WEEK 4 DISCUSSION

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KIN 607: Legal Aspects of Sports

 

Week 4 Notes: Gender and Racial Equity in Athletics

The topics addressed in the Week 4 Notes:

 

Women and Sport in the United States

Leading up to the 1970s, in the United States, women’s and girls’ participation in sport was limited. Additionally, participation growth was slow.

  • 1821: Gymnastics is the first organized girls’ high school sport.
  • 1920: Female swimmers become the first American women to be given full Olympic status.
  • 1943: World War II: The All-American Girls Professional Baseball League is established.
  • 1954: The Iowa Girls High School Athletic Association recognizes girls’ participation in sports at the same level as boys’ in high school athletics.

Beginning in the mid-1960s through the 1970s, the United States experienced a period called the Civil Rights Movement. During this time, women’s participation and opportunities in sports in the United States began to grow at a faster pace. Additionally, this was a period of women’s liberation in the United States—when women demanded equal pay for equal work and for the right to control decisions related to their bodies.

  • 1966: The first intercollegiate women’s basketball tournament is played.
  • 1967: The Commission on Intercollegiate Athletics for Women is established.
  • 1969: A women’s national championship for gymnastics is created.
  • 1971: The Association for Intercollegiate Athletics for Women is formed.
  • 1972: Title IX is enacted.

 

Introduction to Title IX

Title IX of the Education Amendments of 1972 is a federal law. In relevant part, Title IX provides: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance…”

When Title IX was initially passed, it was aimed at eliminating sex-based discrimination in federally funded educational programs and activities (Mitten,Davis, Shropshire, Osborne, & Smith, 2013). Notably, Title IX did not apply to sports when it was initially enacted. Title IX was applied to sports through a regulation that was enacted by the executive branch of the federal government in 1975.

That regulation, 34 CFR Section 106.41, required sports programs in educational settings that receive federal funding (e.g., universities—of which both public and private receive federal funding through grants and student loans—and public schools of all levels) to provide the genders equal opportunities in athletics. The regulationdefines “providing an equal opportunity” as giving bothsexes:

  • Equal accommodation
  • Equal treatment

In terms of providing equal opportunity in sport to the sexes, the following have been defined to meet the requirements of equal accommodation and equal treatment:

  • Equal accommodation: Whether the participation opportunities by selection of sports and levels of competition reflect the interests and abilities of both sexes.
  • Equal treatment: Whether male and female participants have similar access to things including equipment, locker rooms, facilities, travel allowances, game schedules, practice times, coaching and compensation for coaches.

Schools show they are providing equal accommodation under Title IX by showing:

  1. Proportionality: Are opportunities for male and female students provided in numbers substantially proportionate to their enrollments? (The percentage of female and male athletes must be within 5% of the enrollment percentage of female and male students to comply with the proportionality prong of the equal accommodation prong), or
  2. Progress: If the members of a sex are underrepresented among athletes, can the institution show a history and practice of program expansion that is responsive to the interest and abilities of members of that sex?, or
  3. Satisfied interests: If the members of a sex are underrepresented and the institution can’t show an expansion program, can the institution show that the interests and abilities of the sex have been fully and effectively accommodated?

Schools can analyze theircompliance with Title IX in terms of equal treatment by answering the following questions:

  1. Is there a disparity in a program component that negatively affects one sex?
  2. If there is a disparity, is the disparity substantial enough to deprive members of that sex of equality of opportunity?
  3. Is the disparity disadvantaging one sex in a component of a school’s athletics program offset by a comparable advantage to that sex in another component of the athletics program?
  4. If it is not, can the school establish that the differences in kind, quality, or availability were the result of nondiscriminatory factors?

The Impact of Title IX

After the enactment of Title IX, women’s participation in sports surged (Mitten, Davis, Shropshire, Osborne, & Smith, 2013):

  • 1971–1977: Women’s participation in college sports doubles.
  • By 1978: Women’s participation in high school sports grows from 300,000 to over 2 million.

Although women’s participation in sports has grown since the enactment of Title IX, critics of the legislation remain. One of the biggest criticisms of Title IX is that schools have had to eliminate men’s sports in order for the schools to comply with the law.

Given what you know about the equal accommodation and equal treatment tests, is cutting sports required to comply with Title IX?Another criticism is that some women argue that because of how the equal accommodation and equal treatment tests are structured, they are not afforded absolutely equal opportunities to men to compete in sports.

