A Choice of Extent

Article excerpt

A logomachy about "discrimination" and "equal opportunity" is unlikely to solve a subtle distributive problem encountered in intercollegiate athletics, but colleges can foster harmony if they are allowed to adopt local policies of distributive justice.

When a college seeks to understand "equal opportunity" in intercollegiate athletics for the sexes, it may be said to encounter two predicaments. The first is conceptual and seldom encountered for other questions of social justice. The second is institutional and accidental.

We usually understand "equal opportunity" to require evenhanded consideration of all candidates for a given good of predetermined extent. That the extent of the good is ordinarily predetermined may be illustrated by observing that for equal opportunity in college admissions and in rental housing, we do not expect a college to enlarge its entering class nor a landlord to build new apartments. Suppose instead that two groups demand a chance to compete for segregated experiences of some good. Such is the case when two sexes insist on separate varsity teams. The first predicament is that in this case our usual understanding of equal opportunity is inadequate. For now the extent of the good cannot be taken as given. It may be that a college's athletic expenditures should increase. The college's analysis must depart the realm of procedural fairness, in which "equal opportunity" has flourished in the history of political philosophy, for the realm of distributive policy. How many separate teams should it field? A significant initial condition also obtains. Numerous men's varsities already exist. Hence in practice the foregoing question will be recast for consideration at the margin: how many women's teams should be added?

Seldom is either distributive question nowadays posed in such direct form. An indirect approach has been dictated by the second predicament. It arises as follows. The statute concerning equal opportunity in athletics, Title IX of the Education Amendments of 1972, is only procedural. It provides that within any institution receiving federal funds, "no person shall, on the basis of sex, . . . be subjected to discrimination." Since 1975 a policy has been engrafted on this prohibition that effectively mandates distributions. Responsibility for the policy resides in a prosecutorial office, the Department of Education's Office of Civil Rights (OCR), whose pronouncements neglect any distinction between procedural justice and the design of social policies on resource distributions. Thus its distributive policy is unacknowledged as such. Confusion has been the greater for the convoluted form of this entry into the distributive arena in procedural garb. Vague and ambiguous statutes, regulations, and precedents are not unusual. Nonetheless, well-represented parties scrutinizing the nuances of legal restraints often produce an invisible hand effect that does not allow unclarity to survive for long. That seems to be the case for such domains as federal income taxation and industrial regulation. The invisible hand seems not yet to have reached the interpretation of "discrimination." Justice for the sexes in athletics has been made to turn on an OCR policy that lacks even the status of a federal regulation and yet has been left unrevised since issuance in 1979. On its tortured nuances, OCR and the courts have predicated numerous findings of sex discrimination.

Despite its prolix and confusing presentation, the 1979 policy reduces in pertinent part to the following. The policy refers to v, the male:female ratio of an institution's varsity athletes, and s, the male:female ratio of its enrolled undergraduates. Sex discrimination is effectively said to occur whenever v does not equal s. This rule I shall hereafter call "the enrollment standard." The enrollment standard's unacknowledged defect is that it neglects the possibility that students may vary in the extent to which they wish to play varsity sports. It incorporates no concept of apportioning supply to relative demand. The government replies that the enrollment standard is not singular, that it is only one of three conditions sufficient for defeating a charge of discrimination. But that response is unavailing because the two other conditions are illusory. The first is an institution's steady expansion of its women's athletic program, but most colleges have augmented their women's programs in response to Title IX and are no longer steadily expanding them; the second is that there exists no female student whose interest in intercollegiate athletics is unmet, which can be met without itself precipitating sex discrimination only if an institution, at presumably prohibitive expense, also meets the interest of every male.

