead of adding women’s sports reflects a capitulation to the big-business model that insists on extreme levels of spending for a few highly privileged men’s sports in the hope of maximizing their revenue.58 Such decisions move further away from the educational model of sports, which emphasizes broad participation for a wider base of students at a sustainable cost. The business model of sports values athletics primarily for its commercial potential, treating athletes as commodities that produce commercially successful programs. The educational model of sports values athletics for what it teaches students and how it enhances their education.59 Selecting a path of Title IX compliance that emphasizes cutting men’s athletics over adding women’s teams reflects the triumph of the business model of sports. The schools that have taken this path have done so because they are not willing to cut back on the financial arms race to free up resources to add women’s sports. If schools managed to cut back on their spending and lower the standard of living for existing teams, they could emphasize broad-based participation and avoid the need for cuts to men’s sports. The values of Title IX have always adhered more closely to the educational model of sports than to the business model. The case for gender equality in sports emphasizes the benefits that sports impart to students and the need to extend those benefits on equal terms to girls and women. Cutting men’s 140

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sports for the sake of preserving the existing allocation of resources is not the best solution for the majority of male or female athletes. The organizations that regulate sports, including the NCAA, have not been willing or able to rein in the commercial model of sports so as to ease the pressure on schools facing these kinds of choices. These issues get us deeper into the financial excesses of men’s athletic programs and the failure of schools to provide truly equal support to men’s and women’s sports. Getting into the game is only half the battle. The next step is to secure equal treatment. The next chapter takes up this struggle, which has led to much progress in raising the level of support for female athletes. And yet, fully equal treatment for women’s sports remains more of an unfulfilled promise than a reality.

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6 Treatment as an Equal

When Elizabeth Choike and her teammates sued Slippery Rock University for cutting their teams, saving their sports was not their only concern. They also challenged SRU for discriminating against female athletes in the provision of facilities, equipment, coaching, and scheduling for women’s sports. Some of the disparities the lawsuit identified were stark. Women’s softball had it especially rough. The team played on a field far from campus with fencing that often fell down in a strong wind, a generator that could not always power the scoreboard for a full game, dilapidated seating in old bleachers, a garbled and incoherent sound system, and a locker room located away from the field. Because the softball field was not on campus, SRU did not maintain it, which meant that the team had to report to each home game several hours early to prepare the field. The men’s baseball team faced no such challenges. Members played and practiced in a state-of-the-art baseball stadium with a field that was well maintained by a grounds crew. Their stadium had comfortable seating for a large crowd, new on-site locker rooms, and a clear sound system. Like the softball players, members of the women’s field hockey team at Slippery Rock endured difficult conditions to play their sport. They had to share a field with the football team and often felt more like guests than rightful athletes on their home turf. It was not uncommon for their practices to be interrupted by football players taking to the field. Whenever field hockey had a scheduling conflict with football, the women were relegated to a separate, poorly maintained grass field that was scattered with holes. Playing and practicing on a field with holes presents safety risks for field hockey players from sprained ankles and errant balls bouncing off the rough terrain. The football team made no such sacrifices for their game. They had their own private locker room and weight room, complete with new carpeting, plasma flat-screen TVs, and video equipment. And they were never displaced from the field.1 The women’s equal-treatment claims were ultimately settled in an agreement with SRU in which the university agreed to drastically improve the |

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conditions for its female athletes. Under the settlement, SRU agreed to spend an additional $300,000 in its women’s athletic program to make improvements to the women’s facilities, uniforms, travel arrangements, equipment, publicity, and trainers.2 Although the biggest success story of Title IX has been the use of the three-part test to add women’s sports, female athletes have also made great strides in gaining increased support and resources for their sports. In addition to promising equal access to sports opportunities, which is governed by the three-part test, Title IX also guarantees equal treatment of the male and female athletes who play sports. Unlike the three-part test, Title IX’s equaltreatment standards reflect the liberal feminist approach that is dominant in sex discrimination law. However, as with other aspects of sex equality in sports, the baseline of sex separation affects how the equal-treatment standards apply. In some respects, the distinctive setting of athletics has enabled the equal-treatment requirements to reflect a particularly strong version of liberal feminism. In other respects, however, the law’s approach to equal treatment has come up short. This chapter explores Title IX’s successes and failings in putting female athletes on an equal footing with their male peers.

The Development of Title IX’s Equal-Treatment Standards Most of the Title IX cases brought by female athletes have used the threepart test to challenge women’s insufficient access to sports.3 Fewer court decisions have applied Title IX’s equal-treatment standards to the athletes who are already playing varsity sports. This is not because there is less discrimination in this area. Instead, it reflects the priority of women’s sports advocates and Title IX litigants to first get women into the game and the greater immediate stakes where sports are cut or not offered at all. Once women have access to sports, ensuring equal treatment for female athletes is the necessary next step toward gender equality. With less guidance from the courts, the equal-treatment standards have largely developed from agency regulations and interpretive guidelines, especially the 1975 regulations issued by the Department of Health, Education, and Welfare and the 1979 Policy Interpretation. Having decided that Title IX did not require identical sport offerings for men and women, HEW was left with the challenge of developing a measure of nondiscrimination that would guarantee women equal treatment in sports despite differences in the programs offered. Reacting to pressure from big-time sports programs and defenders of the status quo, the agency quickly rejected one easily verifiable 144

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measure of equal treatment: equal funding, either on an absolute or per capita basis. Instead of a concrete, easy-to-apply financial test, HEW embraced a more open-ended requirement of “equal athletic opportunity.”4 The Title IX regulations list ten factors to apply in measuring compliance with this standard. Among them, the factors numbered two through ten in the regulation form the basis of Title IX’s equal-treatment standards. (The first factor, “whether the selection of sports and levels of competition effectively accommodates the interests and abilities of members of both sexes,” is the source of the three-part test discussed in chapters 3, 4, and 5.) Together, these nine additional factors require equal opportunity in the major practices that shape students’ athletic experiences. They are (as numbered in the regulation): (2) (3) (4) (5) (6) (7) (8) (9) (10)

The provision of equipment and supplies; Scheduling of games and practice time; Travel and per diem allowance; Opportunity to receive coaching and academic tutoring; Assignment and compensation of coaches and tutors; Provision of locker rooms and practice and competitive facilities; Provision of medical and training facilities and services; Provision of housing and dining facilities and services; Publicity.

These factors, along with a discussion of equal treatment in the 1979 Policy Interpretation, which added recruitment and support services to the list, form the basis of Title IX’s equal-treatment framework.5 Importantly, in measuring equal treatment, the inquiry is not whether any particular women’s sport is treated worse than the men’s team in that same sport.6 A sport-specific comparison would contradict the agency’s decision to allow different sport lineups for men and women, in accommodation of their different sports interests. It would also insulate the preferential treatment of certain sports from scrutiny if more resources and support were given to sports not offered to women, such as football or ice hockey, for example. Instead, the equal-treatment framework compares the treatment of the men’s and women’s athletic programs overall, allowing for discrepancies between specific men’s and women’s sports.7 In requiring an overall program comparison, however, the regulation adds one important caveat: a financial disparity in the amounts spent on men’s and women’s sports does not in itself violate Title IX.8 Such a disparity is relevant to measuring compliance, but the ultimate inquiry is whether men’s Treatment as an Equal

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and women’s sports receive equal treatment in the factors identified. While this qualification reflects the reality that some sports cost more than others, it has made Title IX an ineffective tool for curbing the skyrocketing expenditures on elite men’s intercollegiate sports—expenditures that far exceed the resources provided to women’s sports.9

The Strong Side of Title IX’s Liberal Feminism Compared to the three-part test for participation opportunities, Title IX’s equal-treatment framework is much closer to a liberal feminist model, requiring similar treatment and support for men’s and women’s athletic programs. And yet, when viewed in relation to sex-discrimination law in other settings, Title IX has managed to escape some of the pitfalls that have compromised liberal feminist approaches in other areas.

The Murky Territory of Discriminatory Intent One of the biggest obstacles women face in using discrimination law to challenge various kinds of gender inequality is the strict requirement for proving intentional discrimination. The discriminatory-intent requirement has been criticized by many legal scholars as overly strict and out of step with the more subtle forms of sexism prevalent today.10 Absent an express policy that admittedly treats men and women differently, challengers must prove an underlying intent to harm women because of their sex. Proof that a defendant acted out of a conscious intent to harm women is extraordinarily difficult to come by. In a landmark case explaining this requirement, the Supreme Court ruled that a state legislature’s unequivocal knowledge that enacting an absolute veteran’s preference for state civil service jobs would virtually foreclose women from ever holding such jobs did not amount to intentional discrimination under the equal protection clause.11 Instead, the Court ruled, the challengers had to prove that the veteran’s preference was enacted because of, and not merely in spite of, its inexorable effect of keeping women out of the most desirable civil service jobs. Women have rarely been able to marshal such proof in court.12 Even under Title VII, the federal law covering sex discrimination in the workplace, proof of intentional discrimination is typically required.13 Title VII, unlike the equal protection clause, does extend to unintentional dis146

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crimination, known as disparate-impact discrimination. That term refers to policies or practices that are gender neutral on their face but that nonetheless unfairly disadvantage women or other members of a protected class under the statute. However, disparate-impact claims represent a small fraction of the Title VII cases brought to court, largely because they have additional proof requirements that make them difficult to win.14 Moreover, disparateimpact cases do not allow for recovery for monetary damages, making such claims less valuable than the typical Title VII claim for intentional discrimination, which permits both compensatory and punitive damages.15 Title IX, too, places a premium on establishing intentional discrimination, as opposed to unintentional, gender-neutral practices that have a disadvantageous impact on women. A 1992 Supreme Court decision recognizes the availability of damages for Title IX violations, but only for intentional discrimination.16 And a 2001 Supreme Court decision interpreted a related statute, Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in federally funded programs and served as a model for the drafters of Title IX, to limit the right to sue in such cases to claims alleging intentional discrimination.17 That ruling is likely to apply to Title IX, as well, thereby limiting private lawsuits under Title IX to claims for intentional discrimination.18 As a result, the effective use of Title IX requires establishing that the challenged practices involve intentional discrimination and not merely disparate impact. Tough legal requirements for proving intentional discrimination typically raise high hurdles, with judges and juries reluctant to brand defendants intentional discriminators in all but the most extreme cases.19 Fortunately, Title IX’s equal-treatment standards for athletics have largely escaped this trap door for discrimination lawsuits. Title IX’s allowance for sex separation in sports has enabled the law in this area to develop distinctively. Because schools generally sponsor separate sports for men and women, decisions about how to allocate resources and benefits to athletic teams are necessarily gender conscious. When women’s teams are shortchanged in support and resources, the disparity in treatment itself establishes the legal requirement of intentional discrimination.20 This is because the function of the intentional discrimination standard is to determine whether men and women are being treated differently because of their sex. Where a policy is gender neutral on its face, such as a veteran’s preference or other hiring criteria, the intentional discrimination standard seeks to determine whether women are being disadvantaged because of their sex or for some other benign reason. But where sex-based different treatment is apparent, as in the athletics conTreatment as an Equal

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text where men and women have separate programs, no additional inquiry into a defendant’s motive is needed. Proof of discriminatory intent has never been required where a policy explicitly treats women differently. The Supreme Court itself recognized this underlying principle in a highprofile challenge to an employment policy that barred women of childbearing age from holding jobs that might expose them to hazardous materials in the workplace. Even if the employer’s concern for fetal health was well intentioned, the Court reasoned, it was still “intentional discrimination” because the policy treated men and women differently: a woman of reproductive age was restricted from certain jobs, while men who could father children were not.21 Likewise, providing unequal benefits and resources to women’s and men’s athletic teams automatically establishes intentional discrimination by virtue of the different treatment itself, without the need for a messy inquiry into the decision maker’s intent. As a result, schools can be liable for intentional discrimination against female athletes without being saddled with the badge of having actually intended or desired to harm women.22

Title IX’s Reach: Closing the Divide between “Public” and “Private” Discrimination Title IX’s liberal feminism is also notably strong for its refusal to overlook inequality that is arguably traceable to “private” or nonfederal sources of funding. Debates about the scope of the law’s coverage arose early in Title IX’s history. Soon after its enactment, Title IX’s supporters fought off attempts to amend the statute to authorize special treatment for revenue-raising sports in Title IX’s coverage. This battle was won in 1974, when the Tower Amendment, which would have exempted the revenue from revenue-producing sports from Title IX’s coverage, was defeated and replaced with the Javits Amendment.23 That amendment directed the federal Department of Health, Education, and Welfare to issue “reasonable” regulations governing intercollegiate athletics that take into account the nature of particular sports.24 This laid the predicate for the 1975 Title IX regulations. The 1980s witnessed another challenge to Title IX’s broad coverage, when the Supreme Court ruled in 1984 that Title IX reaches only education programs that directly receive federal funds, effectively exempting athletics from the law’s reach.25 Four years later, Congress rebuffed the direct-funding requirement by enacting the Civil Rights Restoration Act, making it clear that Title IX covers all of the education programs and activities of an institution, any part of which receives federal funds.26 148

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In recent years, controversy over the scope of Title IX’s coverage has arisen in the context of privately raised “booster” club funds that are donated to particular sport teams. Because male sports have been around for so much longer, are more socially valued, and are more likely to have a strong network of alumni and fans to solicit, the unregulated acceptance of privately raised funds can be a major source of inequality in school sports programs. A school board in Brevard County, Florida, learned this the hard way when it was sued by the father of two female softball players for providing unequal facilities for girls’ and boys’ sports. The baseball field at Merritt Island High School was a showpiece. It had an electronic scoreboard, batting cage, bleachers, concession stand, press box, announcer’s booth, and lights on the field. The softball field had none of these amenities. The court was unimpressed with the school board’s argument that the inequality was not the responsibility of the school because the baseball field was funded by private donations. Instead, the court ruled that schools have an obligation to ensure gender equality in their sports programs regardless of the source of funds.27 After the court ordered the school board to remedy the inequalities between the boys’ and girls’ facilities, the school board sent a letter to school principals within the district instructing them to “be responsible for insuring that regardless of the source of funding, whether it be school district, school, or booster club, the expenditures that support male and female athletic teams shall be on an equitable basis.”28 As the letter explained, this means that “a principal may not accept or approve, either directly or indirectly, funding which fosters a disparate, inequitable status between male and female athletic teams.”29 The Department of Education’s Office for Civil Rights takes the same position, refusing to excuse discrimination caused by booster or donor funds that benefit male sports.30 The relevance of private funding to Title IX compliance was also tested in the Cohen v. Brown University case, discussed in chapter 3. Brown University had argued that its demotion of the women’s teams was really just a shift from university funding to “donor funding.” Using this nomenclature, Brown hoped to convince the court that the teams had not really been cut but merely had had their funding shifted to different sources, notwithstanding the stark disparities in how school-funded and donor-funded teams were treated. The court did not buy this argument. Instead, it endorsed the now-settled view that the source of funding behind the privileged treatment of some sports does not excuse a Title IX violation as long as any part of the school receives federal funds.31 The court reminded Brown that it had an obligation to counTreatment as an Equal

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terbalance any private booster fundraising that disproportionately helps men by providing enough resources to ensure equitable programs for women.32 Other courts have likewise refused to excuse gender inequality in school sports programs merely because some portion of it is privately funded.33 Title IX’s coverage of privately financed inequality is necessary for the law to have its full moral force in condemning discrimination. Otherwise, schools would be complicit in the nominally private discrimination and serious inequalities would be outside the law’s reach. An analogy would be if a private citizen donated high-end, pricey science equipment but specified that only white students could use it in class. No one would argue that the school should accept such a gift—at least, not unless it matched such expenditures with school funds in order to ensure that all students have access to the same equipment. Title IX ensures that schools take similar care to make sure that booster clubs and other private funds do not raise boys’ sports above the level of what is provided for girls. Title IX’s refusal to excuse discrimination that is paid for by unofficial funds stakes out a strong position on the question of when to classify conduct as “public” as opposed to “private” and therefore a proper subject for discrimination law. Feminist legal scholars have often criticized the use of an artificial public-private distinction to insulate many practices that are responsible for protecting gender inequality from the reach of the law. For example, throughout much of American history, a woman’s home and family life was classified as “private,” leaving women’s relationships with men and practices like domestic violence outside the law’s reach. Much of the work of the feminist legal movement in the past few decades has focused on breaking down the public-private divide and illuminating the ways in which law and other practices recognized as “public” shelter and facilitate so-called private inequality. Even today, remnants of the public-private divide continue to haunt our legal system and insulate real-world sex inequality from the reach of discrimination law. One modern example of this is the Supreme Court’s decision in 2000 to invalidate the civil rights remedy of the Violence against Women Act, which gave victims of gender-motivated violence a federal civil right to sue their attackers for damages. In passing this statute, Congress invoked its power to enforce the equal protection clause of the Fourteenth Amendment to the U.S. Constitution. The Supreme Court, however, found the statute to be outside this power. In striking down the law, the Court explained that the power to enforce the equal protection clause does not give Congress the power to address “private” discrimination but allows it to regulate only discrimination 150

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by state actors. Much to the dismay of the Act’s supporters, the Court failed to see the many ways in which states have facilitated and legitimated socalled private violence against women by ignoring, obfuscating, and underprioritizing the problem.34 Title IX’s broad application to education programs that receive federal funds, even when the inequality is privately financed, avoids the pitfalls of this kind of reasoning. By refusing to distinguish school-funded and privately funded inequality, Title IX directs attention to the historic circumstances, for which schools bear some responsibility, that have made it vastly harder for female athletes to raise money for their sports. Male sports have longstanding histories and traditions of support in educational institutions, giving them a much broader and deeper base of potential donors. Women’s sports are more recent additions and face greater fundraising challenges. Title IX ensures that this history does not continue to disadvantage the development of women’s sports. A final and related question about the scope of Title IX’s coverage is whether athletic associations, which do not receive federal funds themselves, are subject to Title IX by virtue of their relationship to federally funded schools. A 1999 Supreme Court decision ruled that the NCAA’s receipt of dues from its federally funded member schools did not make the NCAA a “recipient” of federal funds for purposes of Title IX.35 At most, the Court ruled, the NCAA was an indirect beneficiary of the federal assistance given to its members. Importantly, however, the Court did not foreclose the possibility of covering the NCAA under an alternative theory. The Court left open the possibility that the NCAA might be brought under the reach of Title IX if it was an “assignee” of its member schools, meaning that federally funded member schools assigned control over their athletic programs to the NCAA, or if member schools ceded “controlling authority” to the NCAA over their athletic programs. Whether these theories might make the NCAA subject to Title IX is not yet settled, although one federal appeals court has found that the NCAA does not exercise enough control over the athletic programs of its member schools to support the “controlling authority” theory.36 Of more practical significance than whether the NCAA must comply with Title IX is the question of whether Title IX covers state high school athletic associations. For the most part, the NCAA, at least in the recent past, has supported Title IX and the efforts of its member schools to comply with the law. At the present time, few NCAA rules or practices might be challenged as being out of step with the requirements of Title IX. This was not always so. Years ago, the NCAA could have been faulted for a variety of practices, Treatment as an Equal

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including sponsoring more championship berths for male athletes than female athletes in championship tournaments such as men’s and women’s basketball and setting caps on women’s scholarships so low that women did not have an equal opportunity to receive athletic scholarships. Since its early opposition to strong Title IX enforcement in the 1970s, however, the NCAA has gradually come full circle from being an impediment to gender equality in sports to a mostly supportive player in the push for Title IX compliance. State high school athletic associations, on the other hand, are a different story. A recent flurry of cases have addressed state high school athletic association rules that schedule girls’ sports in nontraditional and disadvantageous seasons while placing boys’ sports in their regular seasons. In one of the most hard-fought of these cases, a group of parents who formed an organization called Communities for Equity sued the Michigan High School Athletic Association for scheduling certain girls’ sports in the “wrong” season, including putting girls’ basketball in the fall and volleyball in the spring.37 Before reaching the issue of whether this practice violated Title IX, a threshold question was whether the MHSAA was subject to Title IX at all. The court ruled that it was. Applying the “controlling authority” theory, the court detailed the many ways in which the association governed the athletic programs of its member schools, including by regulating athlete eligibility, registration of coaches and officials, the rules of sports, practice and scrimmage schedules, the number of games, rule violations and sanctions, and the sports’ seasons. As the court explained, leaving such membership associations outside the law would create a huge loophole in Title IX, since member schools individually cannot change state association rules.38 Not all courts have agreed with this line of reasoning. One federal court in Illinois took the position that Title IX does not reach state athletic associations merely by virtue of their relationship to federally funded schools since the law puts the onus on the schools themselves to comply, including by regulating how they respond to the rules and requirements of third-party associations that affect their students.39 In addition, a state court in Wisconsin ruled that the Wisconsin Interscholastic Athletic Association was not subject to Title IX since it did not directly receive federal funds.40 With lingering uncertainty in the case law, athletic associations will likely continue fighting to position themselves outside the scope of Title IX. The majority of courts, however, have sided with the courts in the Michigan case, recognizing that the nature of interscholastic athletics requires schools to cede substantial authority to governing associations and that 152

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Title IX’s policy goals require such associations to be held accountable if they cause discrimination in federally funded school programs.41 As a result, scheduling girls’ sports in disadvantageous seasons—a practice largely done to avoid inconveniencing boys’ use of facilities—has become much less common. In addition to the Michigan case, state athletic association rules putting girls’ sports in nontraditional seasons have been successfully challenged in Montana, South Dakota, Virginia, and West Virginia.42 Other practices by state athletic associations that deprive girls of equal opportunity are also vulnerable to challenge under Title IX. Recently, Florida’s state athletic association backed down from its announced plan to save money by cutting back on the competitive schedules for all sports except football and competitive cheerleading—a step that would have left more than forty thousand male football players unaffected by the cuts but only about 5,500 female cheerleaders.43 The association retreated from this proposal after a group of female athletes and their parents brought a Title IX lawsuit challenging the decision.44 State association rules that permit most boys’ games to be scheduled in primetime and on weekend nights, while scheduling girls’ games on weekdays and at less desirable times, are also vulnerable.45 By reaching the activities of athletic associations, Title IX has avoided the pitfalls of a narrower approach that would rigidly separate federal funding recipients from the nonfederally funded entities to which they delegate authority to run their programs. It is one more way in which Title IX takes a broad view of the public/private distinction that has sidelined other efforts to use sex-discrimination law to challenge inequality.

“How Would You Feel if. . . . ?” Recognizing the Harms of Unequal Treatment Another strength of Title IX’s equal-treatment approach is its refusal to trivialize differences in the treatment of male and female athletes as inconsequential or “de minimus.” In workplace discrimination law, courts have found certain kinds of discriminatory acts to lie outside the law’s reach because they are too insignificant to alter a person’s work conditions. Some courts have interpreted Title VII’s language covering the “terms and conditions” of employment to effectively carve out a de minimus exception that precludes challenges to less significant forms of discrimination.46 Of course, what strikes a court as insignificant may feel very significant to the person who experiences it. In some of the more questionable rulings, courts have found lateral transfers to less convenient locations and even the refusal to give an Treatment as an Equal

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employee access to a computer to fall within this exception.47 Depending on how high a bar the court uses, the de minimus exception can be a significant obstacle to full equality in the workplace.48 The Title IX case law, by contrast, reflects greater sensitivity to the harms of discrimination from the perspective of the students who experience it, recognizing that the significance of the discrimination goes well beyond tangible differences in treatment. It was not always so clear that the law would take this direction. One section of the 1979 Policy Interpretation states that noncompliance in “individual segments” of the athletics program only violate Title IX if they are “substantial enough in and of themselves to deny equality of opportunity,” and early statements from the Office for Civil Rights suggested that less significant disparities in treatment might be traded off and overlooked if the men’s and women’s programs were substantially equal overall.49 By and large, however, courts have shied away from finding identified disparities in treatment too insignificant to amount to a Title IX violation. Instead, courts deciding these cases have paid attention to the messages female students are likely to discern from the discrimination. In the Michigan High School Athletic Association litigation, for example, the court was quick to dismiss the MHSAA’s argument that any disparity caused by scheduling girls’ sports in nontraditional seasons should be overlooked because the association had a solid record of compliance with the rest of Title IX’s requirements. Instead, the court focused on the message that the scheduling disparity sent to female students: “When girls are treated unequally as compared to boys, girls receive the psychological message that they are ‘second-class’ or that their athletic role is of less value than that of boys. . . . This message stays with girls throughout adulthood and can extend to careers and interpersonal relationships.”50 Other courts have similarly found that the scheduling of girls’ sports in nontraditional seasons sends a hurtful message to female athletes. A lawsuit brought by fathers of high school soccer players in Mamaroneck and Pelham, New York, contended that scheduling girls’ soccer in the spring and boys’ soccer in the traditional fall season violated Title IX. The court agreed, describing itself as “unpersuaded” by the school districts’ “attempt to downplay the significance of the opportunity that they are denying their female athletes but affording their male athletes—the chance to be State champions.”51 Because the regional and state soccer championships fell at the end of the fall, scheduling soccer as a spring sport eliminated any chance that the girls could compete in the state championship. Of the 714 public schools in New York that sponsored girls’ soccer, 649 scheduled 154

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it in the fall. The court found this single scheduling disparity substantial enough to violate Title IX. In a move that did not ingratiate them with the court, the defending school districts responded that their girls’ teams were unlikely to qualify for the state championship anyway. To this, the court replied, “a girl’s reach should exceed her grasp” and observed that “[t]he greater the potential victory, the greater the motivation” to win.52 In fact, the court observed, this argument only made matters worse by sending “a message to the girls on the teams that they are not expected to succeed and that the school does not value their athletic abilities as much as it values the abilities of the boys.”53 In the final analysis, the court agreed with the assessment of one of the plaintiffs: “If schools think that what we are asking for is not important, I have a suggestion: try to move boys’ soccer to the spring and see what they do.”54 Many Title IX equal-treatment complaints involve challenges to inequality in the facilities for girls’ and boys’ sports.55 In these cases too, courts have been sensitive to the psychological harms of discrimination. In one case from Brevard County, Florida, the court ordered the school board to correct a long list of inequalities between the boys’ baseball field and girls’ softball fields, including the failure to provide the girls with an electronic scoreboard, batting cage, bleachers, signs, equal bathroom facilities, concession stand, press box, announcer’s booth, and lighting on the field.56 The court explained that the inequality in facilities “sends a clear message” that “girls’ varsity softball is not as worthy as boys’ varsity baseball.”57 The court also acknowledged the tangible costs of not having outdoor lighting, since without lights the girls could not play night games like the boys did. Nighttime games are more prestigious, conveying a “‘big league’ quality not associated with daytime play,” and allow more members of the community, including parents, to come to root for their team.58 In a related case involving similar inequalities at two other high schools in the same county, the court again refused to minimize the disparities between the girls’ softball and boys’ baseball facilities. The boys’ fields were on campus, while the girls used nondedicated community fields several miles away. Because the fields used by the girls were built to the dimensions of the men’s slow-pitch game, they played on a nonconforming field with a greater distance between the outfield fence and home plate than a regulation field would allow. As a result, the girls could not experience “the thrill of hitting an ‘over-the-fence’ home run” at the park.59 As the court saw it, having to play on a field built to the dimensions of a men’s game “signals to the girls that they are not as important as the boys.”60 Addressing the school board’s Treatment as an Equal

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contention that none of this was significant enough to violate Title IX, the court responded: Defense counsel also suggested that Plaintiff ’s attorneys were “making mountains out of molehills” with respect to some of the asserted disparities. This characterization overlooks an undeniable aspect of human nature: matters that might otherwise be accurately characterized as molehills can assume mountainous proportions when viewed from the perspective of someone who is already subjected to disparate treatment. In other words, persons who already perceive that they are viewed with less esteem than their peers understandably may consider with resentment and suspicion circumstances and conduct that might ordinarily seem less sinister.61

In these cases, the focus on the take-home message of the discrimination and the recognition that the harm lies in more than the tangible deprivations themselves make Title IX’s equal-treatment standard a valuable tool in securing sex equality in sports. Most often, the young women who bring these cases are upset mostly by the messages they perceive from the discrimination. Practicing on a rough and unkempt field and showering off with a hose after practice might build camaraderie and a sense of humor if everyone had to endure such rites to play school sports. But when the boys have state-ofthe-art lighting, fancy locker rooms complete with high-tech televisions and video equipment, and expensive stadiums with eat-in concession stands, “roughing it” loses its charm. It is not the lack of the perks themselves that make the girls feel angry and hurt but the message that their schools do not value them as much as the boys who play sports. Equally important, courts have been quick to dismiss arguments that disparities in treatment do not violate Title IX simply because many girls do not object to them. In the Michigan scheduling litigation, the MHSAA argued that many girls preferred having their sports in nontraditional seasons. The court was unimpressed: “When girls receive separate and unequal treatment, this teaches them to expect discrimination, so that they may not even recognize discrimination when it occurs. In addition, girls may be wary of change because they do not know what to expect or fear that the situation could become even worse for them.”62 Likewise, in the fathers’ case against the two New York school districts that scheduled girls’ soccer in the spring, the court rebuffed the defendants’ argument that the majority of the girls affected did not mind the out-of-season scheduling because they did not aspire to be state champions. The court responded, 156

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“Nor do we place great weight on the School Districts’ argument that these girls are simply not interested in winning. Interest is often a function of experience and opportunity.”63 The court bolstered this point by noting the different value that society places on the accomplishments of male and female athletes and suggested that the statements of some girls downplaying the importance of the girls’ championship reflected the very judgments Title IX was meant to counter. This kind of empathy with the athletes who are challenging discrimination and judicial sensitivity to the psychological dynamics of what it is like to experience discrimination contrasts with the reactions courts sometimes have when women in the workplace challenge sex discrimination, particularly sexual harassment. In these cases, courts often surmise that other women would not find the conduct so offensive and rule that it falls short of illegal discrimination. When judges engage in this kind of reasoning, they portray the women who brought the case as overwrought and hypersensitive.64 Perhaps courts show more concern for the psychological harms of discrimination experienced by female athletes because judges are more likely to relate to them as daughters and granddaughters than as colleagues or competitors. Regardless of the reason, the refusal of courts to insist on a higher level of severity to support an equal-treatment claim has made Title IX a more effective tool in challenging discriminatory treatment. In each of the three respects discussed—the lack of strict proof requirements for establishing discriminatory intent, the rejection of a sharp divide between public and private discrimination, and sensitivity to the harms of discrimination—Title IX’s liberal feminism is a strong one, making it a promising vehicle for challenging inequality between male and female athletes. This is especially so at the elementary and secondary school level, where athletic programs are not so distorted by the quest for revenue as in commercialized college sports. Although much inequality remains in elementary and secondary school sports programs, Title IX continues to work to level the playing fields. The main problem is one of underenforcement, fueled by a lack of available data about gaps in the resources provided to girls’ and boys’ programs and the reluctance of girls and their parents to stand up to their schools and assert their rights. At the college level, there is the added difficulty of trying to impose Title IX’s more educationally oriented model of sport on the highly commercialized world of intercollegiate athletics. In its effort to bring gender equality to the college level, Title IX has made important strides but has faltered when it comes to matching the support and resources given to the most privileged men’s sports. Treatment as an Equal

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Show Me the Money: Seeking Equal Athletic Scholarships for Women In addition to the equal-treatment factors discussed earlier in this chapter, Title IX also covers athletic scholarship awards. Athletic scholarships are addressed in a separate provision of the Title IX regulations. Under the scholarship regulation, women are entitled to an equal opportunity to receive athletic scholarships.65 The test that has developed compares men’s and women’s shares of athletic scholarship dollars with their respective shares of athletic participation. So if female athletes are 45 percent of the athletes at a university, for example, they should receive roughly 45 percent of the athletic scholarship dollars.66 Unlike the three-part test, and similar to the equal-treatment factors, the scholarship regulation reflects a liberal feminist approach. It guarantees women an equal share of athletic scholarship dollars only insofar as women are similar to men in their share of athletic participation. This test has turned out to be one of the more easily applied measures under Title IX, although it does leave some wiggle room. Disparities in athletic scholarships are permissible if there is a legitimate nondiscriminatory reason for the discrepancy.67 For example, disparities due to fluctuations in the numbers of male and female athletes who pay out-of-state tuition are permissible under this test. Legitimate disparities might also arise because the numbers that track athletic participation count each sport that an athlete plays. Since each athlete can receive only one full ride, scholarship dollars may not be proportionate if more athletes of one sex participate in multiple sports. For these and possibly other reasons, such as a delay caused by the phasing in of scholarships when starting a new team, discrepancies between women’s athletic participation and scholarship dollars do not always establish a Title IX violation. Still, the quantitative test for compliance is relatively easy to apply, and statistically significant discrepancies in athletic aid generally are a good indicator of potential Title IX problems in this area. If the main advantage of the scholarship test is its ease of administration, a major drawback is that its success in increasing women’s scholarships depends entirely upon the strength of women’s participation numbers. A university where women have a relatively small share of participation opportunities may satisfy the scholarship test by awarding women an equally small share of scholarship dollars. A more aggressive standard would set the benchmark for women’s scholarships at women’s enrollment, which would boost women’s participation opportunities while increasing their scholarship dollars. Instead, the burden of raising women’s sports participation falls 158

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exclusively on the three-part test, discussed in earlier chapters, with no help from the scholarship regulation. With women’s participation levels still lagging behind men’s, most colleges and universities today have little trouble complying with Title IX’s scholarship requirements. Some even allocate a larger share of awards than Title IX requires as a way to voluntarily boost women’s participation opportunities. In fact, the overall share of athletic scholarship dollars awarded to women is 45 percent, slightly above women’s 44 percent share of intercollegiate athletic participation. Still, even with 45 percent of the scholarship dollars, women continue to receive significantly fewer athletic scholarship dollars than male athletes receive, a difference that amounts to about $136 million annually.68 Some schools, however, have had to be prodded to keep their scholarship awards in pace with the growth in women’s participation. In 1997, on the twenty-fifth anniversary of Title IX, the National Women’s Law Center filed twenty-five complaints with the Office for Civil Rights, naming twentyfive institutions of higher education that appeared to be out of compliance with the scholarship regulation. These schools stood out in the annual data reported by the Chronicle of Higher Education for having substantial gaps between women’s scholarship dollars and women’s participation. The complaints were based on the data schools are required to disclose under the federal Equal Athletic Disclosure Act. After the complaints were filed, the Office for Civil Rights spent several years investigating and ultimately required seventeen of the twenty-five schools to spend additional sums on women’s scholarship awards.69 The surge of enforcement activity against so many schools at once brought renewed attention to Title IX’s scholarship requirements and prompted universities around the country to take another look at their scholarship awards and make sure that any disparities could be justified. Although a few outliers remain, most colleges and universities today have found that they can comply with Title IX’s scholarship regulation without too much trouble, since women’s participation sets an outer limit on how much they have to allocate to women’s scholarships. A more troubling but less-discussed issue is whether replicating the role of athletic scholarships in men’s programs represents the best model of sports in an educational setting. Although athletic scholarships are not permitted under NCAA rules in Division III athletic programs, which include Ivy League colleges and some smaller liberal arts colleges that have forsaken a more commercialized model of sports, they are central to the structure of athletic programs in Divisions I and II. Title IX’s scholarship regulation Treatment as an Equal

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took this existing structure and extended it to women. The law did not serve as a vehicle for reconsidering that model or making sure that it best served the development of women’s sports. With its liberal feminist approach, the Title IX scholarship regulation posits that if athletic scholarships are given to men, they should be equally available to women. It does not interrogate what lies behind that “if.” However, the existing model of intercollegiate athletics, complete with scholarships, is not above questioning. Early in the history of women’s sports, women educators resisted the model of intercollegiate athletics that had developed for men. The Association for Intercollegiate Athletics for Women (AIAW), which governed women’s sports from 1971 until the NCAA took over in the early 1980s, opposed athletic scholarships from the outset. The AIAW railed against the commercial model of sport promoted by the NCAA and sought to develop an alternative that would better balance the roles of student and athlete. The AIAW member schools did not recruit athletes and instead created sports programs that responded to the needs of existing students. From the AIAW perspective, an important part of this balance was the refusal to permit athletic scholarships. The AIAW feared that scholarships would distort both the athlete’s and the school’s educational priorities.70 The educationally oriented model of sport at the heart of the AIAW agenda created tensions among women’s sports advocates soon after Title IX was passed. In 1973, a group of women students sued the AIAW, claiming that the organization violated Title IX by not permitting women to obtain athletic scholarships.71 The AIAW settled the case by agreeing to permit but not require member schools to offer scholarships to women, setting strict caps on the number of scholarships available for particular sports. Even then, the organization continued to encourage the use of academic criteria in awarding such scholarships. By 1980, the AIAW’s resistance to “polluting” women’s sports with scholarships began to look quaint, especially in light of the unstoppable force of the NCAA’s integration of women’s sports into its governance structure. When the NCAA began to sponsor women’s championships in the early 1980s, the AIAW lost its grip on women’s intercollegiate athletics. In a last volley of a losing battle, the AIAW sued the NCAA for allegedly violating federal antitrust laws by establishing a monopoly over college sports. The AIAW lost the case, and the NCAA solidified its role as the governing organization for both men’s and women’s intercollegiate athletics. Any lingering opposition to athletic scholarships in women’s sports gave way entirely after the AIAW’s demise in 1982.72 160

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In recent years, Title IX has largely succeeded in closing the gap between women’s intercollegiate athletic participation and women’s share of scholarship dollars. But it has done little to answer the critique of the commercial model of intercollegiate athletics that was at the heart of the AIAW’s resistance. As the AIAW understood, there is a downside to awarding scholarships based on athletic ability. As few college faculty members will deny, athletic scholarships tend to distort academic priorities, both for students and for universities. Extending equal athletic scholarships to women enables many exceptional female athletes to attend the college of their choice, but there are a number of costs to this model of sports, not the least of which fall on the athletes themselves. Scholarship athletes face extraordinary demands on their time by coaches whose jobs depend more on their win-loss records than on their athletes’ grade point averages. These demands limit the time student-athletes can spend on academics and other aspects of college life. In light of the limited chances for either men or women to succeed in professional sports as a career, it is far from obvious that such extreme investments in sports pay off in the long run. Many athletes who play high school varsity sports would love to play at the college level but are deterred by the necessary trade-offs with academics. Title IX has succeeded in replicating scholarship awards for women, but it has replicated the costs, too, without questioning whether that model is a good thing—for men or women. Putting the money now slated for athletic scholarships into need-based aid might be preferable, since it would help all students who could not otherwise afford college without subjecting them to coaches’ demands that could jeopardize their academic success.73 One increasingly vocal response to the dilemmas facing scholarship athletes is advocacy for loosening the demands of the “student” part of the student-athlete role, thereby embracing the reality that college athletics is big business. Proponents of this view have argued for treating varsity athletes like employees and paying them for their services to college sports programs. This approach has the appeal of acknowledging the stark dilemmas that face college athletes, but its appeal is outweighed by what is lost in the wholesale capitulation to the business model of college sports. Paying athletes would not end their exploitation by elite sports programs, and the payments would be unlikely to compensate them for the missed opportunity of a real college education. Only the very best and luckiest college athletes will ever land a lucrative contract with a professional team. More likely, former college athletes will look back on their college days as Treatment as an Equal

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the prime of their athletic career. Without a meaningful college education, they will face an uncertain future. Another problem with paying college athletes, and one more closely related to the concerns of Title IX, is that the “athlete” in this conversation is implicitly male. No one advocates paying women significant salaries to play college sports and relieving them of the conflicts of holding dual roles as students and athletes. The employee “solution” to the exploitation of college athletes is reserved for men, and only male athletes in the most elite sports. But the dilemmas facing student-athletes are not limited to the men who play football and basketball. In big-time Division I athletic programs, the demands of their sports often pressure athletes to spend no more time on academics than necessary to maintain the minimum grade point average required for NCAA eligibility. Paying elite male athletes to play college sports would only exacerbate the gender inequality in sports that more heavily subsidizes men’s participation in sports. Of course, this particular inequality could, in theory, be solved by extending the employee model to equal numbers of female athletes. However, rather than capitulate to the values of commercialized college sports, a better solution would resurrect and reinvigorate the educational model of sports. There has been increased scrutiny in recent years of how big-time college sports programs exploit student athletes, many of whom come from working-class or lower-income backgrounds.74 These athletes support college football and basketball programs without getting a decent education that prepares them for a future outside of sports and without being allowed to earn outside money during college. While the problem of exploitation is real, paying athletes just papers over the dilemmas, relieving some of the guilt without changing the structure that still leaves most with insufficient opportunities for the future. We would better serve the interests of athletes and students overall by taking a hard look at the business model of sports and who benefits from it. This, of course, is an uphill battle, and Title IX has not offered much in the way of help.75 Perhaps the best we can hope for from Title IX is to draw attention to the fact that paying male athletes would create new gender disparities in sports and take college sports farther away from an inclusive model that is equally open to men and women. In this conversation, Title IX might help redirect our focus to the question of why sports belong in higher education in the first place and how best to structure them so that they constructively shape the lives of the men and women who play them.

