Women and girls have long been excluded from many sports. In the 1970s Congress passed Title IX of the 1972 Education Amendments (20 U.S.C.A. §§ 1681–1688 ) to ban sex discrimination in publicly funded educational programs. After a round of litigation, followed by legislative amendments, a presidential VETO, and a congressional override of the veto, Title IX was modified to give women and girls equal access to sports programs in schools that receive any measure of federal funding.
Under Title IX schools must provide athletic opportunities to females that are proportionate to those provided to males. Courts do not require that complete equality occur overnight. Most courts engage in a three-pronged analysis to determine whether a school is fulfilling its obligations. First, the court examines whether athletic participation opportunities are provided to each sex in numbers substantially proportionate to their enrollment. If a school does not provide substantially proportionate participation opportunities, the court then determines whether the school can demonstrate a history of expanding the athletic programs for the underrepresented sex. If the school cannot so demonstrate, the court then asks whether the interests and abilities of the underrepresented sex have been accommodated by the school. If the court finds that the school has not accommodated student-athletes of the underrepresented sex, it may rule that the school is in violation of Title IX and order the school to take affirmative steps toward more equal treatment between the sexes.
Traditionally, courts have differentiated between contact and noncontact sports in determining a female's right to participation. A school may refrain from offering a contact sport for females if the reasoning is not based on an archaic, paternalistic, overbroad view of women. Courts are hesitant to mandate the creation of new teams, but most have no problem ordering that qualified females be allowed to play on exclusively male teams.
Title IX was passed in 1972. Since that time, the number of female athletes in intercollegiate sports has increased from 30,000 to about 150,000 in 2003. However, the law has not been universally applauded. Several schools have cut minor men's programs, such as wrestling, swimming, and track, in order to comport with the ratios required under Title IX. Although advocates of Title IX dispute that the law is the sole reason for these programs being cut, coaches and other supporters of the minor men's programs have protested that Title IX is unfair to the male athletes involved in these sports.
In 2003, the Commission on Opportunity in Athletics, which was assembled by Secretary of Education Rod Paige, submitted a report to Paige suggesting that Title IX needed reform. The report suggested that the reform was necessary to save some men's sports in order to preserve men's opportunities to participate in athletics. The report was met with vocal opposition. Two women on the commission filed a minority report with Paige, and the president of the NCAA voiced his disapproval of the suggestions in the commission's report.
In addition to claims based on Title IX, sexbased classifications by publicly funded entities are also subject to equal protection claims. Courts review such claims under an intermediate standard of review. Specifically, a sex-based classification must serve an important government interest and must be substantially related to the achievement of that interest. High school girls in Arkansas used the Equal Protection Clause of the FOURTEENTH AMENDMENT to abolish a school rule that limited the girls' basketball games to half-court play. In Dodson v. Arkansas Activities Association, 468 F. Supp. 394 (1979), a federal district court in Arkansas ruled that the half-court rule deprived the girls of their equal protection rights because it was based solely on tradition and not on any supportable sex-based reason.
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