The enrollment standard is causing anomalies galore. Colleges are eliminating successful men's teams (for example, swimming and diving at UCLA, Olympic gold medals notwithstanding) while some women's teams struggle to fill rosters. Brown University recently offered more positions on its women's basketball team than there were candidates, a phenomenon unimaginable for men's basketball at many institutions. Entire sports such as men's gymnastics and wrestling are on the verge of disappearing for lack of enough participating schools to justify an NCAA championship. For sports not eliminated, the filter of competition for membership on a men's team has been made much finer than that for a women's team. Evidence in published studies has consistently indicated that a significantly smaller portion of female than male undergraduates desire varsity play. Often women comprise only 35 percent of varsity aspirants. Thus at a large institution, a male who fails to rank within the top 4 percent of a conservatively estimated subset of 300 males who would enjoy playing on the varsity basketball team, of whom only a small fraction will be given a tryout, will fail to gain a spot. But a female within the upper half will win a spot on a women's basketball team that greets twenty candidates. Even as lawsuits are pending on behalf of women students charging violations of the enrollment standard, men sue over elimination and constriction of men's teams, alleging that the only ground for such actions is their sex. In the middle of this, athletic departments hire consultants to interpret the government's tortured policies, struggle under financial pressure to expand women's athletics, and hope that they will not be the next to be sued by their own students. An observer may ask simply whether OCR's distributive policy makes sense. Should a college divert more resources to sports if many students - including a majority of women students - prefer to see the resources used elsewhere? Upon hearing that an OCR investigator queried the Johns Hopkins University athletic department whether racquet presses were provided to the tennis team, one senses the edge of absurdity.

How could a policy of such informal status, confusing quality, and divisive effect survive unrevised for so long? At first this obscure policy was known only to athletic departments. Their forte is not the scrutiny and revision of government policies. Later when the policy gained notoriety, brief Congressional hearings were held. OCR, by then perceived as a champion of opportunity for women, held firm to its 1979 text. Indeed, it reaffirmed the text last year with a "clarification" that added more confusion. Politicians and most colleges did not vigorously challenge the policy lest they be perceived to oppose women's athletics generally. An exception was Brown. But Brown's challenge was rejected without consideration of the data about student interests. Suit against Brown was commenced in 1992 in the name of female students represented by a Washington public interest law firm. They complained of the demotion in 1991 of the women's volleyball and gymnastics teams from university- to donor-funded status. (Two men's teams were also demoted.) A federal court in 1993 issued a preliminary injunction ordering Brown to restore the two women's teams to their previous status. Despite operating what at all relevant times was the largest women's program in the NCAA's Division 1, at trial Brown was found culpable of statistical sex discrimination because of a discrepancy between v and s. Brown appealed. The score or more students who traveled to Boston to hear oral argument on April Fool's Day, 1996, before the U. S. Court of Appeals for the First Circuit epitomized the damage that the enrollment standard and such captious complaints have inflicted at many colleges. The students sat seemingly befuddled as their alma mater fielded a barrage of technical legal arguments about the meanings of "discrimination" and "equal opportunity," the validity of the enrollment standard, and how to count opportunities. Many doubtless knew by then that the reinstated women's volleyball team, like the basketball team before it, was having trouble filling its roster.

By a 2-1 majority, the First Circuit ruled on November 21, 1996, that it was obliged to reject Brown's arguments against the enrollment standard because in 1993 another panel of the court had rejected Brown's arguments on appeal from the preliminary injunction. The majority held that judicial efficiency required it to follow the rulings (the "law of the case") of the first panel. Affirmance of the judgment against Brown on such procedural grounds leaves the enrollment standard in a dubious state because the first panel did not hear the data on student interests that emerged after 1993 and that dramatize the untenability of requiring that v equal s. With OCR showing no signs of changing its mind, relief can only come from the Congress or in some future case. The Supreme Court on April 21, 1997, declined to grant Brown's petition for a writ of certiorari.