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The Spending Gap: Are Intercollegiate Sports Education Programs or Big Business? The scholarship regulation is not the only place where Title IX’s equaltreatment model intersects with the commercial side of college sports. Most of the law’s success in challenging the discriminatory treatment of female athletes has been at the elementary and secondary level, where money and profit-seeking play a lesser role in sport management decisions. Title IX has not succeeded in leveling the playing fields of college sports. Elite male college athletes receive many perks and benefits that no female athletes ever see, including luxury accommodations in hotels on the nights before home games, high-tech video and digital equipment to assist in game preparation, and salaries for coaching staff that would (or should) make a university president blush.76 Title IX has not extended the most lavish of these perks to female athletes, nor has it served as a vehicle for reigning in the excesses. The latter failure is the more unfortunate one. In its liberal feminist mode, Title IX seeks to give women the same treatment male athletes receive. It does not scrutinize the excesses of men’s sports or strive to replace the commercial model of sports with one that is more inclusive and educationally sound. Title IX’s equaltreatment standard walks right into the thicket of commercialized college sports without the tools to critique or dismantle the worst excesses of the current structure. Part of the problem is that Title IX’s refusal to declare unequal expenditures a violation of Title IX makes it difficult to challenge the massive budget disparities that characterize college sports. Substantially greater sums are spent on men’s intercollegiate sports. In Division I, women’s sports receive 34 percent of the athletic budget, with 66 percent going to men’s sports.77 The gap in recruiting dollars is even greater, with only 32 percent of recruiting budgets spent on women and 68 percent spent on men.78 In 2002–2003, Division I institutions spent twice as much on men’s sports as they did on women’s sports, averaging $6.1 million and $3.1 million, respectively. This disparity holds for more specific measures as well, such as coaches’ salaries, which average $101,000 for men’s sports and $55,000 for women’s sports, and recruiting budgets, which average $200,000 to recruit men at Division I schools and only $97,000 to recruit women. In 2003, the average Division I-A football operating budget exceeded the entire operating budget for all women’s sports combined by more than $1.04 million.79

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One reason for not requiring equal funding is that the law permits men and women to play different sports, and some sports cost more than others. While this approach has the benefit of encouraging women to develop their own interests instead of having to play the same sports as men, it has the disadvantage of tolerating a great deal of ambiguity in the equal-treatment standards that the federal enforcing agency settled upon in lieu of financial parity. Tolerating different costs of uniforms is one thing, but the spending discrepancies we see in college sports today are buying men and women a very different kind of athletic experience. In theory, there might be qualitative parity between the men’s and women’s athletic programs despite stark differentials in expenditures. In actuality, however, that is rarely the case. Even the most pampered women’s teams do not begin to approach the level of luxury afforded the top men’s teams. In his book The Triumph and Tragedy of Title IX, Welch Suggs, who covered intercollegiate athletics for the Chronicle of Higher Education for many years, describes numerous examples of extreme spending on men’s sports. The University of Oregon, for example, spent $3.2 million on a new facility for its football team, equipped with plasma-screen televisions and Internet access at every locker. No one familiar with intercollegiate athletics would be surprised to learn that there was no comparable facility with such amenities for any women’s team.80 Earlier in the history of Title IX enforcement, some proponents of the law had hoped that introducing a gender-equity mandate into this madness would “break the bank” and force a restructuring of college sports at a sustainable level. This hope has not been realized. Most commentators who study college sports agree that the “arms race” in intercollegiate athletic expenditures is out of control.81 Between 2000 and 2003, the average Division I-A sports program saw its athletic expenditures increase by $4.18 million, with 54 percent of this increase going to football alone.82 The economics of big-time college sports have proven utterly resistant to the demands of Title IX, with some of the sharpest increases in spending occurring in the years when Title IX enforcement was at its peak. For example, capital expenditures on athletics increased 250 percent between 1994 and 2001.83 Title IX has had little or no impact on the economic forces driving the expenditure wars. Theoretically, and barring real-world financial constraints, a university could offset the lavish spending on its most elite men’s sports, typically football and men’s basketball, by spending equally obscene amounts on the same number of female athletes. Reproducing this kind of extreme privilege for women, however, is not the best feminist strategy. Does any team of college athletes, male or female, really need a multi-million-dollar head coach with 164

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a mahogany-paneled office? Or overnight stays at expensive hotels before home games and multi-million-dollar sports complexes with high-tech installations of video equipment, especially in an era of financially strapped universities with double-digit annual tuition increases? When a football coach earns four times the salary of the university president, is that really a system that should be replicated for women? The spending gap is one instance where leveling down would be the best remedy for the discriminatory treatment. Reproducing for women the most extreme perks given to top male athletes would only perpetuate the worst features of the big-business model of sport. Such perks are not sustainable if shared equally, and they are based on a distorted, privileged prototype of a male athlete. For example, despite embarrassing press coverage of this practice in recent years, it remains commonplace for Division I’s big football schools to pay for team lodging in hotels on nights before home games. The Kansas City Star reported that this practice cost KU $47,000 in 1996—enough money to pay a respectable head coach’s salary for a women’s team.84 The only plausible rationale for such a practice, other than purely pampering a school’s most elite athletes, is that it helps coaches control athletes’ behavior on nights before important games. It is predicated on a view of otherwise uncontrollable male athletes whose “acting up” is expected and accommodated. Rather than replicate such practices for women’s teams, universities should discard the practice and expect athletes to behave as responsible adults on game nights. Similarly, women’s coaches should not necessarily earn the outrageous salaries of the highest paid men’s coaches. In 2001, thirty Division I-A football and men’s basketball coaches earned more than $1 million in salary, not including perks and benefits. Many universities pay their football coaches more than their presidents, and some pay them much more. Auburn University turned heads in 1998 when it hired a football coach at four times the salary of its university president.85 These kinds of salaries are hard to justify when universities are cutting budgets and raising tuition. In addition to the failure to curb spending inequalities, Title IX’s equaltreatment framework deserves criticism for buying into the hierarchical model of sports that characterizes men’s intercollegiate athletics. Among men’s sports, football and basketball are typically the most privileged, with a level of treatment far exceeding that given to any other sport. These two sports consume an average of 85 percent of the total men’s operating budget for Division I-A schools.86 The result is a “tiered” structure with one or two men’s sports at the very top, a few men’s sports with moderate resources in Treatment as an Equal

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the middle, and the rest of the men’s program at the bottom, running on a shoestring. Title IX’s rejection of a sport-by-sport comparison and of an equal-financing requirement makes it difficult to measure overall equality in men’s and women’s programs unless the women’s program has a similarly hierarchical structure. The difficulty of applying the amorphous equal-treatment standard has put pressure on women’s programs to replicate the structure of men’s programs. As a result, rather than adopt a more equitable model in which all women’s sports are treated equally, many institutions structure their women’s programs parallel to their men’s programs. In such a tiered structure, a few women’s sports have preferred status, usually including women’s basketball, with the remaining women’s sports at lower levels of support. Under such a system, the top-tier women’s sports might receive better treatment than the men’s team in that sport (although this is unlikely for basketball, where the men’s perks still exceed the treatment of the women’s team). Yet, the toptier women’s sports are still far removed from the superlative treatment given to the most-favored men’s teams, typically football and men’s basketball. As mentioned, at big-time football schools, the budget for football alone dwarfs that for all women’s sports combined. Moreover, the pressure to mirror the men’s program runs counter to the theory behind allowing women to play different sports in the first place: deference to women’s choices about how to structure their sports programs. Women might prefer a more equal model of athletics in which all sports are supported at the same level, but the need to compare the women’s and men’s programs overrides this preference. Because of the difficulty of applying an equal-treatment standard to differently structured men’s and women’s programs, women’s programs often replicate the tiered structure of men’s athletics. Another reason that Title IX has failed to secure full-fledged equal treatment or to stem excess expenditures in men’s college sports is the widely shared feeling that men’s top-tier sports deserve their special treatment because they generate revenue. Ever since the rejection of early efforts to accord special treatment to revenue-producing sports, Title IX’s official legal position has been that a sport’s revenue-producing capacity is irrelevant to Title IX compliance. In reality, however, perceptions of men’s sports as revenue-producers shape how Title IX is applied and influence popular support for strengthened Title IX enforcement. Defenders of the status quo argue that football and men’s basketball bring in revenue that subsidizes the rest of the athletic department and that cutting back on spending would hurt their ability to do so.87 166

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The factual predicate for this argument, however, does not withstand scrutiny. When shorn of creative accounting practices, even the most lucrative men’s sports are not the cash cows they are made out to be. NCAA sources estimate that the number of universities actually turning a profit on sports is one dozen or fewer.88 Although bowl games and television contracts bring in millions of dollars for about sixty schools in the six richest leagues, most Division I institutions do not cover the costs of their athletic programs.89 Not counting subsidies from general university funds, the average Division I-A institution incurs a deficit of $823,000 for its sports program. Even the University of Michigan, which held the national football championship title at the time, had an operating deficit of $2.8 million in its athletic department for fiscal year 1998–1999. That even Michigan fell short of a profit shows just how difficult it is to make a profit with expenditures so out of control.90 The fiscal picture is worse when you look beyond the most profitable sports programs.91 An NCAA survey found that in 2000–2001, only 35 percent of Division I institutions reported making a profit on sports. Importantly, this figure did not account for expenditures coming out of general university funds, such as capital expenses, stadiums, debt service, and student fees.92 If all real expenses are accounted for, even fewer institutions could claim a net profit from their sports. If athletic departments were held to the same accounting standards as businesses, the revenue-raising justification for unequal spending would fall flat.93 Another false but widely shared assumption is that any cuts to spending would hurt profit-making potential. However, the financial arms race is driven by the determination of each major sports program not to be outspent by the others. Schools make these extraordinary expenditures because other schools make them. It is hard to see how depriving football teams of hotels on home game nights would hurt a team’s ability to raise revenue, unless unilaterally cutting out this practice would cripple recruiting. If university presidents collectively could come to their senses and stop the spending arms race, there is no reason why cost-cutting would hurt a sport’s revenue-raising potential, and it might even enhance spectatorship by evening the playing field and making it more competitive. Ultimately, the revenue justification is best understood as a proxy for deepseated beliefs about the superiority of men’s sports. It is more a reflection of cultural judgments valuing men’s and women’s sports than of economic realities. It took many decades of investment to create the market for men’s sports and the infrastructure to support them. The argument that men’s sports deserve special treatment because they bring in revenue is closely related Treatment as an Equal

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to the argument that women’s sports deserve fewer resources because fewer people want to watch them since they are less intrinsically valuable activities. The past decade has shown, however, that as women’s sports develop, more people will watch them. It is impossible to predict how equal spending would affect the consumer market for women’s sports, but it surely would affect it, and likely in profound ways. Even more to the point, it is far from clear that spectatorship should exert so much influence on how universities value and support their sports programs if, at bottom, these are educational opportunities provided for the benefit of the students. In the final analysis, Title IX’s equal-treatment guarantee has won significant improvements in the treatment of girls’ and women’s sports. Stories of girls playing on unsafe fields, making do with substandard uniforms, paying out of pocket for equipment, and getting the short end of the stick in scheduling still crop up too often, but, when they do, Title IX is strong medicine. The law has been less successful, however, at reining in the privileges of elite men’s college sports. It leaves women’s sports in the position of having to mirror the structure of the men’s program in order to gain any traction in the equal-treatment framework at all. And it leaves women’s top-tier teams with nowhere near the level of resources lavished upon the top-tier men’s teams. And, most unfortunately, Title IX has played little or no role in sparking a movement to restructure college sports along a more inclusive and educational model.94 Further progress depends on changing the cultural norms that differently value men’s and women’s sports and revisiting fundamental questions about why sports are in our educational institutions in the first place.

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7 The Dilemma of Difference and the “Problem” of Pregnancy

Until recently, devoting a chapter in a book about Title IX and sports to the topic of pregnancy would be unexpected, to say the least.1 Sports and pregnancy are two topics that have not often appeared in the same sentence. And yet, Title IX’s treatment of pregnancy reveals much about the law’s approach to sex equality and the difficulties of and possibilities for restructuring the institution of sport to suit women’s needs. The issues facing athletes who become pregnant have long been neglected in Title IX discourse, although pregnancy has been a focal point in other areas of sex equality law, such as the treatment of women in the workplace. This lack of attention does not mean that pregnancy does not happen to girls and women who play sports. Although research on the benefits of sports has shown a correlation between sports participation and lower rates of teen pregnancy,2 an indeterminate but not insignificant number of college and high school athletes find their athletic careers interrupted by pregnancy. One such story made headlines in April of 2007, when Fantasia Goodwin, a junior at Syracuse University, gave birth to a healthy baby girl. Two months earlier, Fantasia was competing on the varsity women’s basketball team. At the time, Syracuse had no policy protecting the scholarships of athletes who become pregnant and banned pregnant students from participating in contact sports such as basketball. Hiding her pregnancy, Fantasia managed to play basketball into her seventh month. When she finally told her coach on the night before the final game of the season, he told her to sit out the game and see a doctor. After she had her baby, Fantasia was back in the game the following season, shifting from a starter to an off-the-bench substitute but still averaging nearly 14 points a game. She graduated in May 2008.3 While there are no reliable data on the number of college athletes who become pregnant each year, anecdotal evidence suggests that such pregnancies occur more often than most people realize.4 Stories of college athletes |

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becoming pregnant periodically surface in the media. In 2003, a University of Louisville basketball player competed until her eighth month, while keeping her pregnancy secret from her coach and teammates.5 That same year, a Sacred Heart University basketball player was asked to leave the team when her coach learned of her pregnancy; the coach explained that it would be a “distraction” to the team.6 This resulted in the only known Title IX lawsuit alleging pregnancy discrimination by an athletic program. Sacred Heart ultimately settled the case on undisclosed terms.7 The subject of pregnancy in sports was suddenly brought to public light in the spring of 2007, by an ESPN program, Outside the Lines, which devoted an episode to pregnancy among college athletes.8 The program, which first aired on Mother’s Day of 2007, raised awareness of the challenges pregnant athletes face. The show was critical of university athletic departments and the NCAA, highlighting widespread practices that make it difficult for pregnant athletes to stay in college and resume their athletic careers after having a baby. It uncovered blatant discrimination, including the abrupt withdrawal of athletic scholarships and the requirement that female recruits sign contracts promising not to get pregnant and agreeing to forfeit their athletic scholarships if they do. The show cast a sympathetic light on these athletes, highlighting the human consequences of the discrimination it exposed. There were stories of women who lost their scholarships and access to college, women who had their babies and managed to return to sports competition, and women who had abortions in order to keep their athletic scholarships and stay in college. The latter stories caught the attention of anti-abortion advocates who otherwise might not have concerned themselves with discrimination against women in sports.9 Public reaction to the program was largely sympathetic to the athletes and critical of the university policies that made their choices so difficult. A number of newspaper editorials and bloggers criticized schools for placing young women in the untenable position of having to decide whether to hide or even terminate a pregnancy in order to keep the athletic scholarships that gave them access to college.10 The usually slow and bureaucratic Department of Education’s Office for Civil Rights reacted swiftly. In June 2007, just over one month after the program aired, OCR sent a “Dear Colleague” letter to federally funded colleges and universities on the subject of pregnancy and athletics. In it, OCR admonished schools not to discriminate on the basis of pregnancy and detailed recipients’ obligations under Title IX.11 The letter staked out a surprisingly 170

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rights-protective position for an agency often under fire for its lackluster Title IX enforcement. The NCAA also responded with efforts to ease the conflicts facing pregnant athletes. The ESPN program had criticized the NCAA for failing to explicitly address pregnancy in its scholarship rules, contrasting this omission with the association’s minute regulation of virtually every aspect of college sports, from the size of logos on socks to the protocol for contacting recruits. Although NCAA rules had long barred member schools from terminating athletic aid on the basis of an athlete’s injury,12 the ESPN program suggested that the rules left ambiguity about how to treat pregnancy and whether it qualifies as an “injury,” especially since a different NCAA rule specifically mentioned pregnancy as a basis for extending a student’s athletic eligibility.13 The express inclusion of pregnancy in the eligibility rules might have implied that the failure to specifically mention pregnancy in the scholarship protections implicitly gave schools discretion in deciding whether to terminate athletic aid because of pregnancy. As late as 2006, the NCAA was on record as asserting that decisions about how to treat pregnant athletes should be left to the discretion of individual schools.14 However, in the aftermath of critical media attention, the NCAA soon took a more proactive approach. In 2008, the NCAA revised its by-laws to prohibit the withdrawal of athletic aid on the basis of injury, illness, or mental or physical condition.15 The legislative history behind the rule change reveals a specific intent to encompass pregnancy in the rule’s protections.16 Later that year, the NCAA released a report on pregnant and parenting athletes that includes a model policy on pregnancy, which the NCAA has urged its member schools to adopt. The report and model policy were authored by two well-known advocates for women in sports and stake out strong protections for athletes who become pregnant.17 Since the ESPN program aired, the NCAA has come full circle in its stance on pregnant athletes and is now a leading voice for gender equality on this issue. Title IX’s prohibitions on pregnancy discrimination made this progress possible.

Applying Title IX to Pregnant Athletes: A Strong Set of Rights Compared to other sex-discrimination laws, Title IX provides forceful protection from discrimination based on pregnancy. The typical sex-discrimination model lumps pregnancy into an equal-treatment framework that analogizes pregnancy to other temporary disabilities and requires it to be treated the same as other medical conditions. An alternative approach, The Dilemma of Difference and the “Problem” of Pregnancy

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and one much less frequently implemented, would accommodate pregnancy as a unique condition entitled to a certain level of protection regardless of how other physical conditions are treated. The second approach is sometimes referred to as “special treatment” because it does not tie the treatment of pregnancy to that of other medical conditions.18 Title IX combines both of these approaches, melding an accommodation mandate with an equaltreatment standard. Title IX itself does not mention pregnancy, or athletics for that matter. Like most other sex-discrimination statutes, Title IX uses language that is broad and general, leaving courts and federal agencies to interpret what it means to “discriminate” on the basis of sex. The 1975 regulations provide the starting point for applying Title IX to pregnant athletes, just as they do for sex discrimination in sports more broadly. The Title IX regulations mandate equal athletic opportunity, followed by more detailed requirements spelling out what that means, as discussed in previous chapters.19 The regulations on athletics do not specifically mention pregnancy or give any explicit guidance on how to treat athletes who become pregnant. A separate Title IX regulation addresses pregnancy and provides the basis for the law’s approach to pregnant athletes.20 It applies to education programs generally, including extracurricular activities, but does not specifically mention athletes or athletics. To date, the only court decisions applying Title IX to pregnancy discrimination have involved the exclusion of pregnant girls from the National Honor Society.21 Given the absence of any case law on the treatment of pregnant athletes, Title IX’s regulation on pregnancy discrimination is the primary authority on the rights of athletes who become pregnant. The first part of this regulation includes a general ban on pregnancy discrimination without explaining exactly what is meant by “discrimination” in this context or how it must be corrected.22 More specific provisions follow, incorporating both equal-treatment standards and an accommodation mandate. Taking an equal-treatment approach, the regulation’s second provision analogizes pregnancy to other medical conditions, requiring that medical certification requirements be applied to pregnancy no more strictly than they are applied to other conditions that require medical attention.23 A separate provision of the regulation requires pregnancy to be treated the same as other medical conditions in school health plans and medical services, also reflecting an equal-treatment approach.24 The regulation’s final provision on pregnancy contains an accommodation mandate. This provision entitles pregnant students to a reasonably necessary medical leave without pen172

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alty, followed by reinstatement to the same status as when the leave began, regardless of how the school’s leave policies treat students with other medical conditions.25 Thus, the regulation incorporates both equal-treatment and accommodation approaches in its ban on pregnancy discrimination. The 2007 OCR letter relied on this regulatory framework in detailing schools’ obligations to athletes who become pregnant. The letter applies the equal-treatment standard broadly, requiring educational institutions to treat pregnant student-athletes no worse in any respect than student-athletes with other temporary disabilities. At the same time, it applies an accommodation requirement by setting a specific level of treatment for pregnancy in one respect, without regard to how other physical disabilities are treated. It does this by strictly forbidding schools from terminating or reducing athletic scholarships because of an athlete’s pregnancy, without tying this prohibition to how athletes with other medical conditions are treated. This prohibition is grounded in the regulation’s guarantee of a reasonably necessary medical leave for pregnancy, followed by reinstatement at the same status. Since being a scholarship athlete is part of the “status” the student held before her medical leave, she has a right to keep her scholarship. As a result, a school may not terminate an athletic scholarship because of an actual or anticipated medical leave for pregnancy or childbirth.26 But how must schools handle scholarship renewals for athletes in subsequent years, after they have physically recovered from pregnancy? Under NCAA rules, athletic scholarships are awarded for only one-year terms and are renewable at the discretion of the university.27 An obvious risk under this regime is that an athlete will retain her athletic scholarship for the year in which she is pregnant, only for the university to withdraw it in future years. The right granted by the regulation to a medical leave with reinstatement to the same status probably does not cover this situation, since automatic renewals were not part of the athlete’s pre-leave status. However, the equal-treatment standard should still protect athletes in this situation. As interpreted in the OCR letter, Title IX prohibits schools from treating pregnant students worse than students with other medical conditions. This principle will likely protect a student whose scholarship is not renewed in the year following her recovery from pregnancy. In practice, although NCAA rules make scholarship renewals discretionary, colleges and universities typically renew the scholarships of athletes with other medical conditions as long as they remain a part of the team, working toward rehabilitation or serving the team in other ways. For schools that follow such a practice, Title IX guarantees students who become pregnant the same opporThe Dilemma of Difference and the “Problem” of Pregnancy

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tunity for scholarship renewals. The NCAA agrees with this position and has included in its model policy a requirement that institutions renew the scholarships of students who were pregnant if they do the same for other athletes who were injured or ill.28 In addition to these rights, a pregnant athlete also has the right to continue participating in sports as long as she has medical permission to do so, and physician certification requirements for pregnant students can be no more onerous than they are for students with other medical conditions.29 Of course, at some point in a pregnancy, the student’s doctor will likely recommend against continued participation in sports. The timing of this decision will vary depending on the student’s health, the progression of the pregnancy, and the particular sport. A pregnant swimmer may be able to compete long after a pregnant basketball player has to sit on the sidelines. Once the student no longer has medical permission to participate, her right to a medical leave kicks in, with full reinstatement once she recovers. When she recovers and returns to sports, as explained earlier, scholarship renewal decisions must be made on the same basis as they are for other students whose participation has been interrupted for medical reasons. As a whole, this set of rights is strong medicine for athletes who become pregnant, and the OCR letter promises their “vigorous enforcement.” If the agency lives up to this promise, the kinds of discriminatory practices revealed by the ESPN report should become a thing of the past.

Bridging the Equal-Treatment/Special-Treatment Divide Title IX’s approach skirts the debate pitting equal-treatment proponents against advocates of special pregnancy accommodations, a rift that has long plagued feminist strategizing about how law and public policy should respond to pregnancy. This controversy is often referred to as “the dilemma of difference” because of the intractability of gender inequality that results from “real differences” such as pregnancy.30 Feminist scholars have struggled with the question of whether to treat pregnancy under an accommodation model, mandating a specified, favorable level of treatment for pregnancy, or an equal-treatment model, which treats pregnancy as well (or as badly) as comparably limiting conditions. Choosing either side in this debate is problematic for women. Specially accommodating pregnancy stigmatizes women as different from the norm and in need of special treatment. By highlighting the uniqueness of pregnancy, this approach risks reinforcing a social construction of mother174

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hood that relegates other aspects of women’s lives to the sidelines. This creates the danger that men’s reproductive roles, including their roles as fathers, will be minimized and downplayed. And it can backfire if women are viewed primarily as child-bearers and mothers, rather than as workers, students, or athletes. Giving pregnant athletes special treatment sends the message that they would not fit into sports otherwise, implicitly locating the problem with the distinctively female condition of pregnancy. But the equal-treatment model is also flawed. By equating pregnancy with other temporary disabilities, this approach turns pregnancy into a purely medical phenomenon, obscuring its other dimensions. The social and relational aspects of pregnancy are deeply gendered in a way that is not true for other kinds of temporary disabilities. Only women are at risk of pregnancy from sexual intercourse, and they do not always participate as full equals in decisions about whether, when, and how to have sex, nor do they have free and unfettered access to the birth control methods of their choice. Comparing pregnancy to other temporary disabilities misses the role gender plays in influencing the social conditions and relationships that give rise to pregnancy. The medicalization of pregnancy in the equal-treatment model also leaves out what happens to women after they carry a pregnancy to term, including the burdens of motherhood and its impact on women’s lives. The comparison to physical illness and injuries sends the message that the central experience of pregnancy is one of physical changes that do not substantially differ from those of men and nonpregnant women. This view emphasizes only one aspect of pregnancy, as if the entire experience could be understood in the gender-neutral terms of physical limitations and medical treatment. Moreover, the equal-treatment model distorts even the physical aspect of pregnancy by analogizing it to sickness and bodily weakness. The equal-treatment right focuses on the physically disabling aspects of pregnancy rather than its more positive features. The wonderment of the pregnant body and the heightened awareness of the body that many pregnant women report, along with the anticipation that accompanies the bodily transformation, are lost in the comparison. Pregnancy becomes a physical weakness to be treated and recovered from.31 As the feminist philosopher Iris Young lamented, the Western medical approach to pregnancy alienates women from their pregnant bodies by treating pregnancy as an illness in need of a cure.32 The core difficulty in formulating an approach to pregnancy under sexdiscrimination law is that, in far-reaching and deeply gendered ways, pregnancy uniquely affects women, and there is no analogous comparison for The Dilemma of Difference and the “Problem” of Pregnancy

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men. And yet, unless sport is radically transformed so that pregnancy is no longer relevant to athletic participation, Title IX, as a sex-discrimination law, requires some judgment about how to treat pregnant athletes.33 Given the reality that pregnancy will continue to affect women’s opportunities in sport, Title IX’s refusal to choose between an equal-treatment and a specialtreatment approach is a good compromise. Both the equal-treatment and the special-treatment models are problematic, but both together are better than either one in isolation. Title IX’s approach melds the equal-treatment and the special-treatment models in a way that mitigates the downsides of each. The interplay between the models reflects the complexity of pregnancy itself. The downsides of the accommodation model are tempered by the presence of the equal-treatment model. By accommodating pregnancy as a special and unique condition, the ban on withdrawing a pregnant student’s athletic scholarship risks stigmatizing the pregnant athlete as a “special needs” case and a financial drain on the team. In response to this objection, the equal-treatment model serves as a reminder that sport should be and often is broad enough to provide for the human needs of its participants. The equaltreatment approach analogizes pregnancy to other physical conditions in a way that normalizes pregnancy along with other temporary impairments. The pregnant athlete on scholarship may be less likely to feel stigmatized knowing that ill or injured athletes also retain their scholarships while they recuperate. The presence of the equal-treatment model reduces the stigma of “specialness” and serves as a reminder that accommodations are often made for students who need them. At the same time, the accommodation model’s recognition of the uniqueness of pregnancy helps ease the pitfalls of the equal-treatment approach. The equal-treatment standard, which requires pregnancy to be treated no worse than other temporary disabilities, reduces pregnancy to a narrow physical dimension and treats it as a gender-neutral experience. This poses the risk that the nonphysical dimensions of pregnancy will be ignored and that the level of treatment given to injured students will be insufficient to enable students who become pregnant to participate in and benefit from sports as fully as they might. Title IX’s inclusion of absolute rights under the accommodation model tempers these risks by guaranteeing pregnant students the right to a medical leave while retaining their scholarships, no matter how other medical conditions are treated. By refusing to reduce pregnancy to its physical limitations alone, the accommodation model invites attention to the ways in which pregnancy is unlike temporary disabilities, such as ACL injuries or ankle sprains, and opens the door to further exploring how sport 176

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should accommodate the experiences of pregnant athletes, both during and after pregnancy. Pregnancy implicates women’s identities, life courses, and relationships in ways that ACL injuries and ankle sprains do not, and Title IX’s accommodation mandate recognizes that reality. By incorporating both the equal-treatment and accommodation models, Title IX does a better job navigating the dilemma of difference than either approach in isolation. It avoids the worst aspects of the equal-treatment model, which would allow pregnant students to be treated “as badly” as other temporarily disabled athletes, and eases the stigma of accommodation by “normalizing” pregnancy through the comparison to other medical conditions. From a gender-equality standpoint, the result is not perfect, since it still leaves the current structure of sports intact while framing the problem as how to find a place in sport for women who become pregnant. But, in a world where radical change to the current structure of intercollegiate sports is unlikely, Title IX offers a pragmatic and surprisingly effective response.34

A History of Neglect: The Longstanding Reticence about Pregnancy in Sport Why has the issue of pregnant athletes remained off Title IX’s radar screen for so long? The pregnancy regulation has been in place since 1975, yet only in 2007 did this issue capture public attention, despite the upsurge of interest in Title IX and athletics generally over the past two decades. Even Title IX supporters have paid little attention to the treatment of pregnant athletes until recently, and the issue has been notably absent in the many celebrations marking the various anniversaries of Title IX. In contrast to the prominence of pregnancy as a central issue in workplace equality, pregnancy in sport has been all but invisible, relegated to the occasional story of a professional athlete who becomes pregnant and manages to balance motherhood with an athletic career.35 Several reasons explain the longstanding submergence of this issue. On one level, it is a function of the continuing strength of the cultural linkages between sport and masculinity. Sport historically has played and continues to play a critical role in defining and shaping masculinity among men. This connection makes it difficult to see the importance or even legitimacy of addressing pregnancy in the context of sport. Even to speak of “pregnant athletes” is jarring to many sports fans because the dominant image of an athlete is a man. The presumed linkage between sport and masculinity is so strong that the term “athlete” requires the modifier “female” in order to sigThe Dilemma of Difference and the “Problem” of Pregnancy

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nal the presence of a woman in that role. Without a gender modifier, most people assume that the word “athlete” refers to a man.36 Public support for female athletes, to the extent it has developed, has resulted largely from a strategy of emphasizing and celebrating the similarities shared by all successful athletes: their skill, dedication, strength, discipline, agility, and tenacity.37 The reality of a pregnant athlete highlights the one irrepressible difference between men’s and women’s bodies. Ignoring pregnancy helps preserve the analogy between male and female athletes and thereby furthers an agenda of promoting support for female athletes. The reluctance to focus on pregnancy as a gender-equality issue in sports also stems from the roles pregnancy and maternity have played in excluding women from sport altogether. Historically, women’s exclusion from sport was explicitly rationalized by the widely held belief that women’s participation was incompatible with and potentially threatening to women’s reproductive roles.38 Although the most overt and extreme manifestations of this ideology have long been disavowed, remnants of the belief that sports and maternity are incompatible persist. The notion that an athlete who becomes pregnant should lose her sports privileges reflects deeply ingrained concerns that sports participation will compromise women’s reproductive roles and the welfare of their children. Dominant images of pregnancy also reinforce beliefs about the incompatibility of pregnancy and athleticism. Iris Marion Young has described how physical passivity is projected onto pregnancy, notwithstanding the very active experience of the pregnant woman herself. As Young explains: In classical art, this “aura” surrounding motherhood depicts repose. The dominant culture projects pregnancy as a time of quiet waiting. We refer to the woman as “expecting,” as though this new life were flying in from another planet and she sat in her rocking chair by the window, occasionally moving the curtain aside to see whether the ship is coming. The image of uneventful waiting associated with pregnancy reveals clearly how much the discourse of pregnancy leaves out the subjectivity of the woman. From the point of view of others pregnancy is primarily a time of waiting and watching, when nothing happens.39

Consistent with this limiting view of pregnancy, reactions to female athletes who become pregnant are often shaped by a mindset that places pregnancy in a class by itself, viewing it as utterly incapacitating and incompatible with the status of being an athlete in a way that other temporary physical 178

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conditions are not. As one WNBA player and mother of two explained the public’s reaction to her as a mother and athlete, “It’s not the norm. People don’t want to admit that sports and motherhood go hand in hand, particularly in basketball, where our bodies take such a pounding.”40 The lack of attention to pregnancy in this setting reflects the continuing power of traditional ideas about the incompatibility of sports with women’s maternal roles. Finally, the failure until recently to pay much attention to the problems facing pregnant athletes fits with the overall neglect of the difficulties facing young, unmarried women who give birth under difficult economic and social circumstances. Contemporary discourses about irresponsible young women who have children outside marriage leave little room for sympathy toward the women who find themselves in such a position.41 The narratives at the center of these discourses bring together racial and gender ideologies that pathologize teen pregnancy and other “illegitimate” births. The villains in these stories are unwed mothers, teen mothers, and women who are financially dependent on the state, the so-called welfare moms. The poster children for these social problems are often black women or Latinas, despite the reality that white women make up a majority of the women on welfare and the majority of teen mothers.42 Race plays a role in shaping these narratives, stigmatizing the women who give birth under these circumstances as overly fertile, potential drains on society and the state.43 The absence of a husband also triggers traditional gender role ideology, blaming women for proceeding without a male breadwinner or head of household.44 In these ideologies, the extension of rights and entitlements to young women is presented as part of the problem, a contributor to social mores that do not go far enough to discourage young women from making irresponsible choices. A high school or college athlete who becomes pregnant is likely to embody each of these “problematic” aspects of motherhood. She is likely to be unmarried, young (late teens or early twenties), and financially insecure, especially if she depends on an athletic scholarship for access to college, since finding financially secure work often requires a college degree. Given the power of the discourses disapproving unwed motherhood under these circumstances, the longstanding lack of public concern for pregnant athletes is not surprising. The issues facing pregnant athletes seem unlikely to resonate with the interests of many Title IX supporters, especially suburban soccer moms and dads who may not see any connection to their daughters’ lives. These reasons help explain why pregnancy in sports has been marginalized in Title IX discussions for so long, making pregnant athletes unlikely candidates for a Title IX success story. And yet, within a short span of months, The Dilemma of Difference and the “Problem” of Pregnancy

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the 2007 ESPN program on this issue prompted one of the strongest Title IX enforcement responses in recent years. Given the longstanding invisibility of pregnancy as a Title IX issue in sports, why the turnabout?

Explaining the Success: A Shift in Cultural Support for Female Athletes In the public attention that followed the ESPN exposé, pregnant athletes were able to escape the “irresponsible reproduction” discourses that have succeeded in denying rights and entitlements to other young women who have babies under difficult circumstances. The outcome reflects the gains Title IX has made toward the cultural acceptance and embrace of female athletes. In the response to the ESPN program, the criticism that typically blames young, unmarried, and financially dependent women who become pregnant was overshadowed by the outcry of support for this group of young women. No doubt, the inclusion of stories about athletes who had abortions to keep their scholarships helped put pressure on OCR to act by enlisting antiabortion advocates. However, the abortion issue alone does not explain the success of the campaign for stronger legal enforcement. In other settings, women who have children under difficult circumstances and face penalties for doing so also feel pressured to have abortions. As Linda McClain has pointed out, the discourse on irresponsible reproduction contains these tensions within itself, asserting both that it is irresponsible for women to have children outside of marriage when they are not financially self-sufficient and that it is immoral for women to abort a pregnancy under any circumstances.45 In the context of the “welfare reform” debate over family caps, for example, concerns that such pressures would cause women to have abortions did not result in the extension of rights to the women affected.46 While the inclusion of the abortion issue helped broaden public sympathy for athletes who become pregnant, the mobilization to enforce their rights had more to do with the post–Title IX increase in support for female athletes generally. In the years since Title IX was enacted, societal views about the place of women in sports have shifted markedly, and the status of female athletes has grown by leaps and bounds. Although this success has been neither fast nor easy and although there is still much work to be done, female athletes today have greatly enhanced stature thanks largely to Title IX. As more girls and women participate in sports, demonstrating the skill, determination, and discipline that it takes to be an athlete, respect for female athletes has risen. The Nike advertisements from the mid-1990s featuring the slogan “If you let 180

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me play sports,” followed by a litany of the benefits of sports participation for girls and women, both reinforced and capitalized on this shift.47 Many parents now have daughters who play sports and view the increasing numbers of female college athletes as an enormously positive development for their own daughters. Although male athletes still dominate the sports pages and the media spotlight, outstanding female athletes today are less likely to be ignored, and their success translates into a greater appreciation for female athletes at all levels of sport. In this changing climate, the positive associations with female athletes undercut the power of the negative discourses about young, unmarried women without the financial means to raise their children. For the most part, in the reactions to the ESPN program, loss of an athletic scholarship due to pregnancy was viewed not as a termination of a subsidy that might otherwise encourage irresponsible behavior but as a hefty price paid by women who were otherwise models of discipline, hard work, and determination. Title IX’s legacy of raising the cultural esteem for female athletes played an important role in stoking the sympathies generated by the stories of pregnant athletes.48 At the same time that Title IX has raised the social status of female athletes, it has also made inroads in breaking the link between sports and masculinity that has traditionally rendered women “outsiders” in sport. As a result, the ideologies about women’s maternal roles that have historically kept women out of sports have been relegated to the dustbin, at least when such ideologies are expressed overtly. In the 2008 summer Olympics, Dara Torres made history as the oldest swimmer to compete in the Olympics, winning three silver medals at the age of forty-one. The mother of a two-year-old daughter, Torres received almost as much attention for being a mother as she did for her age. The overwhelmingly positive publicity surrounding Torres’s accomplishment reflects the great strides that have been made in breaking down the ideologies that portray motherhood as incompatible with athleticism.49 Such shifts in cultural norms played an important role in creating a more favorable landscape for protecting the rights of pregnant athletes.

A Qualified Victory? Making Room for Pregnancy in Commercialized College Sports While the OCR letter and the new NCAA model policies mark important successes, their real-world impact may be limited by the failure of Title IX to make serious inroads into the dominant model of college sports that values winning at all costs and treats athletes as commodities who add value The Dilemma of Difference and the “Problem” of Pregnancy

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to college sports rather than as students who benefit from playing college sports. The requirement that schools keep pregnant athletes on scholarship is in tension with a system that relies heavily on athletic scholarships to maximize team competitiveness and rewards coaches for their win-loss records rather than their ability to instill the benefits of sports participation in their athletes. A coach who must keep a pregnant athlete or new mother on scholarship while that athlete is unable to play may suffer a disadvantage when competing against teams with their full complement of scholarship athletes on the field. This tension creates an uncomfortable situation for a pregnant athlete who feels that she has become a drain on the team. Applying Title IX to pregnant athletes brings to the surface deeper problems with overlaying a set of sex-equality rights onto a college sports structure that is highly commercialized and that often exploits the athletes who should benefit from it. Title IX has not made a dent in this model of college sports, as exemplified by the continuing arms race of expenditures on men’s football and basketball, in spite of the stark disparities in spending between men’s and women’s athletic programs.50 The premise behind the sex-equality mandate of Title IX is that sport benefits athletes and that those benefits should be shared equally by all students. The premise behind the commercial model of college sports is that athletes are commodities that benefit institutions. The values of Title IX have often clashed with the values of the commercial model of sports, and Title IX enforcement has lagged as a result. The commercial model drives the win-at-all-cost, hypercompetitive environment of college sports today, and athletes’ wellbeing is often lost in the shuffle.51 The dilemmas created by forcing schools to retain pregnant students as scholarship athletes—clearly the right result according to the values of Title IX and the wellbeing of student-athletes—are thus familiar ones. This clash of values may generate resentment toward a pregnant athlete who is perceived as a burden on the team and as taking the scholarship of a talented athlete who might replace her. On a more optimistic note, perhaps the recent attention to the challenges facing pregnant athletes will prompt a broader conversation about how well college sports serve the needs of all student-athletes, male and female. The dramatic stories of these young women should remind us of how powerfully sports can affect young people’s lives, in both positive and negative ways, and how vulnerable students are to the decisions of those who govern these opportunities. A serious conversation about how well college sports programs serve the educational and, more broadly, the human needs of studentathletes is long overdue. 182

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Where Are the Men in This Picture? No Penalty for Athletes Who Become Fathers The recent success in recognizing discrimination against pregnant athletes as a Title IX violation is tempered by Title IX’s utter lack of success in challenging the culture of heterosexual male privilege that pervades men’s sports. In college sports today, the male athlete who engages in behavior that is likely to produce a child is anything but exceptional, and his sexual activity is not likely to jeopardize his place in sports. Fatherhood among male athletes is an underexamined topic in the literature on elite men’s sports, but anecdotal evidence suggests that it is far from uncommon. One commentator who studied the University of South Florida’s football team found that of the team’s 105 members, about 30 were fathers, and many of them had fathered more than one child.52 Having a child did not create any conflict with these students’ athletic careers. Not only has Title IX failed to challenge the sexual mores of elite male athletes, but framing the treatment of pregnant athletes as a “women’s issue” further entrenches male privilege by leaving unexamined male athletes’ sense of entitlement to carefree and costless sexual relationships with women. One downside of the “special treatment” approach to pregnancy is that it treats pregnancy as an exceptional and uniquely female concern. Since pregnancy and parenting are often lumped together and conflated in law and culture, the accommodation of pregnancy in terms applicable only to women contributes to the failure to hold men responsible for their sexual activity and its aftermath. A similar risk arises from an equal-treatment approach that treats pregnancy as an exclusively medical issue. Since reproduction does not have any comparable physical consequences for the men who participate in it, the male role in conceiving children goes unexamined. These concerns are illustrated in a recent court case, Butler v. NCAA, decided by a federal district court in Kansas.53 The plaintiff in that case, Eric Butler, played football at the University of Kansas (“KU”) and requested an extra year of athletic eligibility to make up for time that he took off from college to help care for his infant daughter.54 Under NCAA rules, students have five years of athletic eligibility to participate in NCAA-sanctioned programs, starting from the date on which they register for and attend the first day of class.55 The NCAA rules allow for a waiver “for reasons that are beyond the control of the student-athlete or the institution, which deprive the studentathlete of the opportunity to participate for more than one season in his/ her sport within the five-year period.”56 In addition to this general waiver, The Dilemma of Difference and the “Problem” of Pregnancy

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the NCAA rules also permit a specific one-year extension of eligibility to a “female student-athlete for reasons of pregnancy.”57 With Mr. Butler’s eligibility about to expire, KU petitioned the NCAA on his behalf, requesting a one-year extension under the hardship exception because of his decision to take a year off to help support his daughter. The NCAA denied the request. Mr. Butler sued the organization, alleging that its willingness to extend athletic eligibility for pregnancy but not for a father’s time spent caring for his child discriminates on the basis of sex in violation of Title IX.58 The court sided with the NCAA and denied Mr. Butler’s request for a preliminary injunction granting him the extension. As the court saw it, he was unlikely to prevail on the merits of the case, a prerequisite for obtaining such an injunction. The court agreed with Mr. Butler’s characterization of the situation, acknowledging that “if he were a female, he would be able to take advantage of the pregnancy exception” and would be granted an extension.59 Nonetheless, the court concluded that the one-year pregnancy extension responded to the uniquely female physical condition of pregnancy and did not include an accommodation for parenting or caretaking.60 The court thus interpreted Title IX to permit a special-treatment approach to pregnancy for women in sports, without any equal-treatment standard entitling Mr. Butler to a comparable extension of eligibility for fatherhood. The court’s decision showcases the dangers of an approach to pregnancy that leaves men out of the picture entirely. The court’s reasoning implicitly conflates pregnancy and motherhood, since the one-year extension exceeds the amount of time typically required to accommodate the physically disabling period of pregnancy and childbirth. By granting an automatic oneyear extension to pregnant athletes, regardless of the point in the season when the pregnancy occurs and regardless of the amount of time it takes the athlete to physically recover, the eligibility extension effectively accommodates a female caretaking role for children. By treating both pregnancy and parenthood as specifically female accommodations, the NCAA rule effectively penalizes the rare male athlete who accepts responsibility for fatherhood and takes time out from his athletic career to help raise a baby. This result only encourages the already abundant norms in men’s sports that promote a sense of entitlement to unlimited and costless sex with women. Male privilege in sports often lets male athletes “off the hook” for the consequences of their sexual behavior, especially for male athletes in highly valued sports such as football and basketball. A number of recent cases involve claims that university officials “look the other way” when elite male athletes sexually abuse women.61 The response in the Butler case only exacerbates the 184

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problem by making a male athlete’s decision to take responsibility for a child that he fathered very costly to his continued participation in sports. While the court’s decision is problematic as a matter of gender equality, it is also incorrect under the Title IX regulations, which prohibit sex-differential rules regarding parental status. In addition to the specific portions of the Title IX regulation on pregnancy, discussed earlier, a different part of the regulation states: “A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status which treats students differently on the basis of sex.”62 By accommodating a parental leave for female athletes who give birth but not for male athletes who wish to care for their newly born children, the NCAA rule treats male and female athletes’ parental roles differently. The court’s neglect of this part of the regulation may have stemmed from its emphasis on the uniquely female physical dimension of pregnancy, at the expense of the social and relational dimension of having a child. Correctly construed, Title IX should have provided a remedy to Mr. Butler, and other male athletes who sacrifice a portion of their athletic careers to have and care for their children. The court’s decision reflects its difficulty in separating the distinctively female condition of pregnancy from the caretaking work that follows the birth of a child. Both the equal-treatment and the special-treatment approaches to pregnant athletes have the unintended consequence of contributing to that confusion. The special accommodation of pregnancy fortifies prevailing norms that sexual activity leading to procreation is a “women’s problem” and eclipses male responsibility. But the equal-treatment approach is often no better. It focuses on the physical dimension of pregnancy and compares it to other temporary disabilities. It, too, leaves male procreation, which is not accompanied by any comparable physical condition, out of the picture altogether. No tweaking of the Title IX regulations is likely to solve this problem. Courts in other areas of law, including workplace discrimination law, are also guilty of conflating pregnancy and motherhood. The important point is that in focusing on pregnant athletes and how best to secure their place in sports, we should be careful not to legitimize a model of sports that encourages male athletes to take no responsibility for their procreative behavior. Ideally, greater attention to the conflicts facing pregnant athletes in sport might lead to broader conversations about the relationship between male sexuality and men’s sports participation. However, the history of Title IX’s minimal influence on the norms of male sport culture makes this hope seem like a long shot. The Dilemma of Difference and the “Problem” of Pregnancy

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Pregnancy and the High School Athlete High school athletes who become pregnant are likely to face even greater obstacles than college women face. They may lack the resources and support they need to stay in school at all, much less to continue competing in sports. Up to 50 percent of girls who become pregnant while attending elementary or secondary school drop out of school.63 Although Title IX guarantees pregnant students the right to stay in school, many do not receive the services and support they need to stay in their home schools. Title IX enforcement in this area has been woefully inadequate. Unfortunately, the rights articulated in the OCR letter may prove less helpful for this group of girls. The strongest protection in the letter, the ban on withdrawing athletic scholarships because of pregnancy, does not help high school athletes, who do not receive athletic scholarships. While becoming pregnant may jeopardize a high school athlete’s chances for getting a college athletic scholarship in the future, colleges have near-total discretion in deciding whom to recruit and at what level. Proving that a college would have awarded a scholarship to a particular student if she had not become pregnant is next to impossible. On paper, the Title IX regulations appear to offer firm protection from pregnancy discrimination for all students, including at the elementary and secondary level. The regulation assures such students of the right to stay in their regular school programs, with a reasonably necessary medical leave without penalty. In addition, any separate school or educational program for pregnant or parenting students must be completely voluntary and academically comparable.64 Pregnant students who choose to remain in their home schools are entitled to the same accommodations given to other students with medical needs, such as bathroom breaks, the use of an elevator, and opportunities to complete make-up assignments for medical absences. However, the realities of pregnant students’ experiences in school are often far different. Unfortunately, there is very little Title IX precedent that addresses the rights of pregnant students at the elementary and secondary level. The only Title IX court decisions in this area involve challenges to female high school students’ exclusion from the National Honor Society, which have met with mixed success.65 Given the paucity of legal precedent and litigation brought by pregnant and parenting students and their guardians, the realization of rights in this area depends mostly on school officials’ knowledge of Title IX, which often leaves much to be desired.66 186

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Notwithstanding the promise of the Title IX regulations, separate programming for pregnant and parenting students, where it exists, is often neither completely voluntary nor academically comparable.67 Although official school policies no longer require pregnant girls to leave their home schools and attend separate schools, pregnant girls are still informally channeled into separate programs by school counselors, teachers, and administrators.68 For example, before New York City decided to close its special schools for pregnant students in 2007, a survey of pregnant and parenting youth in the New York City foster care system found that 22 percent of the girls surveyed stated that they had been “forced” into these schools because of their pregnancies.69 Even if school administrators permit pregnant students to remain in mainstream schools, they often refuse to make the kinds of modifications necessary to meet their needs, leaving them with little option but to transfer to a separate school.70 The existence of separate, specially tailored educational and social services for pregnant students within separate schools has effectively let mainstream schools avoid doing more than the bare minimum for these students.71 Although separate programs can be a good thing if the alternative is dropping out of school entirely, they lack the range of academic offerings provided in mainstream schools, are less rigorous in the programs they do offer, and offer virtually no extracurricular activities except for those focused on some aspect of pregnancy or parenting.72 For those pregnant students who overcome these obstacles and manage to stay in their home schools, the Title IX regulation promises them the right to continue participating in sports on a nondiscriminatory basis, with a reasonably necessary medical leave and the right to return to the same status they had before the leave began. It is doubtful, however, that Title IX will live up to this promise. Pregnant high school students, even more so than college students, are unlikely to be aware of their rights or be able to marshal the resources of trusted adults to help enforce them. Without an athletic scholarship immediately at stake, a pregnant high school athlete may have trouble convincing herself or others around her that staying active in her sport is a priority. Gaps in schooling due to pregnancy are likely to make continued sports participation even more difficult. The documentary film The Heart of the Game tells the dramatic real-life story of Darnellia Russell, an African American high school student in Seattle, Washington, whose hopes of winning a college basketball scholarship and becoming the first person in her family to attend college were thwarted when she became pregnant and had a child.73 The film illustrates the difficulties high school athletes face in attempting to The Dilemma of Difference and the “Problem” of Pregnancy

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resume an athletic career that is interrupted by pregnancy and childbirth. Darnellia left school for part of a year while struggling with the challenges of pregnancy and new motherhood. She returned to high school in what would have been her senior year. That year, school policy barred her from playing sports because of her absences. Needing an extra year to graduate, Darnellia returned as a fifth-year senior and again went out for basketball. This time, her academic standing and attendance were good enough for the school to allow her to play. But she ran up against state high school athletic association rules that limit athletic eligibility to four consecutive years unless the association grants a “hardship” waiver. The association denied Darnellia’s request for a waiver, apparently viewing the pregnancy as the result of her choices rather than something out of her control. Her coach and teammates supported her decision to play while she fought the association ruling, despite the risk that the team’s wins would be forfeited if the association won. Darnellia and her lawyers were able to convince a Washington state judge that the denial of the hardship waiver amounted to sex discrimination, penalizing Darnellia for her pregnancy, given the reality that male athletes who fathered a child would not need an eligibility extension to keep playing. The association appealed the ruling but dropped its appeal in the face of public pressure when the team won the state championship that year, with Darnellia’s help.74 Despite Darnellia’s legal victory, it is not clear how much Title IX will help athletes in her situation in the future. The vast majority of state athletic associations limit eligibility to eight consecutive semesters beginning from the time the student enters ninth grade. A student who leaves school temporarily to deal with pregnancy, childbirth, and new parenthood is likely to miss part of the school year and may need more than four years to graduate. Unless her eligibility is extended, her playing time will be cut short. There is no reported legal precedent applying Title IX to the refusal of a high school athletic association to extend an athlete’s eligibility to accommodate interruptions in schooling due to pregnancy. Such a case would present two hurdles; the plaintiff would have to first establish that the association was subject to Title IX and then prove that the application of strict eligibility requirements to pregnant students amounted to discrimination on the basis of sex. Even if a student like Darnellia could clear these legal hurdles, few athletes are likely to have the support of their coach, teammates, and parents that they would need to sustain such a legal challenge. Ultimately, Darnellia won her case and was able to complete her high school athletic career with great success. But her story does not have an entirely happy ending. The many college recruitment overtures she received 188

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before becoming pregnant never materialized once her pregnancy and childbirth became known. Instead of receiving a full ride at a Division I institution, which appeared all but inevitable before her pregnancy, Darnellia was left to attend community college with no athletic scholarship. The film dramatically shows how even an extraordinary high school athlete with tremendous support from her coach, family, and teammates can find her athletic career sidelined by pregnancy and childbirth. It will take more than stronger Title IX enforcement to make a difference in the trajectories of athletes who find themselves in similar circumstances.

