Friday, July 06, 2007

Law Review Note on Contact Sports Exception

The current issue of the Fordham Intellectual Property, Media and Entertainment Law Journal includes a note by law student Blake Furman called "Gender Equality in High School Sports: Why There Is a Contact Sports Exception, Eliminating It and a Proposal for the Future." (citation: 17 Fordham Intell. Prop. Media & Ent. L.J. 1169 (2007)).

As Furnam explains, Title IX's regulations "permit[] academic institutions to exclude women from even trying out for a men's contact sports team solely on the basis of gender and with no regard for the individual female's skill or ability level." Unlike noncontact sports, for which schools must either allow women to try out for the men's team or offer an equivalent separate team, when it comes to contact sports, schools are not obligated to do either. Contact sports include "boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact." 34 C.F.R. § 106.41(b).

Furnam argues that the regulatory rationale for exempting contact sports is outdated and unfair and should be eliminated. He then discusses Professor Glenn George's "50/50" approach -- requiring gender integrated teams with half male and female players -- and argues for its application to high school sports.


Anonymous said...

I don't have the note, do you know if it discusses Williams v Bethlehem (998 F.2d 168) and what this approach would have done in that case - and more generally in cases like it?

EBuz said...

No, Mr. Furnam does not mention Williams, a case about a boy's right to try out for the girls field hockey team.

I think what Furnam is arguing for is that all teams (or at least teams in contacts sports) be 50/50. Field hockey's status as a contact sport is ambiguous, but assuming it is, a boy could certainly try out for the team under the 50/50 model. In fact, the team would need 5 or 6 boys on the field at a time under this approach.

Anonymous said...

Hmm, well, I can see how that would be interesting academically; but it appears the note contradicts the Glenn George source. Glenn George is requiring a 50/50 distribution and the note is, I'm assuming from the post, talking about individual performance being the factor for determination for a place on teh team. Not to mention that if the Glenn George proposal requires a quota of 50/50, then it is a non-starter. The only reason Title IX has survived is becasue the courts have ruled it as an anti-discrimination statute and not a quota system.

But I'm probably getting way ahead of myself, having not read the note or the article. Just a first impression from the post and the title of the George article, for whatever it's worth.

EBuz said...

I agree that the 50/50 approach is "interesting academically." Not sure I'm willing to take it any farther than that, myself!

But I don't think Furnam and George are necessarily at odds. All Furnam really does in this Note is argue that George's approach should apply at the HS level. If a field hockey team was required to field half boys and half girls, then the team would be open to some boys whose individual performance --relative to other boys -- earns them a place on the team. As opposed to the current state of things, where (except here in Mass, owing to our state constitution) boys can be categorically excluded.

Anonymous said...

I think the goals (otehr than 50/50) that George raises in his article (now that I've read it) would most probably be met by simply banning athletic scholarships from American colleges and universities. Let the only student-athletes actually be students who can make it through normal admissions and are looking for a degree and the intangibles athletics can provide -not a four year semi-pro contract called a "full ride."

Title IX would not be offended, becasue everyone would have the same amount of athletic financial assitance: $0.00. You would be left with the true student athlete and the NFL and NBA can do what MLB has to do: farm teams and eligibility at 18.

EBuz said...

I agree, anonymous, scholarships and the commercialization of college sports is a problem.

But equalizing scholarships at $0 would not automatically cure all problems Title IX. The regulations still requires an equitable distribution of opportunities regardless whether a scholarship is at stake. Title IX applies to D-III schools and it also applies to intramural and club teams.

Anonymous said...

Oh, sure, we'd still have plenty of work to do in interests and abilities and the laundry list; but the AFA would be taken care of and so would the corruption of the collegiate sports sytem for profit.

Anonymous said...

I did some (very) unscientific research with my 25+ year old high school yearbook. There were an even number of sports teams for each gender (8 each). However, as far as other organizations/clubs, only two were majority male - one of them by a single person. All others were majority female, most by a significant margin.

The 50/50 concept applied fairly across a school might very well decrease net opportunities for female students, and only increase them only for those that happen to be strong enough to play contact sports with male students. But who am I to get in the way of an idea that sounds like a plot for a Farrelly brothers movie?

Anonymous said...

I have a question regarding High school sports. If the baseball team has 3 batting cages and a club house, should the softball team have the same thing 3 batting cages and a club house?