Philosophy of Law

The Supreme Court's Need for Libertarian Law

Walter E. Block, Roy Whitehead

• Publisher: Palgrave Macmillan
• Year: 2019
• ISBN:
  9783030283605
• Topic: Negocios y empresa
• Subtopic: Negocios en general

Looking at discrimination, education, environment, health and crime, this volume analyses United States Supreme Court rulings on several legal issues and proposed libertarian solutions to each problem. Setting their own liberal theory of law, each chapter discusses the law at hand, what it should be, and what it would be if their political economic philosophy were the justification of the legal practice. Covering issues such as sexual harassment, religion, markets in human organs, drug prohibition and abortion, this book is a timely contribution to classical liberal debate on law and economics.

Part IDiscrimination

© The Author(s) 2019

W. E. Block, R. WhiteheadPhilosophy of LawPalgrave Studies in Classical Liberalismhttps://doi.org/10.1007/978-3-030-28360-5_1

Begin Abstract

1. Gender Equity in Athletics

Walter E. Block¹ and Roy Whitehead²

(1)

Loyola University, CARROLLTON, LA, USA

(2)

University of Central Arkansas, Conway, AR, USA

Walter E. Block (Corresponding author)

Email: [email protected]

Roy Whitehead

Email: [email protected]

Keywords

Gender equity in athleticsEqual opportunityGender Equity Task ForceTitle IX of the Educational Amendments of 1972

End Abstract

Background

For years intercollegiate athletics has offered interested and able students opportunities to experience the lessons of competition, develop physical and leadership skills, be a part of a team, and perhaps most important, enjoy themselves. Good intercollegiate athletics programs require competitive parity, universal and consistently applied rules, and an opportunity to participate according to one’s interest and ability. The majority of National Collegiate Athletic Association (NCAA) members have sought to assure the foregoing conditions, but there is considerable evidence that they have not fully succeeded with regard to women.

Because there was no assurance of equal opportunity in the range of components of education, Congress enacted Title IX of the Educational Amendments of 1972.¹ The federal law stipulates that:

[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.²

Interestingly, an often ignored subsection of the statute, often quoted by football coaches, provides:

[N]othing contained in subsection (a) … shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance that may exist with respect to the total number or percentage of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number or percentage of persons of that sex in any community, State, section or other area…. (20 U.S.C. §1681(b))

In 1991, the NCAA surveyed its member’s expenditures for women’s and men’s athletics programs. The survey revealed that undergraduate enrollment was roughly equally divided by sex, but men constituted 69.5% of the participants in intercollegiate athletics, and their programs received approximately 70% of the athletics scholarship funds, 77% of operating budgets, and 83% of recruiting money.³

In response to the study, the NCAA appointed a Gender Equity Task Force that submitted its report during July 1993. The Task Force, in its report, defined gender equity as follows:

An athletics program can be gender equitable when the participants in both men’s and women’s sports programs would accept as fair and equitable the overall program of the other gender.⁴

The report defined the ultimate goal of gender equity as:

The ultimate goal of each institution should be that the numbers of male and female athletes are substantially proportionate to their numbers in the institution’s undergraduate population.⁵

In January 1994, the NCAA members gave a lukewarm endorsement of gender equity by voting to encourage member institutions to follow the “law” concerning gender equity.⁶ One purpose of this article is to review the guiding regulations and cases that interpret the “law” for the benefit of those who are interested in effectively accommodating the interest and abilities of women athletes. We are concerned that the Federal court decisions which have dealt specifically with Title IX and “gender equity” have generally failed to focus on the real meaning of Title IX, “fully and effectively accommodating the interests and abilities of women athletes.” This is due to a misguided focus almost solely on proportionality in numbers rather than on a real accommodation of athletic abilities.

Another goal of this article is to philosophically and legally examine the underlying principles of gender equity in athletics. To this end, we will criticize this “law” from a perspective based on property rights and economic freedom.

What Are the Requirements?

Part I

The primary sources of gender equity responsibilities are found in Title IX, the implementing regulations,⁷ and, perhaps more important, the Title IX Athletics Investigators Manual used by the Department of Education, Office of Civil Rights (OCR).⁸ Judges who are involved in Title IX cases frequently cite the Office of Civil Rights Manual as authority. The OCR takes several major factors into account in determining whether intercollegiate athletic programs are gender equitable. The program components are⁹:

1. 1.
   Accommodation of athletic interests and abilities;
2. 2.
   Equipment and supplies;
3. 3.
   Scheduling of games and practice times;
4. 4.
   Travel per diem allowance;
5. 5.
   Opportunity to receive coaching and academic tutoring;
6. 6.
   Assignment and compensation of coaches and tutors;
7. 7.
   Locker rooms, practice, and competitive facilities;
8. 8.
   Medical and training facilities and services;
9. 9.
   Housing and dining facilities and services;
10. 10.
    Publicity; and,
11. 11.
    Athletic scholarships.

Although all the program components are considered important, perhaps the most relevant issue is whether or not the university is providing an effective accommodation of students’ interests and abilities. The regulations require institutions that offer athletics programs to accommodate effectively the interests and abilities of students of both genders to the extent necessary to provide equal opportunity in selection of sports and levels of competition. The Office of Civil Rights uses three factors to assess the opportunity for individuals of both genders to compete in intercollegiate programs:

1. 1.
   Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to the respective enrollments;
2. 2.
   Where members of one sex have been and are underrepresented among intercollegiate athletics, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities to that sex; and
3. 3.
   Where members of one sex are underrepresented among intercollegiate athletics, and the institution cannot show a continuing practice of program expansion such as that cited above, where it can show that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.¹⁰

Unfortunately, very few institutions, especially those with football programs, are able to meet the first test, proportionality. Additionally, a training session with an author of the OCR Investigators Manual reveals that no institution, to his knowledge, has ever met the second test consisting of a history and practice of program expansion responsive to the interests and abilities of women.¹¹

Given that few institutions can meet parts one and two of the test, we must focus on whether the institution is effectively accommodating the interests and abilities of the underrepresented sex.

Recall that the NCAA Gender Equity Task Force defined gender equity as having the same proportion of female and male athletes as in the undergraduate student body. Much to the dismay of some interest groups, OCR has ruled that the third part of the test may be satisfied by the institution showing it has accommodated the interest and abilities of its female students, although there may be a substantial disproportionality of numbers between male and female athletes. According to the OCR, this may be demonstrated by showing that the opportunity to participate in intercollegiate athletics is consistent with the interests of enrolled women undergraduates who have the ability to play college sports, which can be determined by an external survey of the university’s recruiting area, including high school and junior college competition, summer league competition, and sanctioned state sports. The university need only accommodate women who have the ability to play at the intercollegiate level.¹²

The Office of Civil Rights does not generally interview undergraduates who cannot play at the intercollegiate skill level. It is clear, however, that if the undergraduate survey, or external survey of the recruiting area, suggests that potential female students who possess the required interest and ability are present, and there is a reasonable availability of competition for a team, they must be accommodated. If the conference, for example, has women’s softball, and softball interests and abilities are discovered in the undergraduate population and the recruiting area, the university must accommodate this by inaugurating a woman’s softball team.

Secondly, there is perhaps the most misunderstood area of gender equity compliance, athleti...

Table of contents

• Cover
• Front Matter
• Part I. Discrimination
• Part II. Education
• Part III. Environment
• Part IV. Health
• Part V. Crime
• Back Matter