Turning Rights into Reality: The Need to Educate Athletes about Their Rights In the end, whether Title IX’s promise of protection from discrimination against pregnant athletes is realized depends on whether the athletes affected know of and assert their rights. Students who confront an unplanned pregnancy are likely to be in crisis, overwhelmed with the decisions and responsibilities facing them. A young woman who finds herself in such a situation may well withdraw from many of the important persons in her life, including her coach and teammates. If a pregnant athlete simply stops going to practice and quits the team, Title IX will not help her if she later changes her mind. Under NCAA rules, a school may revoke an athlete’s scholarship if the student voluntarily leaves the team.75 Since this rule applies to all athletes who voluntarily quit for any reason, a school may invoke it to terminate an athlete’s scholarship if she chooses to leave the team because of pregnancy. Neither Title IX’s accommodation mandate nor its equal-treatment standard provide a right to relief in this situation. If pregnant athletes do not know of their rights under Title IX, they may quietly withdraw from sports, unaware that by doing so they forfeit their right to stay on the team and retain their athletic scholarships. After Syracuse University changed its policies to protect the scholarships of pregnant athletes at the school in the wake of the press coverage of basketball star Fantasia Goodwin’s pregnancy, a survey of female athletes by the college’s student newspaper found that most were still unaware of the policy change and did not know that they had the right to keep their athletic scholarships if they became pregnant.76 The shame and embarrassment many young women continue to feel over an unplanned pregnancy may make dropping out of sports a more likely outcome than the vigorous assertion of Title IX rights. Realizing Title IX’s The Dilemma of Difference and the “Problem” of Pregnancy

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promise in this setting will require, at a minimum, a concerted campaign to educate female athletes about their rights in the event of pregnancy. Without such an effort, OCR’s forceful statement of rights will remain unrealized. For too long, pregnancy and athleticism have been treated as incompatible conditions. But, as more women join the ranks of athletes, pregnancy among athletes will become less of a rarity. All things considered, the recent attention to and support for pregnant athletes reveals Title IX’s success in fueling popular support for female athletes. Thanks to this support, pregnant athletes have been largely immune from the discourses of blame that typically drown out support for young women who have children “too soon” or under the “wrong” set of circumstances. The move toward stronger Title IX enforcement to block discrimination against pregnant athletes is part of Title IX’s positive legacy in getting—and keeping—women in the game.

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8 Beyond Equal Access: Retaliation, Coaching, and Sexual Harassment

Beyond access to sports and the equal treatment of male and female athletes, Title IX speaks to a number of other issues that are central to its gender equality goals. This chapter addresses three such issues. The first is protecting people who are bold enough to speak out about discrimination. Strong protection from retaliation is crucial because complainants are often pegged as “troublemakers” and pay a high price for their principles. A recent Supreme Court victory holds promise for providing the protection people need to stand up for the rights of female athletes. However, important questions remain about the scope of Title IX’s protection from retaliation and whether it will go far enough to enable the full enforcement of Title IX. Second, Title IX has not succeeded in transforming the male leadership structure of sport. Far from it. By putting women’s sports on a more level playing field, Title IX has inadvertently made jobs coaching female athletes more attractive to men. Women today are severely underrepresented in the ranks of coaching and athletics administration. Finally, sport is not always an empowering or safe place for women. While most coaches are responsible and caring individuals who develop constructive relationships with their athletes, some abuse their power. Athletes are especially vulnerable to breaches of trust by a coach, and the law has not done enough to protect athletes from sexual harassment by their coaches. This is one area where Title IX compares poorly with other sex-discrimination laws. As for the first issue, retaliation, the question is whether the recent success in the Supreme Court will translate into real change in a culture that inhibits athletes and coaches from complaining about gender inequality. With respect to the remaining two issues, there are fewer successes to build upon. Progress in these areas will require redoubled efforts and new directions in the development of the law. |

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Title IX’s Response to Retaliation When Roderick Jackson was hired to coach girls’ basketball at a Birmingham, Alabama, high school in 1999, he soon noticed that his team was not treated as well as the boys’ team. Among other discrepancies, the girls practiced in an old, unheated gymnasium on a nonregulation-size court with bent rims, while the boys used a new, heated gym. The girls also had less gym time, shoddy equipment, and unequal travel arrangements, and they lacked access to amenities like an ice machine to soothe swollen ankles. Mr. Jackson initially complained about the inequalities to the athletic director, who was unreceptive—not surprisingly, since he doubled as the boys’ basketball coach. The principal was no more accommodating, and, when Mr. Jackson sought advice from the man who held the job previously, he was told, “That’s just the way it is.” Mr. Jackson’s persistent complaints did not go unheard, however. School officials ultimately addressed them by relieving him of his coaching duties. Although Mr. Jackson kept his job as a teacher, he lost his supplemental coaches’ pay and a part of his job that he loved.1 Mr. Jackson brought a Title IX lawsuit against the school for retaliation. He never had a chance to present his case to a jury, however, since the lower courts threw out the lawsuit on the ground that Title IX offers no protection from retaliation. These courts concluded that, since Title IX did not expressly mention retaliation, it did not provide a legal remedy for someone who suffered retaliation while trying to enforce the statute. While other lower courts had reached different conclusions, the resulting uncertainty threatened to unravel the law’s enforcement scheme. This uncertainty was put to rest in 2005, when the U.S. Supreme Court decided Jackson v. Birmingham Board of Education.2 In a 5-4 decision, a majority of the Court sided with Mr. Jackson, explaining that the statute could not accomplish its objectives if people who complained of discrimination were fair game for retaliation. In an opinion written by Justice Sandra Day O’Connor, the Court explained that protecting complainants from retaliation is an integral part of Title IX’s protection from discrimination and a crucial remedy to make the statute effective. Title IX’s effectiveness depends entirely on the willingness of students and their supporters, including and especially coaches, to challenge gender inequality when they see it. While the Supreme Court’s decision in Jackson is an important victory, it leaves several questions unanswered. The answers to these questions will largely determine whether people have the legal protection they need to step up to the plate and challenge discrimination. 192

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When Courts and Complainants Disagree about Whether There Was “Discrimination”: The Pitfalls of the Reasonable Belief Doctrine One unsettled question is how much protection from retaliation Title IX extends if the underlying conduct that prompted the complaint turns out not to violate Title IX. Because few students or coaches have access to all of the relevant information needed to accurately assess a school’s compliance with the law, a coach or student might be mistaken in believing that the school is violating Title IX. If so, does the law still protect the complainant from retaliation? Unfortunately, the answer is not so clear. In deciding Jackson, the Court appeared to assume that the underlying conduct that prompted the complaint was unlawful in explaining why retaliation violated the statute. The Court reasoned that retaliation is a form of unlawful discrimination and hence implicitly prohibited by Title IX because it is an extension of the unlawful discrimination that led to the retaliation in the first place.3 This reasoning is problematic because it suggests that the statute’s protection from retaliation turns on the merits of the discrimination complaint that prompted the retaliatory conduct. However, protection from retaliation under other discrimination statutes has never depended upon proof that the institution actually violated the law. If that were the standard, it would be risky to ever complain, since what looks like discrimination to one person might look very different to a judge or jury, especially after hearing from the other side. Instead of proving unlawful discrimination as a prerequisite to a successful retaliation claim, Title VII requires employees to have a “reasonable belief ” that the conduct they are opposing amounts to discrimination.4 As long as the employee’s belief in discrimination is judged to be reasonable, the employee is protected from retaliation. In theory, this seems like a fair balance between an overly harsh rule making protection from retaliation contingent upon establishing actual unlawful discrimination and an overly lax approach that would protect people who complain about anything, however unrelated to discrimination. In recent years, however, the reasonable-belief doctrine, as applied by courts in workplace discrimination cases brought under Title VII of the Civil Rights Act of 1964, has become increasingly strict, leaving employees unprotected from retaliation if their knowledge of the law does not match that of the courts. For example, numerous courts have thrown out retaliation claims where the retaliation resulted from complaints about harassment targeting gays, lesbians, and transgendered individuals.5 It was not reasonable, these courts concluded, to believe that Title VII reached discrimination based on Beyond Equal Access

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sexual orientation, because Title VII precedent distinguishes sex discrimination, which is explicitly covered by the statute, from sexual orientation discrimination, which is not. Such rulings leave employees at risk if they act on a less-than-perfect understanding of the law and judicial interpretations of it. As applied by courts in such cases, the reasonable-belief doctrine does not take into account how difficult it is for anyone—even lawyers and judges, much less lay persons—to apply and interpret discrimination law. For example, many courts have struggled mightily to discern a principled boundary separating discrimination based on sex from discrimination based on sexual orientation and have failed to find one. It is disingenuous at best to deem an employee “unreasonable” for taking a broader view of this complex issue than some courts have taken. In one particularly problematic case decided under this doctrine, a plaintiff in a retaliation case was left with no protection after he complained about a blatantly racist and offensive remark by a coworker. While watching news coverage in the employee break room about the DC sniper attacks, a white coworker exclaimed, “They should put those two black monkeys in a cage with a bunch of black apes and let the apes f—k them.” The remark upset an African American employee who was in the room when the remark was made. He later discussed the incident with other coworkers, who told him that this employee had a habit of making racially offensive remarks in the workplace. This exacerbated the plaintiff ’s concern, and he complained about the comment to his supervisor. After complaining, he was fired from the company. In a troubling decision, the Fourth Circuit Court of Appeals threw out the employee’s retaliation claim, ruling that it was not reasonable for him to believe that this single remark, while admittedly racially offensive, was sufficiently severe or pervasive to rise to the level of unlawful discrimination under Title VII.6 The court’s decision is all the more problematic because the complaining employee had followed the procedures outlined in the employee handbook, which directed employees to report any racial harassment to a supervisor. The ruling meant that the retaliatory firing was perfectly lawful under Title VII. As this decision illustrates, a strict reasonable-belief doctrine creates the risk that someone who complains about perceived discrimination will be left unprotected from any subsequent retaliation if his or her understanding of the legalities involved turns out to be mistaken.7 It is not yet clear how courts will construe Title IX’s protection from retaliation for students and coaches whose complaints turn out not to be fully supported in the law. Students especially are unlikely to know the ins and outs of assessing Title IX compliance. They may see different treatment 194

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between girls’ and boys’ teams in the same sport, for example, and believe that those differences establish a Title IX violation. While such a disparity may indeed ultimately violate Title IX, it may also be offset by less visible practices favoring a girls’ team in a different sport. As chapter 6 explains, Title IX compliance is determined by an overall comparison of the men’s and women’s programs, not just a sport-by-sport comparison. Not knowing this, if a female basketball player complained about inequities between the men’s and women’s basketball programs and then lost her athletic scholarship as a result, would she be protected by Title IX? If courts import a similar reasonable-belief doctrine into Title IX, the answer will depend on whether the sport-specific disparity she identified was offset by more favorable treatment of women elsewhere in the program and on how tight a nexus courts require between a perceived violation and an actual violation of Title IX to trigger the law’s protection from retaliation. Another scenario likely to arise in Title IX retaliation cases and potentially create problems under a reasonable-belief requirement is one in which a student or coach complains about unequal funding for girls’ and boys’ sports and then experiences retaliation. Is that person left with no legal protection because Title IX does not actually require financial parity? Could a court look at that situation and throw out a retaliation claim on the ground that it was not “reasonable” for the complainant to believe that Title IX requires equal funding? If Title IX’s protection from retaliation requires strict accuracy in perceiving unlawful discrimination, as some Title VII courts have required, challenging sex discrimination in sports will be very risky business. Courts considering these issues should follow the path that best adheres to the goals of Title IX, rather than tracking the problematic body of law that has developed under Title VII. Title VII’s retaliation provision has two separate clauses covering retaliation, one for “participating” in formal enforcement mechanisms, such as filing charges with the federal Equal Employment Opportunity Commission and filing lawsuits in court, and another for informally “opposing” unlawful activity by complaining internally to the employer. The reasonable-belief doctrine developed as a limitation only under the opposition clause, when employees complain internally, and not under the participation clause, which courts have read to provide stronger legal protection that does not depend on the merits of the underlying discrimination claim. Unlike Title VII, Title IX does not have any express provision on retaliation, much less two separate clauses suggesting more limited coverage of retaliation for certain forms of opposition. As a result, Title IX should provide the same level of protection from retaliation regardless of whether Beyond Equal Access

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the person complains internally to school officials or files a formal complaint with the Office for Civil Rights or a court. That protection should not be limited by a reasonable-belief doctrine that allows complainants to be punished if their view of the law or facts does not match that of the reviewing court or federal agency. Anyone who, in good faith, challenges what he or she believes to be sex discrimination in sports should be protected from retaliation under Title IX. Otherwise, standing up for Title IX—a risky thing to do under the best of circumstances—could become a risk not worth taking.

How Much Adversity Does It Take to Trigger the Law’s Protection? Another open question under Title IX concerns what kinds of punishments count as unlawful retaliation. The Supreme Court only recently addressed this question for Title VII claimants in Burlington Northern & Sante Fe Railway Co. v. White.8 In that case, the Court rejected the harsher approaches adopted by some lower courts that cover only “ultimate” employment decisions such as firings and demotions. Instead, the Court settled on a rule that protects employees from a broader range of retaliatory actions. The Court’s test asks whether the retaliatory action taken would likely deter a reasonable employee from complaining. This is a much better standard, since it responds to the goal of enabling people to challenge discrimination without being chilled by fears of retaliation. Studies show that fear of retaliation is the primary reason that people who experience discrimination choose not to confront it.9 People are likely to complain about perceived discrimination only when they believe the potential benefits outweigh the costs. Although the Court’s standard itself is sound, much turns on the assumed attributes and behaviors of the hypothetical “reasonable” complainant. Whether this person is assumed to be sensitive and vulnerable or thickskinned and resilient will affect courts’ assessments about what kinds of retaliatory actions would likely deter a “reasonable” person from complaining. Since this standard was just adopted in 2006, it is too early to tell how high a hurdle it will pose for employees who challenge retaliation. However, a few court cases decided soon after the Burlington Northern decision depict the “reasonable employee” as someone who is not easily dissuaded from complaining. Some lower courts have ruled that retaliatory actions that involve withholding of mentoring and supervision, lateral transfer to a different city, less favorable performance reviews, and unfavorable scheduling decisions were unlikely to deter reasonable employees from bringing discrimination complaints.10 These cases suggest that the hurdle may still be too high. 196

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Since the Jackson ruling decided only the basic question of whether Title IX prohibits retaliation, without defining the contours of the retaliation claim, it is not yet clear what threshold will apply under Title IX. However, it is likely that courts deciding Title IX cases will follow the Burlington Northern standard in asking whether the retaliatory action would deter a reasonable person from complaining. The test itself fits well with the goals of Title IX, since the main function of the retaliation claim is to ensure that students, coaches, and other affected persons are not deterred from playing an active role in Title IX enforcement. However, the effectiveness of the test will depend on the ability of courts to apply it in the special setting of school sports. As the Court recognized in Burlington Northern, a Title VII case, the question of whether the retaliatory conduct would likely deter a reasonable employee should be evaluated from “the perspective of a reasonable person in the plaintiff ’s position.”11 In the school sports environment, both students and coaches are particularly vulnerable to retaliation and likely to be deterred by it. Students especially are likely to be easily deterred from complaining if they fear that they will not have the support of their coach. Many athletes spend more time with their coaches than with any other teacher or professor.12 The coach-athlete relationship is an intense one and gives the coach significant control over the student’s schedule, game time, opportunities for skills development, and access to future athletic opportunities. Coaches also figure largely in an athlete’s emotional and social life. Going out on a limb to challenge her school’s Title IX compliance is a difficult thing for an athlete to do. Any number of “slights” may be sufficient to deter a student from taking such action, including the prospect of less game time and more bench time, worry about being called out and humiliated in front of teammates, or the fear of receiving less favorable college references. Students are especially sensitive to social pressure from their peers, so efforts to make the complainant unpopular with her peers may be likely to deter Title IX complaints, even if adult employees would be more resilient. Coaches, too, may be more easily deterred from raising Title IX issues than employees who challenge discrimination in other settings. For one thing, coaches generally have less of a personal stake in remedying a Title IX violation than employees who complain about discrimination they themselves have experienced. Most often, the coach who speaks up, as in Mr. Jackson’s case, does so out of concern for the students. As a result, coaches who anticipate retaliation may be more reluctant to bear the costs of complaining than they would be if their own interests were more directly at stake. Most Beyond Equal Access

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people decide whether to complain about discrimination by assessing the personal costs and benefits of doing so. Some coaches, of course, are willing to go out on a limb for the sake of their students, but many will carefully weigh the consequences before deciding whether to do so. Female coaches are in an especially precarious position in athletic departments, which may make them even more hesitant to risk even subtle retaliatory actions. As discussed later in this chapter, women’s share of coaching positions has dwindled since Title IX was enacted. Women have to struggle to get and keep jobs in athletics. Assertiveness in pressing Title IX issues may further mark them as outsiders and jeopardize their chances of fitting into the old boys’ network.13 In this environment, raising Title IX issues can be career suicide. Success in an athletic career requires solid support in the informal networks that dominate competitive sports. Especially for women, who have to work harder to fit in and gain acceptance, being known as a “squeaky wheel” on Title IX may make an already uphill road even steeper. When former Fresno State volleyball coach Lindy Vivas raised Title IX concerns on behalf of her female athletes, she was mocked by male colleagues at office parties and staff meetings and on the court.14 Although coach Vivas persevered, many women might reasonably have responded by keeping quiet, especially if their disapproving male colleagues seemed to have the backing of higher-ups in the athletic department. The kinds of “snubbing” that the Court suggested were too trivial to chill a reasonable employee from complaining in the Burlington Northern case may well be enough to chill a reasonable female coach from raising Title IX concerns. For Title IX to fulfill its promise, the Burlington Northern standard must be applied in a way that recognizes the distinct pressures not to complain that athletes and coaches experience in competitive sports.

Weighing Future Costs and the Courage to Complain A final concern about Title IX’s protection from retaliation is what happens if the entity that retaliates is different from the one originally accused of discrimination. Such a scenario was depicted in the documentary film The Heart of the Game, which told the story of Darnellia Russell, an African American high school basketball star who lost the last year of her eligibility after she became pregnant and had a child (see chapter 7). After Russell sued the Washington Interscholastic Activities Association for refusing to grant her a hardship waiver—and won—the many college scholarship over198

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tures she had received evaporated. If the colleges that had been clamoring to sign Russell no longer wanted her because she was a troublemaker who sued the WIAA for sex discrimination, did they retaliate against her in violation of Title IX? Probably not, under the Court’s theory in Jackson that retaliation is a form of sex discrimination covered by the statute because it is an extension of the discrimination that formed the basis for the underlying Title IX complaint. If the retaliator and the discriminator are different actors, the retaliation can no longer be neatly viewed as an extension of the original discrimination. However, the fear that challenging discrimination will hurt an athletic career down the line is likely to factor heavily in decisions about whether to complain. A high school athlete will be less likely to make waves if doing so might jeopardize her college athletic career because colleges get cold feet about recruiting a Title IX complainant. And a college athlete might not want to press her Title IX rights if it could hurt her chances of later finding work as a coach or getting into a professional league. Coaches, too, have to think about the future. Even if they can trust Title IX to protect them from retaliation at the institution where they work, the law will not help them land another coaching job in the future if they lose the one they have. In the tightly connected world of athletics, a coach who becomes known for complaining about Title IX may have a tough time getting hired at another institution. Three women who worked as coaches or athletic administrators at Fresno State University found this out the hard way. All three were fired after raising gender-equity concerns at the school and then sued Fresno State for retaliation. All three prevailed in their lawsuits, winning millions in damages. The victories turned out to be bittersweet, however. As of 2008, none of them had found work in college athletics, and all expressed doubt that they ever would.15 For that predicament, Title IX provides no solace. Even if a coach could prove that the reason for her not landing another job was retaliation for having sued a former employer—a difficult hurdle under any circumstance—Title IX is not likely to reach subsequent retaliatory hiring decisions by other schools different from the one accused of discrimination. Although the scope of the retaliation claim is not yet defined, its rationale limits it to the institution against which the discrimination complaints were initially made. As a result, Title IX cannot protect complainants from all of the ultimate costs of challenging discrimination. Despite these uncertainties and limitations, the Jackson decision has enabled some important victories. In the lawsuits against Fresno State, former volleyball coach Lindy Vivas won $4.52 million in damages plus $660,000 in legal fees, and former women’s basketball coach Stacy JohnsonBeyond Equal Access

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Klein won $6.6 million in damages and $2.5 million in legal fees. In addition, Fresno State agreed to pay $3.5 million to a former associate athletic director who raised gender-equity concerns. These awards made headlines and raised awareness of the potential for significant liability for retaliating against employees who raise Title IX concerns. Coaches and administrators have also brought high-profile retaliation cases against other universities, resulting in extensive publicity and, in some cases, substantial damages awards.16 Although the Court’s decision in Jackson was a crucial victory, stepping up to enforce Title IX still takes courage. The scope of protection from retaliation remains sketchy, and even the most generous interpretation will not shelter complainants from all of the costs of complaining. As with other discrimination laws, Title IX enforcement requires brave individuals willing to assert their rights. This is all the more true in recent years, since the Office for Civil Rights has largely stopped undertaking compliance reviews on its own initiative. Instead, the agency waits for a complaint to be filed against a particular institution. Individuals may also sue directly in court, bypassing OCR entirely, as many plaintiffs have done because of the agency’s spotty enforcement record. Others choose to raise their concerns with school officials, hoping to resolve compliance problems without taking legal action. All of these approaches expose the complainant to the risk of retribution and social disapproval.17 Still, some individuals are willing to take the risk and find that it was worth it. In 2007, the women’s track coach at the University of Hawaii made news when she sued her university under Title IX while still employed there—a rare move for college coaches. For years, she had raised concerns that the university violated Title IX by giving her team less support than men’s teams, excluding her from participating in decisions affecting her team, and paying her less than men’s coaches. As a result of her complaints, she claimed, she had experienced retaliation from the school’s athletic director. Initially, she was reluctant to sue, having been warned of “career suicide.” But, after several years of internal complaints, she grew more resolved. “If it does mean the end of my coaching career, I think it was for a good cause.”18 Soon after filing suit, the coach was pleased with how the university responded, citing “positive and productive meetings” with athletic department officials, and decided not to pursue the lawsuit.19 While the potential costs are real, for some, mobilizing to assert Title IX rights can be a positive experience. One case study examined how a women’s club ice hockey team used Title IX to mobilize for change at a major midwestern university and noted positive effects on the group’s collective iden200

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tity. The author, a sport sociologist, found that the experience broadened the women’s concerns from individual self-interest to higher-level interests in justice for women as a group. The women ultimately succeeded in getting the university to add varsity women’s ice hockey, although they did not personally benefit because the varsity players were recruited from outside the university. Nevertheless, the women emerged from the experience with a greater sense of efficacy and empowerment and a stronger orientation toward gender justice.20 While questions remain about the full scope of the law’s protection, the Supreme Court’s recognition that Title IX encompasses protection from retaliation marks an important success. The Jackson case is especially helpful because it grounds Title IX’s protection from retaliation in what people do to challenge gender inequality and not in their status as women or as athletes. Roderick Jackson, the plaintiff in the case, was an African American male coach who spoke up for the women on his team; he was not an athlete, nor was he himself the subject of the gender discrimination at the heart of his complaints. The Court’s recognition that the retaliation claim protects actions that challenge gender inequality and not simply a person’s status-based identity opens up possibilities for coalition building around Title IX. The law’s embrace of a retaliation claim broader than one limited to the female athletes who contest their situation recognizes and builds upon widely shared interests in gender equality in sports. It is harder to find progress on another issue of gender equality in sport, the gender hierarchy in athletic leadership positions.

Where Are the Women? Gender Disparities in Sport Leadership Title IX has enabled massive numbers of girls and women to get in the game. It has been much less successful in transforming the institution of sport itself. Competitive sport remains rife with male privilege, most visibly in its leadership structures. Women are underrepresented in athletic administration and continue to see their ranks diminish as coaches, with more men than ever coaching women’s teams. Nor have women made substantial inroads into jobs as coaches of men. In grappling with this set of issues, Title IX has been anemic at best and part of the problem at worst. Before the NCAA wrested control of women’s sports from the Association for Intercollegiate Athletics for Women (AIAW) in the early 1980s, women’s sports had a separate governance structure controlled by women. When this changed, with few exceptions, men’s and women’s athletic departments Beyond Equal Access

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merged, with the men’s and women’s programs brought under a single governance structure. Most often, the former director of women’s athletics became a senior administrator or an associate athletic director under the control of an athletic director, who was almost always male. With these changes, women lost their foothold as the leaders of women’s intercollegiate sports programs. Many commentators have lamented the decline in women’s share of intercollegiate athletic administration and coaching positions since Title IX was enacted, most prominently two former physical education professors at Brooklyn College, Linda Carpenter and Vivian Acosta. Their annual reports paint a dismal picture of women’s representation in the ranks of sport leadership in the post–Title IX era.21 In 1972, when Title IX was enacted, women made up 90 percent of the athletic directors for women’s sports. Today, women are only 21.3 percent of intercollegiate athletic directors. Female A.D.s have their highest numbers at Division III schools and are more poorly represented in the more prestigious and larger Division I and II programs.22 A significant number of schools, 11.6 percent, have no women in athletics administration at all. Where women are represented in athletic administration, the most common structure is to have a male director and two assistant or associate directors, one male and one female.23 The trajectory of women’s representation in college coaching is even more troubling. Since 1972, women have gone from holding more than 90 percent of the head coaching positions on women’s teams to only 42.8 percent in 2008. Meanwhile, women’s share of head coaching positions in men’s sports remains at the negligible level of 2 percent, a figure that has not changed since Title IX was passed. When both men’s and women’s teams are counted, women make up 20.6 percent of head coaches of intercollegiate sports. Gender disparities exist in other athletic jobs, too. For example, women account for 27.3 percent of head athletic trainers and 11.3 percent of sports information directors.24 Although high school data are harder to come by, the picture does not appear to be much better there. As Title IX has brought greater respectability to jobs coaching girls’ sports, more men have filled those jobs.25 Girls’ basketball in particular—often the most prestigious and highest paying girls’ sport—has a high percentage of male coaches. For example, in Nebraska, only 17 percent of the state’s varsity girls’ basketball teams were coached by women in 2001. In basketball-powerhouse Iowa, that number was even lower, at 13 percent.26 Not only has Title IX provided no relief from the dwindling representation of women in athletic leadership, but it actually laid the groundwork for 202

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this trend. Unlike the three-part test, which embraces a more substantive kind of equality, Title IX’s approach to employment discrimination—which is encompassed by the statute’s general ban on sex discrimination in education programs—follows the gender-blind model of Title VII. Once women’s programs were integrated into a unified athletic structure, women lost control over women’s sports. Women were not officially disqualified from holding athletic administration and coaching jobs; they just were not often found to be “the best man for the job” by the male A.D.s doing the hiring. As long as sex is not consciously considered in the selection process, no gender discrimination has occurred in the eyes of the law. Title IX does not assign any added positive value to having female coaches and administrators as role models for female athletes. In this respect, Title IX tracks other sex discrimination laws aspiring to a gender blind opportunity structure. For example, when the Palmer Township Athletic Association adopted a policy of hiring only female coaches to coach girls’ teams in the township’s community league, an aspiring male coach filed a lawsuit, arguing that the policy violated the Pennsylvania Equal Rights Amendment. A Pennsylvania state court agreed, rejecting the association’s argument that the policy was justified by the government’s interest in providing female role models for female athletes.27 Title IX uses the same gender-blind formula when it comes to women’s representation in sport leadership positions. However, the law’s liberal feminist approach fails even on its own terms to ensure a gender-blind process because of the stringency of proof requirements that plague employment discrimination claims generally. A study by a Stanford law professor, Deborah Rhode, and coauthor Christopher Walker found that women’s underrepresentation in college coaching positions is a product not of lack of interest or lesser qualifications but of unconscious bias, exclusionary recruiting networks, inflexible working structures, and a lack of mentoring and institutional support.28 Even when women get a foot in the door, career advancement is difficult. As Rhode and Walker point out, “women face more competition for coaching positions, and they are locked out of the high revenue sports that are gateways to leadership in most athletic departments.”29 Homophobia targeting women in sport is also an obstacle. Female coaches and athletic administrators, whether straight or gay, have to contend with antilesbian stereotypes and assumptions that require them to work harder to win acceptance in the hetero-male culture that dominates competitive sport.30 The prevalence of male athletic directors also contributes to the difficulties women face seeking coaching jobs. Male athletic directors are more likely Beyond Equal Access

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to hire male coaches. Rather than conscious bias, this is likely the result of widely shared insider preferences. A study of 191 Division I men’s basketball programs found that white head coaches were significantly more likely than African American coaches to hire white assistant coaches, while African American head coaches were significantly more likely to hire African American assistants. Prospective employees who do not match the demographics of the predominantly white, heterosexual male leadership face a tougher time gaining a foothold in intercollegiate athletics. This in-group preference, a form of institutional bias, contributes to the underrepresentation of both women and people of color in the coaching ranks.31 Without a “smoking gun” proving that sex played a role in the hiring process, claims for discrimination brought by women seeking jobs in coaching and athletic administration are unlikely to succeed. Such claims require proof that the decision maker intentionally discriminated. The rare institution called to account for its decision will likely argue that the hiring decision was based on factors other than the applicant’s sex. However, the assertion that hiring decisions are based on “merit” obscures the extent to which determinations of merit are subjective and influenced by personal relationships and informal networks. Subtle but deeply ingrained associations between maleness and athletic competence limit women’s chances for career advancement in sports. The survey of coaches by Rhode and Walker found that, if any differences in objective qualifications can be discerned, women coaches are more qualified than their male peers and must be so in order to acquire and retain coaching positions.32 Title IX provides little recourse for those penalized by the subtle and subconscious double standard that requires women to be more qualified than their male counterparts. Although women seeking to enter the ranks of athletic coaches or administrators are the most directly affected, the underrepresentation of women in sport leadership positions affects female athletes, too. The male leadership structure of sport reinforces the image and reality of sport as a maledominated activity. The scarcity of female role models shapes the athletic aspirations of female athletes, who see fewer opportunities than their male peers for careers in sport. It also sends the message that the qualities of competence and leadership in sport are distinctively male. Given the pronounced and visible gender imbalance, it is not surprising that some female athletes express a preference for male coaches.33 Research in social psychology has identified an out-group preference among members of disadvantaged social groups, such as women and racial minorities, who have internalized beliefs about the inferiority of their social group.34 Seeing that leadership in sports 204

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is disproportionately male, athletes are more likely to associate competence in sport leadership with maleness. Having greater numbers of successful women in these positions is critical to the ability to disrupt these harmful associations. Unfortunately, Title IX holds little promise for reversing these trends. The near absence of women coaching male athletes also shapes women’s athletic experiences, if more subtly. The virtual exclusion of women from positions of leadership in men’s sports conveys the message that the most valued positions in athletic leadership—the jobs coaching elite male athletes— are reserved for men. This message shapes female athletes’ understanding of sport and women’s place in it. A recent NCAA study on the perceived barriers to women in coaching and administration found female athletes much more receptive to the idea that male coaches are appropriate role models for female athletes than to the idea of female coaches as role models for female athletes.35 The conflation of masculinity and coaching in elite men’s sports contributes to ingrained beliefs among some female athletes that men are better coaches than women. These beliefs contribute to a broader conception of sport itself as a male domain, where women are still intruders who face the burden of proving they belong. Such impressions are further entrenched by the wide salary disparities for coaches of men’s and women’s sports. According to the NCAA, at toptier Division I schools (the Division I-Football Bowl Subdivision, formerly known as Division I-A), only 31 percent of the dollars spent on head coaching salaries are spent on women’s sports.36 Women’s sports receive a similarly low share of the budget for salaries paid to assistant coaches.37 This translates into a large gender gap between the average salaries paid to the coaches of men’s teams and those paid to the coaches of women’s teams.38 For example, while Division I women’s basketball coaches earn a respectable average salary of $187,300, they earn less than half the men’s basketball coaches’ average salary of $409,600. Lower-paid coaches see substantial gender disparities, as well. Women’s softball coaches earn an average salary of $70,700, while the average baseball coach earns $116,000; similarly, coaches of men’s ice hockey average $203,700, while coaches of the women’s game earn an average of $94,700.39 When schools are paying the coaches of men’s teams twice as much as they pay the coaches of women’s teams, the message to female athletes about which programs are more valued is unmistakable. Neither Title IX nor the other federal statutes covering sex discrimination in salaries has been terribly effective in closing the gender gap in coaches’ pay. Like these other laws, Title IX views the sex of the employee as paraBeyond Equal Access

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mount in proving a claim for wage discrimination, without paying enough attention to the gendered context of sport. In intercollegiate sports, the sex of the team coached plays a bigger role in setting coaches’ salaries than the sex of the coach. A man who coaches women’s basketball is likely to be just as underpaid, compared to the coach of the men’s basketball team, as a woman who coaches women’s basketball. By focusing on the sex of the coach, sexdiscrimination law misses the larger picture, in which women are devalued as both coaches and athletes, first through the smaller budgets spent on coaching for female athletes and, second, through the exclusion of women from the more lucrative jobs of coaching male athletes. While some women have succeeded in sex-discrimination cases challenging pay disparities in coaches’ salaries for men’s and women’s teams under the Equal Pay Act, many suits have failed because of the plaintiff ’s inability to prove that the jobs of coaching male and female athletes are similar enough to require equal pay.40 On this score, Title IX generally does no better than Title VII or the Equal Pay Act—both of which require proof that the salary disparity is linked to the sex of the employee.41 Nor has Title IX provided much of a remedy to female athletes who argue that their sports are devalued when men’s coaches are paid more than the coaches of women’s teams. For female athletes to raise such claims, Title IX requires them to prove that the quality of coaching they receive has suffered, when often the quality of coaching they receive is perfectly fine; they just have an overworked and underpaid coach.42 When it comes to the issues facing women in coaching and athletics administration, Title IX adheres to the liberal feminist model that drives other sex-discrimination laws. All that is required is gender blindness toward the employees who coach and direct the men and women who play sports. It is unfortunate enough that Title IX tracks the limitations of Title VII and other employment discrimination laws in its treatment of women coaches and administrators. But there is one area in which Title IX performs much worse than Title VII. When it comes to challenging the sexual harassment and abuse of female athletes, Title IX makes Title VII look very good indeed.

