Professor George on "Opportunity, Choice, and Discrimination Theory Under Title IX"

In the current issue of the Yale Journal of Law and Feminism, Professor B. Glenn George from the University of North Carolina School of Law proposes that/how Title IX proponents should reshift their focus from proportionality compliance to more holistic reform. Her article, "Forfeit: Opportunity, Choice and Discrimination Theory Under Title IX" takes as a starting point that proportionality test for measuring equity in the distribution of athletic opportunity, has been ineffective and even counterproductive in generating true equality, as evidenced by the "leveling off"of women's participation in college sports. Though she does not call outright for regulatory reform that would eliminate the proportionality interpretation, I read her to be suggesting a policy and advocacy agenda that moves away from proportionality as a goal.

For one thing, she points out that the proportionality standard does nothing to prevent colleges from adopting the "JMU model" of compliance, and leveling down women's and men's athletics to the bare minimum that Title IX and NCAA requirements allow. Such response does nothing to support the ostensible goal of promoting and enhancing opportunities in women's sports.

For another, creating opportunities at the college level, without more, won't necessarily increase participation. Female college students report lower interest in athletic participation than their male counterparts, and Professor George warns against writing this data off as the product of lack of opportunity that can be solved by pursuing a proportionality objective. Female college students' lack of interest in athletics must be examined for related context, which may include their higher rates of involvement in community and extracurricular activities, more time devoted to academic pursuits, lower financial security upon entering college and greater likelihood of seeking a part time job, and lower likelihood to self-identify as "competitive."

Finally, pursuing proportionality in college sports draws the focus away from other things that might be just as valuable, or even more so, to the project of dismantling inequality. For example, a goal of attaining proportionality doesn't encourage anyone to promote younger girls' athletic participation in popular and established sports. (Colleges aren't going to add a second women's basketball team, for example, just because interest in that sport has doubled.) Proportionality also draws resources and focus to the most elite level of sport, away from other contexts, like club and intramural sports, which are more accessible to a wider range of abilities, and capable of generating new interest in athletics.

Professor George offers a couple of ideas of how, instead of pursuing proportionality, we should seek to restructure sports more generally in ways that promote equality. For example, rather than eradicate the statistical disparity in athletic participation, we could try to neutralize the disparity in privilege that results from the disparity in athletic participation, for example, by taking athletic scholarships off the table. For another, we could change the nature of participation in ways that allowed athletes to simultaneously hold a job if they needed one, to devote time to their school work or community service or otherwise have a more well-rounded life. In addition to other benefits, such reform would change the definition of "athletics" to fit women's interests, rather than the other way around.

In sum, I found Professor George's article to be compelling. Though I believe it is necessary to retain the proportionality standard in order to protect women's athletic opportunities, it is good to be reminded of its shortcomings and the tradeoffs that such a standard requires. There's no easy way to balance the pros and the cons of incorporating proportionality into our measure of equality, but for starters, this Article makes clear that we can't let Title IX and the goal of women's sports advocates be reduced to just that.

Citation: B. Glenn George, Forfeit: Opportunity, Choice, and Discrimination Theory Under Title IX, 22 Yale J. of Law & Feminism 1 (2010).