Download COMMENTS May 1989: Sex equity part of athletic programs

Legal Comment
James F. Clark, Legal Counsel, Lathrop & Clark
Sex equity part of athletic programs
"Several years ago, a coach of amateur fighters in
Arizona feared that one of his proteges might have to
box the first female contestant in Golden Gloves history.
'My boy may quit boxing if he loses to her,' the coach
said. 'He's on the school wrestling team and earlier this
year had to wrestle a guy with no legs and one arm. And
now this."' So wrote Ira Berkow, sports columnist for
The New York Times.
As athletic ability has increasingly become a
springboard for further education and future careers,
both mate and female students have expressed heightened interest in interscholastic athletic participation. State
and federal laws have been enacted to ensure equality
of athletic opportunity. As the remarks of Berkow's boxing coach demonstrate, however, sex equity in athletics
is a hard sell. Although the laws governing male-female
athletic participation have undergone a number of
changes in recent years, the stereotypical view that only
males should be involved in competitive sports, especially contact sports, lingers on. This Comment summarizes
the state of affairs in male-female interscholastic athletic
competition.
Introduction
Section 120.13 (unless noted otherwise, all citations
are to Wisconsin Statutes) grants school boards the power
to make rules governing student participation in schoolsponsored interscholastic sports. Regulation of extracurricular athletic competition has largely been delegated
to the Wisconsin Interscholastic Athletic Association
(WlAA), a voluntary membership organization that includes all Wisconsin's public high schools and many
other schools. The WlAA exerts general control over the
official school teams in all tl~e sports it sponsors. Its board
of control has authority to make, change, and interpret
rules governing interscholastic athletic competition.
Member schools are bound by the WlAA's rules and may
be penalized for violating them. ~
Among the WlAA's rules is the following:
The Board of Control shall prohibit all types of interscholastic activity involving boys and girls competing with or against each other except (a) as
prescribed by state and federal law and (b) as determined by Board of Control interpretations of such
law. 2
Although WlAA interpretations of the legality of malefemale competition are controlling, responsibility for
determining the eligibility of student-athletes remains
with the administration of each school. A grasp of the
law of sex equity in athletics is important for school officials because the WlAA's penalties for fielding an ineligible student include forfeiture of contests, adjustment
of standings, and return of awards.
Title IX and § 118.13
Title IX of the federal Education Amendments of 1972
prohibits sex-based discrimination in educational programs -- including extracurricular sports programs -receiving federal funds. ~ Following the federal lead,
Wisconsin enacted a pupil discrimination statute, §
118.13, that stated specifically that it forbade sex
discrimination in sports to the same extent as Title IX.
In 1984, however, the U.S. Supreme Court decided that
Title IX applied only to those particular programs that
receive federal funds. 4 Because few public school athletic
programs receive such funds, the Court's decision
rendered Title IX irrelevant in most public schools.
What's more, because § 118.13 was expressly keyed to
Title IX, both laws were arguably ineffective in Wisconsin.
To remedy this situation, the legislature recreated §
118.13 in 1985. In language similar to Title IX's, the new
statute expressly prohibits sex-based discrimination in extracurricular and recreational programs in the public
schools. The new statute also requires school boards to
develop implementation policies and procedures, including a complaint procedure; provides for appeal of
district decisions to the state superintendent; and requires
the superintendent to decide such appeals and to promulgate rules. Adding bite to § 118.13, the legislature
recently providing t h a t - beginning on 1 July 1 9 8 9 any school official or employee who intentionally violates
the law may be required to forfeit up to $1,000.
Meanwhile, dissatisfied with the Supreme Court's interpretation, Congress passed the Civil Rights Restora-
This Comment is designed to provide authoritative general information, with commentary as a service to aft WASB members. The Comn?ent
should not be relied upon as legal advice. If legal advice is required, the services of competent legal counsel should be obtained.
May 1989
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tion Act of 1987, which provides that if a school district
receives any federal funds, Title IX applies to all the programs operated by that district. Thus, most Wisconsin
schools are once again subject to both state and federal
laws governing sex equity in sports. Fortunately, the laws
are generally similar in their requirements.
