Legal Commentary

: Discriminations

Yes, But What Is ?Equality??

USA Today has an informative article today on the raft of litigation that has emerged around Title IX. Although the article is concerned almost entirely with claims of retribution filed by women?s coaches who complained about their institutions? failure to comply with Title IX, and all but neglects the numerous complaints that Title IX has led many men?s sports programs to be eliminated in order to produce more (or the appearance of more) ?gender equity,? the article is a useful summary of some current controversies.

Read it if you interested in those controversies, because I?m not going to discuss them here. I want to call attention only to one passing ? and, as it happens, revealingly off base ? comment offered by the author, Jill Lieber Steeg, who has a number of Title IX articles today:

Title IX has come to stand for equality in college sports, though it applies to all schools receiving federal funds, not just colleges, and not just to athletics. There?s no longer a debate over whether women should have equal access to medical and law schools, but Title IX?s role in athletics remains controversial....

Yes, but what is the nature of the ?equality? that it has ?come to stand for?? (If I were being snarky, I would ask, What did it stand for before it came to stand for equality?)

Ms. Steeg is right in claiming that there is ?no longer a debate over whether women should have equal access to medical and law schools? (or anything else), but she is flatly wrong to imply that, unlike Title IX, Title VI and Title VII of the Civil Rights Act are free from controversy these days. And the controversy is always centered on the issue of preferential treatment.

There is a broad, deep consensus today in favor non-discriminatory equal access. Indeed, about the only opposition to it comes from ?civil rights? and women?s advocacy groups and their supportive politicians who demand not equal access but preferential treatment. But insofar as ?equal access? is less controversial in medical and law school admissions than it is in school and college sports, it is because the non-discrimination standard is given at least more verbal fealty there. Title IX controversies, by contrast, often emphasize ?equity? ? by which is meant numerical equality in participation, resources, etc. ? not non-discriminatory equal treatment, not ?equal access? but equal participation.

There would be much less controversy over civil rights today if everyone agreed on the underlying principle that individuals have a right to be treated without regard to their race, sex, or ethnicity, and hence that equality requires non-discriminatory equal treatment, not equality of results ? whether the ?results? in question are the proportional representation of blacks or women in the freshman class, on the faculty, or on the football and soccer fields.

Full post as published by Discriminations on May 14, 2008 (boomark / email).