When Trust Turns to Abuse: The Problem of Coach-Athlete Sexual Harassment In 1998, the women’s soccer world was rocked by allegations that UNC’s coach, Anson Dorrance, had created a sexually hostile environment for his female players. Under Dorrance’s leadership, UNC had the most success206

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ful women’s soccer program in the country, having won the most national championships in the history of the sport. However, the allegations suggested another side to the legendary coach. Two former team members, Debbie Keller and Melissa Jennings, filed a Title IX lawsuit alleging that Dorrance frequently made sexually explicit comments to players, engaged in overly affectionate, unwelcome physical contact with players, and interrogated players about their sex lives on a regular basis. The lawsuit did not allege sexual overtures or physical sexual activity but charged that the coach’s interjection of sexuality in conversations with the players created a hostile and uncomfortable environment. The case made headlines as it wound its way through the courts. Lower courts initially dismissed the lawsuit on the grounds that the alleged behavior, even if true, was insufficiently severe or pervasive to create an unlawful hostile environment under Title IX.43 These rulings were reversed, however, when the full Fourth Circuit Court of Appeals decided to hear the case en banc—a rare procedure in which all of the sitting appellate judges for that circuit rehear a case that has been decided by the standard three-judge panel. In this rehearing, a majority of the judges agreed with the plaintiffs that the alleged behavior was sufficiently harmful to create a hostile environment for the athletes.44 According to a majority of judges on the court, Dorrance’s frequent comments on the players’ sex lives were disrespectful and degrading, and the effects of this behavior were compounded by the age and power disparity between the coach and the athletes. The court criticized Dorrance for casting himself as a father figure and confidant and then exploiting his position to learn the intimate details of his players’ lives through vulgar and degrading questioning tactics. Dorrance’s power over his athletes’ playing time and careers made it difficult for them to rebuff or ignore his sexual banter and intrusions into their intimate lives. After the court’s ruling, the case finally settled with a three-part agreement. First, coach Dorrance issued a written apology for engaging in discussions of team members’ sexuality. Second, UNC agreed to pay Jennings $385,000.45 And, third, and most important in terms of the lawsuit’s longterm impact, UNC agreed to hire an outside expert to assist in revising the school’s sexual harassment policy. Jennings expressed her hope that the policy would stand as a model for other schools.46 While officially over, the case continues to raise questions about the proper boundaries of coach-athlete relationships and Title IX’s ability to ensure a safe and empowering environment for female athletes. Beyond Equal Access

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Ripe for Abuse? The Distinctive Environment of Competitive Sports and the Vulnerability of Athletes The intense nature of the coach-athlete relationship makes athletes particularly vulnerable to sexual harassment and predatory behavior by a coach. A student-athlete typically spends more time with a coach than with any other school employee. Much of this time is spent outside public view, in settings with plentiful opportunities for sexual overtures. Athletes on varsity squads travel frequently with coaches, and trips provide a setting where athletes are isolated from their support systems outside sports. Usually, the intensity of the coach-athlete relationship enhances the athlete’s experience and enables her to develop a close and trusting relationship with an adult role model. But the special nature of this relationship also leaves athletes vulnerable to abuses of power. When a student develops a close relationship with her coach and depends on the coach for a broad range of emotional and educational support, it can be harder for her to immediately discern when a line has been crossed. Abusive coaches can expertly cultivate an unquestioning trust that obscures abuses in power, taking advantage of opportunities for gradual shifts in the relationship that are confusing for athletes to sort out.47 Court cases brought by female athletes for sexual harassment by a coach tell stories of coaches who trade on athletes’ trust to manipulate and sexualize the relationship. An abusive coach will gradually introduce sexuality into the relationship and watch for opportunities to escalate it. In one case typical of such a fact pattern, the athlete, identified in legal filings as N.B., was the only girl on her high school coed golf team and also played on the girls’ basketball team.48 The same man coached both teams. When N.B. was a high school freshman, the coach told her that he had “sexual feelings” for her. Over time, the harassment escalated to cupping her buttocks at a basketball game and persistently pursuing her with text messages and phone calls. One night, while the team was away from home at an overnight golf outing, the coach booked adjoining hotel rooms for himself and N.B., while lodging the rest of the team in a separate wing of the hotel, ostensibly to protect her privacy from the boys on the team. The arrangement facilitated his plan to rape her that night, which he did. Other sexual assaults followed, usually when he drove her home after practice.49 The norms of sport itself and expectations for physical contact add to the problem. Coaches are physically close to students over sustained periods of time, and the physical nature of sport makes it easier for adults to blur 208

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the lines between appropriate and inappropriate physical contact. Sport has more opportunities for physical touching than do most other educational settings. If the physical contact escalates gradually over time, athletes can become confused about the nature of the relationship and its appropriate boundaries.50 By taking advantage of these norms, an abusive coach can blur the line that separates athletics from sexuality. In one case where a coach crossed that line, a high school track and field athlete was sexually assaulted by her coach after practice when he insisted on performing a “fat test” in his car behind the bleachers, purportedly to monitor her fitness level. The test ultimately required the young woman to remove her pants and underwear and to pull up her shirt and bra while the coach touched her and made comments about her body.51 In another case, a college swimming coach made a female athlete stay after practice so that he could ice her shoulder. Once alone with her, the coach took the opportunity to pull down her swimsuit strap while applying the ice.52 The greater acceptance of graphic language in sport than in other educational settings also contributes to a coach’s ability to introduce sexuality into the relationship. In the case against UNC, coach Dorrance used the team’s warm-up time to hone “his degrading and persistent focus on the sex lives” of his players.53 In addition to interrogating the athletes about their own sex lives, his sexual interest in them took other forms, as well. According to the lawsuit, he once expressed a desire to have group sex with his Asian players, and he talked about wanting to watch when another player, whom he believed to be a virgin, had sex for the first time. His banter included commenting about the athletes’ bodies, pointing out their “nice racks” or “nice legs.” All of this seemed normal in the informal setting of practice and the intimacy created by the near-constant team togetherness.54 In addition to facilitating manipulation by an abusive coach, the nature of the coach-athlete relationship makes it more difficult for students to confront harassment by a coach than to confront a regular teacher. The importance of a student’s identity as an athlete weighs heavily in decisions about how she responds to an abusive coach. The rejection of a coach’s overtures can mean the end of an athlete’s career. Coaches have enormous power over their athletes, including the discretion to reduce their playing time. As Melissa Jennings described the predicament faced by coach Dorrance’s players, “if they gave any sort of opposition . . . [their] playing time [would be] gone, their career [would be] gone.”55 The potential for coaches to abuse this power may discourage young women from challenging inappropriate behavior, espeBeyond Equal Access

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cially at a time in their lives when they are likely to be confused by conflicting emotions and have a hard time keeping disappointments in perspective.56 Sport itself inculcates values that make it harder to stand up to a coach’s abuse. Athletes are taught to act like “team players” and to prioritize the welfare of the team above that of the individual.57 These values can affect a student’s willingness to report a coach and can cause students to fear rejection by their teammates, who are often like a surrogate family. As with incest, victims of harassment and abuse by coaches face many social and emotional pressures not to speak out. Athletes may reasonably fear that they will not be believed by their teammates or school administrators. Especially in cases involving high-profile coaches with winning teams, a student who accuses the coach risks ostracism by the broader community.58 Age is also a factor that affects how athletes respond to abuse by a coach. At the high school level especially, the athlete’s youth and the age difference between her and the coach make it harder for her to know when the boundaries are crossed, to confront an abusive coach, and to report him to authorities. Even at the college level, age disparities can affect how sexual harassment is experienced. When forty-five-year-old coach Dorrance called Melissa Jennings into his hotel room at an out-of-town tournament to assess her performance as a freshman player, Jennings described the experience as follows: “I was 17 when he asked me [‘Who are you fucking?’] in a dark hotel room, knee-to-knee, bed not made, sitting at one of those tiny tables.” The court agreed that the age disparity heightened the severity of the harassment.59

Title IX’s Tepid Response to Coach-Athlete Sexual Harassment We might expect these vulnerabilities to lead to greater protection under Title IX than federal employment discrimination law affords adult women who are sexually harassed in the workplace. Unfortunately, the reverse is true: Title IX is much weaker than Title VII in this area. In recognizing sexual harassment as a form of discrimination based on sex, Title IX takes a page from Title VII, but only part of a page, and a cribbed one at that. In order to see sexual harassment as a type of sex discrimination at all, Title IX first had to press the boundaries of liberal feminism and its understanding that treating similarly situated people the same satisfies a genderequality mandate. Since both men and women can be sexualized and/or treated badly by coaches, sexual harassment does not neatly fit within liberal feminism’s rubric. Coaches very rarely engage in sexual relationships with their male athletes, but both male and female athletes may be exposed to 210

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sexually vulgar and demeaning language and behaviors by their coaches. In addition, male athletes who do not conform to the norms of hetero-masculinity might be targeted for sexually explicit put-downs. This creates a challenge for sex-discrimination law to explain how sexual harassment is a form of sex discrimination if it can happen to both men and women. Another hurdle is that liberal feminism prioritizes individual agency and free will. Recognizing sexual harassment as a form of sex discrimination requires skepticism about female athletes’ ability to “consent” and their willingness to go along with a sexualized relationship characterized by unequal power. Sexual harassment first came to be recognized as a distinct form of gender inequality in the workplace setting, where courts found it to violate Title VII’s proscription on discrimination based on an employee’s sex. This development was heavily influenced by the work of the law professor Catharine MacKinnon, whose scholarship in the late 1970s and early 1980s elaborated the power disparities that make sexual harassment and abuse a cornerstone of gender inequality. The model of feminism that emerged, known as antisubordination or dominance feminism, rejects liberal feminism’s emphasis on treating similarly situated persons the same. Rape, sexual harassment, sexual abuse, and domestic violence all perpetuate the subordination of women precisely because men and women are not similarly situated with respect to these events. The sexual abuse of women both reflects and reinforces the subordinate position of women in society.60 Through the influence of antisubordination feminism, sex discrimination law has come to recognize sexual harassment as a form of sex discrimination. That influence, however, is limited. Many legal rules limit the transformative potential of sexual harassment law, making it a difficult claim to win. Nowhere is that difficulty greater than in Title IX. In a 1992 decision, the U.S. Supreme Court first recognized that Title IX reaches sexual harassment by school employees.61 The holding in that case, however, was limited to allowing a damages remedy in claims for intentional discrimination under the statute, with the Court recognizing that sexual harassment is a form of intentional discrimination. The Court in that case did not further elaborate on what proof is required to win such a claim under Title IX. Six years later, in Gebser v. Lago Vista School District, the Court finally spelled out the elements of a Title IX claim alleging sexual harassment by a school employee.62 The standards the Court adopted make it much harder for a student than an employee to win a sexual harassment case. In addition to proving that the offensive behavior occurred and met the criteria for unlawful harassment, the student must show that “an official who at a Beyond Equal Access

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minimum has authority to address the alleged discrimination and to institute corrective measures on the [school’s] behalf has actual knowledge of discrimination” and responds with “deliberate indifference.”63 This is a terribly difficult standard to meet and weeds out most cases of coach-athlete sexual harassment. For one thing, the requirement that notice be directed to someone with the authority to discipline the coach often rules out persons in whom the student is most likely to confide, such as a teacher or counselor.64 Depending on how decision-making authority is structured, nothing short of notice to the principal or even the superintendent or school board will likely suffice at the high school level. At the college level, meeting the notice requirement is even trickier because the lines of authority for disciplining coaches are diffuse and complex. Instead of requiring all employees of the institution to report up through the chain of command, Title IX puts the burden on students to find and notify the right person—someone with a sufficiently high level of authority to discipline or terminate the coach. These liability rules place an incentive on schools not to know about harassment and to discourage—or at least do nothing to encourage—notification of the right person. The actual notice requirement is also flawed because it assumes that notice of sexual harassment is something that is either demonstrably present or not. But a common theme in Title IX sexual-harassment cases involves school officials who look the other way when suspicious circumstances come to their attention, essentially choosing not to know.65 The human capacity for denial is vast. How else can we explain school board members who, in the case of N.B. mentioned earlier, knew of hotel arrangements made by the male coach to reserve adjoining hotel rooms for himself and the team’s only female player?66 Even after the president of the school board saw the coach acting “flirtatiously and inappropriately” with N.B. on school grounds, school officials merely warned him about inappropriate relationships with students and did not inquire further. The desire not to know is often reflected in the failure of schools to do anything to increase the likelihood of discovering sexual harassment and abuse. In the N.B. case, school officials failed to train employees about procedures for reporting suspected harassment. Instead of holding the school accountable for failing to pursue leads likely to reveal the coach’s longstanding pattern of abuse or for failing to educate school personnel and students about sexual harassment and how to report it, the court dismissed N.B.’s case for lack of actual notice to the proper school officials. It is the rare sexual harassment case that survives Title IX’s actual notice standard. It typically takes a long pattern of unquestionable awareness by 212

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top-level officials that the coach is a sexual predator, followed by little or no action to protect students.67 Some courts are so strict that they even reject notice that the coach had harassed other students and require instead notice of harassment against the particular student who sued. This raises the question of what the court is seeking—notice of what, precisely? The most restrictive standard would require actual notice of each incident of sexual harassment of the plaintiff, in full detail, before the school would face any legal accountability. The courts have not gone this far, but they have finely parsed the factual information necessary to meet Title IX’s notice standard. Sometimes this parsing minimizes the significance of known facts that should obligate school officials to find out more and instead requires knowledge leading to the inexorable conclusion that sexual harassment occurred.68 One example of such parsing comes from a case involving a male high school soccer coach who instigated a sexual relationship with a girl on the team, referred to in the complaint as “Jill.”69 The lawsuit was brought by another girl, Teresa Henderson, who claimed that the coach forced her to act as a co-conspirator in facilitating and covering up his relationship with Jill. Concerned about the coach’s late-night communications with their daughter, Jill’s parents told school officials, who responded with a memo setting stricter limitations on the coach’s communications with students. The warning did nothing to inhibit the coach’s relationship with Jill, however, or his treatment of Teresa as a confidant about the relationship. As the coach’s relationship with Jill continued, Teresa became increasingly upset, especially when she learned that the coach had made sexual advances to another girl on the team. On one occasion, he made Teresa serve as a “look-out” while he molested Jill on the team bus. Later, when Jill took Teresa’s advice and broke off the relationship, the coach threatened Teresa that he would not coach the team unless she “fixed things up” between Jill and him. When Teresa refused, the coach warned that he would “fix it” so that she never would play soccer again. Teresa suffered from these experiences, to the point of attempting to overdose on pain medication. Soon after the relationship with Jill ended, the coach dissembled. He threatened to kill himself when he became aware that the soccer parents were holding a meeting to discuss their concerns about him. The parents’ meeting was interrupted by a phone call stating that the coach was holding a gun to his head. The parents called the police, who took the coach to a hospital for evaluation. The school terminated his contract shortly afterward. Teresa, however, remained deeply affected by the coach’s abuse and its aftermath. She transferred to another school for her senior year and sued the Beyond Equal Access

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school district under Title IX for allowing a sexually hostile environment. The case turned on whether the school’s notice of the inappropriate relationship with Jill satisfied the notice requirement in Teresa’s case. The court emphasized that neither Teresa nor her teammates reported their concerns about the coach to school administrators. This is not surprising, since the coach had threatened the entire team with “consequences” if anyone reported him. Teresa argued that school officials had notice of the coach’s inappropriate communications with Jill, which should have put them on notice of a hostile environment for other team members, as well. Jill’s parents had reported their concerns about the coach’s late-night communications with their daughter, and school officials knew of at least one occasion on which the coach violated subsequent restrictions on after-hours communications with students. In addition, the coach frequently engaged in public displays of affection with Jill on the bench during soccer matches. The court took a different view. Distinguishing knowledge of the coach’s relationship with Jill from knowledge that Teresa had experienced a hostile environment, the court ruled that notice of overly “friendly behavior” between the coach and Jill did not establish notice of a broader hostile environment. Even if school officials’ knowledge of the coach’s improper “flirting” with Jill should have triggered a broader inquiry, the court reasoned, “it can hardly support a reasonable finding that . . . school officials should therefore have known that another team member, Teresa Henderson, was the victim of a hostile environment.”70 This kind of parsing of knowledge leaves students without adequate legal protection from such insidious environments. By requiring that student report harassment to a person at a sufficiently high level of authority and that the report be met with deliberate indifference, Title IX ensures that educational institutions will rarely be held accountable for a coach’s sexual harassment of athletes. Even more troubling, the law itself creates incentives for educational institutions to discourage such reports. Without actual notice to the right person, a school has no legal accountability under Title IX for the sexual harassment of its students. Ironically, proactive efforts by school officials to establish and publicize policies for reporting sexual harassment put a school at greater risk of liability. On a more positive note, many states have their own statutes addressing sex discrimination in education, including sexual harassment, and state courts are not required to saddle those statutes with the same stingy liability standards as Title IX. Indeed, a couple of courts have indicated that state law remedies could provide stronger legal protection than Title IX for studentathletes who are sexually harassed by a coach.71 However, even if more state 214

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courts join this trend, without stronger liability standards at the federal level, protection for athletes will remain spotty at best. The federal law of workplace discrimination provides a better model of institutional liability for sexual harassment than does Title IX. Under Title VII, an employer is presumptively liable for a supervisor’s sexual harassment of an employee. To escape liability, the employer must prove that it acted reasonably to prevent and correct sexual harassment, including by having welldesigned and publicized procedures for addressing it, and that the employee failed to act reasonably in taking advantage of these procedures.72 This liability scheme is far from perfect and many commentators have observed that courts have applied this defense far too strictly against employees.73 Nevertheless, at least this standard punishes employers that choose not to know or do too little to find out about sexual harassment in their workplaces. Title IX requires much less of the schools that are charged with the welfare of students. In addition to letting schools off the hook too easily, Title IX also sets a higher bar for determining which behaviors qualify as sexual harassment. Under Title IX, the behavior must be severe, pervasive, and so objectively offensive that it effectively deprives the student of access to educational opportunity.74 This is a higher standard than courts apply under Title VII, which requires the harassment to be either severe or pervasive, such that it creates an objectively hostile environment. The earlier court decisions in the Jennings case show how high a hurdle this can be. Both the district court and the Fourth Circuit panel ruled that coach Dorrance’s sexually charged intrusions into his female athletes’ lives were insufficiently severe to create an unlawful hostile environment. The district court portrayed the alleged behavior as mere teasing at most and emphasized that it did not include physical threats.75 In the same spirit, the Fourth Circuit panel described the sexual banter as voluntary conversations about consensual behavior that “hardly painted women in a sexually subservient, negative, or demeaning light.”76 It viewed Jennings’s refusal to answer the coach’s graphic inquiry into her sex life in the hotel room as proof that she was not overly intimidated by the harassment. Both courts viewed the casual, informal atmosphere of team sports as minimizing the severity of what happened.77 The fact that Jennings still wanted to play on the team and kept up her grades was also used to undermine her claim that the harassment was severe.78 While these arguments were ultimately rejected by the full Fourth Circuit Court of Appeals, which reinstated Jennings’s claim, their success in the district court and in the Fourth Circuit panel decision demonstrates the Beyond Equal Access

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difficulty of proving sexual harassment under Title IX. To violate Title IX, the harassment must be so bad that it “can be said to deprive [the student] of access to . . . educational opportunities or benefits.”79 In the final analysis, Title IX does far too little to ensure that the empowering potential of sport is not undercut by sexual harassment. Antisubordination feminism’s emphasis on curbing abuses of male power and the sexual exploitation of women is not Title IX’s strong suit. Instead, Title IX more closely reflects the demands of Third Wave feminism, with its “girl power” slogan and celebration of women’s strength. Third Wave feminists have accused dominance feminists of “victim feminism” and as treating women like sexual prey instead of as full agents with the power to make their own choices.80 Title IX’s success in bringing more girls and women into sport is more in line with Third Wave feminism’s celebration of women’s strengths, and Title IX appeals to the many women who embrace “girl power” without necessarily identifying as feminists. But the law’s ultimate success in empowering girls and women through sport has been limited by its failure to go beyond that agenda and address the exploitation and abuse that disempower women in the otherwise empowering setting of sport. Perhaps sexual-harassment law is weaker in the context of athletics than it is in the workplace because sport is such a thoroughly masculinized institution. Sexual-harassment law can readily envision a workplace that is free from gratuitous sexuality and hostility to women. Once on the athletic field, however, women are expected to put up with more, and the culture of men’s sports, rife with bragging about sexual exploits and exchanging graphic putdowns, shapes the norms of what is expected. It is not hard to imagine a successful UNC men’s athletic coach engaging in sexual banter and shared stories of sexual exploitations with his male athletes. In this setting, Title IX treads lightly. While it has gotten women into the game, it has not made the culture of sport fully welcoming to women.

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Conclusion

Title IX is at the center of an ongoing struggle over the place of women in sports and the meaning of gender more broadly. Now, in the fourth decade after the law’s enactment, it is still too soon to say whether Title IX will succeed in securing full sex equality in sports. This concluding chapter considers three final themes: the backlash against Title IX, prospects for further progress in the future, and some final thoughts on Title IX’s successes and limitations as a “feminist” law.

Navigating the Backlash Any law that challenges traditional gender norms and opens up opportunities for women is likely to trigger a backlash.1 As Susan Faludi describes this phenomenon in her classic book, Backlash: The Undeclared War on American Women, a backlash is “caused not simply by a bedrock of misogyny but by specific efforts of contemporary women to improve their status, efforts that have been interpreted time and again by men—especially men grappling with real threats to their economic and social well-being on other fronts—as spelling their own masculine doom.”2 Women’s influx into sports has created prime conditions for backlash, as it challenges the masculinity that sports participation for males has historically cultivated.3 The cornerstone of the backlash has been the scapegoating of Title IX as the reason why some marginalized men’s sports have been cut from university rosters. The term “scapegoating” is appropriate because Title IX does not deserve the blame for cuts to men’s sports. Men’s overall athletic opportunities have not declined—indeed, they have increased over the years that Title IX has been in force. A 2007 report by the U.S. Government Accountability Office found that the numbers of both male and female intercollegiate athletes increased from 1991–1992 to 2004–2005.4 As Welch Suggs, reporting for the Chronicle of Higher Education, put it, “If colleges are trying to comply with Title IX by dropping male athletes, they are not doing a particularly good job |

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of it.”5 High school sports have not seen a decline in male participants during the Title IX era, either; the percentage of male high school students who participate in varsity sports has held steady at around 50 percent from 1969 to today.6 A shift has occurred in the sports boys and men play, with certain sports, such as wrestling, becoming less popular over time while others have become more so.7 At the same time, some sports, such as football, have seen increases in their squad sizes, offsetting participant losses in other sports.8 Similar shifts have occurred in women’s sports. A comparison of men’s wrestling and women’s gymnastics, for example, shows the influence of sport-specific factors in these sports’ declining popularity rather than the force of Title IX. During the period from 1981–1982 to 2003–2004, men’s wrestling experienced a significant drop in the number of intercollegiate teams. In NCAA Division I, the number of wrestling teams dropped from 117 to 86, a 25 percent loss, and from 363 to 223 across all three divisions, a 39 percent loss. Over the same time period, however, NCAA schools also lost significant numbers of teams in women’s gymnastics. The number of women’s gymnastics teams in Division I dropped from 99 to 64, a 35 percent loss, and from 179 to 86 across all three divisions, a 52 percent loss.9 Obviously, Title IX did not force the cuts to women’s gymnastics; to the contrary, as chapter 3 explained, the law has been a forceful tool for blocking cuts to women’s teams. And yet, even though women’s gymnastics had fewer teams than men’s wrestling, it sustained a larger relative loss. In addition to ignoring sport-specific trends within both men’s and women’s sports, wrestlers and their supporters who blame Title IX for cuts to their teams conveniently omit the timeline of wrestling’s demise. The deepest cuts to wrestling occurred during the mid-1980s when Title IX was not enforced because it had been gutted by the Supreme Court’s 1984 decision in the Grove City College case—a decision Congress overturned by statute four years later.10 Concerns about liability and injury rates, relative student interest, and available competition have exerted much greater influence on wrestling’s downward trend than Title IX. But, despite these facts, Title IX’s opponents have persisted in blaming the law for declines in certain men’s sports, positing a zero-sum game in which expanded opportunities for women have come at the expense of men. Wrestlers and their supporters have been among the most vocal of Title IX’s opponents, calling for an end to “gender quotas” and a rollback of Title IX’s legal standards, especially the three-part test.11 The backlash has been fueled by the “boys left behind movement,” which has lamented the declining percentage of undergraduate students who are male and data showing gender gaps that 218

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favor female students in some subjects. Some advocates within this movement have latched onto sports as a vehicle for re-engaging boys in school and have questioned whether female incursion into this last bastion of masculinity in education has contributed to the problems caused by what they see as a “war against boys.”12 The groups orchestrating the backlash mobilized in the 1990s, on the heels of the newly invigorated Title IX enforcement, and picked up steam as the decade unfolded. In 1996, the Office for Civil Rights in the Clinton administration held a series of focus-group meetings to hear from these groups but ultimately responded with a 1996 policy “clarification” that essentially reaffirmed the three-part test and reiterated that compliance with Title IX does not require cuts to men’s teams.13 When the Bush administration took the reins from the Clinton White House in 2001, conditions became more favorable for a major change of course for Title IX. In addition to finding a more receptive audience in the White House, critics of Title IX had a strong ally in House Speaker Dennis Hastert, a former wrestling coach who had long been on record as opposing the three-part test. With Republicans controlling the White House and both houses of Congress, the anti-Title IX movement gained momentum. In 2002, the Secretary of Education established a Commission on Opportunity in Athletics to study and receive public input on Title IX’s equal-participation requirements and to make recommendations as to whether they should be revised. From the outset, the focus of the Commission was on Title IX’s effect on men’s opportunities, reflecting the administration’s receptiveness to critics’ claim that the law had “unintended consequences” that hurt men’s sports. The Commission’s charge was to explore how the law worked for both men and women, instead of focusing on how it worked for women, still the underrepresented sex, and the questions posed by the Commission at the public hearings reflected the views of those who blamed Title IX for hurting men’s sports. The composition of the fifteen-member Commission also reflected this agenda; it was dominated by representatives of Division I-A “big-time” football schools and included no representatives of elementary and secondary sports programs. Advocates on both sides mobilized and filled witness chairs at the five “town hall meetings” held by the Commission. By early 2003, the Commission was ready to issue its report, having completed a truncated process that pushed for unanimity in its recommendations. However, the Commission could not achieve unanimity: two members, Donna de Varona and Julie Foudy, both Olympic gold medalists with affiliaConclusion

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tions to the Women’s Sports Foundation, released a minority report—which the Commission refused to include in its final report to the Secretary—that was highly critical of many of the Commission’s recommendations.14 The minority report was instrumental in framing the debate over the implications of the recommendations. For several months in 2003, the future of Title IX looked uncertain. Many of the Commission’s recommendations would have greatly weakened Title IX. The Commission urged the Department of Education to reconsider a number of its positions, including recommending that the Department: allow more room for privately donated funds to support particular sports; loosen the three-part test’s substantial-proportionality prong to allow “a reasonable variance” in men’s and women’s participation; count “planned” slots rather than actual participation on teams for purposes of counting athletes; exclude walk-on athletes from the participation count under the three-part test; permit colleges and universities to demonstrate compliance by mirroring male/ female participation rates at other levels of sport, such as high school and youth leagues; exempt nontraditional students (typically older women) from enrollment figures for the purposes of determining substantial proportionality; and—the bombshell—consider adopting other measures of equal participation besides the three-part test.15 The minority report was scathing in its criticism of these recommendations, predicting many lost opportunities for women and a reversal of thirty plus years of progress. It also lambasted the process as having been skewed from the outset in favor of Title IX’s critics.16 In the face of a firestorm of criticism and a strong showing of support for Title IX among political figures and at the grassroots, the Bush administration blinked. Among the many critics of the Commission, NCAA president Myles Brand issued a statement strongly opposing the recommendations.17 The Secretary of Education ultimately declined to adopt any of the Commission’s recommendations and left the existing Title IX regulations and policies intact. This decision was memorialized in a July 2003 OCR Clarification that reaffirmed the validity of the three-part test.18 In a public showdown that pitted critics who depicted male athletes as victims of Title IX against popular support for Title IX, Title IX came out ahead. That is not to say that the backlash has had no impact. On March 17, 2005, the Office for Civil Rights quietly posted on its Web site a “Dear Colleague” letter and an accompanying “Additional Clarification” on the three-part test.19 The new clarification, which was formulated without public hearings, notice, or comment, instructed schools on how to use surveys as a means of complying with part three of the three-part test. It was issued in conjunction with 220

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a “User’s Guide” to help schools develop survey instruments for this purpose. Most significant, it encouraged schools to demonstrate that they were fully and effectively meeting the athletic interests of their female students solely on the basis of survey data from the current student body. If the survey results showed insufficient interest to support additional women’s varsity teams, OCR would presume that the school was in compliance with prong three. This presumption could be overcome only by “direct and very persuasive evidence,” such as the recent elimination of a viable women’s team or a recent and broad-based petition to elevate an existing club sport.20 The clarification went out of its way to reassure schools that they had no obligation to “generate” interest in women’s sports and that an institution could continue to provide more sports opportunities to the overrepresented sex as long as it complied with prong three.21 Finally, OCR advised schools that such a survey could be conducted by e-mail or other easily administered means of mass distribution and that a student’s failure to respond could count as a lack of interest.22 The 2005 Clarification prompted an outpouring of criticism from many quarters. It was widely understood to weaken the three-part test and to undercut the rationale behind the test—that interest is not something static or measurable on paper in a survey. Male students have never had to complete surveys to demonstrate that they are interested enough to deserve new sports. And limiting the pool of students surveyed to existing students greatly affects survey responses. For example, a university that does not offer women’s varsity ice hockey would be unlikely to find survey evidence of enough interest and ability to field a varsity women’s ice hockey team, since women who really wanted to play that sport likely would have selected a different school. Welch Suggs, writing for the Chronicle of Higher Education, called it “an apparent dilution” of the three part test, and noted that “[t]he change removes pressure on colleges to expand their sports programs.”23Advocacy groups like the Women’s Sports Foundation and the National Women’s Law Center condemned the new policy, and many members of Congress urged the administration to retract the new guidance.24 The NCAA went so far as to urge its member schools to ignore the new guidance in evaluating their own Title IX compliance.25 The Bush administration never relented, but the barrage of criticism left the 2005 Policy Clarification with little persuasive force.26 While the 2005 policy clarification marks a notable retrenchment, the biggest story of the backlash is that it did not accomplish more. Despite favorable conditions for rewriting or even jettisoning the three-part test entirely, Conclusion

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the only policy change to emerge was the 2005 Clarification, which has not had as much impact as initially feared. So far, no courts have relied on it to find schools in compliance with the three-part test, and it is unclear whether any school has successfully relied on the model survey from the 2005 Clarification as the sole method of demonstrating compliance with part three of the test.27 Most important, the 2005 retrenchment is likely to be short lived. During the 2008 presidential campaign, Barack Obama criticized OCR’s role in enforcing Title IX under the Bush administration.28 Most bets are that the 2005 Clarification will not survive the Obama administration, or at least that it will not play a significant role in the agency’s enforcement actions.29 Considering the agenda of the backlash and the political climate in which it took root, it is remarkable that the damage to Title IX was not greater. Although the organized opposition was successful in placing its views in major media outlets, it did not succeed in turning back the tide of popular support.30 Public opinion polls continue to show strong support for Title IX. A 2000 Wall Street Journal and NBC news poll found that 79 percent of American adults approved of Title IX, with 76 percent approving of the law even if it required “cutting back on men’s athletics to ensure equivalent athletic opportunities for women.”31 A poll taken three years earlier found that a large majority of those questioned supported equal funding for men’s and women’s college sports.32 More recent polls have shown similarly strong support for Title IX and gender equality in sports. A 2003 poll found that 61 percent of respondents answered “mostly positive” when asked if the overall impact of Title IX has been mostly positive or mostly negative.33 An even more substantial majority supported Title IX in a 2007 poll, with 82 percent saying they “favor” or “strongly favor” Title IX.34 In the 2008 presidential campaign, even the conservative Sarah Palin was quick to jump on the Title IX bandwagon, crediting her experiences as a high school basketball champion with helping develop her leadership skills and labeling herself a product of Title IX.35 That Title IX made it through the first decade of the twenty-first century with so few scars is a tribute to its cultural resonance. It is an iconic law—not perhaps not quite the “third rail” of American politics but—so far, at least—a law that has proven highly resilient to backlash.

Looking to the Future: Losing Ground or Going the Distance? While Title IX has so far escaped the backlash largely intact, further progress toward gender equality in sports has slowed to a trickle in recent years or even stalled entirely. A NCAA report on gender equity released in July 2008 222

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found no movement toward closing the gender gap in expenditures for intercollegiate athletics. In Division I, women’s share of athletic expenditures fell from 37 percent in 2003 to 34 percent in 2006.36 The percentage of recruiting dollars spent on women in Division I athletic programs also decreased during this time period.37 Gaps in participation opportunities have also proven stubborn. The same report found that women’s college athletic participation rates had stayed relatively flat since 2003.38 Although the data are sketchier for secondary school sports, gains at the high school level also appear to be diminishing. While girls’ high school sports participation continues to grow, it is not keeping up with increases in boys’ participation. In 2002, there were 1.15 million more boys than girls participating in high school sports; by 2007, the gap had grown to 1.3 million.39 Progress has been particularly elusive at urban schools: only 45 percent of these girls play sports, while 73 percent of boys who attend urban schools participate in sports.40 Girls’ sports participation is also uneven on a state-bystate basis. Although girls now account for 40 percent of high school athletes nationwide, there are substantial variations in girls’ opportunities by state, with many states doing much worse.41 When states are ranked by their levels of female sports participation, the median state has a seventeen percentage point gap between male and female participation rates.42 Significantly, this state-by-state variation is strongly associated with attitudes about gender and Title IX; in states where public support for Title IX and gender equality are strong, female athletic participation rates are significantly higher.43 Continued progress toward gender equality in sport will likely depend on further strengthening cultural support for women’s sports and on generating public pressure to do more. There are some signs that this is happening, but there is still a long way to go. A study of media coverage of women’s sports found that the quality of reporting on women’s sports had greatly improved from fifteen years ago, with a change in the general tenor of reporting from portraying women in demeaning or trivializing ways to respectfully covering them as serious athletes. However, the quantity of reporting on women’s sports remains low. Reviewing televised sports news on three Los Angeles network affiliates, the study found that coverage of men’s sports exceeded coverage of women’s sports by a 9:1 ratio.44 The economic downturn that began in 2007 is also likely to complicate a renewed agenda for stepped-up Title IX enforcement. As the country’s economy remains weak, financial constraints may lead more schools to make further cuts to sports and make them less likely to add new sports for women. Anticipating such developments, as well as the temptation for schools to Conclusion

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blame Title IX instead of budgets, the NCAA issued a statement urging its member schools to avoid pointing fingers at Title IX when financial pressures force them to cut men’s sports.45 More optimistically (but perhaps not realistically), tightened budgets might lead schools to rethink budget excesses that award multi-million-dollar contracts to football coaches and pay millions more for high-tech stadium renovations that benefit only or disproportionately football programs. However schools choose to respond to the economic crisis, it is sure to influence Title IX compliance choices, possibly for the worse. The most hopeful indicator of a future commitment to Title IX is the changed political environment that accompanied the election, in 2008, of President Barack Obama and of a Congress that is committed to the goals of Title IX. As a candidate, Barack Obama promised to strengthen Title IX enforcement, criticized the Bush administration’s Office for Civil Rights for a weak enforcement record, and voiced support for the High School Sports Information Collection Act.46 If enacted, this Act would put in place a structure for obtaining publicly available data on high school sports that parallels the one now used by colleges under the Equity in Athletics Disclosure Act.47 The proposed High School Act would make public, on a school-by-school and aggregate basis, data on participation rates and expenditures in high school sports. More systematic data on gender disparities in sports at the high school level could galvanize a broad popular movement for stepped-up Title IX enforcement. Having a president who is an avid sports fan, a basketball player, and a devoted father of two young daughters can only help to put the importance of sports for girls before the public eye. With a renewed public commitment to the importance of sports equality for our daughters, Title IX could play an even stronger role in helping to complete the women’s sports revolution.

Title IX’s Legacy as a Law of Many Feminisms Title IX’s success is largely a result of its break from a liberal feminist model of equality and its weaving together of various strands of feminist theory to forge a pragmatic and creative response to gender inequality. In important respects, Title IX departs from the liberal feminist model that has been the centerpiece of other sex discrimination laws. It integrates antisubordination feminism’s focus on empowering women and different voice feminism’s effort to equally value women’s distinctive experiences. This is nowhere more apparent than in the three-part test for equal participation opportunities. 224

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Title IX, and in particular the three-part test, represents more of a patchwork quilt of feminisms than any single, unified theory. Its particular mix is driven more by pragmatism than grand theory, responding to the particularities of the sports setting and the greater creativity made possible by the need to forge a measure of equality in a sex-segregated setting. Because of the particularities of sport, it is an approach not likely to be replicated in other legal settings, where liberalism and gender blindness have more pull. By affirmatively aiming to provide women with more opportunities to play sports, while allowing them to create their own menu of sport offerings instead of foisting on them men’s sport choices, Title IX has catalyzed a women’s sports revolution. The single most important development in the Title IX era has been the massive growth in the sheer numbers of women playing competitive sports. Before Title IX, sport was a mostly male enclave, and the few women who ventured into that domain risked teasing or worse. Sport is now commonplace for girls and women, as reflected in the everincreasing numbers who play. More than 170,000 college women play varsity sports, whereas fewer than 32,000 participated the year Congress passed Title IX, and more than three million high school girls play varsity high school sports, a more than tenfold increase.48 This staggering growth in girls’ and women’s sports participation has reverberated throughout American culture, affecting understandings of gender within and outside sport. A liberal feminist approach to equal participation, favoring individual merit-based team selection for gender-neutral teams, would not have been so far reaching. The three-part test, despite the complications and cynical compliance strategies that have cropped up at times in its application, has been central to Title IX’s success. Other parts of Title IX also reflect a blended model of equality, but with varying degrees of success. The equal-treatment standard comes the closest to liberal feminism, but even it reflects a partial break from that model insofar as it strives for equal treatment across sex-separate programs. In some respects, Title IX’s equal-treatment standards reveal a stronger liberal feminism than other sex discrimination laws. Sex separation has enabled Title IX doctrine to sidestep the thorny intent requirement that has plagued Title VII and constitutional guarantees of equality. In addition, empathy for female athletes has led to an appreciation of the significant and devaluing messages sent by even relatively minor differences in treatment. And Title IX’s broad coverage has ensured that discrimination in school sports does not go unchecked merely because it is privately funded or attributable to an athletic association that does not directly receive public funds. At the same time, Conclusion

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however, the accommodation of gender difference represented by separatesex programming has opened the door to a watered-down version of liberal feminism when it comes to inequality resulting from excesses in men’s highest-status sports. Title IX has not brought women’s sports anywhere near the level of the most-valued men’s sports in terms of treatment and support, nor has it challenged the model of men’s sport built on a hierarchy that rewards elite male athletes with extraordinary perks and privileges. Title IX has been somewhat more successful in its treatment of pregnancy discrimination, an issue which has surfaced more recently within the movement for gender equality in sport. Title IX’s approach to pregnancy melds an accommodation requirement, granting medical leave and reinstatement regardless of how other medical conditions are treated, with an equal-treatment requirement that analogizes pregnancy to other temporary disabilities. It may be too soon to gauge the full impact of this approach, given the relatively recent developments regarding this issue, but it holds promise for ensuring that pregnancy need not mark the end of a student’s athletic career. Title IX’s success in moving beyond expanded access and equal treatment is more mixed. In treating retaliation as a form of sex discrimination, the law has opened up opportunities for challenging unjust privilege and resisting gender hierarchies—a crucial victory for realizing Title IX’s promise. And yet, it remains to be seen how far this protection will extend and whether it will be sufficient to fully protect the challengers who confront gender inequality in this setting. In practice, efforts to resist and dismantle male dominance and privilege in sport have not gained enough support from the law, particularly in the areas of sexual harassment of athletes and the male-dominated structure of sport leadership. In these two areas, Title IX has not departed enough from liberal feminism’s stronghold. Liberal feminism’s insistence on gender neutrality has blocked Title IX from placing any affirmative value on having women in sport leadership positions, and it has overlooked the unequal salaries paid to the coaches of women’s sports and coaches of men’s sports. Moreover, although sexual harassment law is a creature of another feminist model, antisubordination feminism, Title IX’s protection of students and athletes from sexual harassment is much weaker than Title VII’s protection of adult employees in the workplace. Title IX’s application to these areas has fallen far short of what it would take to make sport fully gender inclusive. In addition to these limitations, one final disappointment deserves mention. In the Title IX culture wars, Title IX’s opponents succeeded in framing the issue as men versus women instead of as a rift within men’s sports between the most privileged, most masculine sports and all others.49 For the 226

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most part, the men’s sports that have had their teams cut are the less masculine, more marginalized men’s sports—those that involve less brute force and less contact, such as gymnastics, volleyball, swimming, tennis, and track. Wrestling, the sport that has played the biggest role in leading the backlash against Title IX, is a slightly more complicated case, but it, too, is saddled with a more marginalized masculinity compared to higher-status men’s sports. Although a contact sport to be sure, wrestling has long had a compromised masculine image. Its popularity has been plagued by perceptions of homo-eroticism, fueled by intimate one-on-one contact between scantily clad males.50 While the more marginalized, less masculine men’s sports, such as wrestling, have had some of their teams cut, football—the sport with the most masculine stature—has experienced substantial gains in both the numbers of participants and the size of its budgets.51 After football and men’s basketball take their cut, there is little left in athletic budgets to fund the remaining men’s sports and all women’s sports.52 These two men’s sports sit at the top of a hierarchy that privileges these most masculine men’s sports over all others.53 While defenders of the status quo claim that the revenue-producing capacity of these sports necessitates greater expenditures, this rationale falls far short of justifying the degree of largess lavished on these teams. Most NCAA football and men’s basketball programs spend far more than they bring in.54 Moreover, it is not clear why a sport’s ability to produce revenue should justify such massive expenditures. Sports are presumably first and foremost educational opportunities—at least if we take seriously the nonprofit status of universities and the NCAA—and, when measured by educational criteria, such as graduation rates, women’s sports outperform men’s sports.55 Revenue production is a convenient rationale that masks the underlying value judgment that football and men’s basketball are the most worthy sports, deserving of their place at the top of the hierarchy.56 Both football and men’s basketball are perceived as ultra-masculine sports because of their high levels of contact, emphasis on strength, and explosive bursts of speed. All other sports are left scrambling for leftovers, while football and men’s basketball remain “privileged and untouchable.”57 In 2005– 2006, the average Division I college spent $8,653,600 on its men’s sports program; of that, $7,095,000 was spent on two sports: football and men’s basketball. This amount exceeded by far the entire average Division I budget for women’s sports, which was $4,447,900, and for all other men’s sports combined.58 Because Title IX limits the extent to which schools can cut back on funds and opportunities in women’s athletics, the less-favored, more marConclusion

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ginalized men’s sports feel a substantial pinch. However, rather than aligning with women in challenging the privileges accorded the men’s sports seated at the top of this hierarchy, advocates for these sports have blamed Title IX for their squeeze.59 Title IX’s supporters have not managed to disrupt this alignment, nor have they succeeded in challenging or even illuminating the hierarchy of masculinity within men’s sports.60 In this respect, Title IX has not managed to benefit from the lessons of feminist-inspired literature on masculinities. As Nancy Dowd writes, surveying and synthesizing this literature, “Subordinate or subversive masculinities hold the promise of resistance and new models of collaboration and solidarity, but there is a risk that denial of power will translate into the oppression of others who are situated lower in the hierarchy.”61 In this case, the risk Dowd articulates triumphed over the promise. Title IX has not disrupted the hierarchy in men’s sports that privileges a traditional dominant masculinity over other masculine identities. That the more marginalized male athletes choose to identify and align themselves with the higher status males, instead of with also-marginalized women’s sports, shows the power of what Robert Connell, a leading theorist within the literature on masculinities, calls hegemonic masculinity: the acquiescence of nonconforming males in a system of male power that privileges a dominant form of masculinity over all others, even though it benefits a very small minority of men.62 Advocates of marginalized men’s sports who admit, off the record, that the escalating costs of football and men’s basketball are squeezing out their sports nevertheless choose to blame Title IX publicly and refuse to challenge the hierarchies within men’s sports.63 Any hopes that Title IX would weaken such hierarchies and replace them with a more egalitarian model of sport that prioritizes broad participation and educational values have not been borne out.64 Despite the law’s limitations, its impact on our culture has been immense. Watching more and more girls and women play sports, Americans have developed a deeper appreciation for female athletes. This shift has enabled Title IX’s supporters to fend off a backlash designed to undo the law’s major accomplishments. The three-part test, the source of both Title IX’s biggest impact and the subsequent backlash, would likely never have come into being had it not first developed in an agency interpretation. This beginning allowed it to fly under the radar at first, which would not have been possible if it had originated through federal legislation or regulatory action that required congressional approval. As the three-part test gradually put pressure on schools to expand women’s sports participation and was eventually adopted by courts, support for women’s sports grew, and arguments about 228

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women’s lack of interest in playing looked increasingly farfetched and reactionary. Over time, popular support for the law’s effects grew and cultural norms shifted. By the time the backlash was in full swing, the era of “girl power” had arrived. Title IX had become synonymous with a cool, hip generation of female athletes. Supportive fathers eager to see their girls excel in sports strengthened the law’s resilience.65 As families came to see that they had something at stake in Title IX—ensuring that their daughters had access to the same benefits of sports as their sons—gender equality became less of a zero-sum game. Whenever a feminist strategy gains such a broad groundswell of support, there is the risk of cooptation, the appropriation of that strategy for nonprogressive ends. To be sure, something of that nature has happened here. Women’s mass entry into sport has been exploited to gain new commercial markets, as evident in the power of the Nike campaigns in the 1990s and the cultivation of corporate interests marketing to a new demographic of athletically minded consumers. But this is not necessarily an entirely negative development. Women’s bodies have long been commodified and used to further commercial interests, and at least those idealized bodies have become more muscular and less frail. Moreover, with the forces of capitalism lining up in support, Title IX was better able to withstand the critics’ depiction of male athletes victimized by the law’s preferential treatment of undeserving women. While the new images of toned and muscular female bodies also bring new burdens and demands—especially for women who do not conform to the new ideal and who feel pressure to meet it—they still expand the range of femininity to make room for more powerful and action-oriented female bodies. Thanks to these developments, today’s girls and women have more space to navigate the “paradox” of female athletes: the inconsistency, created by social norms, that stems from being both female and an athlete in a culture that associates sport with masculinity.66 In a recent study that explored how female athletes today negotiate this dilemma, the women interviewed showed a clear understanding that gender roles continue to fuel negative reactions to women in sport—especially when women play “masculine” sports or when they fail to project a sufficiently feminine image. But, at the same time, the female athletes in the study experienced their own identity as athletes as empowering. They relished the strength and capabilities of their bodies and marveled at what they could accomplish. They were not preoccupied with proving their femininity on a daily basis and were critical of women who did so, instead choosing to emphasize their femininity selectively, on their own Conclusion

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terms, and only in specific settings.67 Although gender expectations still constrain how female athleticism is experienced and received, there is greater room today for resisting these norms. By opening doors for women and girls to play sports—doors through which they have entered en masse—Title IX has contributed to the subversion of masculine/feminine dichotomies and the redefinition of gender roles. Images of high-powered female athletes continue to break down lingering associations between femaleness and frailty. Positive experiences in sport put girls and women on a path toward drawing strength from their bodies and finding their voices in public life. While 1970s-style feminism mostly minimized the significance of women’s bodies to having a fulfilling life in favor of an emphasis on the the intellectual capacity of women to compete on men’s terms in jobs, education, and civic life, young women today are more likely to experience physical empowerment in their bodies because of what they can accomplish. For a younger generation of women, in particular—women who have not been eager to identify with an organized feminist movement or to embrace the label “feminist”—equality in sport has transcended that postfeminist apathy. By bringing iconic images of female athletes to a younger audience, Title IX surreptitiously promotes feminist ideas of women’s empowerment. If the slogan for asserting women’s entitlement to compete in the public domain in the 1970s and 1980s was “I am woman; hear me roar,” the Title IX generation has a new variation on that theme: “I am woman, watch me score.”68

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Notes

Introduction 1. “Yale Women Strip to Protest a Lack of Crew’s Showers,” New York Times, March 4, 1976, 65. 2. “Yale’s Women Crew to Get Locker Room,” New York Times, March 11, 1976, 41. 3. See Amanda Roth and Susan A. Basow, “Femininity, Sports, and Feminism: Developing a Theory of Physical Liberation,” Journal of Sport and Social Issues 28 (2004): 2. 4. Title Nine—Women’s Athletic Apparel, Sports Bras, Shoes, and Accessories, “Main Page,” Title Nine, http://www.titlenine.com. 5. Gloria Goodale, “From Title IX to T.V. Heroes; Some in Hollywood See a Link between the 1972 Law That Leveled the Playing Field for Women Athletes and Today’s Kickboxing Actresses,” Christian Science Monitor, August 16, 2002, http://www.csmonitor. com/2002/0816/p13s02-altv.html. 6. One recent exception to this is an issue dedicated to sport in the online journal of the Barnard Center for Research on Women. See “The Cultural Value of Sport: Title IX and Beyond,” in The Scholar and Feminist On-Line 4, no. 3 (2006), http://www.barnard. edu/sfonline/sport/. 7. Susan Bordo, Unbearable Weight: Feminism, Western Culture, and the Body (Berkeley and Los Angeles: University of California Press, 1993), 3–5. 8. Ibid., 5. 9. Ibid., 5–9. 10. In addition to Susan Bordo, another major exception is Elizabeth Grosz, Volatile Bodies: Toward a Corporeal Feminism (Bloomington: Indiana University Press, 1994). 11. Ibid., vii. 12. For an exemplary piece taking this approach, see Reva Siegel, “Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection,” Stanford Law Review 44 (1992): 267–80. 13. Martha Chamallas, Introduction to Feminist Legal Theory, 2d ed. (New York: Aspen, 2003), 118-24. 14. Cf. Grosz, Volatile Bodies, 9. 15. See also ibid., 17; Robin West, “Jurisprudence and Gender,” in Feminist Legal Theory, ed. D. Kelly Weisberg (Philadelphia: Temple University Press, 1993), 75–97. 16. Leslie Heywood, “Immanence, Transcendence, and Immersive Practices: Female Athletes in U.S. Neoliberalism,” in “The Cultural Value of Sport: Title IX and Beyond,” The Scholar and Feminist On-Line, 4, no. 3 (2006): 16–17.

