Forfeit: Opportunity, Choice, and Discrimination Theory Under Title IX

Title IX, included as part of the Education Amendments of 1972, is justly credited with creating a revolution for women and their access to sports. Yet the work of eradicating discrimination in sports is far from over. Commentators lament that progress has slowed and even stagnated in recent years as the percentage of women engaged in intercollegiate sports has remained steady rather than increasing. Female college students participate in intercollegiate athletics at a rate significantly below that of their male counterparts. Nationally, women comprise approximately fifty-five percent of all college students, yet they represent only about forty-three percent of all intercollegiate athletes. But the myopic focus on achieving proportionality at the university level has narrowed our focus to a numbers game that impacts a relatively small percentage of college students. This Article presents a broader and more nuanced discussion of the relationship among gender, sports, and discrimination. A more thoughtful (and less dogmatic) consideration of this issue is long overdue. This continued emphasis on participation rates in universities as the primary, if not the sole, evidence of discrimination masks a host of complex and interrelated issues that are largely ignored. Women's lower level of interest in sports is far more than a stereotype; it has been repeatedly confirmed in social science research. The gender gap in sports participation is well established long before these students reach college. Rather than dismissing such findings as sexist stereotypes, we need to pay closer attention to the reasons for such choices in order not only to eradicate discrimination, but also to identify the multiple factors that produce this outcome. Equality of opportunity is only part of a much larger set of issues concerning how we structure our sports programs and what underlying values those programs are or should be promoting. . Professor of Law, University of North Carolina at Chapel Hill School of Law. Copyright O 2010 by the Yale Journal of Law and Feminism Yale Journal of Law and Feminism INTRODUCTION ................................ ................ 2 I.TITLE IX AS ENFORCED AND APPLIED ................... .......... 5 A. The Evolution of Title IX Theory ......................... 5 B. OCR and the Accommodation of Interests: Identifying the Yardstick....................... ................... 13 II. PROPORTIONALITY, LACK OF INTEREST, AND DISCRIMINATION ............... 19 A. Proportionality as a Measure of Discrimination . ............. 22 B. Dangerous Territory: The "Lack of Interest" Defense...............25 C. The Problem with Identical Expectations ........ .......... 29 D. Equal Opportunity Accommodation of Interests ............. 33 III. OPPORTUNITY AND CHOICE ........................................... 35 A. Girls and Sports: The Early Years ................ .............. 36 B. Women in College ......................... .......... 38 C. What's Wrong with this Picture? . . . . . . . . . . .. . .. . .. . .. .. . 40 IV. DISCRIMINATION THEORY OR EDUCATIONAL POLICY: DEFINING THE ROLE OF COLLEGES AND UNIVERSITIES ............................. 45 A. The Smaller Picture: Eliminating Discrimination in the Short Run ................................. ............ 46 B. The Bigger Picture: Eliminating Discrimination in the Long Run............................................. 48 CONCLUSION ........................ .............. 51