Scenario 2 Conversation with Legal Experts Should a girl be allowed to play on a boys' basketball team? (To read the scenario in its entirety, with comments from our student panel, click on the above link. Click on participant names to read bios.) Neena Chaudhry Participants: Paul, 12th grade, plays basketball. Cathy, 10th grade, plays volleyball. BriAnne, 12th grade, plays basketball. Neena Chaudhry is a lawyer at the National Women's Law Center Marcia Greenberger is a lawyer at the NWLC. Ron Peeler & Elizabeth Grob are lawyers whose focus includes school issues.     Paul Paul: If the Civil Rights Act of 1964 is true, then why do we have separate boys' and girls' teams in sports? Marcia Greenberger/Neena Chaudhry: The Civil Rights Act of 1964 does not apply to the issue of whether separate teams for boys and girls are permissible, because it does not apply to sex discrimination. Title IX does address this issue: it allows, but does not require, separate teams for men and women in many circumstances because of differences in the nature of training, physical characteristics, choices of sports, and the history of discrimination. Under Title IX, however, there are protections to ensure that women are not disadvantaged. Ronald Peeler/Elizabeth Grob: The law recognizes that there are differences between the genders, and that co-ed physical competition may not be to the advantage of either sex. For instance, in a very physically demanding sport such as football, a school that offered only co-ed football, and no other sport, could nearly assure that many good female athletes might not be able to participate due to their relative size and strength as compared to boys. While some girls may make the team, boys could easily dominate the sport. Without some separate sports, girls’ participation could be more limited. Along with such things as financial allocation, scheduling, facilities, personnel, and time, Title IX allows us to look at such things as the physical demands of the sport, competitive ability, peers and safety, gender group interest, and take-over dominance. These factors can lead to the conclusion that, to allow both sexes an equal opportunity to participate in the sport, separate boys and girls teams (such as a boys' basketball team and a girls' basketball team) are necessary. Generally, most schools have allowed males and females to try out for sports teams in which the school district did not have comparable programs for the other sex. For example, where a school only offers a boys' wrestling program, and not one for the girls, the school will allow girls to try out for the wrestling team.   Cathy Cathy: How can the law assist women in gaining equal access to the opportunities enjoyed by male athletes: school, status, financial and professional opportunities? Marcia Greenberger/Neena Chaudhry: The law can help women in sports gain equal access to the opportunities enjoyed by male athletes -- including school, status, financial and professional opportunities -- in two ways. First, Title IX is a federal law that prohibits sex discrimination in federally funded schools or other federally funded educational programs/activities (at any level of education), including athletics. Almost all higher education institutions, public and private, and all public elementary and secondary schools get federal funds. Second, the Equal Protection Clause of the Fourteenth Amendment to the Constitution protects women and girls in public schools or other government entities from discrimination on the basis of their sex. Ronald Peeler/Elizabeth Grob: A major step in assisting women to gain equal access to the opportunities enjoyed by male athletes has been the federal statutes, Title IX. Title IX of the Education Amendment of 1972 states that: No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. Women today have much higher sports participation rights and opportunities than women who grew up before Title IX. According to one study, 55 percent of the "post-Title IX" generation participated in high school sports, compared to 36 percent of the "pre-Title IX" generation. Prior to Title IX, many colleges did not offer scholarships to female athletes. Therefore, Title IX has brought about significant changes in female athletic opportunities in high school and college. The financial and professional opportunities, however, for female athletes are often driven by the marketplace. If there is a demand for a female professional sport, such as the WNBA, then such a league and opportunities will be presented to female athletes. While there are laws prohibiting sex discrimination in the workplace (such as Title VII or the Equal Pay Act, which requires equal pay for equal work), these laws generally have not been applied to require equal pay opportunities in situations driven by individual performance and economics, such as acting or professional sports.   BriAnne BriAnne: Is there a conflict of interest under the 14th Amendment as far as equal protection under the law that protects males from female encroachment on predominantly male institutions? Marcia Greenberger/Neena Chaudhry: The phrase "qualified individual with a disability" is a legal term that comes directly from the Americans with Disabilities Act of 1990, which requires "reasonable accommodations" for disabled people in their jobs and in their use of public services. Usually, a disabled person suing his or her employer under the ADA must prove that he or she is a "qualified individual with a disability"--that is, that he or she is disabled but qualified to perform the essential functions of the job with or without some type of reasonable accommodation. Ultimately, a court decides whether someone is a "qualified individual with a disability," but doctors, employers, friends and others may provide evidence to the court on a number of issues to help the court make this decision. For example, a doctor may be in the best position to evaluate whether a person has a physical or mental disability, but a friend or relative may be better poised to evaluate whether that disability substantially limits one or more of the person’s major life activities, which is also something the disabled person must prove. While the ultimate determination of who is a "qualified individual with a disability" will depend on answers to a number of factual questions, many courts have addressed these issues before and hence there is a body of law that can help other courts make such decisions. Ronald Peeler/Elizabeth Grob: The Americans with Disabilities Act applies only to those "qualified individual[s] with a disability." While medical information is relevant, the question is not decided by a doctor. If an education program is involved, the school district will consider the information and make the initial decision whether a person is entitled to the protection of the ADA. Alternatively, in an employment situation, the employer would initially make that determination. The affected person (i.e., the person with the disability) may not agree with the school district's or employer's determination and may ultimately litigate the issue. It is generally the first issue that is addressed by the court. Each party will present evidence to support its position, which often includes the opinions of medical experts. The purpose of this column is to identify issues. It does not purport to be exhaustive or to render legal advice. You should consult with qualified counsel or other professionals in developing responses to specific situations. Check out the sports celebrities' views on this scenario. >>Legal experts scenario 1 conversation >>Legal experts scenario 2 conversation >>Legal experts scenario 3 conversation >>Legal experts additional questions Student Panelists | Sports Celebrities | Legal Experts Scenario 1 | Scenario 2 | Scenario 3 *Conversations* | Convo Central (Student Comments) Links Online Conversations | Title IX