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17. Mary Jo Kane, “Media Coverage of the Post Title IX Female Athlete: A Feminist Analysis of Sport, Gender, and Power,” Duke Journal of Law and Gender Policy 3 (1996): 95–121. 18. Shirley Castelnuovo and Sharon R. Guthrie, Feminism and the Female Body: Liberating the Amazon Within (Boulder, CO: L. Rienner, 1998), 7–47. 19. Ibid. 20. For a classic discussion of female bodily comportment and how it is learned and ingrained at a young age, see Iris Marion Young, On Female Body Experience: “Throwing Like a Girl” and Other Essays (Oxford: Oxford University Press, 2005), 27–45. 21. Bordo, Unbearable Weight, 47, 165. 22. Alexandra Powe Allred, Atta Girl! A Celebration of Women in Sport (Terre Haute, IN: Wish, 2003), 26. 23. Anne Bolin and Jane Granskog, Athletic Intruders: Ethnographic Research on Women, Culture, and Exercise (Albany: State University of New York Press, 2003), 17, 23. 24. Roth and Basow, “Femininity, Sports, and Feminism,” 255–57. 25. Ruth Ference and K. Denise Muth, “Helping Middle School Females Form a Sense of Self through Team Sports and Exercise,” Women in Sport and Physical Activity Journal 13 (2004): 28–34. 26. U.S. Department of Health and Human Services, “Surgeon General’s Report on Physical Activity and Health” (Washington, DC, 1996): 136. See also Lyn Mikel Brown, “When Is a Moral Problem Not a Moral Problem? Morality, Identity, and Female Adolescence” in Making Connections, ed. Carol Gilligan et al. (Cambridge, MA: Harvard University Press, 1990): 88–108. 27. “Surgeon General’s Report,” 85–149. 28. Don Sabo et al., “High School Athletic Participation and Adolescent Suicide,” International Review for the Sociology of Sport 40 (2005): 5–20. 29. Don Sabo and Phil Veliz, Go Out and Play: Youth Sports in America (New York: Women’s Sports Foundation, 2008), 2, 4–5, 75–78, http://www.womenssportsfoundation. org/~/media/Files/Research%20Reports/Go%20Out%20and%20Play%20report%209%20 18%2008.pdf. 30. Betsey Stevenson, “Title IX and the Evolution of High School Sports,” Contemporary Economic Policy 25 (2007): 486, 501–3; Betsey Stevenson, “Beyond the Classroom: Using Title IX to Measure the Return to High School Sports,” forthcoming, Review of Economics and Statistics, http://bpp.wharton.upenn.edu/betseys/papers/TitleIX.pdf. 31. Roth and Basow, “Femininity, Sports and Feminism,” 254. 32. Kathleen E Miller et al., “Athletic Participation and Sexual Behavior in Adolescents: The Different Worlds of Boys and Girls,” Journal of Health and Social Behavior 39 (1998): 111. 33. Natalie Adams and Pamela Bettis, “Commanding the Room in Short Skirts,” Gender and Society 17 (2003): 74–75. 34. Leslie Heywood and Shari L. Dworkin, Built to Win: The Female Athlete as Cultural Icon (Minneapolis: University of Minnesota Press, 2003), 45. 35. Judith Butler, “Athletic Genders: Hyperbolic Instance and/or the Overcoming of Sexual Binarism,” Stanford Humanities Review 6, no. 2 (1998), http://www.stanford.edu/ group/SHR/6-2/html/butler.html. 36. Ibid. 232

| Notes to pp. 4–7

37. Ibid. 38. Heywood and Dworkin, Built to Win, 51. 39. Chamallas, Introduction to Feminist Legal Theory, 23–38. 40. Ibid., 39–44. See also Jennifer Hargreaves, Sporting Females: Critical Issues in the History and Sociology of Women’s Sports (New York: Routledge, 1994), 26–29; Tracy E. Higgins, “Why Feminists Can’t (or Shouldn’t) Be Liberals,” Fordham Law Review 72 (2004): 1629. 41. The most prominent feminist scholar in this camp remains Catharine MacKinnon. See generally Catharine A. MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge, MA: Harvard University Press, 1987). See also Chamallas, Introduction to Feminist Legal Theory, 44–53. 42. Chamallas, Introduction to Feminist Legal Theory, 53–60. 43. See Nancy E. Dowd and Michelle S. Jacobs, eds., Feminist Legal Theory: An AntiEssentialist Reader (New York: New York University Press, 2003), 10–12. 44. An early, influential contribution to this literature is Nancy Levit, “Feminism for Men: Legal Ideology and the Construction of Maleness,” UCLA Law Review 43 (1996): 1037. 45. See, e.g., Nancy Elizabeth Dowd, “Masculinities and Feminist Legal Theory,” Wisconsin Journal of Law, Gender and Society 23 (2008): 201. 46. Deborah Brake, “The Struggle for Sex Equality in Sports and the Theory behind Title IX,” University of Michigan Journal of Law Reform 34 (2000–2001): 13, 92–107.

C ha p t e r 1 1. Jennifer Hargreaves, Sporting Females: Critical Issues in the History and Sociology of Women’s Sports (New York: Routledge Press, 1994), 25–34, 207, 208. 2. Susan Ware, Title IX: A Brief History with Documents (Boston: Bedford/St. Martin’s, 2007), 3–4. 3. Deborah Brake and Elizabeth Catlin, “Path of Most Resistance: The Long Road toward Gender Equity in Intercollegiate Athletics,” Duke Journal of Gender Law and Policy 3 (1996): 54 n.11. See also Karen Blumenthal, Let Me Play:The Story of Title IX: The Law That Changed the Future of Girls in America (New York: Simon and Schuster, 2005), 44. 4. Adam Clymer, “Time Runs Out for Proposed Rights Amendment,” New York Times, July 1, 1982, A12. 5. 20 U.S.C. § 1681. 6. Brake and Catlin, “Path of Most Resistance,”54. 7. Ibid., 54–55. 8. Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 42–43. 9. Prison, like sports, is another setting that presents an exception to the assimilitationist, liberal feminist approach in sex-discrimination law. The separation of women prisoners in separate facilities has also provoked legal struggles over how to define sex equality. See, e.g., Women Prisoners of District of Columbia Dept. of Corrections v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), reversed, 93 F.3d 910 (D.C. Cir. 1996). 10. Ann C. McGinley, “Masculinities at Work,” Oregon Law Review 83 (2004): 349–433. 11. Suggs, A Place on the Team, 54.

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12. The Association for Intercollegiate Athletics for Women (AIAW) was formed in 1971 to represent and coordinate the activities of women’s sports programs at American institutions of higher education. See Ware, Title IX: A Brief History with Documents, 11–12. 13. Suggs, A Place on the Team, 70–71. 14. In 1973, Sports Illustrated addressed the tension between full integration of sports and sex-separate programs with equal opportunities. Bil Gilbert and Nancy Williamson, “Programmed to Be Losers,” Sports Illustrated, June 11, 1973, http://sportsillustrated.cnn. com/vault/article/magazine/MAG1087442/5/index.htm. 15. 39 Fed. Reg.22236 (1974). 16. Brake and Catlin, “Path of Most Resistance,” 55 n.21. 17. Ibid., 55. 18. In a last-ditch effort to block the regulations, the NCAA then sued HEW. The trial court found that the NCAA lacked standing to bring the case but was overruled by the Tenth Circuit. National Collegiate Athletic Ass’n v. Califano, 444 F. Supp. 425 (D.C. Kan. 1978). The Tenth Circuit declined, however, to overrule the district court’s decision not to allow the NCAA to further amend its complaint and there was no further action in the case. 19. 34 C.F.R. § 106.41(a). 20. 34 C.F.R. § 106.41(b). 21. 34 C.F.R. § 106.41(c). 22. 40 Fed. Reg. 24134 (1975). 23. Suggs, A Place on the Team, 48–49. 24. O’Connor v. Board of Educ. of Sch. Dist. No. 23, 645 F.2d 578 (7th Cir. 1981), on remand, 545 F. Supp. 376 (N.D. Ill. 1982). 25. O’Connor, 645 F.2d at 579. 26. Ibid., 581. 27. After the district court granted a preliminary injunction ordering the school district to allow Karen O’Connor to try out for the boys’ team, the Seventh Circuit Court of Appeals granted the school district’s request for a stay of the order pending appeal. Karen O’Connor then sought to vacate the stay by petitioning Justice Stevens, the designated Justice for that circuit. Justice Stevens denied O’Connor’s request, siding with the appellate court and the school district. O’Connor v. Board of Educ. Of Sch. Dist. No. 23, 449 U.S. 1301, 1307-08 (1980). 28. Ibid., 1306. 29. Selena Roberts, “Where the Boys Are, There She Is,” New York Times, July 17, 2005, Week in Review Section, 14. 30. Steve Politi, “LPGA Losing a Player Who Was without Rival,” Star-Ledger (Newark, NJ), May 14, 2008, 39. 31. Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High School Athletic Ass’n., 647 F.2d 651, 657 (6th Cir. 1981). 32. Ibid., 657–58. 33. Ibid., 657. 34. O’Connor, 645 F.2d at 580. 35. O’Connor, 449 U.S. at 1307. 36. Michael A. Messner, “Sports and Male Domination: The Female Athlete as Contested Ideological Terrain,” Sociology of Sport Journal 5(1988): 206. 234

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Notes to pp. 20–26

37. For the court’s decision in the Temple case, see Haffer v. Temple University of the Com. System of Higher Educ., 678 F. Supp. 517 (E.D. Pa. 1987). For an account of the Florida controversy, see Katie Thomas, “Florida Drops Budget Plan that Favored Prep Football,” New York Times, July 16, 2009, B13. 38. See Hargreaves, Sporting Females, 243; see also Mariah Burton Nelson, Are We Winning Yet? (New York: Random House, 1991), 89–90; Nikki Usher, “Girls Feeling Like Washouts on Coed Swimming Teams,” Philadelphia Inquirer, February 11, 2005, D1. 39. See James C. Hannon and Thomas Ratliffe, “Opportunities to Participate and Teacher Interactions in Coed versus Single-Gender Physical Education Settings,” Physical Educator 64, no. 1 (January 1, 2007): 11. 40. Faye Linda Wachs, “‘I Was There . . .’: Gendered Limitations, Expectations, and Strategic Assumptions in the World of Co-ed Softball,” in Athletic Intruders: Ethnographic Research on Women, Culture, and Exercise, ed. Anne Bolin and Jane Granskog (Albany: SUNY Press, 2003), 177. 41. See Barrie Thorne, Gender Play: Girls and Boys in School (New Brunswick, NJ: Rutgers University Press, 1993), 44–45, 83. 42. M. A. Landers and Gary Alan Fine, “Learning Life’s Lessons in Tee Ball: The Reinforcement of Gender and Status in Kindergarten Sport,” Sociology of Sport Journal 13 (1996): 92. 43. Ibid., 90–92. 44. Karen L. Tokarz, “Separate but Unequal Educational Sports Programs: The Need for a New Theory of Equality,” Berkeley Women’s Law Journal 1 (1985): 239. 45. B. Glenn George, “Fifty/Fifty: Ending Sex Segregation in School Sports,” Ohio State Law Journal 63 (2002): 1107, 1163. 46. Mary Jo Kane, “Resistance/Transformation of the Oppositional Binary: Exposing Sport as a Continuum,” Journal of Sport and Social Issues 19(1995): 191–218. 47. Nancy Levit, “Separating Equals: Educational Research and the Longterm Consequences of Sex-Segregation,” George Washington Law Review 67 (1999): 451, 454. See also David S. Cohen, “No Boy Left Behind? Single-Sex Education and the Essentialist Myth of Masculinity,” Indiana Law Journal 84 (2009): 135. 48. Hollander v. Conn. Interscholastic Athletic Conference, Inc., Civ. No. 12-49-27 (Conn. Super. Ct. Mar. 29, 1971), 48; Note, “Sex Discrimination and Intercollegiate Athletics: Putting Some Muscle on Title IX,” Yale Law Journal 88 (1979): 1268 n.110. 49. Ibid. 50. Ibid. 51. There are many examples of female athletes who have succeeded in coed competition, only to have the rules changed so that women were barred from competing, revealing the depth of cultural anxiety that is stirred up when top male athletes lose to women. See Alexandra Powe Allred, Atta Girl! A Celebration of Women in Sport (Terre Haute: Wish, 2003), 150. 52. Sarah K. Fields, Female Gladiators: Gender, Law, and Contact Sport in America (Chicago: University of Illinois Press, 2005), 17. 53. Ibid., 85–98, 188 n. 1; see also Anne Brus and Else Trangbaek, “Asserting the Right to Play—Women’s Football in Denmark,” Soccer and Society 4 (2003): 95–111. 54. Fields, Female Gladiators, 19. 55. Ibid.

Notes to pp. 27–30

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56. Ibid., 20. 57. Magill v. Avonworth Baseball Conference, 364 F. Supp. 1212 (W.D. Pa. 1973). 58. Ibid., 1216. See also Fields, Female Gladiators, 22. 59. See, for example, Fortin v. Darlington Little League, Inc., 514 F.2d 344, 347-48, 351 (1st Cir. 1975). 60. National Organization for Women v. Little League Baseball, Inc., 318 A.2d 33 (N.J. Super. 1974). 61. Fields, Female Gladiators, 25. 62. “Female Ace: I Don’t Play Softball: California High School Pitcher Changing Some Minds About Girls and Sports,” CBS Evening News, http://www.cbsnews.com/stories/ 2009/05/05/eveningnews/main4993919.shtml. 63. Fields, Female Gladiators, 56–57. 64. Cape v. Tennessee Secondary School Athletic Ass’n, 563 F.2d 793 (6th Cir. 1977). 65. Dodson v. Arkansas Activities Association, 468 F. Supp. 394 (E.D. Ark. 1979). 66. In addition to Cape v. TSSAA, see Jones v. Oklahoma Secondary School Activities Association, 453 F. Supp. 150 (W.D. Okla. 1977). 67. Fields, Female Gladiators, 66. 68. Eileen McDonagh and Laura Pappano, Playing with the Boys: Why Separate Is Not Equal in Sports, (New York: Oxford University Press, 2008), 11. 69. Fields, Female Gladiators, 2. 70. Ibid., 114. 71. See Linda Shaw, “Parents Taking Issue with Forfeits When Boys Don’t Join Girls on Mat,” Seattle Times, May 7, 2005, A1. 72. McDonagh and Pappano, Playing with the Boys, x–xi. 73. Ibid., 7. 74. Ibid, 56. 75. Hargreaves, Sporting Females, 284-88. 76. McDonagh and Pappano, Playing with the Boys, 39–75. See also Katherine M. Franke, “The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender,” University of Pennsylvania Law Review 144 (1995): 37–38, 218–19 n.114. 77. Paul Willis, “Women in Sport in Ideology,” in Women, Sport, and Culture, ed. Susan Birrell and Cheryl L. Cole (Champaign, IL: Human Kinetics, 1990), 44. 78. Leslie Heywood and Shari L. Dworkin, Built to Win: The Female Athlete as Cultural Icon (Minneapolis: University of Minnesota Press, 2003), 117–125. 79. Ibid., 122. 80. David Whitson, “The Embodiment of Gender: Discipline, Domination and Empowerment,” in Women, Sport, and Culture, ed. Susan Birrell and Cheryl L. Cole (Champaign, IL: Human Kinetics, 1990), 363. 81. McDonagh and Pappano, Playing with the Boys, 24–28. 82. Robert C. Post, “Prejudicial Appearances: The Logic of American Antidiscrimination Law,” in Prejudicial Appearances: The Logic of American Antidiscrimination Law, ed. Robert C. Post et al. (Durham: Duke University Press, 2001), 1–53. See also Andrew Koppelman, Antidiscrimination Law and Social Equality (New Haven: Yale University Press, 1996).

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Notes to pp. 30–38

C ha p t e r 2 1. Barnett v. Texas Wrestling Assoc., 16 F. Supp. 2d 690 (N.D. Texas 1998). See also Adams v. Baker, 919 F. Supp. 1496, 1504-05 (D. Kan. 1996). 2. See, e.g., Stan Grossfeld, “Burch’s Challenge: Get Up off the Mat—Wrestling Coach Looks to Win in Court,” Boston Globe, August 24, 2006, C1. 3. 34 C.F.R. § 106.41(b). 4. U.S. Department of Health, Education, and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71414 (December 11, 1979). See also David S. Cohen, “Title IX: Beyond Equal Protection,” Harvard Journal of Law and Gender 28 (2005): 217, 263. 5. See Mark Hyman, “Challenges for Girls Playing High School Baseball,” New York Times, March 1, 2009, Sports section, 11. 6. Ibid. 7. See, e.g. Williams v. Sch. Dist. of Bethlehem, Pennsylvania, 998 F.2d 168, 175 (3d Cir. 1993). 8. For example, at one time, the Ohio High School Athletic Association rules included baseball on a list of contact sports for which girls were barred from playing on boys’ teams. Baseball was dropped from the list when the rule was revised in 1976 in response to concerns about complying with Title IX. Yellow Springs v. Ohio High School Athletic Ass’n, 647 F.2d 651, 654 (6th Cir. 1981). 9. Fortin v. Darlington Little League, Inc., 514 F.2d 344, 350-51 (1st Cir. 1975). 10. See Hyman, “Challenges for Girls Playing High School Baseball.” 11. State v. Hunter, 300 P.2d 455, 458 (Or. 1956). 12. Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth Century Women’s Sport (New York: Free Press, 1994), 224–45. 13. Barnett v. Texas Wrestling Association, 16 F. Supp. 2d 690 (N.D. Tex. 1998). 14. See, e.g., Suzanne Sangree, “Title IX and the Contact Sports Exemption: Gender Stereotypes in a Civil Rights Statute,” Connecticut Law Review 32 (2000): 381, 394–97. 15. Richard Rubin, “Female Placekicker Files State Suit Against Duke, Goldsmith,” The Chronicle (Duke), January 13, 1999, 3. 16. Mercer v. Duke Univ., 190 F.3d 643 (4th Cir. 1999). 17. Mercer v. Duke Univ., 2002 U.S. App. LEXIS 23610, 4 (4th Cir. 2002). In rejecting the availability of punitive damages under Title IX, the court relied on a decision by the U.S. Supreme Court finding that punitive damages are not available under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act—a conclusion it reached after determining that punitive damages are unavailable under Title VI of the Civil Rights Act of 1964. Barnes v. Gorman, 536 U.S. 181 (2002). Because Title IX, like Section 504, was also patterned after Title VI, the Fourth Circuit concluded that it too does not allow for punitive damages in a private right of action. No other circuit courts have yet considered the availability of punitive damages under Title IX in light of the Barnes decision. 18. Mercer v. Duke Univ., 301 F. Supp. 2d 454 (M.D.N.C. 2004), affirmed, 401 F.3d 199 (4th Cir. 2005). 19. For a recent instance of a female football player who succeeded in getting reinstated to a high school football team after the Mercer ruling, see Kathy Jefcoats, “Controversy Dogs Girl Kicker,” Atlanta Journal-Constitution, October 21, 2008, 4B; Nancy Badertscher,

Notes to pp. 41–47

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“Female Football Kicker Allowed to Play with Team,” Atlanta-Journal Constitution, October 20, 2008, 8D; Kathy Jefcoats, “Football Player Off Team—For Being Girl,” Atlanta Journal-Constitution, August 30, 2008, 1B. 20. The National Federation of State High School Associations (NFSHSA) reported that 1,329 girls played high school football in 2007. NFSHSA, “2007–2008 High School Athletics Participation Survey,” http://www.nfhs.org/core/contentmanager/ uploads/2007-08%20Participation%20Survey.pdf. For a discussion of women playing college football, see Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 138. 21. U.S. Department of Health, Education and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71414 (December 11, 1979). 22. Nick Walker, “Organizers: Girls Won’t Be Denied Wrestling Opportunities,” Arkansas Democrat-Gazette (Little Rock), September 28, 2006, Sports section. 23. NFSHSA reported that a total of 265,215 high school-aged students participated in wrestling in 2007–2008; of that total, 259,688 (approximately 98 percent) were male and 5,527 (approximately 2 percent) were female. NFSHSA, “2007–2008 High School Athletics Participation Survey.” 24. While women are still a small minority of high school football players, their participation in the game has increased markedly since Title IX’s enactment. For example, the number of female high school football players on eleven-player teams has increased from only 44 women nationwide in 1987, to 334 in 1994, to 1,225 in 2007–2008. Similar increases can be seen in ice hockey, where the number of female participants has jumped from 95 women in 1987 to 8,621 women in 2007–2008. NFSHSAA, “2007–2008 High School Athletics Participation Survey.” 25. Haas v. South Bend Community Sch. Corp., 289 N.E.2d 495, 501 (Ind. 1972). 26. Morris v. Michigan State Bd. of Educ., 472 F.2d 1207, 1209 (6th Cir. 1973). 27. See, e.g., Gilpin v. Kansas State High School Activities Ass’n., 377 F. Supp. 1233 (D. Kan. 1973); Reed v. The Nebraska School Activities Ass’n, 341 F. Supp. 258 (D. Neb. 1972). 28. Carnes v. Tenn. Secondary Sch. Athletic Ass’n, 415 F. Supp. 569, 572 (E.D. Tenn. 1976). 29. Morris v. Michigan State Bd. of Educ., 472 F.2d 1207 (6th Cir. 1973). 30. See, e.g., Brenden v. Indep. Sch. Dist., 477 F.2d 1292 (8th Cir. 1973). 31. Clinton v. Nagy, 411 F. Supp. 1396, 1400 (N.D. Ohio 1974). 32. Ibid., 1400. 33. Darrin v. Gould, 540 P.2d 882, 893 (Wash. 1975). 34. Packel v. Pennsylvania Interscholastic Athletic Ass’n, 334 A.2d 839, 843 (Pa. Commw. Ct. 1975). 35. Opinion of the Justices to the House of Representatives, 371 N.E.2d 426, 429-30 (Mass. 1977); Opinion of the Justices to the Senate, 366 N.E.2d 733, 736 (Mass. 1977). The Massachusetts Equal Rights Amendment was applied more recently to grant a female golfer the opportunity to compete in the state’s individual fall golf championship tournament, an event that had been limited to boys. Thomka v. Massachusetts Interscholastic Athletic Assoc., Inc., 22 Mass. L. Rep. 263; 2007 Mass. Super. LEXIS 83 (Mass. Super. Ct. 2007). 36. See Leffel v. Wisconsin Interscholastic Ass’n, 444 F. Supp. 1117, 1122-23 (E.D. Wis. 1978); Hoover v. Meiklejohn, 430 F. Supp. 164, 169-70, 172 (D. Colo. 1977).

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| Notes to pp. 47–49

37. See Lantz v. Ambach, 620 F. Supp. 663, 666 (S.D.N.Y. 1985). See also Force v. Pierce City of R-VI Sch. Dist., 570 F. Supp. 1020 (W.D. Mo. 1983). 38. See, e.g., Hoover v. Meilkejohn, 430 F. Supp. 164, 170 (D. Colo. 1977); Leffel v. Wisconsin Interscholastic Athletic Ass’n, 444 F. Supp. 1117, 1122 (E.D. Wis. 1978). 39. Lantz, 620 F. Supp. at 665-66. 40. David Whitson, “Sport in the Social Construction of Masculinity,” in Sport, Men and the Gender Order: Critical Feminist Perspectives, ed. Michael A. Messner and Donald F. Sabo (Champaign, IL: Human Kinetics Books, 1990), 19, 25–26. 41. O’Connor, 545 F. Supp. at 381-83. 42. Ibid., 379 n.4. 43. Yellow Springs Exempted Village Sch. Dist. Bd. of Educ. v. Ohio High Sch. Athletic Ass’n, 647 F.2d 651, 652 (6th Cir. 1981). 44. Ibid., 652, 656-58. 45. Leffel, 444 F. Supp. at 1122. 46. Hoover, 430 F. Supp. at 172; Packel, 334 A.2d at 842-43. 47. Yellow Springs, 647 F.2d at 658 (Jones, J., dissenting). 48. Ibid., 664-67. 49. Ibid., 665. 50. Ibid., 667. 51. National Coalition for Women and Girls in Education (NCWGE), “Title IX Athletics Policies: Issues and Data for Decision Makers,” May 10, 2007, http://www.ncwge.org/ PDF/TitleIXReport-5-10-07.pdf. 52. Elizabeth Weil, “Scary, Isn’t She?,” New York Times, September 14, 2008, Magazine, 58; Tom Hallman, Jr., “Now It’s Nothing but Net,” Oregonian (Portland), September 13, 2008, B1. 53. Hallman, “Now It’s Nothing but Net.” 54. Laura Onstat, “Shoulder Pads, Pom-Poms, and the Angry Inch: Washington’s High School Sports Regulators Find Themselves in a Transgender Bind,” Seattle Weekly, October 17, 2007; “NCAA to Address Transgender Issue,” Women in Higher Education 16, no. 1 (2007): 5. 55. Whitson, Sport in the Social Construction of Masculinity, 27. 56. 34 C.F.R. § 106.41(b). 57. See, e.g., Williams v. Sch. Dist. of Bethlehem, Pennsylvania, 998 F.2d 168, 175 (3d Cir. 1993); Mularadelis v. Haldane Central Sch. Bd., 74 A.D.2d 248, 256-57 (N.Y. App. Div. 1980); Gil v. New Hampshire Interscholastic Athletic Ass’n, No. 85-E-646, slip op., 31-32 (N.H. Super. Ct. Nov. 8, 1985) (unpublished opinion). The only decision to resolve this issue differently was a district court decision that granted a preliminary injunction under Title IX permitting a male student to compete on a girls’ volleyball team on the ground that males had limited opportunities in the sport of volleyball. Gomes v. Rhode Island Interscholastic League, 469 F. Supp. 659 (D.R.I. 1979). However, the decision was vacated on appeal as moot because the plaintiff had graduated, and the court’s brief discussion of the lower court ruling suggests this reasoning would have been unlikely to prevail on the merits. Gomes, 604 F.2d 733, 735 n.3 (1st Cir. 1979). 58. Williams, 998 F.2d at 175. 59. Kleczek v. Rhode Island Interscholastic League, 612 A.2d 734, 735-39 (R.I. 1992).

Notes to pp. 49–58

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60. See, e.g., B.C. v. Board of Educ., Cumberland Reg. Sch. Dist., 531 A.2d 1059, 1065 (N.J. Super. 1987); Petrie v. Illinois High School Ass’n, 394 N.E.2d 855, 862 (Ill. App. Ct. 1979); Mularadelis v. Haldane Central Sch. Bd., 74 A.D.2d 248, 253-56 (N.Y. App. Div. 1980); Clark v. Arizona Interscholastic Ass’n, 695 F.2d 1126, 1131 (Ariz. 1982); Maine Human Rights Comm’n v. Me. Principal’s Ass’n, No. CV-97-599, 1999 Me. Super. LEXIS 23, 12-13 (Me. Super. Jan. 21, 1999); Forte v. Board of Educ., N. Babylon Union Free Sch. Dist., 105 Misc. 2d 36, 39-40 (N.Y. Sup. Ct. 1980); see also Bukowski v. Wisconsin Interscholastic Athletic Ass’n, 2006 Wisc. App. LEXIS 1126 (2006). 61. Attorney General v. Mass. Interscholastic Athletic Ass’n, Inc., 393 N.E.2d 284, 285 (Mass. 1979). 62. Ibid., 285-87, 291, 293, 295. 63. See Mike White, “Gender Issue Rekindled in School Sports,” Pittsburgh Post-Gazette, April 21, 2006, A1; Lini S. Kadaba and Kathleen Brady Shea, “Worries Arise over Safety, Equity; Boys on Girls’ Teams Drive Gender Debate,” Philadelphia Inquirer, October 21, 2005, A1. 64. See Keith Barnes, “A Boy in a Girls’ World,” Tribune-Review (Greensburg, PA), September 18, 2005, Sports section; see also Judith Evans, “An Equal Opportunity Athlete: School without Walls Has Only Girls’ Lacrosse, So What’s a Boy to Do?,” Washington Post, April 29, 2003, D1. 65. Fellicia Smith, “Equal but Separate Rensselaer Girl’s Soccer Team Sports a Boy Starting in Goal,” Albany Times Union, October 15, 2004, C1. 66. Evans, “An Equal Opportunity Athlete.” 67. Kadaba and Shea, “Worries Arise over Safety, Equity.” 68. Marie Hardin and Jennifer D. Greer, “The Influence of Gender-Socialization, Media Use and Sports Participation on Perceptions of Gender-Appropriate Sports,” Journal of Sport Behavior 32, no. 2 (June 1, 2009): 207; Sally R. Ross and Kimberly J. Shinew, “Perspectives of Women College Athletes on Sport and Gender,” Sex Roles 58 (2008): 40, 44–45, 47–49. 69. Ross and Shinew, “Perspectives of Women College Athletes on Sport and Gender,” 44–45. 70. Williams, 998 F.2d at 174. 71. A similar concern recently prompted the NCAA to vote to restrict the use of male practice players in women’s Division III practice sessions. The new restrictions limit the use of men in women’s practices to one practice to week, and the number of men used in practices must be less than half the number of the women’s starting squad. See Title IX Blog, “NCAA Division III Puts Some Limits on Coaches’ Use of Male Practice Players,” January 16, 2008, http://title-ix.blogspot.com/2008/01/ncaa-division-iii-puts-some-limitson.html. 72. Barnes, “A Boy in a Girls’ World.” 73. Adam Darowski, “For Kenny, Who Wanted to Play Women’s Field Hockey,” Duke Journal Gender Law and Policy 12 (2005): 153, 156. 74. Ibid. 75. Barnes, “A Boy in a Girls’ World”; Evans, “An Equal Opportunity Athlete.” 76. Cf. Hardin and Greer, “The Influence of Gender-Socialization, Media Use and Sports Participation on Perceptions of Gender-Appropriate Sports.” 77. Ibid., 155. 240

| Notes to pp. 58–61

78. Cahn, Coming on Strong, 97. 79. For another example of how gender ideology and culture combine to construct a gender association for a sport, see Illse Hartmann-Tews and Gertrud Pfister, Sport and Women: Social Issues in International Perspective (New York: Routledge, 2003), 273. 80. Darowski, “For Kenny, Who Wanted to Play Women’s Field Hockey,” 155–56. 81. Bruce Kidd, “The Men’s Cultural Centre: Sports and the Dynamic of Women’s Oppression/Men’s Repression,” in Sport, Men and the Gender Order, ed. Michael A. Messner and Donald F. Sabo (Champaign, IL: Human Kinetics Books, 1990), 31, 39. 82. For example, female athletes who play “feminine” sports are perceived as more attractive than female athletes who play “masculine” sports—even when the exact same photos are shown, with the only difference being the identification of the sport played. Female athletes who play feminine sports are also more popular with their peers. Ross and Shinew, “Perspectives of Women College Athletes on Sport and Gender,” 44. See also Hardin and Greer, “The Influence of Gender-Socialization, Media Use and Sports Participation on Perceptions of Gender-Appropriate Sports.” 83. Ibid. 84. Barnes, “A Boy in a Girls’ World.” Data from the National Federation of State High School Associations for 2007–2008 suggests that traditional “girls” sports have seen limited participation by males, especially when compared to the number of females who participate in those sports. For example, field hockey, traditionally a female sport in the United States, had almost 62,557 girls participating in high school in the 2007–2008 academic year, while only 408 boys took part. Fast-pitch softball had 371,293 female participants that year but just 1,335 boys. Boys have made greater inroads in volleyball, with 46,780 boys participating (most on their own teams); still, female participation is nearly ten times as great, at just under 400,000. NFSHSA, “2007–2008 High School Athletics Participation Survey.” 85. Evans, “An Equal Opportunity.”

C ha p t e r 3 1. The National Federation of State High School Associations reported that 3,057,266 girls played high school varsity sports in 2007–2008. NFSHSA, “2007–2008 High School Athletics Participation Survey,” http://www.nfhs.org/core/contentmanager/ uploads/2007-08%20Participation%20Survey.pdf. 2. See Bill Pennington, “Title IX Trickles Down to Girls of Generation Z,” New York Times, June 29, 2004, D1; Betsey Stevenson, “Title IX and the Evolution of High School Sports,” Contemporary Economic Policy 25 (2007): 486, 487. 3. U.S. Department of Health, Education and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,419 (December 11, 1979). 4. John Cheslock, Who’s Playing College Sports? Trends in Participation (New York: Women’s Sports Foundation, June 5, 2007), http://www.womenssportsfoundation.org/~/ media/Files/Research%20Reports/Whos%20Playing%20College%20Sports/fullreport.pdf. 5. See Stevenson, “Title IX and the Evolution of High School Sports,” 489–91. 6. 34 C.F.R. § 106.41(c)(1). 7. Policy Interpretation, 44 Fed. Reg. at 71,418.

Notes to pp. 61–69

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8. See Brust v. Regents of the Univ. of Cal., 2007 U.S. Dist. LEXIS 91303 (E.D. Cal. 2007); Ollier v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264 (S.D. Cal. 2009). See also Katie Thomas, “Title IX Ruling in California Could Lead to Stricter Standards,” New York Times, June 19, 2009, B15. 9. 163 U.S. 537 (1896). 10. 347 U.S. 483 (1954). 11. 465 U.S. 555 (1984). 12. The one exception was for compliance in the area of athletic scholarships, if such scholarships were administered by a financial aid office that also administered federal financial aid. In that case, the “program” could be viewed as the financial aid office, and all of the aid that it awarded, including athletic scholarships, would have to comply with Title IX. See Haffer v. Temple Univ., 688 F.2d 14, 16 (3d Cir. 1982). In practice, however, Title IX compliance ground to a halt during this period. The Office for Civil Rights pulled back from the nearly forty investigations into athletics discrimination it had begun prior to the Court’s decision. See Deborah Brake and Elizabeth Catlin, “The Path of Most Resistance: The Long Road towards Gender Equity in Intercollegiate Athletics,” Duke Journal of Gender Law and Policy 3 (Spring 2006): 58. 13. Brake and Catlin, “Path of Most Resistance,” 59–60 n.60. 14. The Act defines the terms “program or activity” to include “all operations of an [institution] . . . any part of which is extended Federal financial assistance.” 20 U.S.C. § 1687. 15. See Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 87. 16. 503 U.S. 60 (1992). 17. Getting a lawsuit certified as a class action can avoid the problem of mootness, but that creates its own problems and complications and is a more costly way of proceeding. Once the leading plaintiff ’s claims are moot, the class lawyers must find a replacement willing to step forward to be a named plaintiff—not an easy role for high school and college-age women. There are also extra costs in getting the class certified, notifying class members, and addressing conflicts among class members arising at the remedial stage of the case. 18. See Kristen Cole, “For a Decade, Brown’s Title IX News Has Followed Amy Cohen ’92,” George Street Journal, May 24, 2002, http://www.brown.edu/Administration/George_ Street_Journal/vol26/26GSJ28l.html; Robert Lipsyte, “That Little Sister Keeps Getting Bigger,” New York Times, December 15, 1996, Sports section, 7. 19. “License to Thrive: Stories: ‘Happy Anniversary Title IX,’” http://licensetothrive.org/ story/detail/id/102. 20. Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992), aff ’d, 991 F.2d 888 (1st Cir. 1993), remanded to, 879 F. Supp. 185 (D.R.I. 1995), aff ’d in part and rev’d in part, 101 F.3d 155 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997). 21. See, e.g., Roberts v. Colorado State Univ., 814 F. Supp. 1507 (D. Colo. 1993), aff ’d, 998 F.2d 824 (10th Cir.), cert. denied, 510 U.S. 1004 (1993); Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1992), motion to modify denied, 7 F.3d 332 (3d Cir. 1993). 22. Lynnette Labinger, “Title IX and Athletics: A Discussion of Brown University v. Cohen by Plaintiffs’ Counsel,” Women’s Rights Law Reporter 20 (1998): 85, 89.

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23. John C. Weistart, “Can Gender Equality Find a Place in Commercialized College Sport?,” Duke Journal of Gender Law and Policy 3 (1996): 191, 220. 24. Labinger, “Title IX and Athletics,” 95. 25. 101 F.3d at 163. 26. 809 F. Supp. at 991. 27. 101 F.3d at 164. 28. Ibid., 167 (citing 879 F. Supp. at 203 n.36). 29. Labinger, “Title IX and Athletics,” 89. 30. 879 F. Supp. at 207, aff ’d, 101 F.3d 166. 31. Ibid., 190. 32. 101 F.3d at 179-80. 33. 879 F. Supp. at 206-207. 34. 101 F.3d at 169. 35. See, e.g., Roberts v. Colorado State Univ., 814 F. Supp. 1507 (D. Colo. 1993), aff ’d, 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004 (1993); Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1992), motion to modify denied, 7 F.3d 332 (3d Cir. 1993); Horner v. Kentucky High School Athletic Ass’n, 43 F.3d 265 (6th Cir. 1994). 36. Pederson v. Louisiana State Univ., 213 F.3d 858, 878 (5th Cir. 2000). 37. See e.g., Roberts v. Colorado State Univ., 814 F. Supp. 1507 (D. Colo. 1993), aff ’d, 998 F.2d 824 (10th Cir.), cert. denied, 510 U.S. 1004 (1993); Favia v. Indiana Univ. of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1992), motion to modify denied, 7 F.3d 332 (3d Cir. 1993). For more recent cases using the three-part test to block cuts to women’s varsity teams, see Biediger v. Quinnipiac Univ., 2009 U.S. Dist. LEXIS 45831 (D. Conn. May 22, 2009); Choike v. Slippery Rock Univ., 2006 U.S. Dist. LEXIS 49886 (W.D. Pa. July 21, 2006); Barrett v. W. Chester Univ. of Pa. of the State Sys. of Higher Educ., 2003 U.S. Dist. LEXIS 21095 (E.D. Pa. Nov. 12, 2003). Cf. Miller v. Univ. of Cincinnati, 2008 U.S. Dist. LEXIS 4339 (S.D. Ohio 2008). 38. In addition to the LSU case discussed in this chapter, see Brust v. Regents of the Univ. of Cal., 2007 U.S. Dist. LEXIS 91303 (E.D. Cal. 2007); Boucher v. Syracuse Univ., 164 F.3d 113 (2d Cir. 1999); Cook v. Colgate Univ., 992 F.2d 17 (2d Cir. N.Y. 1993); see also Katie Thomas, “Title IX Ruling in California Could Lead to Stricter Standards,” New York Times, June 19, 2009, B15; Mike McAndrew, “From a Lawsuit, A Team Grew; Colgate’s First Recruited Female Hockey Players Hit the Ice This Season,” Post-Standard (Syracuse, NY), November 12, 1998, D4. 39. Pederson v. Louisiana State Univ., 213 F.3d 858, 878 (5th Cir. 2000). 40. Horner v. Kentucky High School Athletic Ass’n, 43 F.3d 265 (6th Cir. 1994). 41. Horner v. Kentucky High School Athletic Ass’n, 206 F.3d 685 (6th Cir. 2000). 42. Policy Interpretation, 44 Fed. Reg. 71,413. 43. For more recent cases in which the three-part test was applied to high school sports, see Ollier v. Sweetwater Union High Sch. Dist., 604 F. Supp. 2d 1264 (S.D. Cal. 2009); Wieker v. Mesa County Valley Sch. Dist. # 51, 2007 U.S. Dist. LEXIS 11956 (D. Colo. Feb. 21, 2007). 44. Secretary of Education Margaret Spellings, letter to Steven Geoffrey Gieseler, Pacific Legal Foundation, March 27, 2008 (on file with author). 45. Diane Heckman, “On the Eve of Title IX’s 25th Anniversary: Sex Discrimination in the Gym and Classroom,” Nova Law Review 21 (1997): 545, 587 n.240. 46. NFSHSA, 2007–2008 High School Athletics Participation Survey.

