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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 27 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. 28 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 May 1989 29