In enacting Title IX, Congress did not intend to integrate
locker rooms and football fields. The regulations implementing Title IX expressly permit the establishment
of single-sex teams (girls basketball and boys basketball,
for example). 5 These regulations also permit maintenance
of single-sex sports (gymnastics exclusively for girls and
wrestling exclusively for boys, for example). Where
single-sex sports are concerned, however, if "athletic opportunities" for the excluded sex have previously been
restricted, members of the excluded sex must be afforded an opportunity to try out for the team. If the sport
is a "contact" sport -- defined as: "boxing, wrestling,
rugby, hockey, football, basketball, and other sports the
purpose or major activity of which involves bodily contact" -- Title IX does not guarantee even this try-out right.
These regulations have been interpreted to mean that
only if overall athletic opportunities for a given sex
historically have been limited must members of that sex
be allowed to try out for teams in sports offered exclusively for the other sex.6 Thus, under Title IX, it is firmly established that females (as the class historically deprived of
athletic opportunities) must be allowed to try out for male
teams in noncontact sports if no female teams in such
sports are offered. In contact sports, Title IX does not require that females be allowed to try out for male teams
under any circumstances. However, as the historically
advantaged class, males may lawfully be prohibited from
trying out for female teams even if no male teams are
offered in the given sports.
Unlike Title IX's regulations, which permit exclusion
of females from male teams in contact sports, the regulations promulgated by the Department of Public Instruction (DPI) under § 118.13 make no special distinction
between contact and noncontact sports. DPI's regulations permit separate programs in interscholastic athletics
for males and females, so long as the programs are "comparable in type, scope, and support. ''~ "Comparable
type" refers to whether the sport is team or individual
oriented, offered in the same season, and employs similar
skills. "Comparable scope" refers to the number of teams
in specific sports, length of season, level of competition,
and number of contests, coaches, and participants.
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Wisconsin School News
"Comparable support" refers to such things as equipment, pep activities, travel allowances, scheduling of
practices and games, publicity, and medical and training facilities and services.
Interpreting these comparability requirements, the
WIAA recently decided that females could compete with
males in pole vaulting, even in districts that offer track
and field for girls. Among the sixteen track and field
events, pole vaulting is offered only for boys. Concluding
that there is nothing even remotely similar to pole
vaulting, the WIAA decided that track and field programs
for boys and girls are not genuinely comparable. Thus,
female pole vaulters could be permitted to compete with
males.
Equal Protection Clause
Most courts that have dealt with these issues do not
end their analysis with state and federal statutes and
regulations, however. Typically, sexual segregation in
athletic programs is also challenged on constitutional
grounds as a violation of the equal protection clause. According to equal protection analysis, classification by
gender must serve important governmental objectives
and must be substantially related to achieving those objectives in order to be lawful. 8 In applying this standard,
the U.S. Supreme Court is willing to take into account
actual differences between the sexes, including physical
differences. The Court has consistently upheld statutes
where classification by sex "is not invidious, but rather
realistically reflects the fact that the sexes are not similarly
situated in certain circumstances. ''9
Acknowledging the reality of physical and physiological differences between the sexes, courts have
generally concluded that if separate single-sex teams are
offered in a given sport, it is not a violation of equal protection to prohibit members of one sex from trying out
for the team of the other sex. (Note, however, that DPI's
comparability requirements may, in some circumstances,
dictate a tryout right for females despite the availability
of a female team.) In O'Conner v. Board o f Education, 1°
for example, a female student wanted to try out for the
ma]e basketball team because of the higher level of competition in the male program. The court upheld the
separate-but-equal approach, noting that if a classification is reasonable in substantially all of its applications,
it is not unconstitutional simply because it appears arbitrary in an individual case.