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47. Stevenson, “Title IX and the Evolution of High School Sports,” 503. 48. Gonyo v. Drake Univ., 879 F. Supp. 1000 (S.D. Iowa 1995). 49. Ibid., 1005, n.5. 50. Ibid., 1003. 51. Cf. Boulahanis v. Board of Regents, 198 F.3d 633, 642 (J. Harlington Wood Jr., concurring) (7th Cir. 1999) (offering a similar suggestion in another case where male athletes unsuccessfully sued for reverse discrimination when their teams were cut). 52. The cases decided along the lines described here include Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608 (6th Cir. 2002); Boulahanis v. Board of Regents, Ill. State Univ., 198 F.3d 633 (7th Cir. 1999); Kelley v. Board of Trustees, Univ. of Ill., 35 F.3d 265 (7th Cir. 1994); Chalenor v. Univ. of N. Dakota, 291 F.3d 1042 (8th Cir. 2002); Neal v. Board of Trustees of the Cal. State Univ., 198 F.3d 763 (9th Cir. 1999); Harper v. Board of Regents, Ill. State Univ., 35 F. Supp. 2d 1118 (C.D. Ill. 1999). 53. See, e.g., Kelley v. Board of Trustees of Univ. of Ill., 35 F.3d 265, 272 (7th Cir. 1994); see also Harper v. Board of Regents, Ill. State Univ., 35 F. Supp. 2d 1118, 1123 (C.D. Ill. 1999). 54. See, e.g., Boulahanis, 198 F.3d at 639. 55. Neal v. Board of Trustees of the Cal. State Univ., 198 F.3d 763 (9th Cir. 1999). 56. Ibid., 769. 57. Ibid., 768 n.4. 58. National Wrestling Coaches Assoc. et al. v. U.S. Dept. of Educ., 263 F. Supp. 2d 82 (D.D.C. 2003), affirmed, 366 F.3d 930 (D.C. Cir. 2004), denying rehearing and rehearing en banc, 383 F.3d 1047 (D.C. Cir. 2004), cert. denied, 504 U.S. 1104 (2005); Equity in Athletics, Inc. v. Department of Education, 504 F. Supp. 2d 88 (W.D. Va. 2007), affirmed, 291 Fed. Appx. 517, 2008 U.S. App. LEXIS 45831 (4th Cir. 2008), cert. denied, 129 S. Ct. 1613 (2009). 59. See Leilana McKindra, “Latest Gender-Equity Report Shows Spending Gaps Persist,” NCAA News, October 30, 2008, http://www.ncaa.org/wps/ncaa?key=/ncaa/ncaa/ ncaa+news/ncaa+news+online/2008/assocation-wide/latest+gender-equity+report+show s+spending+gaps+persist+-+10-30-08+-+ncaa+news; Doug Lederman, “Backsliding for Women’s Sports,” News, Inside Higher Education, October 31, 2008, http://www.insidehighered.com/news/2008/10/31/women. 60. 2005–2006 NCAA Gender-Equity Report, Executive Summary (July 2008). The percentage of recruiting funds spent on women athletes at NCAA schools breaks down as follows: Division I FBS (Football Bowl Subdivision, formerly Division I-A): 29 percent; Division I FCS (Football Championship Subdivision, formerly Division I-AA): 33 percent; Division I No FB (schools with no football program, formerly Division I-AAA): 43 percent; Division II: 36 percent ; Division III: 35 percent . The NCAA Division I subdivisions were renamed in 2006. 61. Linda Jean Carpenter and R. Vivian Acosta, Title IX (Champaign, IL: Human Kinetics, 2005), 176. 62. For citations to some of the literature discussing sport’s connections to masculinity and its introduction in schools for the purpose of reinvigorating masculinity in boys, see Deborah L. Brake, “The Struggle for Sex Equality in Sport and the Theory behind Title IX,” University of Michigan Journal of Law Reform 34, nos. 1 and 2 (2001): 92–94. 63. See generally Michael A. Messner, Taking the Field: Women, Men and Sports (Minneapolis: University of Minnesota Press, 2002). 244

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64. See, e.g., Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 871 (N.D. Ohio 2003). 65. See Alex Williams, “Gay Teenager Stirs a Storm,” New York Times, July 17, 2005, Style Section, 1. 66. At its worst, the culture of masculinity in sports includes such “perks” as an expectation of sexual access to women earned by elite athletic performances. At the extreme, such male privilege in sports has resulted in the sexual abuse of women, which is then overlooked by school authorities because of the men’s value to the athletic program. For examples of cases involving such claims, see Simpson v. Univ. Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007); Brzonkala v. Virginia Polytech. Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999); Williams v. Board of Regents of Univ. Sys. of Georgia,477 F.3d 1282 (11th Cir. 2007); J.K. v. Arizona Bd. of Regents, No. CV 06-916-PHX-MHM, 2008 U.S. Dist. LEXIS 83855 (D. Az. Sept. 29, 2008); see also Tessa Muggeridge, “ASU Settlement Ends in $850,000 Payoff,” The State Press, February 3, 2009, http://www.statepress.com/node/4020. 67. See Patricia R. W. Clasen, “The Female Athlete: Dualisms and Paradox,” Women and Language 24, no. 2 (Fall 2001): 3641; Marie Hardin and Jennifer D. Greer, “The Influence of Gender-Role Socialization, Media Use and Sports Participation on Perceptions of Gender-Appropriate Sports,” Journal of Sport Behavior 32, no. 2 (June 1, 2009): 207–27; Sally R. Ross and Kimberly J. Shinew, “Perspectives of Women College Athletes on Sport and Gender,” Sex Roles 58 (2008): 40–57. 68. See Ross and Shinew, “Perspectives of Women College Athletes on Sport and Gender,” 54. 69. Leslie Heywood and Shari L. Dworkin, Built to Win: The Female Athlete as Cultural Icon (Minneapolis: University of Minnesota Press, 2003), 39. 70. Ross and Shinew, 54; Hardin and Greer, “The Influence of Gender-Role Socialization.” 71. See Michael A. Messner, Taking the Field: Women, Men and Sports (Minneapolis: University of Minnesota Press, 2002), 32–46. 72. For an analysis of the gender ideology underlying the pink locker room controversy and a description of the facts leading up to it, see Erin E. Buzuvis, “Reading the Pink Locker Room: On Football Culture and Title IX,” William and Mary Journal of Women and the Law 14 (2007): 1. 73. Ibid. 74. Mary Jo Kane and Jo Ann Buysse, “Intercollegiate Media Guides as Contested Terrain: A Longitudinal Analysis,” Sociology of Sport Journal 22 (June 2005): 215. 75. Pete Thamel, “As Parker’s Play Soars, So Does Her Image,” New York Times, August 18, 2008, D6. 76. See generally Barbara Osborne, “’No Drinking, No Drugs, No Lesbians’; Sexual Orientation Discrimination in Intercollegiate Athletics,” Marquette Sports Law Review, 17 (2007): 481; Pat Griffin, Strong Women, Deep Closets: Lesbians and Homophobia in Sport (Champaign, IL: Human Kinetics, 1998); Pat Griffin et al., “It Takes a Team! Making Sports Safe for Lesbian, Gay, Bisexual, and Transgender Athletes and Coaches,” Women’s Sports Foundation, 2002, http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_ storage_01/0000019b/80/1a/cc/27.pdf. 77. Angela Simoneaux, “Plaintiffs, LSU, Cite Satisfaction after Bias Suit,” Baton Rouge Advocate, October 11, 2001, 1-B.

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78. Ibid.; Pederson, 213 F.3d at 881. 79. See Griffin, Strong Women, Deep Closets; Griffin et al., “It Takes a Team!” 80. See Kristine E. Newhall and Erin E. Buzuvis, “(e)Racing Jennifer Harris: Sexuality and Race, Law and Discourse in Harris v. Portland.” Journal of Sport and Social Issues 32 (2008): 345; Jill Lieber, “Harris Stands Tall in Painful Battle,” USA Today, May 11, 2006, 3C; Paul Zeise, “Washington Replaces Portland as Coach,” Pittsburgh Post-Gazette, April 24, 2007, D7. 81. See Christine Brennan, “What’s Ladylike in a Floor Burn? Gender Distinctions Confine Women to 2nd-Class Status,” USA Today, April 4, 2007, 2C. There is some movement in recent years to drop the “lady” prefix. See Paul Steinbach, “‘Lady’ Interrupted,” Athletic Business, August 2007, http://www.athleticbusiness.com/articles/article. aspx?articleid=1589&zoneid=3. 82. Heywood and Dworkin, Built to Win. Other research shows that gender differences in playing sports are not created at birth but develop as children reach adolescence. Between the ages of six and nine, about the same percentages of boys and girls are interested in sports, but by age fourteen, girls drop out of sports at a greater rate than men. See Women’s Sports Foundation, “Title IX’s Interest and Ability Issue: The Smokescreen and the Solutions,” http://www.womenssportsfoundation.org/Content/Articles/Issues/TitleIX/T/Title-IXs-Interest-and-Ability-Issue-The-Smokescreen-and-the-Solutions.aspx. 83. See, e.g., EEOC v. Sears Roebuck & Company, 839 F.2d 302 (7th Cir. 1988); see also Vicki Schultz, “Telling Stories about Women and Work: Judicial Interpretations of Sex Segregation in the Workplace in Title VII Cases Raising the Lack of Interest Argument,” Harvard Law Review 103 (1990): 1749, 1776–77. 84. See, e.g., Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256 (1979); Dothard v. Rawlinson, 433 U.S. 321 (1977); Fuller v. Oregon, 417 U.S. 40 (1974). 85. See, e.g., City of Richmond v. Croson, 488 U.S. 469 (1989); see also Brunet v. City of Columbus, 1 F.3d 390 (6th Cir. 1993); Smith v. Virginia Commonwealth Univ., 84 F.3d 672 (4th Cir. 1996). 86. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003). 87. For example, in the area of sex-segregated prisons, courts have allowed assertions of average gender differences in occupational interest to justify differences in the quantity and programming choices in the vocational education programs offered to male and female prisoners. See, e.g., Roubideaux v. North Dakota Dept. of Corrections and Rehabilitation, 2009 U.S. App. LEXIS 14417 (8th Cir. July 2, 2009). 88. For a persuasive argument defending the three-part test based on the “tool-giving” function of education to expand skills, rather than merely to select for preexisting ones, see Kimberly A. Yuracko, “One for You and One for Me: Is Title IX’s Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible?,” 97 Northwestern Law Review (2003): 731. 89. Suggs, A Place on the Team, 123. See also U.S. General Accounting Office Report, GAO 01-128 (2000): 37 table 6.

C ha p t e r 4 1. Although this has been the settled understanding since Title IX’s inception, one school district has recently proposed adding “competitive dance” as a sport to increase the school’s female athletic representation. See Danielle Wilson, “Middletown School Looks 246

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to Start Dance Team,” Middletown Journal, March 9, 2009, http://www.middletownjournal.com/hp/content/oh/story/news/local/2009/03/09/mj031009middboe.html. 2. Natalie Adams and Pamela Bettis, “Commanding the Room in Short Skirts: Cheering as the Embodiment of Ideal Girlhood,” Gender and Society 17 (2003): 76. 3. Ibid., 76–77. 4. Ibid., 73; David Moltz, “But I’m an Athlete,” Inside Higher Education (June 30, 2009), http://www.insidehighered.com/news/2009/06/30/cheer; National Federation of State High School Associations, “2007–2008 High School Athletics Participation Survey,” http:// www.nfhs.org/core/contentmanager/ uploads/2007-08%20Participation%20Survey.pdf. 5. Laurel R. Davis, “Male Cheerleaders and the Naturalization of Gender,” in Sport, Men, and the Gender Order, ed. Michael A. Messner and Donald F. Sabo (Champaign, IL: Human Kinetics Publishing,1990), 155–65. 6. See, e.g., Lois Kerschen, “Schoolgirls: Classifications, Roles and Sports,” Women Sports Foundation, http://www.womenssportsfoundation.org/Content/Articles/Issues/ Equity-Issues/S/Schoolgirls-Classifications-Roles-and-Sports.aspx; Lillian Howard Potter, “‘Man-Woman’: Anti-Gay Peer Harassment of Straight High School Activists,” Georgetown Journal of Gender and the Law 1 (1999): 173, 174. 7. Laurel R. Davis, “A Postmodern Paradox? Cheerleaders at Women’s Sporting Events,” in Women, Sport, and Culture, ed. Susan Birrell and Cheryl L. Cole (Champaign, IL: Human Kinetics, 1990), 149. 8. Davis, “Male Cheerleaders,” 159. 9. Adams and Bettis, “Commanding the Room in Short Skirts,” 73–91. 10. Ibid., 80. 11. Ibid., 81. 12. Ibid., 84–85. 13. Ibid., 84. 14. Ibid., 85. 15. See Moltz, “But I’m an Athlete.” 16. See Peter E. Holmes, U.S. Department of Education, Office for Civil Rights, “Letter to Chief State School Officers, Title IX Obligations in Athletics,” September 1975, http:// www.ed.gov/print/about/offices/list/ocr/docs/holmes.html. 17. See Stephanie Monroe, U.S. Department of Education, Office for Civil Rights, “Dear Colleague Letter: Athletic Activities Counted for Title IX Compliance,” September 17, 2008, http://www.ed.gov/about/offices/list/ocr/letters/colleague-20080917.html; Harry Orris, U.S. Department of Education, Office for Civil Rights, Cleveland Office, “Letter to MHSAA, Cheerleading,” October, 2001) (on file with author). 18. Biediger v. Quinnipiac Univ., 2009 U.S. Dist. LEXIS 45831 (D. Conn. May 22, 2009). 19. Ibid., *49. Significantly, the court did not actually decide that competitive cheerleading is a sport for Title IX purposes; rather, it found that the plaintiffs were not likely to succeed on the argument that it was not. See also Noffke v. Bakke, 2009 WI 10, 760 N.W.2d 156 (Wisc. S. Ct. January 27, 2009). 20. Biediger, *30-33. 21. Laura Grindstaff, “Sissy Boom Bah: Would We Think of Cheering as a Sport if We Knew It Was for Men?,” Newsday, November 2, 2003, Nassau and Suffolk edition, A32. 22. Jon Siegel, “No Longer on the Sidelines: Maryland Team Competes, But Doesn’t Cheer,” Washington Times, February 16, 2005, A1.

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23. Ibid. 24. The University of Oregon recently followed Maryland’s cue and added a varsity competitive cheer team. Rachel Bachman, “Oregon’s Team Stunts Waits for Cheers to Begin,” The Oregonian (Portland, Oregon), January 24, 2009, B2. See also Biediger v. Quinnipiac Univ., 2009 U.S. Dist. LEXIS 45831 (D. Conn. 2009); Ed Stannard, “Quinnipiac: Volleyball Back In; Men’s Track Dumped,” New Haven (CT) Register, May 27, 2009, http:// www.nhregister.com/articles/2009/05/27/news/metro/a1_--_quinni_cuts_0527.txt. 25. See Moltz, “But I’m an Athlete.” 26. See Bill Pennington, “From Sideline to Stage, with Lift from Title IX,” New York Times, April 4, 2004, Sports section, 1. 27. Rod Frisco, “Cheerleading Could Be Key to Providing Equity; Competitive Cheer Might Be Used to Comply with Title IX,” Patriot News (Harrisburg, PA), May 17, 2009, T17. 28. In addition to these 111,307 girls, 2,673 boys also participated in competitive cheer. National Federation of State High School Associations, “2007–08 High School Athletics Participation Survey.” The number of students participating in cheerleading—including sidelines cheering and not just competitive cheer—is much larger, at nearly 400,000. Bob Gardner, “Survey Indicates Nearly 400,000 Cheerleaders,” National Federation of State High School Associations, press release, http://www.nfhs.org/web/2009/05/survey_indicates_nearly_400000.aspx. 29. Adams and Bettis, “Commanding the Room in Short Skirts,” 8384. 30. Moltz, “But I’m an Athlete.” 31. Sandra McKee, “Sweat, ‘Soffies’ and Scholarships; Cheer: After Decades of Trying, Cheerleaders at the University of Maryland Are Now Varsity Athletes, the First of Their Kind in NCAA Division I,” Baltimore Sun, March 25, 2004, 1E. 32. Grindstaff, “Sissy Boom Bah.” 33. U.S. Department of Health, Education, and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71418 (December 11, 1979). 34. Ibid. 35. Diane Heckman, “Scoreboard: A Concise Chronological Twenty-Five Year History of Title IX Involving Interscholastic and Intercollegiate Athletics,” Seton Hall Journal of Sport Law 7 (1997): 409 n.85. 36. In Cook v. Colgate, members of the women’s ice hockey club team sued Colgate seeking to force the university to create a varsity team for their sport. The district court ruled for the women and ordered Colgate to create the varsity team. The ruling was overturned by the appellate court, which ruled that the case was moot because the plaintiffs had graduated. See Linda Jean Carpenter and R. Vivian Acosta, Title IX (Champaign, IL: Human Kinetics, 2005), 134; Cook v. Colgate University, 802 F. Supp. 737 (N.D.N.Y. 1992); Cook v. Colgate University, 992 F.2d 17 (2d Cir. 1993). A subsequent suit was filed, and Colgate settled the case by agreeing to add a varsity women’s ice hockey team. See Heckman, “Scoreboard,” 409 n.85. 37. Cynthia Fabrizio Pelak, “Women’s Collective Identity Formation in Sports: A Case Study from Women’s Ice Hockey,” Gender and Society 16 (2002): 93. 38. Sally R. Ross and Kimberly J. Shinew, “Perspectives of Women College Athletes on Sport and Gender,” Sex Roles 58 (2008): 40–57, 43–44, 48; Marie Hardin and Jennifer D. 248

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Greer, “The Influence of Gender-Role Socialization, Media Use and Sports Participation on Perceptions of Gender-Appropriate Sports,” Journal of Sport Behavior 32, no. 2 (June 1, 2009): 207–27. 39. Ross and Shinew, “Perspectives of Women College Athletes”; Hardin and Greer, “The Influence of Gender-Role Socialization.” 40. Sarah K. Fields, Female Gladiators: Gender, Law, and Contact Sport in America (Chicago: University of Illinois Press, 2005), 121. 41. Ibid., 130–31. 42. Leslie Heywood and Shari L. Dworkin, Built to Win: The Female Athlete as Cultural Icon (Minneapolis: University of Minnesota Press, 2003), 118. 43. See Katie Thomas, “Women Want to Wrestle; Small Colleges Oblige,” New York Times, May 27, 2008, Sports section, 9; Stan Grossfeld, “Burch’s Challenge: Get Up Off the Mat,” Boston Globe, August 24, 2006, C1. 44. Paul Shepherd, “She Cleared the Way While Clearing the Bar; Lawrence Central’s Tori Allen Led Push for Girls’ Pole Vaulting to Be Offered in State,” Indianapolis Star, April 8, 2005, 4H. 45. Ibid. 46. Amy Moritz, “Hear Them Roar: Women’s Tackle Football Team Turns Heads with Hard-Hitting Action,” Buffalo News, August 27, 2007, D10; Paul Kaplan, “A Snap for Women: Women’s Pro Football Championship Game Awes Fans in Roswell,” Atlanta Journal-Constitution, November 9, 2006, Northside section, 1JH. 47. Moritz, “Hear Them Roar.” 48. NFSHSA reported that 1,329 girls played high school football in 2007–2008 (this figure includes the standard eleven-player version of the game, as well as versions with six, eight, and nine players). NFSHSA, “2007–2008 High School Athletics Participation Survey.” 49. Ross and Shinew, “Perspectives of Women College Athletes”; Hardin and Greer, “The Influence of Gender-Role Socialization.” 50. Don Neideman, “She’s Pining for Pins; Finding Foes Is a Problem for George School Wrestler,” Philadelphia Inquirer, March 14, 2005, C10. 51. For commentators who have criticized Title IX’s track record in opening up opportunities for women of color, see A. Jerome Dees, “Access or Interest: Why Brown has Benefitted African-American Women More Than Title IX,” University of Missouri Kansas City Law Review 76 (2008): 625; Timothy Davis, “Race and Sports in America: An Historical Overview,” Virginia Sports and Entertainment Law Review 7 (2008): 291, 309; Tonya M. Evans, “In the Title IX Race Toward Gender Equity, the Black Female Athlete Is Left to Finish Last,” Howard Law Journal 42 (1998): 107; Alfred Dennis Mathewson, “Black Women, Gender Equity and the Function at the Junction,” Marquette Sports Law Journal 6 (1996): 241–53; Marilyn V. Yarbrough, “A Sporting Chance: The Intersection of Race and Gender,” South Texas Law Review 38 (1997): 1033–38. 52. Jennifer Butler and Donna A. Lopiano, Title IX and Race in Intercollegiate Sport, (New York: Women’s Sports Foundation, June 2003), http://www.womenssportsfoundation.org/~/media/Files/Research%20Reports/Download%20the%20full%20report%20 here.pdf. 53. Ibid. 54. Dees, “Access or Interest,” 625.

Notes to pp. 106–113

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55. Butler and Lopiano, Title IX and Race in Intercollegiate Sport, 5. 56. Ibid. 57. Ibid., 8. 58. Ibid. 59. See Welch Suggs, “Left Behind,” Chronicle of Higher Education, November 30, 2001, A35. See also Jennifer E. Bruening, Ketra L. Armstrong, and Donna L. Pastore, “Listening to the Voices: The Experiences of African American Female Student Athletes,” Research Quarterly for Exercise and Sport 76 (2005): 83, 83; Butler and Lopiano, Title IX and Race in Intercollegiate Sport, 12–14. 60. Newswatch, “Black Female Athletes Do Basketball, Track,” Women in Higher Education 16, no. 8 (August 1, 2007): 4. 61. Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 180. 62. Suzanne Malia Lawrence, “African American Athletes’ Experiences of Race in Sport,” International Review for the Sociology of Sport 40 (2005): 103. 63. “Black Female Athletes Do Basketball, Track,” 4. 64. The list of growing sports is from a Women’s Sports Foundation report that reviewed a sample of 738 NCAA institutions. John Cheslock, Who’s Playing College Sports? Trends in Participation, (New York: Women’s Sports Foundation, June 5, 2007), http:// www.gogirlworld.org/binary-data/reportcard/fullreport.pdf. The figures on percentages of women of color playing these sports are from the Women’s Sports Foundation, Title IX and Race in Intercollegiate Sport, using NCAA data. 65. See Suggs, “Left Behind,” A35–37; see also Susan Ware, Title IX: A Brief History with Documents (New York: Bedford/St. Martin’s, 2007), 17. 66. Dees, “Access or Interest,” 637. 67. Kristin Kalsem and Verna L. Williams, “Social Justice Feminism,” UCLA Women’s Law Journal 18 (forthcoming). 68. Ibid. 69. See Suggs, A Place on the Team, 177–85. 70. In addition to the overall figures on the representation of women of color in crew, anecdotal evidence also suggests that it is a mostly white sport. In one study of a women’s crew team at a major Midwestern university, for example, only two of the more than fifty female athletes on the team were African American. Bruening et al., “Listening to the Voices,” 97. 71. Ibid. 72. See Carla Murphy, “Girls’ Sports Opportunities MIA in City Schools,” Women’s eNews, March 17, 2009, http://www.womensenews.org/article.cfm/dyn/aid/3952. 73. See, e.g., Jocelyn Samuels, “Reviewing the Play: How Faulty Premises Affected the Work of the Commission on Opportunity in Athletics and Why Title IX Protections Are Still Needed to Ensure Equal Opportunity in Athletics,” Margins 3 (2003): 255. 74. Suzanne Sangree, “The Secretary’s Commission on Opportunity in Athletics Squandered Its Opportunity to Understand Commercial Collegiate Sports: Why They Eliminate Minor Men’s Sports and Prevent Title IX from Achieving Full Gender Equality,” Margins 3 (2003): 278. 75. Suggs, A Place on the Team, 178–82.

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76. Don Sabo and Phil Veliz, Go Out and Play: Youth Sports in America, (New York: Women’s Sports Foundation,October 2008), 8, http://www.womenssportsfoundation. org/~/media/Files/Research%20Reports/Go%20Out%20and%20Play%20report%209%20 18%2008.pdf; see also Katie Thomas, “Youth Groups Try Teamwork to Bring Girls into the Game,” New York Times, June 15, 2009, D1. 77. Thomas, “Youth Groups Try Teamwork.” 78. Katie Thomas, “A City Team’s Struggle Shows Disparity in Girls’ Sports,” New York Times, June 14, 2009, A1. 79. Mary Jo Sylvester, “Hispanic Girls in Sport Held Back by Tradition,” USA Today, March 29, 2005, 1A. 80. Sabo and Veliz, Go Out and Play: Youth Sports in America. 81. Ibid., 15–16. The comparable figures for boys in other racial groups are as follows: 26 percent of white boys, 21 percent of African American boys, and 28 percent of Hispanic boys are nonathletes. Ibid. 82. Ibid. 83. Regina Austin, “Super Size Me and the Conundrum of Race/Ethnicity, Gender, and Class for the Contemporary Law-Genre Documentary Filmmaker,” Loyola of Los Angeles Law Review 40 (2007): 710–11. 84. Ibid., 711. 85. See Carla Murphy, “Urban Girls Jump into the Title IX Gap,” Women’s eNews, March 8, 2009, http://www.womensenews.org/article.cfm/dyn/aid/3942. 86. Thomas, “A City Team’s Struggle Shows Disparity in Girls’ Sports.”. 87. Ibid. 88. Ibid. 89. See Murphy, “Urban Girls Jump into the Title IX Gap.” 90. Thomas, “Youth Groups Try Teamwork to Bring Girls into the Game.” 91. See Murphy, “Girls’ Sports Opportunities MIA in City Schools.”

C ha p t e r 5 1. Choike v. Slippery Rock Univ., No. 06-622, 2006 U.S. Dist. LEXIS 49886 (W.D. Pa. July 21, 2006). Shortly before the hearing on the motion for preliminary injunction, on June 14, 2006, Slippery Rock decided not to cut the women’s field hockey team. Ibid. 2. Memorandum in Support of Motion for Temporary Restraining Order and Preliminary Injunction at 6, Choike v. Slippery Rock Univ., No. 06-622. 3. Ibid. 4. Choike v. Slippery Rock Univ., No. 06-622, 2006 U.S. Dist. LEXIS 49886 (W.D. Pa. July 21, 2006), 15. 5. See Choike v. Slippery Rock University, No. 06-622, 2007 U.S. Dist. Lexis 4284 (W.D. Pa. Jan. 22, 2007) and Choike v. Slippery Rock University, No. 06-622, 2007 LEXIS 57774 (W.D. Pa. Aug. 8, 2007). 6. Choike v. Slippery Rock University, 2007 U.S. Dist.LEXIS 57774 (W.D. Pa. Aug. 8, 2007). 7. Erik Vance, “Slippery Rock U. Agrees to Reinstate 3 Women’s Teams in Settlement of Lawsuit,” Chronicle of Higher Education, April 20, 2007, 43.

Notes to pp. 116–121

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8. “Class-Action Fairness Hearing Scheduled in Title IX Lawsuit Against Slippery Rock,” PR Newswire, June 29, 2007, http://www.prnewswire.com; Women’s Law Project, “Comprehensive Settlement Reached in Title IX Lawsuit Against Slippery Rock University,” April 10, 2007, http://www.womenslawproject.org/press/SlipperyRock041007.pdf. 9. Women’s Sports Foundation, “Success Stories: Slippery Rock University Athletes Honored for Standing Up for Equity,” http://www.womenssportsfoundation.org/Content/ Articles/Issues/Equity-Issues/S/Success-Stories-before-May-30-and-on.aspx. 10. Choike, 2006 U.S. Dist. Lexis 49886, 26. 11. Rin-rin Yu, “Slippery Rock’s Aquatics Revived, Still in Doubt,” Aquatics International, http://www.aquaticsintl.com/2007/jun/0706_news_slippery.html. 12. In October 2007, after reviewing the quarterly reports that Slippery Rock was required to provide under the terms of the settlement agreement, lawyers for the plaintiffs filed a motion to re-open the case, arguing that Slippery Rock had failed to reach the 2 percent mark and asking the court to order the university not to eliminate women’s swimming and water polo for 2008–2009. The judge disagreed and denied the motion, reasoning that the plaintiff ’s calculation did not include members of the women’s swimming and water polo teams and finding that, when these athletes were factored in, Slippery Rock was within the two percentage point mark. Whether Slippery Rock can continue to meet this benchmark after the elimination of these two teams remains to be seen. See Barbara Osborne and Robin Ammon, “Eliminating Women’s Teams: A Comparative Analysis of Favia v. Indiana University of PA (1992), Barrett v. West Chester University (2003), and Choike v. Slippery Rock University (2006),” Journal of Legal Aspects of Sport 18 (Winter 2008): 39, 55. See also Memorandum Opinion and Order in Choike v. Slippery Rock Univ., No. 06-622 (W.D. Pa. Jan. 7, 2008); April Aven, “Judge Rules against Re-Opening Title IX Case,” Online Rocket, January 18, 2008, http://media.www.theonlinerocket.com/ media/storage/paper601/news/2008/01/18/News/Judge.Rules.Against.ReOpening.Title. Ix.Case-3157260.shtml. 13. Plaintiffs’ Proposed Findings of Fact and Conclusions of Law, citing Declaration of James V. Yeamans, p. 21-22. 14. Choike, 2006 U.S. Dist. Lexis 49886, 15. 15. Amy Kelly, “Women’s Sports to Stay until Title IX Suit Resolved,” Online Rocket, October 27, 2006, http://media.www.theonlinerocket.com/media/storage/paper601/ news/2006/10/27/News/Womens.Sports.To.Stay.Until.Title.Ix.Suit.Resolved-2406325. shtml; April Aven, “SRU President Addresses Title IX Issues at SGA Meeting,” Online Rocket, December 7, 2007, http://media.www.theonlinerocket.com/media/storage/ paper601/news/2007/12/07/News/Sru-President.Addresses.Title.Ix.Issues.At.Sga.Meeting-3137904.shtml; B.J. Yot, “Women’s Lacrosse Continues to Struggle with Another Blowout Loss,” Online Rocket, March 30, 2007, http://media.www.theonlinerocket.com/media/ storage/paper601/news/2007/03/30/Sports/Womens.Lacrosse.Continues.To.Struggle. With.Another.Blowout.Loss-2813905.shtml. 16. Amy Kelly, “Women’s Swimming Cut, but Given Final Season: Water Polo Squad’s Days Numbered, Too,” Online Rocket, February 15, 2008, http://media.www.theonlinerocket.com/media/storage/paper601/news/2008/02/15/News/Womens.Swimming. Cut.But.Given.Final.Season-3212360.shtml. According to the student newspaper, the university had already offset these cuts by increasing the number of roster spots available on other women’s sports teams. Amy Kelly, “Title IX Issues Brought Back to Table,” Online 252

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Notes to pp. 121–123

Rocket, November 30, 2007, http://media.www.theonlinerocket.com/media/storage/ paper601/news/2007/11/30/News/Title.Ix.Issues.Brought.Back.To.Table-3124303.shtml. 17. Aven, “Judge Rules against Re-opening Title IX Case.” 18. Beth Choike, Letter to the Editor, “Title IX Shirts Inappropriate,” Online Rocket, November 16, 2007, http://media.www.theonlinerocket.com/media/storage/paper601/ news/2007/11/16/RocketLetters/Title.Ix.Shirts.Inappropriate-3105922.shtml; Kristine Newhall, comment on “Anti-Title Title IX Shirts at Slippery Rock,” Title IX Blog, comment posted November 16, 2007, http://title-ix.blogspot.com/2007/11/anti-title-ix-shirtsat-slippery-rock.html. 19. Choike v. Slippery Rock University, No. 06-622, 2007 U.S. Dist. Lexis 4284 (W.D. Pa. Jan. 22, 2007), aff ’d, 297 Fed. Appx. 138 (3d Cir. 2008). 20. Choike, 2006 U.S. Dist. Lexis 49886, 22. 21. Biediger v. Quinnipiac University, 616 F. Supp. 2d 277 (D. Conn. 2009). 22. The plaintiffs also argued that cheerleading should not count as a “sport” for Title IX purposes, but the court found them unlikely to succeed on this point for the reasons discussed in chapter 4. Ibid. 23. Paul Doyle, “Quinnipiac Reinstates Women’s Volleyball, Drops Men’s Indoor Track,” Hartford Courant, May 27, 2009, A1. 24. Biediger, 616 F. Supp. 2d at 277. 25. Ibid. 26. Ibid. 27. Ibid. 28. See Miller v. University of Cincinnati, 2008 U.S. Dist. LEXIS 4339 (S.D. Ohio 2008). 29. Jeffrey Brainard, “James Madison U. Will Drop 10 Sports Teams, Including 7 for Men, to Achieve Gender Balance,” Chronicle of Higher Education, October 20, 2006, A40. 30. Alan Goldenbach, “Title IX Protest at Education Department Highlights JMU’s Athletic Cuts,” Washington Post, November 3, 2006, E-9. See also Bill Pennington, “Dropped from Varsity Lineup, but No Longer Grumbling,” New York Times, December 2, 2008, B15. 31. Ellen Staurowsky, “Comments from the Spring 2007 Harvard Journal of Law and Gender Conference, Changing Social Norms? Title IX and Legal Activism,” Harvard Journal of Law and Gender 31 (2008): 378, 393–95. 32. Sara Lipka, “In a New Twist on ‘Equal Opportunity,’ a University Cuts Women’s Sports,” Chronicle of Higher Education, November 3, 2006, A42. 33. Staurowsky, “Comments from the Gender Conference,” 396. 34. Lipka, “In a New Twist on ‘Equal Opportunity,’” A42. 35. See, e.g., Arthur Staple, “Stony Brook, Hofstra Cutting Costs, Not Sports,” Newsday, June 8, 2009, A43; Ken Belson, “Universities Cutting Teams as They Trim Their Budgets,” New York Times, May 4, 2009, D1. 36. Equity in Athletics, Inc. v. United States Dept. of Educ., 504 F. Supp. 2d 88 (W.D. Va. 2007), aff ’d, No. 07-1914, slip op. (4th Cir. Aug. 20, 2008). 37. Equity in Athletics, Inc. v. United States Dept. of Educ., No. 07-1914, slip op. at 12 (4th Cir. Aug. 20, 2008). 38. Clark v. Thompson, 206 F. Supp. 539 (S.D. Miss. 1962), aff ’d, 313 F.2d 637 (5th Cir. 1963), cert. denied, 375 U.S. 951 (1963). 39. 403 U.S. 217 (1971).

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40. Palmer v. Thompson, 391 F.2d 324 (5th Cir. 1967), affirmed in reh’g en banc, 419 F.2d 1222 (5th Cir. 1969), aff ’d, 403 U.S. 217 (1971). 41. See Washington v. Davis, 426 U.S. 229, 243 (1976). 42. Ibid. For a more thorough discussion of Palmer v. Thompson and the leveling-down issues it raises, see Deborah L. Brake, “When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law,” William and Mary Law Review 46 (2004): 513, 526–31. 43. Equal Pay Act, 29 U.S.C. § 206(d)(1) (2000); see also Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(3) (2000). 44. Cazares v. Barber, No. CIV-90-0128-TUC-ACM, slip op. (D. Ariz. May 31, 1990), aff ’d, 959 F.2d 753 (9th Cir. 1992); Nat Hentoff, Editorial, “The Moral Education of a Native American,” Washington Post, September 22, 1990, A25; Deborah M. Levy, “Sex in High School: Boys Play, Girls Pay,” Legal Times, June 11, 1990, 24. 45. Cazares v. Barber, 959 F.2d 753 (9th Cir. 1992). For a more in-depth discussion of this case, see Brake, “When Equality Leaves Everyone Worse Off,” 517–18, 531–33. 46. Cohen v. Brown Univ., 879 F. Supp. 185, 214 (D.R.I. 1995). 47. Ibid. 48. Cohen v. Brown Univ., 101 F.3d 155, 187 (1st Cir. 1996). 49. Neal v. Bd. of Trustees of Cal. State Univ., 198 F.3d 763, 770 (9th Cir. 1999). 50. In the end, the litigation wound to a close without any men’s teams being cut in order to achieve proportionality. See Sarah Labrie, “A Numbers Game: Brown Athletics Violate Title IX,” Brown Daily Herald, September 22, 2004 (updated April 12, 2009), http://www.browndailyherald.com/2.12258/a-numbers-game-1.1684604. 51. Daniel R. Marburger and Nancy Hogshead-Makar, “Is Title IX Really to Blame for the Decline in Intercollegiate Men’s Nonrevenue Sports?,” Marquette Sports Law Review 14 (2003): 65. 52. Assistant Secretary of Education for Civil Rights James F. Manning, “Dear Colleague” letter, March 17, 2005, http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.html; Assistant Secretary of Education for Civil Rights Gerald Reynolds, “Dear Colleague” letter, July 11, 2003, http://www.ed.gov/about/offices/list/ocr/title9guidanceFinal. html; Assistant Secretary of Education for Civil Rights Norman V. Cantú, “Dear Colleague” letter, January 16, 1996, http://www.ed.gov/about/offices/list/ocr/docs/clarific.html 53. Tim Lemke, “Group Protests Title IX,” Washington Times, November 3, 2006, C1. 54. Gerald Reynolds, “Dear Colleague” letter, July 11, 2003. 55. See Marburger and Hogshead-Makar, “Is Title IX Really to Blame?,” 84-90. 56. For an extended argument on this point, see Brake, “When Equality Leaves Everyone Worse Off,” 513. 57. Tim Lemke, “Group Protests Title IX,” Washington Times, November 3, 2006, C1. 58. See Marburger and Hogshead-Makar, “Is Title IX Really to Blame?,” 90–93. 59. See generally Brian L. Porto, A New Season: Using Title IX to Reform College Sports (Westport, CT: Praeger, 2003).

C ha p t e r 6 1. The court originally enjoined Slippery Rock from following through on its announced plan to eliminate three women’s sports. Choike v. Slippery Rock University, No. 06-622, 2006 U.S. Dist. LEXIS 49886 (W.D. Pa. July 21, 2006). Subsequent to the prelimi254

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Notes to pp. 130–143

nary injunction, Slippery Rock elected to settle the case by agreeing to reach substantial proportionality and spend substantial additional sums on its women’s athletic program, which the court approved. Choike v. Slippery Rock University, No. 06-622, 2007 U.S. Dist. LEXIS 57774 (W.D. Pa. Aug. 8, 2007). 2. On top of that, the settlement required SRU to spend additional sums of money if it fell outside of the 2 percent mark in matching women’s athletic participation to enrollment. Women’s Law Project, “Press Release: Comprehensive Settlement Reached in Title IX Lawsuit Against Slippery Rock University,” Women’s Law Project, http://www.womenslawproject.org/press/SlipperyRock041007.pdf. 3. See, e.g., McCormick v. The School District of Mamaroneck and yhe School District of Pelham, 370 F.3d 275, 291 (2d Cir. 2004). 4. The 1978 draft of the HEW Policy Interpretation had proposed setting a presumption of compliance if schools “eliminated discrimination in financial support and other benefits and opportunities in its existing athletic program” and provided equal per capita funding for male and female athletes. This proposal generated heated opposition, and the final 1979 Policy Interpretation dropped the presumption and retreated to a less controversial discussion of the regulation’s equal-treatment factors. “Proposed Policy Interpretation,” 43 Fed. Reg.58,070 (December 11, 1978); see also Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 77–78. 5. 34 C.F.R. § 106.41(c). 6. U.S. Department of Health, Education and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71422 (December 11, 1979). 7. Ibid., 71, 415, 71,417. 8. 34 C.F.R. § 106.41(c). 9. See, e.g., Denise DeHass, “2005-2006 NCAA Gender-Equity Report,” National Collegiate Athletic Association (July 2008), http://ncaa.org/wps/wcm/connect/0462e7804e0d 4e469171f11ad6fc8b25/GenderEquityRept-Final.pdf?MOD=AJPERES&CACHEID=0462e7 804e0d4e469171f11ad6fc8b25. 10. The scholarly literature critiquing the discriminatory intent standard is much too extensive to cite here, but, for an introduction to the critique, see Charles R. Lawrence III, “The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review 39 (1987): 317; Linda Hamilton Krieger, “The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity,” Stanford Law Review 47 (1995): 1161; Theodore Eisenberg and Sheri Lynn Johnson, “The Effects of Intent: Do We Know How Legal Standards Work?,” Cornell Law Review 76 (1991): 1151. 11. Personnel Administrator of Massachusetts v. Feeney, 422 U.S. 256 (1979). 12. See, e.g., Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49 (1997): 1111–52; Bruce E. Rosenblum, “Discriminatory Purpose and Disproportionate Impact: An Assessment After Feeney,” Columbia Law Review 79 (1979): 1376–1432. 13. 42 U.S.C.A. § 2000e-2. 14. See, e.g., Michael Selmi, “Was the Disparate Impact Theory a Mistake?” University of California Law Review 53 (2006): 701, 734–53; John J. Donohue III and Peter Siegelman, “The Changing Nature of Employment Discrimination Litigation,” Stanford Law Review 43 (1991): 983, 1019–21.

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15. Douglas M. Staudmeister, “Grasping the Intangible: A Guide to Assessing Nonpecuniary Damages in the EEOC Administrative Process,” American University Law Review 46 (1996): 204. 16. Franklin v. Gwinnett County Public School, 503 U.S. 60 (1992). 17. Alexander v. Sandoval, 532 U.S. 275 (2001). 18. Some lower courts have already applied the Sandoval ruling to Title IX cases. See, e.g., Barrett v. West Chester Univ. of Pennsylvania State System, Civil Action No. 03-CV4978, U.S. Dist. LEXIS 21095 (E.D. Pa. Nov. 12, 2003). 19. See, e.g., Justin D. Cummins, “Refashioning the Disparate Treatment and Disparate Impact Doctrines in Theory and in Practice,” Howard Law Journal 41 (1998): 455–75. 20. For cases that found proof of intentional discrimination from the fact of the different treatment of men’s and women’s athletics, see Barrett v. West Chester Univ. of Pennsylvania State System, Civil Action No. 03-CV-4978, U.S. Dist. LEXIS 21095 (E.D. Pa. Nov. 12, 2003); Pederson v. Louisiana State Univ., 213 F.3d 858, 881 (2000); Communities for Equity v. MHSAA, 178 F. Supp. 2d 805, 848-49, 856 (2001), affirmed, 459 F.3d 676 (6th Cir. 2006); Haffer v. Temple Univ., 678 F. Supp. 517, 527 (E.D. Pa. 1988). 21. See, e.g., International Union v. Johnson Controls, 499 U.S. 187 (1991). 22. In addition to the cases cited earlier in which courts found intentional discrimination based on the different treatment of men’s and women’s athletic teams, see also Derek W. Black, “The Mysteriously Reappearing Cause of Action: The Court’s Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs,” Maryland Law Review 67 (2008): 358 (arguing that courts have taken a less strict approach to the intent requirement in Title IX cases). 23. For background on these developments, see Deborah Brake and Elizabeth Catlin, “The Path of Most Resistance: The Long Road toward Gender Equity in Intercollegiate Athletics,” Duke Journal of Gender Law and Policy 3 (1996): 54–55. 24. See 120 Cong. Rec. 15,322-23 (May 20, 1974); Education Amendments of 1974, Pub. L. No. 93-380, Section 844, 88 Stat. 484, 612 (1974). 25. Grove City College v. Bell, 465 U.S. 555 (1984). 26. 20 U.S.C. § 1687. 27. Daniels v. School Board of Brevard County, Florida, 985 F. Supp. 1458 (D. Fla. 1997), modified by Daniels v. School Board of Brevard County, Florida, 995 F. Supp. 1394 (D. Fla. 1997). 28. Daniels, 995 F. Supp. at 1394. 29. Ibid., 1395. 30. See, e.g., Valerie M. Bonnette and Lamar Daniel (Office for Civil Rights, Department of Education), “Title IX Athletics Investigator’s Manual,” Education Resources Information Center (1990), 5, http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/14/c1/26.pdf. School districts continue to struggle to avoid gender inequalities caused or exacerbated by private booster funding. One response is to reorganize sport-by-sport booster funding into a unified structure in which all private donations are pooled to support the entire sports program. However, such efforts often encounter resistance from parents and others who insist on restricting the funds they raise to one particular sport. See, e.g., Elizabeth Celms, “Title IX: Mercer Island School District Proposes Unified Booster Club,” Mercer Island Reporter, November 19, 2009, http://www.pnwlocalnews.com/east_king/mir/news/34698194.html. 256

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31. See Cohen v. Brown Univ., 809 F. Supp. 978 (D.R.I. 1992). 32. Ibid., 996. 33. See, e.g., Ridgeway v. Montana High School Ass’n, 858 F.2d 579 (9th Cir. 1988); Sutta v. Acalanes Union High Sch., 2001 WL 1720616 (N.D. Cal. Oct. 3, 2001); Chalenor v. Univ. of North Dakota, 291 F.3d 1042 (8th Cir. 2002). 34. United States v. Morrison, 529 U.S. 598 (2000). For a critique of the public/private distinction at the heart of the Court’s decision, see Catharine L. MacKinnon, “Disputing Male Sovereignty: On United States v. Morrison,” Harvard Law Review 114 (2000): 135–77. 35. NCAA v. Smith, 522 U.S. 459 (1999). 36. Smith v. NCAA, 266 F.3d 152 (3d Cir. 2001). 37. The plaintiffs in the case originally listed seven specific areas in which female athletes were discriminated against by the Michigan High School Athletic Association. By the time the case went to trial, all of these areas had been resolved in a settlement agreement except for the issue of the scheduling of seasons. The district court sided with the plaintiffs on this issue, finding the scheduling disparities in violation of Title IX, the U.S. Constitution’s equal protection clause, and state discrimination law. Communities for Equity v. Michigan High School Athletic Ass’n, 178 F. Supp. 2d 805 (W.D. Mich. 2001). 38. The case had a long and tortured path in holding the MHSAA subject to Title IX. See Communities for Equity v. MHSAA, 80 F. Supp. 2d 729, 734-35 (W.D. Mich. 2000) (finding MHSAA subject to Title IX in denial of summary judgment); Communities for Equity v. MHSAA, 178 F. Supp. 2d 805, 851-55 (W.D. Mich. 2001) (finding MHSAA subject to Title IX after trial on the merits under “controlling authority” theory), affirmed, 377 F.3d 504 (6th Cir. 2004) (upholding finding that MHSAA is a state actor for purposes of equal protection clause), vacated and remanded, 544 U.S. 1012 (2005) (ordering reconsideration in light of Ranchos Palos Verdes v. Abrams, 544 U.S. 113 (2005)); Communities for Equity v. Michigan High School Athletic Association, 459 F.3d 676 (6th Cir. 2006) (upon reconsideration, ruling that Title IX did not preclude plaintiffs’ equal protection claim and upholding findings that MHSAA violated both Title IX and the equal protection clause), certiorari denied, 549 U.S. 1322 (2007). 39. Johnny’s Icehouse v. Amateur Hockey Ass’n of Ill., 134 F. Supp. 2d 965, 970 (N.D. Ill. 2001). 40. Bukowski v. Wisconsin Interscholastic Athletic Ass’n, 298 Wis. 2d 246, 726 N.W.2d 356, 2006 Wisc. App. LEXIS 1126 (Wisc. App. Ct. Nov. 30, 2006). However, this court’s decision may have been influenced by its skepticism about the strength of the plaintiff ’s claim on the merits—a male athlete seeking the right to try out for the girls’ gymnastics team—and the plaintiff ’s failure to assert the “controlling authority” theory of coverage. Ibid., 13–15. 41. In addition to the opinions in the case against the MHSAA, cited earlier, see, e.g., Dennin v. Connecticut Interscholastic Ath. Conf., 913 F. Supp. 663 (D. Conn. 1996); Sandison v. MHSAA, 863 F. Supp. 483 (E.D. Mich. 1994), reversed on other grounds, 64 F.3d 1026 (6th Cir. 1995); Pottgen v. Missouri State High Sch. Activities Association, 857 F. Supp. 654 (E.D. Mo. 1994), reversed on other grounds, 40 F.3d 926 (8th Cir. 1994); Kemether v. Pennsylvania Interscholastic Athletic Ass’n, 1999 WL 1012957 (E.D. Pa. 1999). 42. See Neena Chaudhry and Marcia D. Greenberger, “Seasons of Change: Communities for Equity v. Michigan High School Athletic Ass’n,” UCLA Women’s Law Journal 13 (2003): 1, 26 n.101.

