Distributive justice in competitive access to intercollegiate athletic teams segregated by sex

Studies in Philosophy and Education

Volumn 16, Issue 4, 1997, Pages 373-388

  Guenin, Louis M ^a  

^a NONE

Author keywords

Athletics; Equal opportunity; Local justice; Sex discrimination; Title IX

Indexed keywords

EID: 53249103600     PISSN: 00393746     EISSN: 1573191X     Source Type: Journal    
DOI: 10.1023/a:1004957802575     Document Type: Article

References (57)

1. Cohen et al. v. Brown University et al., 879 F. Supp. 185 (D. R.I. 1995), aff'd in part and reversed inpart, 101 F. 3d 155 (1st Cir. 1996), cert, denied, 117 S. Ct. 1469 (1997).
2. 20U.S.C. §1681.
3. 20U.S.C. §1681(b).
4. P. L. 93-380 §844,88 Stat. 612 (1974).
5. 34 C.F.R. §106.37(c) and §106.41(c).
6. Grove City College v. Bell, 465 U. S. 555, 104 S. Ct. 1211, 79 L. Ed. 2d 516 (1984); 20 U. S. C. §1687.
7. John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971),
8. hereafter "Rawls 1971," and Political Liberalism (New York: Columbia University Press, 1993), hereafter "Rawls 1993."
9. Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974), pp. 235, 238.
10. E. g., R. M. Hare, "Ethical Theory and Utilitarianism," and John C. Harsanyi, "Morality and the Theory of Rational Behavior," in Amartya Sen and Bernard Williams, Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982).
11. Though I here discuss this issue of scope only for justice as fairness, I believe that the following remarks about scope are pertinent to other accounts of equality of opportunity, such as those of Sidgwick and Tawney, that preceded Rawls's in the liberal tradition.
12. Rawls 1971, p. 7; Rawls 1993, p. 258.
13. Rawls 1993, pp. 260-1.
14. Many examples, though not of the sex-segregated competitions in point here, are surveyed by Jon Elster in Local Justice (New York: Russell Sage Foundation, 1992).
15. Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), p. 19.
16. Rawls 1993, pp. 268,271-2.
17. Rawls 1993, pp. 258,262; cf. Rawls 1971, pp. 74,105,511-512.
18. Rawls 1971, p. 9; Rawls 1993, p. 261.
19. The concept of a voluntary association is developed in Rawls 1993, pp. 40-42.
20. Rawls 1993, pp. 268-9,284.
21. The notion that microcounterexamples therefore do not count against justice as fairness is criticized by Nozick, pp. 204-209.
22. Rawls 1971, p. 61; Rawls 1993, pp. 76,181,308.
23. Walzer, pp. 129ff.
24. Rawls attaches significance to physical characteristics that one cannot change in recognizing "relevant social positions" (Rawls 1971, p. 99), of which more below. He does not, however, connect this with what constitutes a "position."
25. Rawls 1971, pp. 73, 84. Self-respect is said by Rawls to be the most important primary good (ibid., p. 440; cf. Rawls 1993, p. 318).
26. This is the phrasing of the revised Φ in Rawls 1993, pp. 76,181, 308.
27. Rawls 1993, pp. 184,248.
28. Rawls 1993,p. 291.
29. Rawls 1993, pp. 80-83, 282.
30. Rawls 1993, p. 283.
31. Rawls 1971, pp. 99, 303.
32. Rawls 1971, p. 99.
33. Rawls 1971, pp. 61, 66, 73, 82-84; Rawls 1993, pp. 6, 76, 181, 291, 363-4. For a context in which "equal opportunity" describes an allocative result, see Nicholas Carr, The Economics of the Welfare State, 2nd ed. (Stanford, Cal.: Stanford University Press, 1993), pp. 133, 147-9, 165. Carr defines an individual's "opportunity set" as the "potential power to consume goods," and suggests that opportunity is equal if the expected value of money income does not differ, among individuals of like taste, according to any characteristic by which discrimination would be invidious. One could then assert that allocations should be made so as to produce equality of opportunity in Carr's sense, or one could merely advocate the interdiction of discriminatory barriers. Rawls's arguments for include no arguments for the former, distributive claim, nor does Carr, whose treatment is largely descriptive, offer any substantial argument for that claim.
34. Rawls 1971, p. 303.
35. Some might say that distributive import is implicit in "equal opportunity." Instead we have seen that this is not obvious for Φ, arguably its most sophisticated version. I neglect the relatively insignificant amounts of payroll expense by government to enforce laws against discrimination.
36. We may neglect for the moment that some sports produce profit and that roster spots vary in cost by sport (e.g., facilities costs and a longer schedule make swimming more costly per player than is outdoor track). These variations entail that different combinations of team roster sizes produce different aggregate numbers of team positions sustainable by a fixed budget.
37. 438 U. S. 265 (1978). Whether race may even remain a factor in admissions now awaits resolution following a ruling in Hopwood v. Texas, 21 R 3d 603 (5th Cir. 1996 ), cert, denied, 116 S. Ct. 2581 (1996), that race may not be considered.
38. Walzer, pp. 149-151.
39. I have discussed possible distributive policies in "Affirmative Action in Higher Education as Redistribution," Public Affairs Quarterly 11 (1997): 117-140. These include the position that admission of a given individual cannot be said to be deserved and hence that admissions policies may be manipulated for a collective purpose (such as to enhance productivity). One might fashion a similar view that varsity membership is undeserved and hence may be manipulated for a collective purpose. I cannot pursue that view here, but I note that it is unclear what would sustain a collective resolve to foster more female varsity athletes at a cost of reducing the number of male athletes, especially when instead one might apportion supply to demand.
40. 34 C.F.R.§ 106.41(c)(1).
41. 44 Fed. Reg. 71413 (December 11, 1979).
42. Office for Civil Rights, Department of Education, "Clarification of Intercollegiate Athletics Policy Guidance: the Three-Part Test," January 16,1996.