Where single-sex sports are concerned, courts have
emphatically and almost universally rejected attempts by
males to try out for female teams. 11 Moreover, although
Title IX would permit exclusion of females from male
teams in contact sports, the equal protection clause does
not. Courts applying the equal protection clause are in
agreement that females must be allowed to try out for
male teams in those sports where no female team is offered, contact sports included. '2 (Ira Berkow's boxers
might be relieved to note that their sport appears to be
a rare exception to this rule. 1~)
The difference in result is explained by the difference
in the justification offered to support exclusion. Those
seeking to exclude females from male teams generally
rely on two arguments: (I) protecting the health and safety of females and (2) promoting full participation of
females in sports by preventing the siphoning off of top
female talent to male teams and the elimination of female
programs by fielding one "open" team in each sport. ~4
Those seeking to exclude males from female teams
generally rely on two other arguments: (I) redressing past
discrimination against females in sports and (2) promoting
equality of athletic opportunity between the sexes. 15
Although these are all recognized as important governmental objectives, courts have generally found that
segregation by sex is substantially related to redressing
discrimination against females in athletics and promoting
equality of athletic opportunity, but is n o t substantially
related to protecting the safety of females and promoting
their full participation in sports. For example, blanket exclusion of females has not been shown to be necessary
for safety reasons. (Even the would-be boxers were excluded primarily for equipment concerns. The need for
female pugilists to wear a protective chest covering
would have violated Amateur Boxing Federation rules
and given them an unfair advantage in the ring.) Statistical
or medical evidence to support the "weaker sex"
assumption is generally lacking, and the argument is further undercut because frail males typically are allowed
to compete.
Not only do safety arguments fail to stand up in court,
but most of these arguments are actually concessions that
-- as a class -- females cannot compete successfully with
males in contests of athletic skill. Because of genuine
physiological differences, males would displace females
to a substantial extent in most sports if allowed to compete for positions on female teams. Recognition of this
practical reality, combined with the undenied deprivation of athletic opportunity historically experienced by
females, has led courts to conclude that although females
must be allowed to try out for male teams in single-sex
sports, it is not a denial of equal protection to prohibit
males from trying out for female teams in similar
circumstances.
Conclusion
Interscholastic athletic competition in Wisconsin is
regulated by the WIAA, which forbids boys and girls from
competing with or against each other except as prescribed by state and federal laws. The mail laws affecting male-female sports competition include Title IX and
§ 118.13, with their accompanying regulations, and the
equal protection clause of the U.S. Constitution.
teams -- in contact and noncontact sports alike -- but
males may not be permitted to try out for female teams.
This seemingly unfair result acknowledges the physiological fact that males would displace females to a
substantial extent if allowed to compete for positions on
female teams, whereas females pose no similar threat to
athletic participation by males.
Footnotes
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
See WIAA Handbook 1988-89.
WIAA Constitution, Article Vl, Paragraph G.
See 20 U.S.C. § 1681.
Grove City College v.Bell, 104 S. Ct. 1211 (1984)
See 34 C.F.R. § 106.41
Gomes v. Rhode Island Interscholastic League, 604 F.2d 733 (1st
Cir. 1979).
See Wis. Adm. Code Chap. PI 9.
Craig v. Boren, 97 S. Ct. 451 (1976).
Michael M. I,. Sonoma County Superlor Court, 101 S. Ct. 1200
(19gl).
645 F.2d 578 (7th Cir. 1981).
See, e.g., Clark I,. Arizona Interscholastic Association, 695 F.2d
1126 (9th Cir. 1981)
See, e.g., Force v. Pierce City R.VI School District, 570 F. Supp.
1020 (W.D. Mo. 1983)
Lafler v. Athletic Board of Control, 536 F. Supp. 104 (W. D. Mich.
1982).
Yellow Springs v. Ohio High School Athletic Association, 647 F.2d
651 (6th Cir 1981).
Clark, Note 11 supra.
As a general rule, these laws permit maintenance of
single-sex teams and single-sex sports, so long as overall
opportunities for athletic participation are comparable
for both sexes. Where single-sex sports are concerned,
however, females must be permitted to try out for male
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