Title IX discussion

Recently, Prof. Michael McCann invited guest speaker Prof. Erin Buzuvis, of Western New England College School of Law to speak to our Sports Law Class.  Prof. Buzuvis is  a lead contributor to Title IX Blog and is is one of the nation’s leading experts on sports law and particularly Title IX and the connection between gender and sports law.  Her bio can be read here.

The class began with the viewing of an independent film called Kick Like a Girl.  The film follows a youth soccer team in Salt Lake City Utah called “The Mighty Cheetahs.”  The girls team was absolutely dominating their division, and ended up being undefeated.  The coach decided to enter the team into the boys division in hopes to foster competition and learning.  Initially their was skepticism by the parents (on both sides), but the team ultimately finished with a strong record.  Inherent in this short film was the general tension that boys and girls teams do not need to be segregated.  It acted as a great buffer to the discussion that followed.

We addressed the stereotypes that are imposed on the sexes, and even evaluated whether their was a difference physically.  It was pointed out by a student that perhaps the sports we gravitate towards are genuinely masculine.  Is this because men created “sport” and those sports which women particularly excel in are not considered mainstream? I am not sure I buy this argument completely because sport is a consumer driven industry. In addition, I made the point that in women’s basketball their is a lack of flashy dunks. This “dunk differential” could explain why people gravitate towards men’s basketball. It could also translate to other sports where the sheer strength of the athletes act as an attraction to the game.

After discussing the potential difference in the sexes, we moved to the law governing gender discrimination: Title IX. However, Title IX does not govern all sports, it only governs educational institutions. It was also not intended to have such a dramatic affect on sports, but it has since gained much attention. Originally, it did not apply to sports. See Grove City vs. Bell decision, which removed the applicability of Title IX in athletics programs by stating that only those programs or activities which receive direct Federal financial assistance be held under the umbrella of Title IX. Congress came back with the Civil Rights Restoration Act of 1988 and clarified their interpretation to include sports. Regardless the playing field is still not level.

In speaking about Title IX’s application, we revealed the issue with college football. Is football the third sex? College football is arguably one of the few sports that is revenue generating. Additionally, it is difficult to value football in just money (See Fluttie effect). Another topic of discussion was in response to the recent Wisconsin Supreme Court’s decision in Noffke v. Bakke. What does sport mean?

Is their an argument to be made,that the “sports” industry rightfully discriminates because the market calls for it?

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