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. …