In the First Circuit decision, Chief Judge Torruella noted incisively in dissent that the application of OCR's policy now founders in another respect: it appears to be sex-based government action. That is to say that, unless there is "an exceedingly persuasive justification," the enrollment standard denies the equal protection of the laws assured by the Fifth Amendment's "due process" clause as recently interpreted by the Supreme Court in decisions concerning race preferences in construction (Adarand v. Pena) and sex discrimination at VMI (U.S. v. Virginia). Pronouncing the first panel's rulings "irreconcilable" with the Supreme Court's later rulings, Tortuella concluded that the enrollment standard is a quota formula that prevents men and women from competing for the same spots. Hence he likened it to the recently invalidated admissions policies that prevented members of different races from competing for the same spots at the University of Texas Law School (Hopwood v. Texas). Of course the first predicament that we noted at the outset imposes segregated competition. But the enrollment standard is a government mandate on the extent of separate teams. For that "an exceedingly persuasive justification" is not only lacking but withheld. Congress added an antiquota proviso to Title IX. The proviso disclaims any intent to require that a college prefer one sex because of an imbalance between the sex distribution of some benefit and the sex composition of any population. The enrollment standard appears to be the quintessence of what the proviso disavows. Interpreting a similar proviso in Title VII, a federal law that interdicts sex discrimination in employment, the Supreme Court has disapproved measures that encourage even the voluntary use of quotas. The only sensible policy, Tortuella suggested, is to save from any claim of discrimination a college that meets the interests of both sexes to the same extent.

The majority's contrary strategy was to ignore survey data about student interests. I shall mention two arguments broached in the opinion in defense of this antiempiricist position. Both arguments, I suggest, are specious. The first is that survey data may be ignored because it is possible that they understate female interest. The first appellate panel in 1993 even adopted a presumption that "women, given the opportunity, will naturally participate in athletics in numbers equal to men," whatever that means. Interest might be thought understated in some sense if young girls are less conditioned to sports than are boys, if a relative paucity of varsity opportunities for women induces women to feel or express less interest in athletics, or if colleges do not recruit as many female as male athletes. To consider the import of this, suppose that a college finds that its recently opened volleyball gymnasium (designed for both men and women) receives little use. A volleyball enthusiast seeks to explain this by observing that many students have not discovered the fun of volleyball. The observation is interesting, but it states no reason that would allow an administrator, obliged to make prudent use of money and buildings, to ignore available data about the building's desuetude or to refrain from responsive action. Similarly it might be contended that society should transform the socialization of young girls. But that would not provide a rationale for ignoring the present interests of young women. Surveys can detect even latent interests, and few institutions have more resources for designing surveys than colleges with social science departments. The risk of error is not an argument against measurement, especially when there are ways to estimate error and to qualify inferences. And the problem of disparate recruiting is a red herring. The distribution of student interests is primarily a function of the interests of unrecruited students of both sexes. Recruited athletes typically constitute a small portion of undergraduates.

The second antiempiricist argument is that survey data may be ignored because they are said to be refuted by a substantial recent increase in the number of women who play sports. Aside from the extent to which such increase is attributable to compulsion (that is, the enrollment standard), the argument is invalid because the number of female athletes tells us nothing about how many other women, if any, would like to compete on varsities. It is the latter quantity that one needs to compare with the number of male varsity aspirants.

Apparently displeased with the premise that women may approximate 35 percent and men 65 percent of varsity aspirants, proponents of the enrollment standard betray in the foregoing two arguments a curious presupposition. They seem to assume that the more varsity female athletes, the better. Indeed they often suggest that society should encourage more young girls to play more sports and to seek college play. This begs important questions. Will a given student, male or female, be better off joining a varsity team than reserving time for academic life? Will a college be better off if more members of either sex participate in intercollegiate athletics? To fill our hypothetical college's volleyball gym, someone might urge the college to expose more students to the fun of volleyball. The faculty would seem unlikely to adopt a policy that more students should play volleyball. The faculty may not believe that the more athletes, the better. Because of the high academic cost, it may be undesirable for more students of either sex to join intercollegiate teams - especially when exercise, teamwork, discipline, and other undisputed benefits can be gotten from intramurals. Lesser female interest in varsity play particularly when the enrollment standard makes competitive access to varsity sports so much easier for women than men - may reveal that a greater portion of women than men place academic endeavors ahead of sports.