 

Racial Discrimination in Sports

Two types of segregation exist:

  1. De jure segregation: Separation of the races that is enforced by law
  2. De facto segregation: Separation of the races that occurs due to widespread individual preferences

The following are important events in the history of racial discrimination in sports (Mitten, Davis, Shropshire, Osborne, & Smith, 2013):

  • 1890s: A gentlemen’s agreement arose in Major League Baseball (MLB) that excluded African-American and some Latino players from the league
  • 1920: MLB’s first commissioner prohibited MLB all-star teams from competing against the Negro League’s teams
  • 1932: An Atlanta city ordinance prohibited amateur baseball clubs of different races from playing within 2 blocks of each other
  • 1933: A Texas Penal Code provision barred boxing and wrestling matches between the races
  • 1934: National Football League (NFL) owners entered into an gentlemen’s agreement to ban the signing of African-American players

Throughout the 1940s to the 1970s, the following types of racial segregation existed in sports settings in the United States (Mitten, Davis, Shropshire, Osborne, & Smith, 2013):

  • Some Catholic universities excluded African-American students.
  • The University of Kansas denied African-American students the right to participate in extracurricular activities, including sports.
  • College athletic conferences, such the Missouri Athletic Conference, had gentlemen’s agreements precluding participation by African-American athletes.
  • Northern teams often precluded African-American teammates from traveling to games in the south.
  • Teams imposed quotas on the number of African-American players a roster could hold.

 

Integration and Reintegration of Sports

The following events reflect steps toward the integration and reintegration of sports.

  • 1946: The NFL is reintegrated when Kenny Washington, an African-American player, is signed by the Los Angeles Rams.
  • 1947: In the MLB, Jackie Robinson is signed by the National League’s Brooklyn Dodgers. The American League remains segregated, however.
  • 1959: The MLB is formally desegregated when Pumpsi Green is promoted by the Red Sox to the major leagues.
  • 1967: Nat Northington takes the football field for Kentucky to play in the Southeastern Conference’s (SEC) first integrated game.

 

Race-Related Issues in Sports Today

The following continue to be some of the biggest issues facing men and women of color and women in general today in sports:

  • Hiring of coaches
  • Hiring of front office staff
  • Equal pay for equal work

 

Title VII

Title VII is a federal law aimed at prohibiting employment discrimination against protected groups. Title VII says that an employer cannot discriminate on the basis of race, color, religion, sex,or national origin.To bring a lawsuit under Title VII, a plaintiff must allege disparate treatment or a disparate impact in the employment setting.

Disparate treatment is discrimination in which the employer treats some people less favorably than others because of their race, color, religion, sex, or national origin. The focus is on intentional discrimination (Mitten, Davis, Shropshire, Osborne, & Smith, 2013).

Disparate Treatment Burden Shifting Test

  1. The plaintiff establishes a prima facie case of discrimination. To do this, the plaintiff must show:
  2. Membership in a protected class;
  3. Qualification for the employment;

iii.  An adverse employment decision; and

  1. Circumstances that give rise to an inference of discrimination.
  2. If the plaintiff is able to establish a prima facie case of discrimination, the defendant offers legitimate, nondiscriminatory rationale for its actions.
  3. If the defendant is able to do that, then the plaintiff shows that the defendant’s stated reason is a mere pretext for discrimination. If the plaintiff is able to show that the defendant’s stated reason is a pretext for the discrimination, he or she will win the case. If the plaintiff is unable to do this, the defendant will win the case.

Disparate impact is discrimination that is the result of facially neutral employment practices that fall more harshly on one group and cannot be justified by a business necessity.

Disparate Impact Burden Shifting Test

  1. The plaintiff must show that a specific policy or practice of the defendant has a disproportionately negative impact on the plaintiff’s protected class.
  2. Identify a policy or practice.
  3. Demonstrate that a disparity exists.

iii. Establish a causal relationship between the two.

  1. If the plaintiff is able to show that a specific policy or practice of the defendant has a disproportionately negative impact on the plaintiff’s protected class, the defendant must show a business necessity for the practice. If the defendant is able to do this, the defendant will win the case. If the defendant is unable to do this, the plaintiff will win the case.

References

Mitten, M. J., Davis, T., Shropshire, K. L., Osborne, B., & Smith, R. K. (2013). Sports law: Governance and regulation (College edition). New York, NY: Wolters Kluwer Law & Business.

Title IX of the Education Amendments of 1972 (discrimination based on sex or blindness), 20 U.S.C.A. §§ 1681-1688 (West Supp. 2006).