Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?
Walter E. Block
Loyola University New Orleans - Joseph A. Butt, S.J. College of Business
University of Central Arkansas
Arkansas Department of Higher Education
The University of Toledo Law Review, Vol. 30, No. 2, pp. 223-249, Winter 1999
For years intercollegiate athletics has offered interested and able students' opportunities to experience the lessons of competition, develop physical and leadership skills, be a part of a team, and perhaps most important, enjoy themselves. Good intercollegiate athletics programs require competitive parity, universal and consistently applied rules, and an opportunity to participate according to one's interest and ability. The majority of NCAA members have sought to assure the foregoing conditions, but there is considerable evidence that they have not fully succeeded with regard to women.
Because there was no assurance of equal opportunity in the range of components of education, Congress enacted Title IX of the Educational Amendments of 1972. 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."
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. S1681(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.
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." 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."
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. 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.
Number of Pages in PDF File: 60Accepted Paper Series
Date posted: October 19, 2000
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