Yet another argument to avoid data on student interests has been the suggestion that such data will be expensive to obtain. In a recent case against LSU, a federal court emphasized the contrary. In the admissions process and otherwise, colleges can easily collect such data. OCR's own policy encourages institutions to compile data by methods of their choosing. Despite references by Brown's opponents to "statistics," standard deviations will get little attention here. Counting the number of students and how many want to be varsity athletes is merely arithmetic. Any future judicial or congressional review will inexorably confront available data about student interests.

The time is long past for sensible policies that take account of what students want. In understanding wants, the subset of female varsity aspirants cannot be assumed to reflect the wishes of the majority of female students. A majority of women might oppose greater allocations to athletics because the cost may be benefits they prefer. Those benefits could be lower tuition, better housing, or academic opportunities. Brown women interviewed after the recent suit have noted that it is wasteful artificially to fill women's rosters so as to meet a mandated ratio.

Through the judicial interpretation of "discrimination," legislation, or agency rulemaking, the enrollment standard could be replaced with a more carefully considered distributive policy. Yet if we take the long view, a logomachy about "discrimination" or "equal opportunity" is an inferior vehicle for discussing a distributive issue that admits of direct discussion. I am not suggesting that "discriminatory allocation" is a category mistake, but I do claim that reasonable distributive policies often direct allocations that are indeed discriminatory when viewed according to effects on some subsets of the population. The rationale of a distributive policy includes at least the considerations that one employs as criteria of justice (e.g., needs, contributions, work force productivity), the preferences of the majority of members of relevant subsets of a population, and empirical information about how resources may efficiently be used. The results of such reasoning can indeed be allocations that treat differently persons who are alike in some respects.

To reach harmony in lieu of past divisiveness, one might begin by recognizing that, as a salutary effect of Title IX, athletic departments today are not opponents of women's athletics but units attuned to its importance. Theirs is merely the question whether they must expand women's athletics disproportionately to women's interests. One may argue that each college should be free, after considering the interests of the majority of all relevant subsets and each of its offerings, to determine the scale of men's and women's athletics. Such choice ought not be dictated by government because it is an allocative policy. For state institutions no less than private, good reasons obtain to preserve institutional autonomy in choosing what to offer.

A college might decide to offer a women's athletic program more extensive than the men's, or vice versa. Or it might decide to make them "equal." Precisely what might be equal? I have proposed elsewhere (in "Competing to Compete," Change 28:34-40 [1996] and "Distributive Justice in Competitive Access to Intercollegiate Athletic Teams Segregated by Sex," Studies in Philosophy and Education [in press]) the following "principle of competitive access":

A college should attempt in good faith to arrange its athletic offerings so that competitive access for women shall approximately equal that for men, where "competitive access" is the ratio, computed separately by sex, of the number of intercollegiate roster positions to the number of undergraduates who desire one, provided that the numerator shall exclude positions, and the denominator shall exclude aspirants to positions, on any financially selfsustaining team.

This principle would calibrate the filters of competition for team membership at roughly the same fineness for each sex. Judge Torruella argued for excluding contact sports from the calculation of opportunities, but in the proviso of the above principle, I have excluded self-sustaining teams because it is in supporting teams that fail to be self-sustaining that evenhandedness in net outlays is at stake.

If the government insists on continuing to impose distributive policy in the guise of antidiscrimination protection, I suggest that the enrollment standard ought to be replaced by the principle of competitive access. It would be better still for colleges voluntarily to adopt the foregoing or some other precept of local distributive justice. We might then forget the government's forays into distributive policy as we would the mistakes of a substitute scrimmaging out of position.

[Author Affiliation]

Louis M. Guenin is a member of the Division of Medical Ethics and Department of Social Medicine of Harvard Medical School.

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