43. Brief of Appellants Brown University, Vartan Gregorian, and David Roach, Cohen et al. v. Brown University et al., No. 95-2205, United States Court of Appeals for the First Circuit, December 11, 1995.
44. Briefs in support of Brown were filed as amid curiae by the American Council on Education, the Association of American Universities, the National Association of Independent Colleges and Uniyersities, the National Association of State Universities and Land-Grant Colleges, the Independent Women's Forum, a group of colleges and universities, and a number of national coaches' associations.
45. I owe this distinction to Elster, pp. 24-25,45, who notes that what we call college "admissions" is, in this sense, a system of selection.
46. Cited in Brief of Brown University et al., p. 9.
47. The enrollment standard governs because, as earlier argued, the other two "prongs" are illusory.
48. This standard is derived from Adarand Construction Inc. v. Pena, 115 S. Ct. 2097 (1995), which concerned racial preferences in awarding construction contracts, and U. S. v. Virginia, 116 S. Ct. 2264 (1996), which addressed exclusion of women from Virginia Military Institute. The dissent would have vindicated Brown by reading the notion in one of the "prongs" of meeting the interests of all women as satisfied when interests of the respective sexes are "accommodated to the same degree," not as requiring that the interest of every woman be met. When so read, that standard approaches, although obliquely, the principle of competitive access proposed below.
49. Only recently has a federal court recognized the insufficiency of the enrollment standard to establish that discrimination has or has not occurred. The court in Pederson et al. v. Louisiana State University et al., 912 F. Supp. 892 (M. D. La. 1996) argued as I have here that the enrollment standard untenably assumes premise [a], whereas one must know what are actual student interests in order to ascertain whether there has occurred discrimination. The court also held that the enrollment standard violates Title IX's stipulation against inferring [b] from [c]. Since it happened that systematic evidence of LSU student interests was lacking, the court inferred from circumstantial evidence that LSU had violated Title IX to the extent of failing to establish a women's softball team.
50. Citing statistics about greater female than male interest in various activities, this argument was made against the enrollment standard by a women's group in the Brief of Amicus Curiae The Independent Women's Forum in Cohen et al. v. Brown University et al, No. 95-2205, United States Court of Appeals for the First Circuit, December 11, 1995, pp. 8-10. It was noted that by applying the enrollment standard, "absurd and counterproductive results" would occur in a variety of domains, including class enrollments and dormitory space, and that the enrollment standard "will ultimately inure to the detriment of women."
51. These efforts aside, the primary ground for the majority's rejection in 1996 of Brown's arguments on appeal from a final judgment was that a panel of the same court had reviewed those arguments in 1993 in hearing an appeal from the grant of a preliminary injunction (Cohen et al. v. Brown University et al., 809 F. Supp. 978 [D. R.I. 1992], aff'd, 991 F. 2d 888 [1st Cir. 1993]). The majority in 1996 concluded, the chief judge dissenting, that it was bound under the law of the case doctrine to follow the rulings of the earlier panel. The evidence about differing male and female interests mentioned above was presented at the 1994 trial but apparently was not available or adduced during the hearing on a preliminary injunction. The evidence's significance thus never received an unfettered appellate review in this case, leaving the issue open for presentation in another case or for legislative consideration.
52. 44 Fed. Reg. 71417 ¶C 3. (1979).
53. The agency therein reaffirmed the enrollment standard and the entire 1979 interpretation, most especially the "prongs." To the confusion perpetuated it added a few new ambiguities. It purported to illuminate by hypothetical examples but the examples appear to assume unarticulated standards. Thus two examples excuse an institution from "fine tuning" if, after fluctuations in enrollment and athletic participation, there appears a discrepancy in one example of 1%, and in another of 2%, between the ratio of male:female varsity spots and the ratio of male:female undergraduates. Does this imply that 2% is the maximum allowable discrepancy? What of a 3% difference? The very nature of the "clarification" is dubious insofar as it offers guidance on how OCR views athletic programs. Its authors appeared to assume that whether an institution complies with Title IX is a question determined by OCR in its discretion. Colleges may be accustomed to lengthy desiderata applied as eligibility criteria by accrediting agencies and funding sources. Title IX is a different matter entirely. It proscribes illegal acts. To leave what constitutes illegality within the discretion of an office that has propounded such confusingly formulated norms defies the need for clear, unambiguous notice of what acts are wrong, to say nothing of a desire that the norms be tenable.
54. Rawls 1971, p. 302.
55. LSU, supra. While the principle of competitive access might be said to effect a quota, a quota is not predicated by it, as are the quotas disavowed in Title IX, on the number of men or women in some heterogeneous community (such as a student body) many of whose members are uninterested in the benefit in question, but rather on the number of male and female applicants in a subset of applicants, i.e., varsity aspirants.
56. Walzer, pp. 203, 207.
57. In developing what became its 1975 regulations, OCR proposed and then recanted an institutional obligation to take affirmative steps to increase the interest and ability of women in athletics. Cf. 39 Fed. Reg. 22,228,22,236 (June 20,1974) and 40 Fed. Reg. 24,128,24,134 (June 4,1975).