Notes to pp. 149–153

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43. Katie Thomas, “Florida Retreats from Prep Schedule Favoring Football,” New York Times, July 16, 2009, B12. 44. Ibid. 45. See, e.g., Nat Newell, “IHSAA Faces Lawsuit,” Indianapolis Star, July 21, 2009, 1B. 46. See Michael J. Zimmer, Charles A. Sullivan, and Rebecca Hanner White, Cases and Materials on Employment Discrimination, 7th ed. (New York: Wolters Kluwer Law and Business, 2008), 20–23. 47. Ibid., 20. 48. Ibid., 23 . 49. U.S. Department of Health, Education and Welfare, Title IX of the Education Amendments of 1972: A Policy Interpretation: Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71413, 71417 (December 11, 1979). 50. Communities for Equity v. Michigan High School Athletic Ass’n., 178 F. Supp. 2d 805, 837 (W.D. Mich. 2001), affirmed, 377 F.3d 504 (6th Cir. 2004). 51. McCormick v. School Dist. of Mamaroneck and the School District of Pelham, 370 F.3d 275 (2d Cir. 2004). 52. Ibid., 294. 53. Ibid., 295. 54. Ibid., 298. See also Javier C. Hernandez, “City Shifts Girls’ Soccer from Spring to the Fall,” New York Times, January 18, 2009, A30. 55. See, e.g., Michael Birnbaum, “Hylton High Sports Fields Eyed for Signs of Sex Bias,” Washington Post, July 20, 2009, B1. 56. Daniels v. School Board of Brevard County, Florida, 995 F. Supp. 1394 (M.D. Fla. 1997). 57. Daniels v. School Board of Brevard County, Florida, 985 F. Supp. 1458, 1460-61 (M.D. Fla. 1997). 58. Ibid., 1461. 59. Landow v. School Board of Brevard County, Florida, 132 F. Supp. 2d 958, 960 (M.D. Fla. 2000). 60. Ibid., 964. 61. Ibid., 967. 62. Communities for Equity, 178 F. Supp. 2d at 837. 63. McCormick, 370 F.3d at 295. 64. Cf. Theresa M. Beiner, Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law (New York: New York University Press, 2005), 21–96. 65. 34 C.F.R. § 106.37(c). 66. See Policy Interpretation; Bonnette and Daniel, “Title IX Athletics Investigator’s Manual,” 15. 67. Policy Interpretation; Bonnette and Daniel, “Title IX Athletics Investigator’s Manual,” 17. 68. DeHass, “2005–2006 NCAA Gender Equity Report.” 69. See Suggs, A Place on the Team, 132–34; Jack Carey, “Women’s Group Puts 30 Schools on Title IX Notice,” USA Today, June 19, 2002, Sports section, http://www.usatoday.com/sports/college/stories/2002-06-19-title-ix-notice.htm#more. 70. For a detailed history of this era, see Ying Wushanley, Playing Nice and Losing: The Struggle for Control of Women’s Intercollegiate Athletics, 1960–2000 (Syracuse: Syracuse University Press, 2004), 63–69; Allen L. Sack and Ellen J. Staurowsky, College Athletes for 258

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Notes to pp. 153–160

Hire: The Evolution and Legacy of the NCAA’s Amateur Myth (Westport, CT: Praeger, 1998), 111–24. 71. The case was Kellmeyer, et al. v. NEA, et al., and it was brought by a group of female student-athletes and coaches from two colleges in Florida in January 1973 to challenge the AIAW scholarship policy under Title IX and the equal protection clause. The AIAW settled the case by changing its scholarship policy. 72. Wushanley, Playing Nice and Losing, 75, 159; Sack and Staurowsky, College Athletes for Hire, 115–19. 73. For a critique of the role of athletic scholarships in sustaining the commercial model of intercollegiate sport, see Sack and Staurowsky, College Athletes for Hire, 2–6, 125–26. 74. See, e.g., William C. Friday et al., “A Call to Action: Reconnecting College Sports and Higher Education,” The Knight Commission, 2001, http://www.knightcommission. org/images/pdfs/2001_knight_report.pdf; see also Sarah E. Gohl, “Note: A Lesson in English and Gender: Title IX and the Male Student-Athlete,” Duke Law Journal 50 (2001): 1123. 75. Cf. Sack and Staurowsky, College Athletes for Hire, 116. 76. For further discussion and critique of the perks top college athletes receive, see Andrew Zimbalist, Unpaid Professionals: Commercialism and Conflict in Big-Time College Sports (Princeton: Princeton University Press, 2001). 77. DeHass, “2005–2006 Gender-Equity Report.” 78. Ibid. 79. Daniel Fulks, “2002–2003 NCAA Revenues and Expenses of Division I and II Intercollegiate Athletics Programs Report,” http://www.ncaapublications.com/Uploads/ PDF/2002-03_d1_d2_rev_expd8af0a75-a361-4cf9-bfde-32afdc06f5ca.pdf. See also Brian Porto, A New Season: Using Title IX to Reform College Sports (Wesport, CT: Praeger, 2003), 157. 80. Suggs, A Place on the Team, 191. 81. See, e.g., The Knight Commission, “A Call to Action,” 17. 82. Fulks, “2002–-2003 NCAA Revenues and Expenses.” 83. Porto, A New Season, 54. 84. Ibid., 61. 85. Ibid., 5, 61. 86. DeHass, “2005–2006 NCAA Gender Equity Report.” 87. See, e.g., Gary R. Roberts, “Evaluating Gender Equity within the Framework of Intercollegiate Athletics’ Conflicting Value Systems,” Tulane Law Review 77 (2003): 997. 88. Suggs, A Place on the Team, 9. 89. These are the Atlantic Coast, Big East, Big Ten, Big Twelve, Pacific Ten, and SE Conferences. Suggs, A Place on the Team, 9. 90. Porto, A New Season, 5. 91. Ibid., 4. 92. Ibid., 52. See also The Knight Commission, “A Call to Action,” 16–17; Zimbalist, Unpaid Professionals, 14. 93. See The Knight Commission, “A Call to Action,” 17. 94. For extensive critiques of how the commercialism of big-time intercollegiate athletics has compromised the educational mission of universities, see Zimbalist, Unpaid Professionals, and The Knight Commission, “A Call to Action.”

Notes to pp. 160–168

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C ha p t e r 7 1. This chapter updates and revises an earlier work on Title IX and pregnancy in sports, Deborah L. Brake, “The Invisible Pregnant Athlete and the Promise of Title IX,” Harvard Journal of Law and Gender 31 (2008): 323. 2. See Nancy Hogshead-Makar and Elizabeth A. Sorensen, Pregnant and Parenting Student-Athletes: Resources and Model Policies (NCAA Gender Equity Publication, 2008), 7 and nn.15–18, http://www.ncaa.org/wps/wcm/connect/2c2217004e0d5fd0b84ef81ad6fc8b25/ PregnancyToolkit.pdf?MOD=AJPERES&CACHEID=2c2217004e0d5fd0b84ef81ad6fc8b25. 3. Zach Schonbrun, “Year in Sports: Fantasia Goodwin Speaks about Pregnancy,” Daily Orange (Syracuse University), April 25, 2007, Sports section, http://media.www.dailyorange.com/media/storage/paper522/news/2007/04/25/Sports/Year-In.Sports.Fantasia. Goodwin.Speaks.About.Pregnancy-2878171.shtml; Donna Ditota, “SU Basketball Player Gave Birth Last Week,” Post-Standard (Syracuse, NY), April 25, 2007, D1: Matt Ehalt, “WBB: Johnson Will Forgo Senior Season Due to Pregnancy,” Daily Orange (Syracuse University), October 21, 2008, Sports section, http://media.www.dailyorange.com/media/ storage/paper522/news/2008/10/21/Sports/Wbb-Johnson.Will.Forgo.Senior.Season.Due. To.Pregnancy-3497140.shtml. 4. The NCAA’s recent publication on pregnant and parenting athletes collects many of the stories that have reached the media in recent years. Hogshead-Makar and Sorensen, NCAA Resources and Model Policies, 16–17, 93–98. It also reports one study’s finding that 1 percent of female athletes experience a pregnancy, whereas 11 percent of female college students who are not athletes do so. Ibid., 7. 5. Amy Rainey, “What Athletes Can Expect When They’re Expecting: Many Colleges Are Ill-Prepared for Pregnant Athletes and Some Players Suffer as a Result,” Chronicle of Higher Education, May 26, 2006, A41. 6. Complaint, Brady v. Sacred Heart Univ., No. 3:03 Civ. 514 (D. Conn. March 24, 2003), http://www.womenslawproject.org/pages/issue_education.htm; see also Joanna Grossman, “A New Lawsuit by a Female Athlete Tests Title IX’s Protection against Pregnancy Discrimination,” Findlaw (2003), http://writ.news.findlaw.com/grossman/20030506.html; “Ex-PG Basketball Player Wins Settlement,” Women in Higher Education, December 2003: 3–4; “Connecticut: Pregnant Athlete Files Discrimination Suit,” Off Our Backs, May–June 2003: 6. 7. Ben Gose, “Sacred Heart U. Settles Pregnancy Suit,” Chronicle of Higher Education, November 7, 2003, A43. 8. Outside the Lines: Pregnant Pause (ESPN television broadcast May 13, 2007); see also Michael Hiestand, “ESPN Looks at Athletes Who Must Choose Pregnancy or a Scholarship,” USA Today, May 11, 2007, 3C; Rachel Blount, “Colleges Need Education About Pregnant Athletes; Despite Title IX Protection, Some Schools Still Threaten to Pull Scholarships from Women,” Star Tribune, June 19, 2007, 1C. 9. See, e.g., Care Net, “Care Net Applauds NCAA’s Review of Policies for Pregnant Student Athletes, Announces Launch of Campus Initiative,” Christian Newswire, http://www. christiannewswire.com/news/481883297.html; Karen Swallow Prior, editorial, “Scholarship Policies Pressure Young Women,” Richmond Times Dispatch, June 16, 2007, Final Edition, A11; Tom Strode, “Life Digest: Athletes Get No Aid for Pregnancy,” Baptist Press, May 30, 2007, http://baptistpress.com/bpnews.asp?id=25741. 260

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Notes to pp. 169–170

10. See, e.g., Caroline Gwaltney, “Female Athletes Sometimes Forced into Heartbreaking Decisions,” Crimson White (University of Alabama), October 28, 2007, http:// www.cw.ua.edu/2.4651/female-athletes-sometimes-forced-into-heartbreaking-decisions-1.454309; Blount, “Colleges Need Education about Pregnant Athletes.” 11. Assistant Secretary of Education for Civil Rights Stephanie J. Monroe, “Dear Colleague” letter, June 25, 2007, http://www.ed.gov/about/offices/list/ocr/letters/colleague-20070625.html. 12. National College Athletics Association, NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 15, § 3.4.3, National College Athletics Association Publications. 13. NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 14, § 2.1.3. 14. Rainey, “What Athletes Can Expect.” 15. NCAA Division I and II Bylaw 15, § 3.4.3; see also Bylaw 15, § 3.2.2. 16. National College Athletics Association, 2009 NCAA Convention Division II Proposal No. EM-1; Financial Aid—Reduction and Cancellation During Period of Award—Reduction or Cancellation Not Permitted—Injury, Illness or Physical or Mental Condition (DII Mgmt Council 07/08), http://web1.ncaa.org/web_files/DII_MC_PC/Management_Council/July2008/S16_Attachment.pdf. 17. The report’s authors are Nancy Hogshead-Makar, a law professor at Florida Coastal School of Law and former president of the Women’s Sports Foundation, and Elizabeth A. Sorensen, a professor at Wright State University’s College of Nursing and Health and an expert on the well-being of pregnant athletes. 18. See generally Katharine T. Bartlett and Deborah L. Rhode, Gender and Law: Theory, Doctrine, Commentary, 4th ed. (New York: Aspen, 2006), 222. 19. See 34 C.F.R. §§ 106.37(c), 106.41(a), (c) (2007). 20. 34 C.F.R. § 106.40. 21. These decisions have involved the exclusion of students from National Honor Society membership on “character” grounds because the student has become pregnant outside marriage. Courts have struggled with the issue of whether such a “character” justification amounts to discrimination on the basis of pregnancy, in light of the utter lack of visibility of such “character” deficits in men who procreate through premarital sex. Compare Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990) with Chipman v. Grant County Sch. Dist., 30 F. Supp. 2d 975 (E.D. Ky. 1998). 22. 34 C.F.R. § 106.40(b)(1). 23. 34 C.F.R. § 106.40(b)(2). 24. 34 C.F.R. § 106.40(b)(4). See also 20 U.S.C. § 1688 (2000). 25. 34 C.F.R. § 106.40(b)(5). 26. Assistant Secretary of Education for Civil Rights Stephanie J. Monroe, “Dear Colleague” letter, June 25, 2007, http://www.ed.gov/about/offices/list/ocr/letters/colleague-20070625.html. 27. NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 15, § 02.7. 28. Hogshead-Makar and Sorensen, NCAA Resources and Model Policies, 38. 29. The NCAA model policy provides that, in the event of a disagreement between the team doctor and the student’s doctor, the team doctor should defer to an obstetrician with more relevant medical expertise. Ibid., 10. 30. See Martha Chamallas, Introduction to Feminist Legal Theory, 2d ed. (New York: Aspen, 2003), 88–89.

Notes to pp. 170–174

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31. Ibid., 39–44. 32. See Iris Marion Young, On Female Body Experience: ‘Throwing Like a Girl’ and Other Essays (New York: Oxford University Press, 2005), 55–61. 33. Cf. Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, NY: Cornell University Press, 1990). 34. See generally Deborah L. Brake, “Title IX as Pragmatic Feminism,” Cleveland State Law Review 55 (2008): 213. 35. WNBA star Candace Parker’s return to the game after giving birth to her daughter is one of the more recent subjects of such stories. See Brian Heyman, “With Her Baby in Toe, Parker Works Off Rust,” New York Times, July 10, 2009, B13. 36. See Deborah L. Brake, “The Struggle for Sex Equality in Sports and the Theory behind Title IX,” University of Michigan Journal of Law Reform 34, nos. 1 and 2 (20002001): 110–11. 37. See Susan Ware, Title IX: A Brief History with Documents (Boston: Bedford/St. Martins, 2007), 8–9. 38. See generally Mary A. Boutilier and Lucinda SanGiovanni, The Sporting Woman (Champaign, IL: Human Kinetics, 1983); Susan K. Cahn, Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport (New York: Free Press, 1994); Mary Jo Festle, Playing Nice: Politics and Apologies in Women’s Sports (New York: Columbia University Press, 1996); Jennifer Hargreaves, Sporting Females: Critical Issues in the History and Sociology of Women’s Sports (New York: Routledge, 1994). 39. Young, On Female Body Experience, 54. 40. Gary Shelton, “Playdates for Mom,” St. Petersburg Times (Florida), May 13, 2007, 1C. 41. Linda C. McClain, “‘Irresponsible’ Reproduction,” Hastings Law Journal 47 (1996): 339. 42. Wanda S. Pillow, Unfit Subjects: Educational Policy and the Teen Mother (New York: Routledge Falmer, 2004), 35; see also Wendy Luttrell, Pregnant Bodies, Fertile Minds: Gender, Race, and the Schooling of Pregnant Teens (New York: Routledge, 2003). 43. Cf. Linda McClain, “‘Irresponsible’ Reproduction,” 379–80; Dorothy E. Roberts, “Racism and Patriarchy in the Meaning of Motherhood,” American University Journal of Gender, Social Policy and the Law 1 (Spring 1993): 25–28. 44. McClain, “‘Irresponsible’ Reproduction,” 385–95. 45. Ibid., 396–401. 46. Ibid. 47. See Linda Jean Carpenter and R. Vivian Acosta, Title IX (Champaign, IL: Human Kinetics, 2005), 165–66. 48. In contrast, a public education campaign by supporters of pregnant high school students who were barred from national honor society admission generated no such public outcry and no changes to public policy. See Pillow, Unfit Subjects, 69–71. 49. See, e.g., Amy Shipley, “Torres Stays Full Speed Ahead: Five-Time Olympian, 41, Believes She Can Still Go Faster,” Washington Post, April 1, 2009, D1; Elizabeth Weil, “A Swimmer of a Certain Age: What It Takes for a 41-Year-Old to Make the Olympics,” New York Times, June 29, 2008, Magazine, 28. 50. See Andrew Zimbalist, “What to Do About Title IX,” in Equal Play: Title IX and Social Change, ed. Nancy Hogshead-Maker and Andrew Zimbalist (Philadelphia: Temple University Press, 2007), 239-42. 262

| Notes to pp. 175–182

51. Cf. Ware, Title IX: A Brief History, 25–27. 52. See Michael Sokolove, “Football Is a Sucker’s Game,” in Equal Play: Title IX and Social Change, 301, 299. See also Andrew Zimbalist, Unpaid Professionals: Commercialism and Conflict in Big-Time College Sports (Princeton: Princeton University Press, 2001), 50. 53. No. 06-2319-KHV, 2006 U.S. Dist. LEXIS 61632, at 1 (D. Kan. Aug. 15, 2006). 54. His story is told in Mark Dent, “Athletes with Children,” University Daily Kansan, January 23, 2008, 1A, 4A. 55. The rule allows for four seasons of competition within five calendar years. NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 14, § 2.1 and Art. 14, § 2.1.1. 56. NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 30, § 6.1. 57. Ibid., Art. 14, § 2.1.3. This rule gives member schools the option of granting a oneyear extension to a female athlete who becomes pregnant. 58. 34 C.F.R. § 106.40(a). 59. 2006 U.S. Dist. LEXIS 616 at 8. 60. Curiously, the court did not address the thorny question of whether the NCAA is a “recipient” of federal funds so as to be covered by Title IX at all. See NCAA v. Smith, 525 U.S. 459 (1999). See also Stephanie M. Greene, “Regulating the NCAA: Making the Calls under the Sherman Act and Title IX,” Maine Law Review 52 (2000): 81; Thomas M. Rowland, “Level the Playing Field: The NCAA Should Be Subject to Title IX,” Sports Lawyers Journal 7 (2000): 143; Isaac Ruiz, “National Collegiate Athletic Association v. Smith: Must the NCAA Play by the Rules,” Journal of College and University Law 26 (1999): 119. 61. See, e.g., Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170 (10th Cir. 2007); Williams v. Bd. of Regents, 477 F.3d 1282, 1291, 1297 (11th Cir. 2007); J.K. v. Arizona Bd. of Regents, No. CV 06-916-PHX-MHM, 2008 U.S. Dist. LEXIS 83855 (D. Az. Sept. 29, 2008); see also Christopher M. Parent, “Personal Fouls: How Sexual Assault by Football Players Is Exposing Universities to Title IX Liability,” Fordham Intellectual Property, Media and Entertainment Law Journal 13 (2003): 617, 618–22. 62. 34 C.F.R. § 106.40(a). 63. See Pillow, Unfit Subjects, 123. 64. 34 C.F.R. § 106.40(3). 65. See Cazares v. Barber, 959 F.2d 753 (9th Cir. 1992); Pfeiffer v. Marion Ctr. Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990); Wort v. Vierling, 778 F.2d 1233 (7th Cir. 1985); Chipman v. Grant County Sch. Dist., 30 F. Supp. 2d 975 (E.D. Ky. 1998). 66. See Amber Hausenfluck, Comment, “A Pregnant Teenager’s Right to Education in Texas,” St. Mary’s Law Review on Minority Issues 9 (2006): 151, 183. 67. See Pillow, Unfit Subjects, 88–92, 129–35. 68. Hausenfluck, “A Pregnant Teenager’s Right to Education,” 169–73; Tamara S. Ling, Note, “Lifting Voices: Towards Equal Education for Pregnant and Parenting Students in New York City,” Fordham Urban Law Journal 29 (2002): 2387, 2405–7. 69. Ling, “Lifting Voices,” 2389: Hausenfluck, “A Pregnant Teenager’s Right to Education,” 183; Julie Bosman, “Schools for Pregnant Girls, Relic of 1960s New York, Will Close,” New York Times, May 24, 2007, A1. 70. Hausenfluck, “A Pregnant Teenager’s Right to Education,” 174–75; Ling, “Lifting Voices,” 2408–9. 71. Hausenfluck, “A Pregnant Teenager’s Right to Education,” 174; Ling, “Lifting Voices,” 2390.

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72. Hausenfluck, “A Pregnant Teenager’s Right to Education,” 176-78; Ling, “Lifting Voices,” 2404. 73. The official Web site for the film, http://www.heartofthegame.org, has more information on the film and its availability. 74. Craig Smith, “‘The Heart of the Game’ Is a Winning Documentary,” Seattle Times, May 9, 2006, http://community.seattletimes.nwsource.com/archive/?date=20060509&slu g=smitty09. 75. NCAA Division I Manual, 2008–2009 NCAA Operating Bylaws, Art. 15, § 3.4.2(d). 76. Staff Editorial, “SU Athletes Must Know Pregnancy Policy,” Daily Orange, October 2, 2007, http://media.www.dailyorange.com/media/storage/paper522/ news/2007/10/02/Opinion/Su.Athletes.Must.Know.Pregnancy.Policy-3004882.shtml. See also Wanda S. Pillow, “Teen Pregnancy and Education: Politics of Knowledge, Research, and Practice,” Educational Policy 20, no. 1 (2006): 62; Barbara Osborn and Lindsey Jaco, “Pregnancy: An Exploratory Study of Student-Athlete Knowledge and Decision Making,” presented at the 2009 North American Society for Sport Management Conference, May 30, 2009, http://www.nassm.com/files/conf_abstracts/2009-166.pdf.

C ha p t e r 8 1. Roderick Jackson, remarks, “Panel 2: Title IX in Athletics,” in “Changing Social Norms? Title IX and Legal Activism: Comments from the Spring 2007 Harvard Journal of Law and Gender Conference,” Harvard Journal of Law and Gender 31, no. 2 (Summer 2008): 401–2; Jan Crawford Greenburg, “Supreme Court Expands Title IX; Justices Say the Law Shields Whistle-blower,” Chicago Tribune, March 30, 2005, C1; “Editorial Roundup,” Augusta Chronicle, April 7, 2005, A5. 2. 544 U.S. 167 (2005). 3. Ibid., 179, 179 n.3. 4. For a description of this doctrine and a discussion of how it applies in Title VII cases, see Deborah L. Brake, “Retaliation,” Minnesota Law Review 90, no. 1 (2005): 18, 76–86. 5. See, e.g., Hamner v. St. Vincent, 224 F.3d 701 (7th Cir. 2000); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000); Hudson v. Norfolk Southern Ry. Co., 209 F. Supp. 2d 1301 (N.D. Ga. 2001); Mowery v. Escambia County Utilities Authority, No. 3:04CV382, 2006 WL 327965 (N.D. Fla. Feb. 10, 2006); see also Doe v. United Consumer Financial Services, No. 1:01 CV 1112, 2001 WL 34350174 (N.D. Ohio Nov. 9, 2001). 6. Jordan v. Alternative Resources Corp., 458 F.3d 332 (4th Cir. 2006). 7. In Title VII cases, employees can escape this risk by going straight to the EEOC and filing formal charges of discrimination before complaining internally inside the workplace. For further discussion, see Deborah L. Brake and Joanna L. Grossman, “The Failure of Title VII as a Rights-Claiming System,” North Carolina Law Review 86 (May 2008): 915; Deborah L. Brake, “Retaliation,” Minnesota Law Review 90 (November 2005): 79–80. 8. 548 U.S. 53 (2006). 9. See Brake and Grossman, “The Failure of Title VII,” 904 n.236; Brake, “Retaliation,” 38 n.58. 10. See, e.g., Higgins v. Gonzalez, 481 F.3d 578, 589 (8th Cir. 2007); Halfacre v. Home Depot, U.S.A., Inc., 221 Fed. Appx. 424, 432 (6th Cir. 2007); Kennedy v. Guthrie Pub. Schs., 264

| Notes to pp. 187–196

No. CIV-05-1440-F, 2007 WL 895145, at 7 (W.D. Okla. March 22, 2007); McGowan v. City of Eufala, 472 F.3d 736, 742 (10th Cir. 2006); Jackson v. United Parcel Service, Inc., 548 F.3d 1137, 1142 (8th Cir. 2008); Juarez v. Utah, 263 Fed. Appx. 726, 737 (10th Cir. 2008); Billings v. Town of Grafton, 515 F.3d 39, 52 (1st Cir. 2008); Roney v. Illinois Dept. of Transp., 474 F.3d 455, 461 (7th Cir. 2007); Brasch v. Peters, 479 F. Supp. 2d 1045, 1064 n.7 (E.D. Mo. 2007). 11. Jackson, 548 U.S. at 71. 12. Deborah Rhode and Christopher J. Walker, “Gender Equity in College Athletics: Women Coaches as a Case Study,” Stanford Journal of Civil Rights and Civil Liberties 4, no. 1 (April 2008): 1, 14. 13. Ibid., 35. 14. Garance Burke, “Female Coaches Leaving Collegiate Ranks,” Associated Press, July 4, 2007, http://www.thefreelibrary.com/Female+coaches+leaving+collegiate+rank s-a01611370354. 15. Jill Lieber Steeg, “Disputes Reflect Continuing Tension over Title IX; Ruling Fuels New Lawsuits on Gender Equity in Sports,” USA Today, May 13, 2008, Sports section, 1A. 16. Ibid. See also Sara Lipka, “Fresno State Grapples with a Spate of Sex-Discrimination Claims,” Chronicle of Higher Education, August 3, 2007, 29; Sara Lipka, “U. of California Pays $3.5 Million to Settle with Ex-Coach,” Chronicle of Higher Education, August 3, 2007, 30. 17. For a discussion of research documenting the high costs of complaining about discrimination, see Brake, “Retaliation,” 25–42; Brake and Grossman, “The Failure of Title VII,” 900–5. 18. Lauren Smith, “Women’s Track Coach Sues U. of Hawaii,” Chronicle of Higher Education, September 21, 2007, 29. 19. Lieber Steeg, “Disputes Reflect Continuing Tension over Title IX,” 1A. 20. Cynthia Fabrizio Pelak, “Women’s Collective Identity Formation in Sports: A Case Study from Women’s Ice Hockey,” Gender and Society 16 (2002): 93–114. 21. Linda Jean Carpenter and R. Vivian Acosta, Women in Intercollegiate Sport: A Longitudinal, National Study: Thirty-One Year Update, 1997–2008, http://webpages.charter.net/ womeninsport/. 22. In Division I schools, only 8 percent of athletic directors are women. Welch Suggs, “Faces in a Mostly White, Male Crowd,” Chronicle of Higher Education, April 8, 2005, A34. In the top tier of Division I schools, now known as Division I-FBS (Football Bowl Subdivision, formerly Division I-A), only 5 of the 119 schools have female athletic directors. Heather Tucker, “Beating Men Opened Doors for Athletes; Front Office Opportunities Much Slower to Emerge,” USA Today, September 18, 2008, 1E. 23. Carpenter and Acosta, Longitudinal Study. 24. Ibid. 25. See Greg Billing, “Few Women Coaching Girls’ Basketball Teams,” Dayton Daily News (Ohio), February 15, 2009, B4. 26. Cliff Brunt, “Few Women Call Shots for Girls on the Court,” Omaha World Herald, March 2, 2001, 1. 27. Bilotta v. Palmer Township Athletic Ass’n, No. 1984-CE-3530, 1984 WL 2331(Pa. C.P. Nov. 30, 1984). 28. Rhode and Walker, “Gender Equity in College Athletics,” 14. 29. Ibid., 30.

Notes to pp. 197–203

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30. Cf. Deborah L. Brake, “Title IX as Pragmatic Feminism,” Cleveland State Law Review 55, no. 4 (2008): 513, 527. 31. George B. Cunningham and Michael Sagas, “Access Discrimination in Intercollegiate Athletics,” Journal of Sport and Social Issues 29, no. 2 (2005): 148–60. 32. Rhode and Walker, “Gender Equity in College Athletics,” 14. 33. See Welch Suggs, A Place on the Team: The Triumph and Tragedy of Title IX (Princeton: Princeton University Press, 2005), 103; Annelies Knoppers, “Gender and the Coaching Profession,” in Women, Sport, and Culture, ed. Susan Birrell and Cheryl L. Cole (Champaign, IL: Human Kinetics, 1990), 125; Nicole Bracken, “Gender Equity in College Coaching and Administration: Perceived Barriers Report,” National Collegiate Athletic Association, January 2009, 7–8, https://www.ncaapublications.com/Uploads/PDF/2008_ Perceived_Barriers_Report_Finalef9a3204-7695-4593-a498-c0e1fe518ef5.pdf. 34. See John T. Jost, “Negative Illusions: Conceptual Clarification and Psychological Evidence Concerning False Consciousness,” Political Psychology 16, no. 2 (1995): 397, 411. 35. NCAA, “Perceived Barriers Report,” 8. 36. Denise DeHass, “2005–2006 NCAA Gender-Equity Report,” NCAA, July 2008, 5, http://www.ncaapublications.com/Uploads/PDF/GenderEquityRept-Finals6f8612fc-aacf4cf1-859a-ob556c6124f9.pdf. 37. Assistant coaches of women’s teams received 27 percent of the budget for assistant coaches’ salaries in Division I-FBS schools, 31 percent in Division I-FCS schools (Football Championship Schools, formerly Division I-AA), 26 percent in Division II, and 31 percent in Division III. Only in Division I-No FB (Division I schools without football programs, formerly Division I-AAA) did women’s sports receive a significantly greater share of the funds spent on assistant coaching salaries, at 47 percent. Ibid., 11. 38. See Welch Suggs, “Colleges Make Slight Progress toward Gender Equity in Sports,” Chronicle of Higher Education, July 25, 2003, A30. 39. DeHass, “2005–2006 NCAA Gender-Equity Report,” 19. 40. The Equal Pay Act has been the primary vehicle for challenging such disparities, but it requires proof that a man and a woman earn different amounts for performing substantially the same jobs, with a defense if the employer can show that the disparity was based on a factor other than the sex of the employee. While some women have been able to show that jobs coaching men and women are similar enough to meet this standard, others have not. See, e.g., Deborah Brake, “The Struggle for Sex Equality in Sports and the Theory of Title IX,” University of Michigan Journal of Law Reform 34, nos. 1 and 2 (Fall 2000-Winter 2001): 128–33; Deborah Brake, “Revisiting Title IX’s Feminist Legacy: Moving Beyond the Three-Part Test,” American University Journal of Gender, Social Policy and the Law 12, no. 3 (2004): 462–63; cf. Mehus v. Emporia State Univ., 222 F.R.D. 455, 476 (D. Kan. June 30, 2004) and 326 F. Supp. 2d 1221, 1224 (D. Kan. July 30, 2004). 41. One threshold hurdle for a coach seeking to use Title IX to challenge employment discrimination, including pay discrimination, is that Title VII may preclude Title IX claims for sex discrimination in employment altogether. See, e.g., Lakoski v. James, 66 F.3d 751 (5th Cir. 1995); Schultz v. Board of Trustees of Univ. of W. Fla., 2007 U.S. Dist. LEXIS 36815 (N.D. Fla. May 21, 2007). See also Kemether v. Pennsylvania Interscholastic Athletic Ass’n, 15 F. Supp. 2d 740, 755, 766 (E.D. Pa. 1998); Morris v. Fordham University, No. 03 Civ. 0556, 2004 U.S. Dist. LEXIS 7310 (S.D.N.Y. 2004). 266

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Notes to pp. 203–206

42. See Brake, “The Struggle for Sex Equality in Sport,” 128; Brake, “Revisiting Title IX’s Feminist Legacy,” 462. 43. Jennings v. University of North Carolina, 340 F. Supp. 2d 666 (M.D.N.C. 2004) (Jennings I); Jennings v. University of North Carolina, 444 F.3d 255 (4th Cir. 2006) (Jennings II). 44. Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir. 2007) (Jennings III). 45. By that time, Debbie Keller had already agreed to settle her claim against UNC for $70,000. Brad Wolverton, “U. of North Carolina Settles Lawsuit Against Coach,” Money and Management, January 25, 2008, 14–15. 46. Newswatch, “North Carolina and Coach Dorrance Settle 1998 Harassment Suit for $385,000,” Women in Higher Education, February 1, 2008, 3. 47. See generally Nancy Hogshead-Makar and Sheldon Elliot Steinbach, “Intercollegiate Athletics’ Unique Environments for Sexual Harassment Claims: Balancing the Realities of Athletics with Preventing Potential Claims,” Marquette Sports Law Review 13, no. 2 (2003): 173–93. 48. Baumgardt v. Wausau Sch. Dist. Bd. of Educ., 475 F. Supp. 2d 800 (W.D. Wis. 2007). 49. Ibid., 802. 50. See Hogshead-Maker and Steinbach, “Intercollegiate Athletics’ Unique Environments for Sexual Harassment,” 177–78. 51. K.P. v. Corsey, 228 F. Supp. 2d 547, 548 (D.N.J. 2002). 52. Zimmer v. Ashland Univ., No. 1:00CV0630, 2001 U.S. Dist. LEXIS 15075 at 6 (N.D. Ohio 2001). 53. Jennings III, 482 F.3d at 697. 54. Ibid., 697-99. 55. See Jennings II, 444 F.3d at 285 (4th Cir. 2006) (Michael, J., dissenting). 56. See, e.g., Henderson v. Walled Lake Consolidated Schools, 469 F.3d 479, 484 (6th Cir. 2006); Morrison v. Northern Essex Community College, 56 Mass. App. Ct. 784, 788, 780 N.E.2d 132, 137 (2002). 57. See, e.g., Henderson, 469 F.3d at 484. 58. See, e.g., Karin A.E. Volkwein et al., “Sexual Harassment in Sport: Perceptions and Experiences of American Female Student-Athletes,” International Review for the Sociology of Sport 32 (1997): 283–295, 285. 59. Jennings III, 482 F.3d at 697. 60. For a thorough discussion of the development of sexual harassment law in the workplace, see Catharine A. MacKinnon, Sex Equality, 2d ed. (New York: Foundation Press, 2007): 845–923. 61. Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992). 62. 524 U.S. 274, 290 (1998). 63. Ibid. 64. See, e.g., Warren v. Reading Sch. Dist., 278 F.3d 163, 174 (3d Cir. 2002). 65. See, e.g., Bostic v. Smyrna Sch. Dist., 418 F.3d 355 (3d Cir. 2005). 66. Baumgardt, 475 F. Supp. 2d at 802. 67. For example, in Morrison v. Northern Essex Community College, 56 Mass. App. Ct. 784, 799, 780 NE.2d 132, 144 (Mass. App. Ct. 2002), a case that survived summary judgment, administrators, including the president of the college, had notice that the college coach’s sexual relationships with the athletes he coached dated back to 1979. And yet, other than a brief suspension from coaching from 1988 to 1991, the coach continued to coach female athletes up until the college investigated the plaintiff ’s complaints in 1994.

Notes to pp. 206–213

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68. See, e.g., Bostic, 418 F.3d at 360-61. 69. Henderson, 469 F.3d 479 (6th Cir. 2006). 70. Ibid., 491. 71. See, e.g., K.P. v. Corsey, 77 Fed. Appx. 611, 613 (3d Cir. 2003); Morrison, 56 Mass. App. Ct. at 795 n.17, 780 NE.2d at 141 n.17. 72. Burlington Industries v. Ellerth, 524 U.S. 742, 765 (1998); Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). 73. See, e.g., Joanna L. Grossman, “The First Bite Is Free: Employer Liability for Sexual Harassment,” University of Pittsburgh Law Review 61 (2000): 722–29; L. Camille Hébert, “Why Don’t ‘Reasonable Women’ Complain about Sexual Harassment?,” Indiana Law Journal 82 (Summer 2007): 715; Joanna L. Grossman, “The Culture of Compliance: The Final Triumph of Form Over Substance in Sexual Harassment Law,” Harvard Women’s Law Journal 26 (Spring 2003): 21–23; Theresa M. Beiner, “Sex, Science and Social Knowledge: The Implications of Social Science Research on Imputing Liability to Employers for Sexual Harassment,” William and Mary Journal of Women and the Law 7 (Winter 2001): 331; Anne Lawton, “The Bad Apple Theory in Sexual Harassment Law,” George Mason Law Review 13 (Summer 2006): 826. 74. See Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 650 (1999). 75. Jennings I, 340 F. Supp. 2d at 675. 76. Jennings II, 444 F.3d at 273. 77. Jennings I, 340 F. Supp. 2d at 675; Jennings II, 444 F.3d at 274. 78. Jennings III, 482 F.3d at 718-19, 722-23 (Niemeyer, J., dissenting). 79. Jennings III, 482 F.3d at 699. 80. For an accessible and concise introduction to Third Wave feminism and its critique of some aspects of the Second Wave, including so-called victim feminism, see R. Claire Snyder, “What Is Third Wave Feminism? A New Directions Essay,” Signs: Journal of Women in Culture and Society 34, no. 1 (2008).

C onclusion 1. See Ann E. Cudd, “Analyzing Backlash to Progressive Social Movements,” in Theorizing Backlash: Philosophical Reflections on the Resistance to Feminism, ed. Anita M. Superson and Ann E. Cudd (Lanham: Rowman and Littlefield, 2002), 12; Michael A. Messner and Nancy M. Solomon, “Social Justice and Men’s Interests: The Case of Title IX,” Journal of Sport and Social Issues 31 (2007): 171. 2. Susan Faludi, Backlash: The Undeclared War Against American Women (New York: Three Rivers Press, 1991), 10–11. 3. Larry May, Masculinity and Morality (Ithaca, NY: Cornell University Press, 1998), 116–34. 4. U.S. Government Accountability Office, “Intercollegiate Athletics: Recent Trends in Teams and Participants in National Collegiate Athletic Association Sports,” GAO 07-535, http://www.gao.gov/new.items/d07535.pdf (July 2007). 5. Welch Suggs, “Gender Quotas? Not in College Sports,” Chronicle of Higher Education, July 1, 2005, Athletics section, 24. 6. Betsey Stevenson, “Title IX and the Evolution of High School Sports,” Contemporary Economic Policy 25 (2007): 491. 268

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Notes to pp. 213–218

7. Ibid., 491–92. See also U.S. GAO, “Intercollegiate Athletics,” 14, 16, 20. 8. See U.S. Government Accountability Office, Intercollegiate Athletics: Trends by Sports in National Collegiate Athletic Association Sports, GAO-07-744SP (Washington, D.C.: U.S. Government Accountability Office, July 2007), http://www.gao.gov/special.pubs/gao-07744sp/MenFootball.html; see also Laurie Priest, “The Whole IX Yards: The Impact of Title IX: The Good, the Bad and the Ugly,” Women in Sport and Physical Activity Journal 12 (Fall 2003): 27. 9. See Theresa A. Walton and Michelle T. Helstein, “Triumph of Backlash: Wrestling Community and the ‘Problem’ of Title IX,” Sociology of Sport Journal 25 (2008): 378. 10. National Women’s Law Center, “Title IX and Men’s ‘Minor’ Sports: A False Conflict,” 2, http://www.nwlc.org/pdf/Men’s%20Minor%20Sports%20June%2007.pdf (July 2008). 11. For example, the College Sports Council, founded by wrestling coach Leo Kocher, calls itself the leading organization working to reform Title IX’s “gender quotas.” See College Sports Council, “College Sports Council Reviews 2007 Year in Its Title IX Reform Efforts,” http://www.themat.com/section.php?section_id=3&page=showarticle&ArticleI D=17983. Another major player in the movement to roll back Title IX has been the Independent Women’s Forum, a conservative organization founded in 1992 by, among others, Lynne Cheney. See Walton and Helstein, “Triumph of Backlash,” 369–86; Messner and Solomon, “Social Justice and Men’s Interests,” 162–77. 12. See Walton and Helstein, “Triumph of Backlash,” 369–70; Nancy E. Dowd, “Masculinities and Feminist Legal Theory,” Wisconsin Journal of Law, Gender and Society 23 (2008): 201. 13. See Office for Civil Rights, Department of Education, “Clarification of Intercollegiate Athletics Policy Guidance: The Three Part Test,” and accompanying “Dear Colleague” letter from Norma V. Cantu, Assistant Secretary for Civil Rights, January 16, 1996. The “Dear Colleague” letter is available at http://www.ed.gov/about/offices/list/ocr/docs/ clarific.html. The Clarification is available at http://www.ed.gov/about/offices/list/ocr/ docs/clarific.html#two. 14. For a critique of the Commission, see Priest, “The Whole IX Yards,” 27. 15. See U.S. Department of Education, Secretary’s Commission for Opportunity in Athletics, “Open to All”: Title IX at Thirty (Washington, DC, Feb. 28, 2003), http://www. ed.gov/about/bdscomm/list/athletics/title9report.pdf. 16. See Donna De Varona and Julie Foudy, Minority Views on the Report of the Commission on Opportunity in Athletics, (New York: Women’s Sports Foundation, 2003), http:// www.womenssportsfoundation.org/binary-data/WSF_ARTICLE/pdf_file/944.pdf. 17. See Myles Brand, “Title IX Seminar Keynote Address, April 28, 2003,” http://www. ncaa.org/wps/ncaa?key=/ncaa/ncaa/about+the+ncaa/diversity+and+inclusion/gender+eq uity+and+title+ix/20030428speech.html. 18. Gerald Reynolds, Assistant Secretary for Civil Rights, “Further Clarification of Intercollegiate Athletics Policy Guidance Regarding Title IX Compliance,” Office for Civil Rights (July 11, 2003), http://www.nclrights.org/site/DocServer/TitleIX-DeptEduc. pdf?docID=701. 19. U.S. Department of Education, Office for Civil Rights, “Additional Clarification of Intercollegiate Athletics Policy: Three-Part Test—Part Three” (2005), http://www.ed.gov/ about/offices/list/ocr/docs/title9guidanceaddtional.html.

