Re: Title IX softball case

Date: Fri Apr 21 2000 - 16:17:43 EDT

In response to:
> In further response.....Contrary to your statement, "proportionality" is
> NOT the only "active" standard to test Title IX compliance. Most high
> defend Title IX cases on the THIRD prong.....that girls in their
> are not interested in new sports (e.g., ice hockey in Alabama or field
> in Nebraska).

  I have no doubt that they defend Title IX cases on these grounds, but the
fact is they lose. If it is true that an institution can show compliance
by increasing opportunities for females (i.e. second prong), then explain
Cohen v. Brown and its adjunct cases to me. If it is true that an
institution can show compliance by effectively meeting everyone's
interests, then explain Neal v. Board of Trustees of California State
University to me.

  Also please explain the statement of the Office of Civil Rights' Dr. Mary
Frances O'Shea when she said that "if a school is taking action to enhance
its women's program, then certainly, that would be a consideration in
allowing a school some time to bring its participation rate into
compliance. But that can't go on forever." This seems to indicate that
"participation rate" (proportionality) is the final judgment of compliance.

> You further miss the point in that athletics is UNIQUE in that it is the
> only educational program that is sex segregated. It is not like
employment or
> physics in which theoretically males and females can compete for the same
> job or classroom seat. The school predetermines how many opportunities
it will
> offer to boys and how many it will offer to girls by deciding which
> it will offer for each sex. By providing 200 opportunities for boys and
> 100 opportunities for girls, it decides ---- regardless of interest ---
how to
> allocate its resources between the sexes.

  Again you make a good point that athletics is the only educational
program that is divided by gender lines. I'm glad you showed me exactly
what you mean with the use of the numbers. However, you must consider too
that the Education Department doesn't care how many opportunities are
offered, only how many male and female athletes RESULT. A variety of
circumstances can intervene to inflate or deflate the numbers of athletic
participation for one sex or the other, and the other sex ought not be
penalized for those circumstances.

  Think of it this
> way.....boys started the race 150 years ago and are running on the back
stretch. Girls
> were let into the race just 25 years ago and thus haven't even reached
the first
> turn yet. it the girls' fault that they are 300 yards behind
> they were not allowed to start at the same time? Further, most boys have
> the benefit of fathers and grandfathers who played sports to teach them
> work with them. How many girls before 1990 had mothers and grandmothers
> teach them and foster their interests?

  I don't know the answer to your question and I also fail to see its
relevance. Last time I looked on the calendar it was the year 2000, not
150 years ago or 25 years ago or whatever. I can tell you of one, however,
who did have a mother's encouragement and a father's encouragement and
brother's encouragement etc. etc. relative to sports and to everything
else. Her name is Amber DeWine and she lives in the present and has done
quite well for herself.

  I would also question your statement that girls haven't even reached the
proverbial "first turn" yet. Back up what you say with proof. Show me
real instances of girls being denied opportunities, and don't show me
things where boys are disproportionately represented in end result.

  It is to be understood that I do not blame the girl athletes...I am a
female athlete myself and take to heart your statement that girls benefit
as much as boys. However, boys also benefit as much as girls. And a boy
who has no opportunity hurts just as much as a girl who has no opportunity.
It is assuredly NOT the girls' fault that any of this is going on. Girls
do not want things taken away from the boys. For example, when there have
been protests at colleges that eliminate boys' teams, the girls have been a
large portion, often a majority, of those protesting. In addition, some
female athletes have resorted to participating in two sports to inflate the
girls' numbers, and using other artificial means (like still counting
injured players in the females' numbers) to inflate their numbers so that
things will not be taken from the boys to satisfy a Women's Sports
Foundation busybody's mathematical "z sub mu" formula.

> No parent would give 7 cookies to his/her son but only
> 3 cookies to his daughter of comparable age.

  No, but no reasonable parent would give 7 cookies to his son and 3 to his
daughter and then take four of the cookies away from his son and throw them
in the trash can, so that "equality" is achieved at 3 cookies a piece.
(The trash can actually makes out like a bandit; it has more cookies than
either child!)

  To recap, please...:

     1. If prong two exists as you allege, explain Brown and its adjuncts.
     2. If prong three exists as you allege, explain Neal.
     3. If proportionality is not the only active test, explain Dr.
O'Shea's statement.
     4. Show me some instances of real opportunity discrimination (not
     5. Explain to me why I, as the parent in your scenario, should give 4
cookies to the trash can. Explain what the trash can has done to deserve 4

Amber DeWine

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