Author: Joshua Thompson
After PLF and the American Sports Council made waves announcing their lawsuit concerning the application of sex-based quotas on American high schools, the proponents of sex-based quotas have finally begun their counter-attack. Unsurprisingly, however, the response from the Title IX Blog is based solely on hyperbole, ad hominems, straw man arguments, and non sequiturs. I'll point out some of the most egregious fallacies after the fold.
1. "Vocal opponents of such attempts to give more girls the opportunity to play sports"
And we are off to a rousing start! With the first line after the factual lead-in comes this whopper ad hominem. PLF and ASC have consistently maintained that our lawsuit has absolutely nothing to do with preventing girls from playing sports. We have consistently maintained that Title IX should be used to provide equal opportunity: that equal facilities, equal coaching, equal funding, and many other concerns that Title IX addresses are proper and not touched by our lawsuit. In fact, I do not see how eliminating sex-based quotas does anything to eliminate the opportunity for girls to play sports. If it does, well then surely the burden is on the proponent of such a ridiculous statement to prove it.
2. "Courts have consistently held that all of Title IX's provisions apply to high schools (and other entities) as well."
Well, no. Flat out false statement. No court has ever held that the Three-Part Test applies to high schools. A fact implicitly recognized by the Department of Educationwhen it denied CSC's petition back in March, 2008.
3. "Proportionality is a safe harbor because it is numbers based. Numbers don't lie. Except when they do. Like when schools manipulate rosters in order to make it seem like they are offering opportunities to girls and women–when they are not. I don't think this is the Department of Ed's problem."
So … the Three-Part Test results in schools manipulating roster spots, and this is a good metric for determining discrimination? Non-sequitur. Maybe the best way to prove discrimination is how they do it with respect to race — you know, actually proving that someone was discriminated against. Numbers are a horrible metric for determining discrimination. I was recently talking with my sister, a Professor of Nursing at the University of Kentucky, about this case (full disclosure: she was a three-sport athlete in high school). I asked her, what percentage of your students in the College of Nursing are females? She answered about 90%. I asked her if the University was discriminating against males. She said it wasn't. I believe her. But if we go by straight numbers, as proportionality requires, we have evidence of discrimination. The Supreme Court has made clear that numbers based discrimination claims are highly suspect, as this example should aptly illustrate. Discrimination is horrible and should be rooted out and eliminated, but numbers don't prove anything.
4."Second, if these opponents truly believed that girls were less interested in playing sports then, I believe, they would be making greater efforts to prove it."
So, schools should spend millions of dollars (or should ASC?) to devise tests that have no force of law, won't prevent an inference of discrimination if proportionality is still out-of-balance, and won't shield schools from the million dollar lawsuits the blogger rightfully references? Fat chance. Any smart administrator is going to take the easy (read: cheap) way out — Cut athletic opportunities until the sexes are proportional.
5. "High school sports are often just a progression of student-athletes' careers from youth sports in a way that the transition from high school to college is not as natural or expected. It's hard to believe that the numbers aren't there given the growth in youth sports."
A pretty big claim to state with no evidence. If youth sports are proportional, I'd love to see the data. Or wait, I foresee the comeback, — youth sports programs are discriminating too!
6. "And so, of course, opportunities should be equitably distributed when we're talking about an educational endeavor."
Classic straw man. Opportunities should be equally available. That does not mean outcomes are going to be, nor should be, equal.
7. "First, these are complaints–not lawsuits."
Oh, they are just complaints, ok. Has anyone seen the documentation, bureaucratic nonsense, and millions of dollars a school has to invest in order to respond to one of these complaints?
8. "But again, Title IX has been around for four decades. What have schools been doing?"
Providing equal opportunity. Title IX should root out discrimination. It has been successful at doing so. But it was not designed as an equal outcome generator. Where discrimination exists, we at PLF and ASC want it rooted out and eliminated so that girls are given every opportunity as boys to compete at sports.
9. "Advocates for women's sports get villainized because we expect that schools and the government actually follow and enforce this law."
Could you beg the question anymore? PLF and ASC are advocates for women sports. As is the Independent Women's Forum. Quota advocates get villainized because they force schools into an unnecessary numbers game, where proper proportions, not equal opportunity, is the only thing that matters. (Of course the blogger begs the question by saying all they want is for the government to follow the law. Us too!)
10. "Is there ever going to be a good time for us to request that girls be given what they deserve?"
More from the straw man. Girls deserve equal opportunity. So do boys.
11. "If schools had truly believed that proportionality was the safe harbor of Title IX, they would have had the means to implement it then. And prior to 1972? Well there were boon periods then too. Yet there was no widespread movement to add sports for women. Hard to argue that we don't need Title IX."
And we don't argue that Title IX isn't needed. To the extent that Title IX has rooted out discrimination and provided equal opportunity to all persons, regardless of sex, it was sorely needed. Sex-based quotas are another matter entirely.
BONUS fallacy: "I predict that the court deciding this case will apply the same interpretation as those earlier decisions holding it was not unconstitutional for Title IX to offer a proportionality test as one of three options for compliance . Though those earlier decisions were all in the context of disputes about college sports, there is nothing about applying those arguments to the high school context that warrants a different result."
I apologize. This was a bit unfair, as it doesn't come from the same post or the same author, but from an earlier post annoucing the lawsuit. Nevetheless, the statement does manage to demonstrate that fact-checking is something the Title IX blog has universally disregarded. Of course, ASC's lawsuit does not challenge the facial constitutionality of proportionality, and the equal protection argument (only one of the three arguments ASC raises) is based on the total lack of evidence, vis-a-vis high schools, assembled by HEW when it devised the Three-Part Test. [The government must have sufficiently probative evidence of discrimination before it creates a sex classification.] Frankly, our constitutional argument is quite simple to comprehend (if you bother reading the complaint). Accordingly, the Equal Protection claims raised in the earlier suits are completely inapposite (something a law professor should know). In fact, our constitutional argument implicitly recognizes that if DOE created a record of pervasive discrimination in high schools, it could constituionally apply the Three-Part Test to scholastic athletics. Unfortunately, the author fails to provide any prognostications on the statutory or regulatory arguments raised in the complaint, yet I suspect the author won't need to read the complaint to make those predictions either.