About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

7 S. Cal. Rev. L. & Women's Stud. 63 (1997-1998)
(Why) Does Gender Equity in College Athletics Entail Gender Equality

handle is hein.journals/scws7 and id is 75 raw text is: (WHY) DOES GENDER EQUITY IN COLLEGE ATHLETICS ENTAIL GENDER EQUALITY? MARK KELMAN* Title IX legally commits us to gender equity in the allocation of resources to male and female athletes. One thing that this has come to mean, in practice, is that the vast bulk of universities and colleges must spend roughly as much per capita on varsity athletic programs for the women enrolled in the school as they do for men to be fully compliant with the statute's demands.' In some sense, the idea that * William Nelson Cromwell Professor of Law, Stanford Law School. This research was supported by the Stanford Legal Research Fund, made possible by a bequest from Ira S. Lillick and by gifts from other friends of Stanford Law School. Thanks, too, to my colleagues John Donohue, Tom Gray and Deborah Rhode for helpful comments, and to Christine Wade and Lina Ericsson for research assistance. 1. Title IX states that [nlo 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. 20 U.S.C. § 1681(a) (1994). The statute, on its face, states that schools are not to be required to insure that women participate in sports or receive benefits in proportion to their enrollment at the covered institution. Nothing contained in subsection (a) of this section shall be interpreted to require any educational institution to grant preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number of persons of that sex participating in or receiving the benefits of any federally supported program or activity, in comparison with the total number of or percentage of persons of that sex in the community. 20 U.S.C. § 1681(b)(1994). Senator Bayh, who authored the relevant provision, stated that the bill does not contain... a quota which says there has to be a 50-50 ratio to meet the test. 117 CONG. REc. 30,406-07 (1971). But just as the statute does not define what it means to deny benefits, exclude, or discriminate, it does not define preferential or disparate treatment. Women would seemingly be considered both victims of discrimination if they received fewer benefits than they deserved and beneficiaries of preferential treatment (which universities are not required to give) if they received more, but since there is no obvious metric to let us know what it is they, or any other claimants, deserve, the statute gives us little guidance about the necessity of proportionality. However, the 1979 Office for Civil Rights (OCR) Policy Interpretation, to which courts have generally deferred, has made it clear that the only realistic way of complying with the nondiscrimination mandate is to insure proportionality of participation. Interpreting current C.F.R. § 106.41(c)(1)(1997) (then 45 C.F.R. § 6.41(c) (1979)) on the effective accommodation of student interests and abilities, the OCR established a three-prong test. In order to comply with

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most