Wednesday, May 23, 2012

Law Student Note Seeks to Revive Relative Interest

I try to acknowledge all new scholarly publications about Title IX that I come across, but this one is a challenge.  It's a law student note in the Valparaiso Law Review, and its author argues that the three-part test should be replaced essentially by the "relative interest" standard, under which schools may award opportunities proportionate to the professed interest levels of each sex.  Of course, this standard has been rejected by many courts as short-sighted of how interest develops in response to availability opportunities and as a sure-fire way to cement existing disparities in opportunities between the sexes.

In general, I support law students' using the opportunity of writing a scholarly note to develop critical thinking, analytical, and writing skills, and I even believe that these goals are more important than the workability or favorability of the overall recommendations they put forth in their notes.  So I'm not really inclined to criticize the author's re-visitation of relative interest.  But it is within this educator's purview to call out this note for some distorted reliance on my own scholarly work to support that idea.  First, she says that on page 836 of my Iowa Law Review article, I "stat[e] that allowing schools to use surveys to assess interest in athletics provides a more accurate representation of students' needs and therefore is a better option for Title IX compliance."  (p.  594, nn. 204, 206).  You can see for yourself, I state no such thing.  Then, she cites page 875 of my article, claiming that it says "that with some changes to the interpretation, the third prong of the test and even the Model Survey could be a good assessment of Title IX compliance." (p. 596, n. 218).  Actually, I have never had a word of praise for the Model Survey, not on page 875 or any other page I have written.  Moreover, I clearly say there and elsewhere that "interest-defined compliance has always conceptually defied Title IX."

Westlaw has a system for putting red flags next to cases that should not be relied on as a source of law.  It's too bad we can't do the same for articles and notes.  If so, I would put one next to:

Brenda L. Ambrosius, Title IX: Creating Unequal Equality Through Application of the Proportionality Standard in College Athletics, 46 Valparaiso L. Rev.  557 (2012).