Wednesday, November 15, 2017

High School Boy Challenges All-Girl Dance Team Rule

Today I was interested to read about a Title IX complaint filed by the Pacific Legal Foundation -- a public interest law firm that usually argues to overturn regulations, not enforce them --  on behalf of a male high school student in Minnesota who is challenging the "girls only" rule for dance teams in the state. There are two reasons why I think that this complaint is valid.

First, while it is theoretically possible for dance teams to be considered sports for Title IX purposes, that determination turns on whether institutions treat those teams in the same manner that sports are treated. To be considered sports, dance teams must have the same opportunities for regular season and post-season competition, be run by the athletics department, receive the same kinds of support as sports teams, make decisions for eligibility based on athleticism, and other similarities. However, the Minnesota State High School League, which issues statewide rules for sports and other activities permits schools to make "local decisions" about how the schools will treat their dance teams, a standard that seems to acknowledge the possibility that some, maybe many, do not treat them like other sports. I suspect that the most obvious way in which they are different from sports is that dance teams exist for the primary purpose of performing and compete as a secondary matter. My concern seems justified by the fact that the competition schedule for the dance team of Superior High School, where the complainant attends, has only three opportunities for regular-season competition. By comparison, the boys' swim team has fifteen, for just one example.  Bottom line: if dance is an activity and not a sport, it is not governed by the regulatory standard that permits schools to offer separate male and female sports teams, and the complainant should win.

But even if dance team is a sport, the applicable Title IX regulations only permit segregated teams if  "selection for such teams is based upon competitive skill or the activity involved is a contact sport."  Dance team is surely not a contact sport, so we have to ask: is selection based on competitive skill?  I don't know, but if Minnesota dance teams take any girl who tries out, then they are not based on competitive skill and they can't be segregated, and that's the end of discussion right there.

If selection is based on competitive skill, then it is permissible to have an all girls' team. However, Title IX still may permit boys to try out. That's because the regulations also require schools to permit "crossover participation" (a boy on a girls' team or vice versa) where there is only one team in that sport. There is an exception to this rule for contact sports, but dance team does not qualify for this exception. The other requirement for cross-over participation is that "athletic opportunities for members of that sex have previously been limited."  To be sure, this requirement is subject to multiple interpretations, one being that boys have historically had more athletic opportunities in general and therefore are never eligible to try out for girls teams.  But boys have prevailed before by arguing that their opportunities in that sport have been limited, an argument seemingly applicable to dance team and one that supports this student's claim that the exclusionary rule violates Title IX.

Ultimately I think the Pacific Legal Foundation attorney's statement to the press about this complaint is right on: the rule excluding boys from dance team perpetuates archaic gender stereotypes about the kinds of activities suitable for each sex. As this example shows, these stereotypes limit opportunities for boys and girls alike.