GENDER DISCRIMINATION (Part I: Resources). Background Dramatic effect Title IX’s significance –Defeat of Tower Amendment –Amplified by regulations.

GENDER DISCRIMINATION

(Part I: Resources)

Background• Dramatic effect• Title IX’s significance

– Defeat of Tower Amendment– Amplified by regulations

Distinguish effect at D-IA schools and all the rest

• at time of Title IX, funding for ♂’s non-revenue sports significantly exceeded women’s funding for many schools

• today, key in HS and DIII is whether sports offerings “effectively accommodate the interests and ability” of male and female students who are already enrolled at the institution

• In contrast, in DI, q is which male or female athletes should be recruited and financially support to attend a university

Pre-Title IX: Blair• Should it be a defense to a claim under these

state provisions that a state university provides the same subsidies for men’s non-revenue sports as women’s non-revenue sports?

• Suppose Blair rejected WSU’s argument, and required expenses to be equalized regardless of sports?

Title IX’s 3-prong test

1> Are participation opportunities provided in numbers substantially proportionate to respective enrollments?

2> Can U show a history and continuing practice of program expansion?

3> When one sex is underrepresented, can U show “the interests and abilities of the members of that sex [has] been fully and effectively accommodated?"

Evaluating the text• Why should enrollment be the test?

• Bottom line: can’t meet OCR guidelines, offer football, and provide both men’s and women’s teams in other sports

Prong #3: Interest of students

• prong’s focus on secondary and DIII schools w/ few recruited athletes is that U need not “rain money on otherwise disinterested students”

• even at Brown, can’t base D-I offerings on “student interests in athletics” [937] b/c students who can play varsity were recruited, and if Brown didn’t have sport, would go elsewhere

• Yuracko [968-9]: goal is social transformation to encourage girls to develop socially valued traits associated w/ competitive athletics

Where to cut?

• Is it fair to offer more non-football opportunities to female athletes?

• Legally, does cutting men’s sports violate Title IX?

• The Equal Protection Clause?

• What should a school needing to cut back on athletics be permitted to do?

The “Mythical Title XI”

- §1: where resources and enrollment permit, any boy has the right to participate infootball

- §2: subject to resource constraints, all boys preferring other sports that American boys typically play should have a comparable an opportunity as possible compared to their football-playing fellow students

Reform Proposals• Modest

– reduce D-I football scholarship totals from 85 to 55, making them equivalency

• Radical– abolish all D-I men’s sports that don’t make money– provide for sufficient women’s sports to equal men’s

scholarship– typical school would keep football and men’s

basketball (68 male scholarships) and about 5 women’s sports