Notes to pp. 218–220

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20. James F. Manning, Assistant Secretary for Civil Rights, Office for Civil Rights, “Dear Colleague Letter,” http://www.ed.gov/about/offices/list/ocr/docs/title9guidanceadditional.pdf. On the other hand, under the 2005 Clarification, evidence of strong interest in a sport at feeder schools does not count as direct, persuasive evidence sufficient to overcome the presumption. Office for Civil Rights, “Additional Clarification,” 6 n.10. 21. Office for Civil Rights, “Additional Clarification,” 4. 22. Ibid., 6. 23. Welch Suggs, “New Developments May Alter Enforcement of Title IX,” Chronicle of Higher Education, April 15, 2005, Athletics section, A33; Welch Suggs, “No One Entirely Happy with Education Department Policy Ruling on Title IX,” Chronicle of Higher Education, April 8, 2005, Athletics section, A34. 24. See Nancy Hogshead-Makar and Donna Lopiano, “Foul Play: Department of Education Creates Huge Title IX Compliance Loophole,” Women’s Sports Foundation Position Paper (2005), http://www.barnard.edu/sfonline/sport/wsf_01.htm; Welch Suggs, “New Policy Clarifies Title IX Rules for Colleges; Women’s Group Objects,” Chronicle of Higher Education, April 1, 2005, Athletics section, A47; see also “In Brief; Monitoring Title IX,” Chronicle of Higher Education, July 1, 2005, A18 (noting that 140 House Democrats sent a letter to President Bush asking him to revoke the 2005 OCR Clarification). 25. Welch Suggs, “NCAA Panel Votes for 12 Football Games and Urges Colleges to Ignore New Gender-Equity Guidelines,” Chronicle of Higher Education, May 13, 2005, Athletics section, A35. 26. For an incisive critique of the 2005 policy clarification, see Erin E. Buzuvis, “Survey Says . . . A Critical Analysis of the New Title IX Policy and a Proposal for Reform,” Iowa Law Review 91 (2006): 821–85. 27. See Jon Solomon, “Country Waits to See How Obama Enforces Title IX,” Birmingham News, April 8, 2009, 4C. 28. See David Jackson et al., “Sports Enters Political Arena,” USA Today, May 9, 2008, 7C. 29. See Libby Sander, “Backers of Title IX Hope Obama Will End ‘Stalemate’ over Enforcement,” Chronicle of Higher Education, February 20, 2009, Money and Management section, 20. 30. For an example of the influence of groups such as the College Sports Council and the Independent Women’s Forum on the mainstream media, see George F. Will, “A Train Wreck Called Title IX,” Newsweek, May 27, 2002, 82. 31. Cf. Susan Ware, Title IX: A Brief History with Documents (New York: Bedford/St. Martin’s, 2007), 18. 32. See Brian L. Porto, A New Season: Using Title IX to Reform College Sports (Westport, CT: Praeger, 2003), 161; Lee Sigelman and Clyde Wilcox, “Public Support for Gender Equality in Athletics Programs,” Women and Politics 22, no.1 (2001): 89. 33. Heather Mason Kiefer, “What Do Americans See in Title IX’s Future?” Gallup Poll Organization, http://www.gallup.com/poll/7663/What-Americans-See-Title-IXs-Future. aspx. In the same poll, 65 percent of respondents saw Title IX as the “main factor” or a “major factor” behind the growth of women’s sports, and 70 percent said that Title IX should either be made stronger or stay about the same, while only 21 percent expressed the view that Title IX should be made weaker. Ibid. 270

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Notes to pp. 221–222

34. The Mellman Group, “Memorandum to Interested Parties Regarding Title IX,” http://www.nwlc.org/pdf/Memorandum%20to%20Interested%20Parties%20from%20 The%20Mellman%20Group%2006%2019%2007.pdf (June 14, 2007). When asked “Do you favor or oppose Title IX?” (after hearing it described as “a federal law that prohibits high schools and colleges from discriminating on the basis of gender in athletics”), 65 percent of respondents said “strongly favor,” and 17 percent said “favor.” Ibid. 35. Christine Brennan, “Sports Put the Ball in the Court of Female Pols,” USA Today, September 11, 2008, 3C. 36. See Leilana McKindra, “Latest Gender-Equity Report Shows Spending Gaps Persist,” NCAA News, October 30, 2008, http://www.ncaa.org/wps/ncaa?key=/ncaa/ ncaa/ncaa+news/ncaa+news+online/2008/assocation-wide/latest+gender-equity+repo rt+shows+spending+gaps+persist+-+10-30-08+-+ncaa+news. See also Denise DeHass, “2005–2006 NCAA Gender Equity Report,” NCAA, July 2008, http://www.ncaapublications.com/Uploads/PDF/GenderEquityRept-Finals6f8612fc-aacf-4cf1-859a-ob556c6124f9. pdf; Lederman, “Backsliding for Women’s Sports.” 37. DeHass, “2005–2006 NCAA Gender Equity Report,” 10. 38. Ibid., Executive Summary 39. Women’s Law Project, “Are Schools Giving Female Athletes a Sporting Chance? A Guide to Gender Equity in Athletics in Pennsylvania Schools” (March 2009), 3, http:// www.womenslawproject.org/reports/TitleIX_SportingChance.pdf. 40. Ibid. (figures for boys and girls, grades 3–12). 41. Betsey Stevenson, “Beyond the Classroom: Using Title IX to Measure the Return to High School Sports,” forthcoming, Review of Economics and Statistics, http://bpp.wharton. upenn.edu/betseys/papers/TitleIX.pdf, Figure 1. 42. Stevenson, “Title IX and the Evolution of High School Sports,” 494. 43. Ibid., 497–99. 44. Margaret Carlisle Duncan and Michael A. Messner, Gender in Televised Sports: News and Highlights Shows, 1989–2004 (Los Angeles, CA: Amateur Athletic Foundation of Los Angeles, July 2005), 4, http://www.la84foundation.org/9arr/ResearchReports/tv2004.pdf. 45. Erik Brady, “NCAA’s Brand: Don’t Fault Title IX for Future Cuts,” USA Today, November 20, 2008, Sports, http://www.usatoday.com/sports/college/2008-11-20-branddont-blame-title-ix_n.htm. 46. High School Sports Information Collection Act of 2009, S. 471. For more information on the bill’s current status, see GovTrack, “S. 471 [111th Congress],” http://www. govtrack.us/congress/bill.xpd?bill=s111-471. See also David Jackson et al., “Sports Enters Political Arena,” USA Today, May 9, 2008, Sports, 7C (reporting President Obama’s pledge during the campaign to support the bill). 47. Equity in Athletics Disclosure Act of 1994, Section 485(g) of the Higher Education Act of 1965, 20 U.S.C. § 1092. The proposed high school legislation would require high schools to make public information about participation rates, spending, and scheduling. See National Coalition for Women and Girls in Education, “The High School Sports Information Collection Act of 2009,” http://girlsplaybaseball.wordpress.com/2009/03/12/ the-high-school-sports-information-collection-act-of-2009-ncwgeorg. 48. National Women’s Law Center, “Title IX and Women’s Athletic Opportunity: A Nation’s Promise Yet to be Fulfilled” (July 2008), http://www.nwlc.org/pdf/Nation’s%20 Promise%20July%202008.pdf.

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49. See Messner and Solomon, “Social Justice and Men’s Interests,” 162-77. 50. The sport sociologists Theresa Walton and Michelle Helstein trace the compromised masculinity of wrestling to the 1980s panic over AIDS and the rise of homophobia, which exacerbated the anxiety caused by “the intimate contact between revealingly clad men in wrestling.” Walton and Helstein, “Triumph of Backlash,” 375. 51. From 2000 to 2006, much of the increased expenditures by Division I-A programs went to men’s football. DeHass, “2005–2006 NCAA Gender Equity Report.” From 2000 to 2003, the average Division I-A program increased its athletic expenditures by $4.18 million, with 54 percent of this increase, approximately $2.28 million, going to football. National Women’s Law Center, “Title IX and Men’s ‘Minor’ Sports: A False Conflict,” http://www.nwlc.org/pdf/Men’s%20Minor%20Sports%20Final.pdf. 52. Football and men’s basketball together account for 69 percent of the total men’s athletic operating budget at the average Division I school. DeHass, “2005–2006 NCAA Gender Equity Report,” 21. 53. Messner and Solomon, “Social Justice and Men’s Interests,” 163. 54. In 2001, the NCAA estimated that the average Division I-A athletic program operated at a deficit, even without taking into account certain real costs that are not counted against revenue, such as debt service and capital expenditures. The deficit for Division II schools was even greater. Daniel L. Fulks, “Revenues and Expenses of Divisions I and II Intercollegiate Athletics Programs, NCAA, http://web1.ncaa.org/web_files/library/ research/i_ii_rev_exp/2002/d1_d2_revenues_expenses.pdf. See also William S. Kern, The Economics of Sports (Kalamazoo, MI: W. E. Upjohn Institute, 2000), 83; Allen L. Sack and Ellen J. Staurowsky, College Athletes for Hire: The Evolution and Legacy of the NCAA’s Amateur Myth (Westport, CT: Praeger, 1998), 138; Andrew Zimbalist, Unpaid Professionals: Commercialism and Conflict in Big-Time College Sports (Princeton: Princeton University Press, 1999), 14. 55. See National Collegiate Athletic Association, NCAA Research Related to Graduation Rates of Division I Student-Athletes 1984-2001, http://www.ncaa.org/wps/wcm/ connect/f5e930004e0dafdfa740f71ad6fc8b25/2008_d1_summary.pdf?MOD=AJPERE S&CACHEID=f5e930004e0dafdfa740f71ad6fc8b25; see also Richard Lapchick et al., “Keeping Score When it Counts: Sweet 16 Men’s and Women’s Teams: A Look at Their Academic Success,” The Institute for Diversity and Ethics in Sport, http://www.tidesport. org/Grad%20Rates/2009_Mens_and_Womens_Sweet16_PR.pdf; Patrick James Rishe, “A Reexamination of How Athletic Success Impacts Graduation Rates: Comparing StudentAthletes to All Other Undergraduates,” American Journal of Economics and Sociology 62 (2003): 413. 56. See Messner and Solomon, “Social Justice and Men’s Interests,” 174. 57. Ibid., 168, 174–75. See also Walton and Helstein, “Triumph of Backlash,” 378, 381. 58. Doug Lederman, “Backsliding for Women’s Sports,” Inside Higher Education, October 31, 2008, News, http://www.insidehighered.com/news/2008/10/31/women. 59. See Walton and Helstein, “Triumph of Backlash,” 375–77. 60. Ibid., 377. 61. Dowd, “Masculinities and Feminist Legal Theory,” 210. 62. See R. W. Connell, Masculinities (Berkeley and Los Angeles: University of California Press, 2005). See also Sally R. Ross and Kimberly J. Shinew, “Perspectives of Women College Athletes on Sport and Gender,” Sex Roles 58 (2008): 42. 272

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Notes to pp. 226–228

63. See Priest, “The Whole IX Yards,” 32. 64. However, there may be a glimmer of hope in this regard in recent reports that at least some demoted men’s teams have become skeptical of the drumbeat of critics blaming Title IX and have questioned whether their newfound status as club sports might offer a better balance between athletic competition and the educational values of sports. See Bill Pennington, “Dropped from Varsity Lineup, but No Longer Grumbling,” New York Times, December 2, 2008, B15. 65. See, e.g., Harvey Araton, “Proud Fathers Cheering Title IX,” New York Times, July 17, 2003, D4. See also Messner and Solomon, “Social Justice and Men’s Interests,” 176. 66. Patricia R.W. Clasen, “The Female Athlete: Dualisms and Paradox in Practice,” Women and Language 24 (Fall 2001): 36–41. 67. Ross and Shinew, “Perspectives of Women College Athletes,” 40–57. 68. A number of companies are now marketing T-shirts printed with this slogan.

Notes to pp. 228–230

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Selected Bibliography

The following list is by no means comprehensive; it includes only those books the author has found helpful in the process of writing this book. Allred, Alexandra Powe. Atta Girl! A Celebration of Women in Sport. Terre Haute, IN: Wish, 2003. Appleby, Gavin S. Harassment and Discrimination. Irvine, CA: Entrepreneur Press, 2007. Bartlett, Katharine T., and Deborah L. Rhode. Gender and Law: Theory, Doctrine, Commentary. 4th ed. New York: Aspen, 2006. Beiner, Theresa M. Gender Myths v. Working Realities: Using Social Science to Reformulate Sexual Harassment Law. New York: New York University Press, 2005. Birrell, Susan, and Cheryl L. Cole, eds. Women, Sport and Culture. Champaign, IL: Human Kinetics, 1990. Blumenthal, Karen. Let Me Play: The Story of Title IX; The Law That Changed the Future of Girls in America. New York: Simon and Shuster, 2005. Bordo, Susan. Unbearable Weight: Feminism, Western Culture, and the Body. Berkeley and Los Angeles: University of California Press, 1993. Boutilier, Mary A., and Lucinda SanGiovanni. The Sporting Woman. Champaign, IL: Human Kinetics, 1983. Cahn, Susan K. Coming on Strong: Gender and Sexuality in Twentieth-Century Women’s Sport. New York: Free Press, 1994. Carpenter, Linda Jean, and R. Vivian Acosta. Title IX. Champaign, IL: Human Kinetics, 2005. Castelnuovo, Shirley, and Sharon R. Guthrie. Feminism and the Female Body: Liberating the Amazon Within. Boulder: L. Rienner, 1998. Chamallas, Martha. Introduction to Feminist Legal Theory. 2d ed. New York: Aspen, 2003. Connell, R.W. Masculinities. Berkeley and Los Angeles: University of California Press, 2005. Dowd, Nancy E., and Michelle S. Jacobs, eds. Feminist Legal Theory: An Anti-Essentialist Reader. New York: New York University Press, 2003. Faludi, Susan. Backlash: The Undeclared War against American Women. New York: Three Rivers Press, 1991. Festle, Mary Jo. Playing Nice: Politics and Apologies in Women’s Sports. New York: Columbia University Press, 1996. Fields, Sarah K. Female Gladiators: Gender, Law and Contact Sport in America. Urbana: University of Illinois Press, 2005.

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Griffin, Pat. Strong Women, Deep Closets: Lesbians and Homophobia in Sport. Champaign, IL: Human Kinetics, 1998. Grosz, Elizabeth. Volatile Bodies: Towards a Corporeal Feminism. Bloomington: Indiana University Press, 1994. Hargreaves, Jennifer. Sporting Females: Critical Issues in the History and Sociology of Women’s Sports. New York: Routledge, 1994. Hartmann-Tews, Illse, and Gertrud Pfister. Sport and Women: Social Issues in International Perspective. New York: Routledge, 2003. Heywood, Leslie, and Shari L. Dworkin. Built to Win: The Female Athlete as Cultural Icon. Minneapolis: University of Minnesota Press, 2003. Hogshead-Makar, Nancy, and Andrew Zimbalist, eds. Equal Play: Title IX and Social Change. Philadelphia: Temple University Press, 2007. Kern, William S. The Economics of Sports. Kalamazoo: W. E. Upjohn Institute, 2000. Koppelman, Andrew. Antidiscrimination Law and Social Equality. New Haven: Yale University Press, 1996. Luttrell, Wendy. Pregnant Bodies, Fertile Minds: Gender, Race, and the Schooling of Pregnant Teens. New York: Routledge, 2003. MacKinnon, Catharine. Feminism Unmodified: Discourses on Life and Law. Cambridge, MA: Harvard University Press, 1987. May, Larry. Masculinity and Morality. Ithaca, NY: Cornell University Press, 1998. McDonagh, Eileen, and Laura Pappano. Playing with the Boys: Why Separate Is Not Equal in Sports. New York: Oxford University Press, 2008. Messner, Michael A. Taking the Field: Women, Men and Sports. Minneapolis: University of Minnesota Press, 2002. Messner, Michael A., and Donald F. Sabo, eds. Sport, Men, and the Gender Order. Champaign, IL: Human Kinetics, 1990. Minow, Martha. Making All the Difference: Inclusion, Exclusion, and American Law. Ithaca, NY: Cornell University Press, 1990. Nelson, Mariah Burton. Are We Winning Yet? New York: Random House, 1991. Pillow, Wanda S. Unfit Subjects: Educational Policy and the Teen Mother. New York: Routledge Falmer, 2004. Porto, Brian L. A New Season: Using Title IX to Reform College Sports. Westport, CT: Praeger, 2003. Sack, Allen L., and Ellen J. Staurowsky. College Athletes for Hire: The Evolution and Legacy of the NCAA’s Amateur Myth. Westport, CT: Praeger, 1998. Suggs, Welch. A Place on the Team: The Triumph and Tragedy of Title IX. Princeton: Princeton University Press, 2005. Thorne, Barrie. Gender Play: Boys and Girls in School. New Brunswick, NJ: Rutgers University Press, 1993. Ware, Susan. Title IX: A Brief History with Documents. Boston: Bedford/St. Martin’s, 2007. Wushanley, Ying. Playing Nice and Losing: The Struggle for Control of Women’s Intercollegiate Athletics, 1960-2000. Syracuse: Syracuse University Press, 2004. Young, Iris Marion. On Female Body Experience: “Throwing Like a Girl” and Other Essays. New York: Oxford University Press, 2005.

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Index

1979 Policy Interpretation. See equal treatment standards; three-part test 1996 Clarification, 219 2003 Clarification, 220 2005 Clarification, 13, 220–222, 270n20 abortions, 170, 180 academic tutoring, 145 accommodation. See full and effective accommodation of sports opportunities Acosta, Vivian, 202 actual notice requirement, 212–214, 267n67 Adams, Natalie, 98–100 administration, athletic, 12, 191, 201–206, 226 affirmative action, 21 African American women, 11, 112–118, 250n70 AIAW (Association for Intercollegiate Athletics for Women), 20, 160, 201, 234n12, 259n71 AIDS, 272n50 Allen, Tori, 110–111z all-female sports, benefits of, 28 American Beauty (movie), 97 antisubordination concerns, 58, 65, 93, 100–101, 211 antisubordination feminism, 9–10, 12, 211, 216, 224, 226 anti-Title IX movement, 123, 126–129, 132 Arkansas Wrestling Association, 47 Asian women, 117 Association for Intercollegiate Athletics for Women (AIAW), 20, 160, 201, 234n12, 259n71

asymmetrical integration rights. See integration of teams athletic associations, 110, 151, 188. See also specific associations athletic scholarships: AIAW on, 259n71; equality of, 158–162; equal treatment standards, 158–162; liberal feminism on, 8–9, 158, 160; and pregnancy, 170–171, 173–174, 182, 189; Title IX compliance, 242n12; for women of color, 113–114 Auburn University, 164 Austin, Regina, 117 Avonworth Baseball Conference (PA), 31 backlash, 13, 217–222, 269n11 Backlash: The Undeclared War on American Women (Faludi), 217 Barnett, Courtney, 41 baseball: coaches salaries, 205; as a contact sport, 44, 48, 237n8; facilities inequities, 155–156; sex discrimination, 30–31; as softball equivalent, 42–43; women players, 96 basketball: coaches salaries, 205; as a contact sport, 42–44; and the equal protection clause, 32; funding disparities, 128, 227; hierarchical model of sports, 165–166; integration of teams, 23–24, 53, 55, 89; lawsuits, 32, 90; and pregnancy, 169–170; revenue raising, 166–167, 227; and women of color, 114 Bayh, Birch, 18 Bell, Grove City College v., 71–72, 218 benefits of sports, 5–6, 38. See also empowerment potential

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277

Bettis, Pamela, 98–100 Birmingham, AL, 192 Birmingham Board of Education, Jackson v., 192–193 Board of Education, Brown v., 38 booster funding. See private funding Bordo, Susan, 3 Boston, MA, 118 bowling, 114 boxing, 42–43, 106–109 “boys left behind movement,” 218–219 Brand, Myles, 220 Brevard County, FL, 149 Brown University, 74–79, 84, 132–134, 136, 138, 149–150, 254n50 Brown University, Cohen v., 74–79, 132–134, 136, 138, 149–150, 254n50 Brown v. Board of Education, 38, 54 Bucknell University, 86 Built to Win (Heywood and Dworkin), 108 Burlington Northern & Sante Fe Railway Co. v. White, 196–197 Bush, G. W., administration, 219–220 business model of sports, 140–141, 159–168, 181–182, 227. See also college athletes and athletics Butler, Eric, 183–185 Butler, Judith, 7 Butler v. NCAA, 183–185 Buzuvis, Erin, 89 Cahn, Susan, 45 Cape, Victoria Ann, 32 Carpenter, Linda, 202 Castelnuovo, Shirley, 4 Cazares, Elisa, 131, 137 cheerleading as sport (competitive cheer), 96–104, 248n19, 248n24, 248n28 Choike, Elizabeth, 120 Civil Rights Act. See Office for Civil Rights; Title VI; Title VII; Title IX Civil Rights Restoration Act, 72, 148 Clarifications of Title IX: 1996 Clarification, 219; 2003 Clarification, 220; 2005 Clarification, 13, 220–222, 270n20. See also equal treatment standards; three-part test 278

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Index

Clinton, Brenda, 49 Clinton administration, 219 coaches and coaching: female coaches, 12, 191, 198, 201–206, 226; and retaliation, 197–198, 199; salary disparities, 145, 152– 155, 163, 205–206, 257nn37–38, 266n77; sexual harassment by, 90, 191, 206–216 coed sports. See integration of teams Cohen, Amy, 74–79 Cohen v. Brown University, 74–79, 132–134, 136, 138, 149–150, 254n50 Colby, Chad, 134 Colgate University, 105, 248n36 college athletes and athletics: business model of sports, 140–141, 159–168, 181–182, 227; earlier exposure, need for, 115; educational model of sports, 140–141, 160–162; pregnancy, 169–190, 260n4; racial inequalities, 113; retaliation fears, 199. See also coaches and coaching; female athletes and athletics; funding for athletics; specific sports College Sports Council, 82, 127, 269n11 Colorado equal rights amendment, 49 commercialized model of sports, 140–141, 158–168, 181–182, 227. See also college athletes and athletics Commission on Opportunity in Athletics, 219–220 Communities for Equity, 152 competition, reasonable expectation of, 109–110 competitive cheer, 96–104, 101–104, 248n19, 248n24, 248n28 competitive dance, 246n1 compliance standards, 143–146, 158 Connell, Robert, 228 contact sports. See specific sports contact sports exception, 42–50, 64, 104–112, 109 controlling authority theory, 151–153 country club sports, 114–116 crew (rowing), 1, 114–115, 250n70 critical race feminism, 11, 112 cultural feminism. See different voice feminism

culture of sports: limiting of women’s opportunities, 86–93; for and by men, 97–99, 226; pregnancy, 177–178, 181, 183–185; shifting norms, 7; women in contact sports, 104–112. See also funding for athletics damages remedies, 73–74, 147 Davis, Laurel, 97–98 Dean, Joe, 90 Dees, A. Jerome, 113 degendering sports, 38, 60–62, 112 deliberate indifference doctrine, 211–212, 214 de minimus exception, 153–154 Department of Education, 68. See also Office for Civil Rights Department of Health, Education, and Welfare (HEW), 19–21, 68–69. See also three-part test different voice feminism, 9–10, 45, 69, 95, 100–101, 103, 224 dilemma of difference, 16–17, 174–177 dining facilities, 145 disability, pregnancy as, 173–176 discrimination: race, 112–118, 129–130; reverse discrimination claims, 77–78, 83–86; sexual orientation discrimination, 193–194. See also sex discrimination discriminatory intent requirement, 130, 146–148 disparate-impact discrimination, 147 dominance feminism, 211, 216 Dominick, Peter, 18 donor funding, 149–151 Dorrance, Anson, 206–207, 209–210, 215 double Dutch, 118 Dowd, Nancy, 228 Drake University, 83–84 Duke University, 46–47, 96, 237n17 duplicate counting approach, 125–126 Dworkin, Shari, 7–8, 36, 88, 92, 108 economic downturn and sports, 223–224 educational model of sports, 140–141, 160–162 EEOC (Equal Employment Opportunity Commission), 264n7

elementary schools, 80–82 employment, 15, 203–204, 211, 264n7. See also leadership structures empowerment potential: antisubordination feminism, 224; and boxing, 108–109; cheerleading, 100; and identity, 5–6, 37–38, 87–91, 229–230; and integration of teams, 24–28; men on women’s teams, 60; and sexual harassment by coaches, 207; and Title IX lawsuits, 201 equal-accommodation requirement, 68–71, 77, 82, 172–177 Equal Employment Opportunity Commission (EEOC), 264n7 equal funding. See funding for athletics equality of opportunity in sports: and discriminatory intent, 146–148 (see also limited opportunities); and integration of teams, 52–57; program expansion, 69–70, 77; quality vs. quantity, 68; vs. sex blindness, 15–17; and the three-part test, 84; Title IX, goal of, 38, 77–80, 86; Title IX regulations, 22–23, 42–43 Equal Pay Act, 130–131, 206, 266n40 equal protection clause: contact sports exception, 48–50, 64; integration of teams, 41, 47–50; and sex separation in sports, 25, 32; state schools subject to, 47, 64; and swimming pools in Jackson, MS, 130; and the three-part test, 84–85; where no girls team, 53 equal rights amendments: Colorado, 49; Massachusetts, 49, 58, 238n35; Pennsylvania, 49, 203; Wisconsin, 49 equal treatment standards: 1979 Policy Interpretation, 255n4; athletic scholarships, 158–162; compliance standards, 143–146; discriminatory intent, 130, 146– 148; and fatherhood, 184–185; influence of, 70; and integration of teams, 51–52; and liberal feminism, 8, 144, 146–148, 225–226; limited success of, 10–11; and pregnancy, 172–177; psychological harms, 153–157; public-private divide, 148–153; spending inequities, 163–168; Title IX, effectiveness of, 93–94

Index

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279

equestrian sports, 114 equipment, 145 Equity in Athletics, 86, 128 Equity in Athletics Disclosure Act, 22, 271n47 ESPN program on pregnant athletes, 11, 170, 180 facilities, inequities, 1, 88–89, 145, 155–156 Faludi, Susan, 217 fatherhood, 183–185 female apologetic, 4 female athletes and athletics: enhanced status of athletes, 180–181; and femininity, 4, 88–91, 229–230; ideology of fragility, 45; pregnancy, 11, 131, 137, 169–190, 226, 260n4, 261n21; sex blindness, effects of, 23–24; Title IX, effects of, 36–37, 225. See also empowerment potential; specific colleges and universities, sports, and Title IX regulations female body, 3 female coaches, 12, 191, 198, 201–206, 226 femininity, 7, 88–91, 229–230 feminism: antisubordination, 9–10, 12, 211, 216, 224, 226; critical race, 11, 112; different voice, 9–10, 45, 69, 95, 100–101, 103, 224; dominance, 211, 216; postmodern, 5, 11; radical, 4; social justice, 115; stealth, 8; Third Wave, 216; and Title IX, 8–12; victim, 216. See also liberal feminism field hockey, 57–58, 60–61, 119–124, 143, 241n84 Fields, Sarah, 30, 33, 107 figure skating, 29 Fine, Gary, 28 Florida high schools, 26–27 football: as a contact sport, 42–43; disproportionate funding for, 128, 163–164, 227, 272nn51–52; female participants, 46–48, 106, 111, 237–238nn17–18, 238n24, 248n36; hierarchical model of sports, 165–166; revenue raising, 19, 166–167, 227; women’s professional leagues, 111. See also specific colleges and universities Foudy, Julie, 219 280

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Index

fragility, ideology of, 45 Franklin v. Gwinett County Public Schools, 73 Fresno State University, 198–200 full and effective accommodation of sports opportunities, 68–71, 77, 82, 172–177 funding for athletics: Florida high schools, 26–27; football, 19, 128, 163–164, 166–167, 227, 272nn51–52; inequities in, 87, 145–146, 163–168, 182, 222–223; lawsuits, 74–79; at Louisiana State University, 79–80; private funding, 149–151, 2201, 2201; lawsuits

Hargreaves, Jennifer, 16 Harris, Jennifer, 90–91 Hastert, Dennis, 219 Hatch, Orrin, 72 The Heart of the Game (movie), 187–189, 198 hegemonic masculinity, 11–12, 228 Henderson, Teresa, 213–214 hetero-feminine identity, 87–91 hetero-masculine identity, 87–91, 203 HEW (Department of Health, Education, and Welfare), 19–21, 68–69 Heywood, Leslie, 7–8, 36, 88, 92, 108 hierarchical model of sports, 106, 165–166 high school. See secondary school athletes and athletics High School Sports Information Collection Act, 224 Hispanic women and sports, 113, 116–117 hockey. See field hockey; ice hockey Hogshead-Makar, Nancy, 134 homophobia in sports, 33, 87–91, 99, 203, 272n50 homosexuality and sports, 87. See also gender nonconforming students hostile environment, 207, 214, 215 housing, 145 Hsu, Jen, 75 Hunter, State v., 45 ice hockey, 42–43, 48, 105–106, 114, 200–201, 205, 248n36 ice skating, 29 identity and sports, 5–6, 37–38, 87–91, 203, 229–230 inappropriate physical contact, 209. See also sexual abuse; sexual harassment Independent Women’s Forum, 269n11 Indiana High School Athletic Association, 44, 111 individual rights vs group rights, 24–26, 36–38, 51. See also liberal feminism in-group preference, 204 injuries, 23, 171 institutional bias and employment issues, 203

institutionwide approach, 71 integration of teams, 41–66; basketball, 23–24, 53, 55, 89; cheerleading, 97; contact sports exception, 44–48; and equality of opportunity, 52–57; equal protection clause, 41, 47–50; and equal treatment standards, 51–52; football, 46–48, 237–238nn17–18, 238n24; and gender nonconforming students, 56, 65; as goal, 20; golf, 238n35; men on women’s teams, 52, 57–63; pros and cons, 23–28, 35–39, 63–66; restrictions on, 240n71; and rule changes, 235n51; sexual element, 33; as supplement to sex separated teams, 51–57; threat to male athletic superiority ideology, 55–56; Title IX, background of, 21–22; volleyball, 239n57; where no girls team available, 41; wrestling, 33, 41, 47–48, 238n23 interest in sports. See limited opportunities irresponsible reproduction discourses, 179–180 Jackson, MS, 129–130, 137 Jackson, Roderick, 192, 201 Jackson v. Birmingham Board of Education, 192–193, 197, 200–201 James Madison University, 86, 126–129, 137–138 Javits, Jacob and the Javits Amendment, 19, 148 Jennings, Melissa, 207, 209–210, 215 Jill (sexual abuse victim), 213–214 Johnson-Klein, Stacy, 199–200 Jones, Nathaniel, 54 Joyner, Florence Griffith, 6 Kalsem, Kristen, 115 Kane, Mary Jo, 4, 29 Keller, Debbie, 207 Kellmeyer, et. al. v. NEA, et al., 259n71 Kentucky High School Athletic Association, 81–82 Kleczek, Brian, 58 Kocher, Leo, 269n11

Index

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281

lacrosse, 114, 118, 119–124 Ladies Professional Golf Association (LPGA), 25, 90 Lago Vista School District, Gebser v., 211 Landers, Melissa, 28 language, sexually graphic, 209, 211 Lantz, Jacqueline, 49–50 leadership structures, 12, 191, 201–206, 226 A League of Their Own (movie), 96 Ledbetter, Beverly, 74 lesbian coaches, 203 lesbian students, 56, 89–90. See also gender nonconforming students leveling down remedy, 129–140, 164 Levit, Nancy, 29 Lewis, Carl, 6 liberal feminism: and asymmetrical equality, 58; athletic scholarships, 8–9, 158, 160; contact sports exception, 44; dilemma of difference, 16–17; employment issues, 206; equal accommodation requirement, 69; equal treatment standards, 8, 144, 146–148, 225–226; individual not structural inequalities, 8–12, 49–50, 95; leveling down, 139; prisons, 233n9; sex separation in sports, 34; sexual harassment, 210–216; the three-part test, 93; Title VII, 15; Title IX, 8–12, 157, 224–229 limited opportunities: and contact sports, 105–106; and the culture of sports, 86–93; and interest in sports, 77–80, 85–86, 92–94; lawsuits, 77–80; for men, 57–63; at Slippery Rock University, 121; Title IX regulations, 42–43, 96; for younger children, 116 Little League Baseball, 30–31, 44 Little League Softball, 31 locker rooms, 88–89, 145 Louisiana State University, 79–80, 90 LPGA (Ladies Professional Golf Association), 25, 90 MacKinnon, Catharine, 211, 233n41 Maggie Fitzgerald (fictional movie character), 107–109 Magill, Pamela, 31 282

| Index

male athletes and athletics: cuts blamed on Title IX, 123, 126–129, 132, 134–135, 217–218; and fatherhood, 183–185; integration of women’s teams, 27, 52, 57–63; male athletic superiority ideology, 29–37, 44–45, 55–56, 203–205; male cheerleaders, 97; marginalization of non contact men’s sports, 226–228; practicing with women, 60, 240n71; reverse discrimination claims, 77–78, 83–86; in traditional women’s sports, 241n84. See also masculinizing function of sports; specific colleges, sports, and universities Mamaroneck, NY, 154 Marburger, Daniel, 134 marginalization: of non contact men’s sports, 226–228; of pregnancy issues, 178–179; of women’s sports, 15 Marquette University, 86 masculinizing function of sports, 87–89; and cheerleading, 97–99; and gender hierarchies, 11–12, 32–33; and pregnancy, 177–178, 181, 183–185; sexual expectations, 245n66; and sexual harassment, 216; threats to, 29–30, 55–56; unchanged by Title IX, 226–228; and women as administrators and coaches, 203–205 Massachusetts equal rights amendment, 49, 58, 238n35 Massachusetts Interscholastic Athletic Association, 58 McDonagh, Eileen, 33–34 measures of compliance, 68, 146 media coverage of women’s sports, 1–2, 223 medical leave with reinstatement, 173–174 medical services, 145 Mercer, Heather Sue, 46–47, 96 Merritt Island High School, 149 Messner, Michael, 26 Michigan High School Athletic Association, 152, 154, 156, 257nn37–38 Million Dollar Baby (movie), 107–109 mind/body divide in Western philosophy, 3 Minority Report of Commission on Opportunity in Athletics, 219–220 Mitchell, Jackie, 30

Monahan, Melony, 41 monetary damages, 73–74, 147 mootness, 73, 242n17 Morrison v. Northern Essex Community College, 267n67 motherhood, 178–180, 181. See also pregnancy Muny Football League (Cleveland Browns), 49 names of teams, 91 Nared, Jaime, 55 National Collegiate Athletic Association (NCAA). See NCAA National Honor Society, 131, 137, 172, 186, 261n21 National Organization for Women (NOW), 20, 121 National Wrestling Coaches Association, 86 Navratilova, Martina, 7 N.B. (sexual abuse victim), 208, 212 NCAA (National Collegiate Athletic Association): on 2005 Clarification, 221; and athletic scholarships, 81, 160–162; and business model of sports, 141; on Commission on Opportunity in Athletics, 220; and competitive cheer, 102; on the economic downturn and sports, 224; on fatherhood, 184–185; on pregnancy, 170–171, 174, 184–185; report on gender equity, 222–223; and salary disparities for coaches, 205–206; on sex separated teams, 23; Title IX. resistance to, 18, 21, 151; Title IX, support for, 72–73, 151–152 NEA, et al., Kellmeyer, et. al. v., 259n71 New Jersey State Interscholastic Athletic Association, 59 New York City, NY, 118 New York Public High School Athletic Association, 59 Nike, 2, 180–181, 229 nontraditional scheduling, 152–155 Northern Essex Community College, Morrison v., 267n67 NOW (National Organization for Women), 20, 121

Obama, Barack, 222, 224 O’Connor, Karen, 23–24, 26, 35, 50–51, 234n27 O’Connor, Sandra Day, 192 Office for Civil Rights (OCR): 1996 Clarification, 219; 2003 Clarification, 220; 2005 Clarification, 13, 220–222, 270n20; applicability of three-part test to secondary schools, 82; on cheerleading, 100–102; on cuts in men’s sports, 134–135; on pregnancy, 170–171, 173–174 Ohio High School Athletic Association, 53, 237n8 Ohio State University, 21 Olympics, 1–2 opportunities to participate. See limited opportunities opposition clause and retaliation, 195 out-group preference, 203 Outside the Lines (TV program), 170, 180 Palin, Sarah, 222 Palmer Township Athletic Association, 203 Palmer v. Thompson, 130 Pappano, Laura, 33–34 Parker, Candace, 89, 262n35 participation clause and retaliation, 195 participation opportunities requirement, 10, 125–126. See also limited opportunities Pelham, NY, 154 Penn State University, 90–91 Pennsylvania equal rights amendment, 49, 203 Pennsylvania Interscholastic Athletic Association, 59 Pennsylvania State University, 90–91 performance gap, 6 PGA (Professional Golfer’s Association), 25 philosophy, Western, 3 physical contact, inappropriate, 209. See also sexual abuse; sexual harassment physical education in schools, 117–118 Playing with the Boys (McDonagh and Pappano), 33–34 pole vaulting, 111

Index

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283

polls, public opinion, 222, 270n33 Portland, Renee, 90–91 Post, Robert, 38 postmodern feminism, 5 practice facilities, 145 pregnancy, 11, 131, 137, 169–190, 226, 260n4, 261n21 prisons, 233n9, 246n87 private funding, 149–151, 220, 256n30 private schools, 47, 64, 71–72, 114 Professional Golfer’s Association (PGA), 25 program-specific interpretation, 71 psychological harms, 54, 153–157 publicity, 145 public opinion polls, 222, 270n33 public-private divide, 148–153 public schools, 114. See also college athletes and athletics; elementary schools; secondary school athletes and athletics punitive damages, 46, 237n17 quality vs. quantity of sports opportunities, 68 Quinnipiac University, 101, 124–126 race discrimination, 112–118, 129–130 racial stereotypes and sports, 114 radical feminism, 4 rape, 208 Reagan, Ronald, 72 reasonable belief doctrine, 193–196 reasonable employee doctrine, 196–197 reasonable expectation of competition, 109–110 recruitment, 145, 163, 244n60 relational feminism. See different voice feminism retaliation, protection from, 12, 191–201, 226 revenue raising sports, 19, 148, 166–167, 227 reverse discrimination claims, 77–78, 83–86 Rhode, Deborah, 203 Rhode Island Interscholastic League, 58 role models, 7, 203–205 roster management, 122–129 284

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Index

rowing, 1, 114–115, 250n70 rugby, 42–43 rules of sports, sex based, 31–32, 55–56, 235n51 Russell, Darnellia, 187–189, 198–199 Sacred Heart University, 170 salaries of coaches, disparities, 145, 163–164, 205–206, 226, 266n77 scheduling disparities, 145, 152–155, 205, 257nn37–38, 266n77 scholarships. See athletic scholarships secondary school athletes and athletics: athletic associations, 151–153; coaches, 202; female participation, 67, 82; future outlook, 223; High School Sports Information Collection Act, 224; men’s sports, 218; and pregnancy, 186–189; retaliation fears, 199; and the three-part test, 80–82; Title IX coverage, 151–157, 225. See also specific sports second-class citizenship message, 137–140, 153–157 segregation in sports. See sex separation in sports separate but equal. See sex separation in sports sex based rules, 31–32, 55–56, 235n51 sex blindness: administration and coaching jobs, 203–204; in employment, 15; vs. equal opportunity in sports, 15–17; equal protection clause, 50; negative effects of, 23–24; vs. three-part test, 93; and tryout rights, 20–21, 24, 27, 34, 104 sex differences, 29–34, 246n82 sex discrimination: and discriminatory intent requirement, 146; in education, 17–18; and the EEOC, 264n7; and retaliation, 12; and sexual harassment, 210–216; Title IX, effectiveness of, 93 sex separation in sports: and discriminatory intent, 147–148; and equal protection clause, 25; and equal treatment standards, 144; and integration of teams, 41, 51–57; liberal feminism on, 34; pros and cons, 15–17, 20, 35–39, 63–66; reinforce-

ment of sex differences and hierarchy, 29–34; and significant harms, 54; and Title IX regulations, 10, 20–23, 41–66 sexual abuse, 208, 212–214, 246n66 sexual harassment, 12, 73, 90, 191, 206–216, 226 sexualizing of cheerleading, 97–98 sexual orientation discrimination, 193–194 Shaw, Mandy, 102 single-axis discrimination laws, 112 Slippery Rock University, 119–124, 143–144, 252n12, 255–256nn1–2 soccer, 114, 154–157, 206–207, 213–214 social groups, priority of rights of, 24–26, 37–38, 51 social justice feminism, 115 softball: as baseball equivalent, 42–43; coaches salaries, 205; facilities inequities, 155–156; Little League, 31; male players, 241n84; and NCAA scholarships, 81; at Slippery Rock University, 143; and women of color, 114 Sorenstam, Annika, 25 spending inequities. See funding for athletics state laws on sexual harassment, 214–215 State v. Hunter, 45 status harms of leveling down, 136–140 Staurowsky, Ellen, 127 stealth feminism, 8 stereotyping of sports, 114 Stevens, John Paul, 24, 26, 234n27 stigmatizing message: of leveling down, 137–140; stigmatizing of female athletes, 16–17, 25, 64, 106; of treatment of pregnancy, 174–177, 179; of unequal treatment, 153–157 student-athletes. See college athletes and athletics subordination of women, 3, 96–101, 211. See also antisubordination concerns substantial proportionality, 76, 122, 124–128, 220, 255–256nn1–2. See also equal-accommodation requirement suburban sports, 114–116 Suggs, Welch, 164, 217, 221

supplies, 145 supportive role of cheerleading, 96–100 support services, 145 surveys, 220–221 swimming, 84, 114, 119–124 swimming pools in Jackson, MS, 129–130, 137 Syracuse University, 169, 189 team names, 91 team pressures, 210 Temple University, 26–27 temporary disability, pregnancy as, 173–176 Tennessee Secondary School Athletic Association, 32 tennis, 48, 266n77 Texas Interscholastic Wrestling Association, 41 Third Wave feminism, 216 Thompson, Palmer v., 130 three-part test: Commission on Opportunity in Athletics, 220; and contact sports, 105; in elementary and secondary schools, 80–82; equal accommodation requirement, 69–71; and equality of opportunity, 84; and the equal protection clause, 84–85; and funding for athletics, 71; lawsuits, 74–80, 81–82, 86; leveling down remedy, 129–140; liberal feminism on, 93; reverse discrimination claims, 77–78, 83–86; vs. sex blindness, 93; at Slippery Rock University, 120–124; success of, 10, 225; varsity teams added, 79–80 Title VI, 112, 147 Title VII, 15, 194–196, 215, 264n7 Title IX: agnostic about remedies, 134–135, 139–140; anti-Title IX movement, 123, 126–129, 132; background information, 17–21; backlash, 13, 217–222, 269n11; future outlook, 37, 222–224; goals of, 38, 77–80, 86; and increased women’s participation in sports, 36–37; and liberal feminism, 8–12, 224–229; on sexual harassment, 210–216. See also specific regulations

Index

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285

“Title Nine” clothing company, 2 Tohono O’Odham High School, 131, 137 Tokarz, Karen, 29 Tower, John, and the Tower Amendment, 18–19, 148 track and field, 114, 125–126, 200 transgender students. See gender nonconforming students travel, 145 The Triumph and Tragedy of Title IX (Suggs), 164 tryout rights, 20–21, 24, 27, 34, 104 tutoring, 145 U. S. Department of Education, 68. See also Office for Civil Rights (OCR) U. S. Department of Health, Education, and Welfare (HEW), 19–21, 68–69. See also three-part test universities. See college athletes and athletics; specific colleges, sports, and universities University of Hawaii, 200 University of Illinois, 84 University of Iowa, 88–89 University of Kansas (KU), 164, 183 University of Louisville, 170 University of Maryland, 101–103 University of Michigan, 167 University of Minnesota, 105 University of North Carolina (UNC), 206–207 University of Oregon, 164, 248n24 University of Pennsylvania, 30 University of Pittsburgh, 91 University of Tennessee, 89 unwed motherhood, 179–180. See also irresponsible reproduction discourses; National Honor Society; pregnancy urban schools and gender and racial inequalities, 115–118, 223 Varona, Donna de, 219 victim feminism, 216

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Violence against Women Act, 150 Vivas, Lindy, 198–199 volleyball, 60, 114, 124–126, 239n57, 241n84 vulnerability of female athletes, 208–210 Wachs, Faye Linda, 27–28 Walker, Christopher, 203 water polo, 114, 119–124, 252n12 Weinberger, Casper, 21 Western philosophy, 3 White, Burlington Northern & Sante Fe Railway Co. v., 196–197 Whitson, David, 37, 49–50 Wie, Michelle, 24–25 Williams, Serena, 114 Williams, Venus, 114 Williams, Verna, 115 Willis, Paul, 36 Wisconsin equal rights amendment, 49 Wisconsin Interscholastic Athletic Association, 152 WNBA (Women’s National Basketball Association), 90 women in sports. See female athletes and athletics women of color, 11, 112–118, 250n70 Women’s National Basketball Association (WNBA), 90 women’s professional football leagues, 111 Women’s Sports Foundation, 113, 116 Woods, Tiger, 114 wrestling: as a contact sport, 42–43; decline in interest, 218; at Drake University, 83–84; female participants, 33, 41, 47–48, 106, 110, 238n23; and homophobia, 33; integration of teams, 47–48; lawsuits, 86; male athletic superiority ideology, 45; marginalization of, 227; at Slippery Rock University, 123 Yale University, 1, 86 Yellow Springs School District, 53 Young, Iris Marion, 175, 178 youth sports, 115–118

About the Author

Deb orah L. Brake is a professor of law at the University of Pittsburgh School of Law.

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