Tuesday, December 14, 2010

Title IX Is an Education Statute

In Menlo Park, California, an eight-year-old girl wants to play basketball in the city league with her friends, who are boys. But the city runs separate leagues for boys and girls, and refuses to make an exception for this "4-foot-6 tomboy." So her parents hired a lawyer, who threatened to sue the city under Title IX. The city's lawyer wrote back, arguing that Title IX does not require them to let her play in the boys league because of the law's limited application to contact sports.

I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.

To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.