Cheering for Equal Opportunity
February 14, 2017
Guided by the spirit of Title IX, the Michigan High School Athletic Association created girls competitive cheer in 1993 for the express purpose of providing an additional winter sport for girls to equalize athletic opportunities between the sexes. Before that, girls in Michigan had fewer athletic opportunities in the winter than in fall or spring and fewer athletic opportunities than boys overall.
Like all girls sports under MHSAA regulations, participation in MHSAA Girls Competitive Cheer Tournaments has been limited to girls. Since the 1977-78 school year (after a team of four boys won an Illinois High School Association girls state bowling championship), the MHSAA Handbook has included the following rule: “Boys may not participate on a girls team in MHSAA sponsored postseason meets and tournaments.” The MHSAA also encourages member schools not to permit boys to participate on girls teams during regular season play.
Without a policy prohibiting boys from displacing girls from teams and from the playing surface, athletic opportunities for girls would be in serious jeopardy, as many courts examining this issue have concluded. In short, permitting boys to displace girls would be antithetical to the fundamental purpose of Title IX.
The overwhelming majority of federal and state courts have concluded that “no-boys-on-girls-teams” rules are lawful and necessary. These cases conclude that maintaining and promoting athletic opportunities for girls and redressing past discrimination against women in athletics are important objectives. And, second, they conclude that excluding boys from girls’ sports – even if girls may participate on boys’ teams – is substantially related to that important interest.
Case law provides two separate, simple explanations; each of which, standing alone, establishes the legitimacy of the rule. First, having all-girl teams creates or maintains opportunities for females that would not otherwise exist, thereby providing females opportunity to develop programs equal to boys.
Second, because there are recognized, innate physiological differences between the sexes that give boys inherent advantages in most athletic events, to permit boys to participate on girls’ teams – irrespective of the sport – would displace girls from competition to a substantial extent, thereby diminishing female opportunity in athletics.
- A federal court in a Tennessee case wrote in 1977: “[it] takes little imagination to realize that were play and competition not separated by sex, the great bulk of females would quickly be eliminated from participation and denied any meaningful opportunity for athletic involvement.”
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A federal court in Arizona wrote in 1989: “If males are permitted to displace females ... even to the extent of one player ..., the goal of equal participation by females in interscholastic athletics is set back, not advanced.”
The MHSAA created girls competitive cheer expressly to provide overall equal athletic opportunity for girls that did not exist before it was added as an MHSAA sport. That a boy now wishes to participate on a girls competitive cheer team, despite the abundance of athletic opportunities for boys in other sports, does not establish a violation of Title IX. And Title IX has never been so construed. The MHSAA’s rule creates for girls the opportunity to enjoy highly competitive athletic opportunity in the same number of sports as boys – precisely satisfying Title IX.
The MHSAA made its move toward girls competitive cheer two decades before entrepreneurs invented coed “stunt” for schools’ and colleges’ consideration. By that time, participation in girls competitive cheer had tripled in Michigan high schools. Girls competitive cheer is now the eighth-most popularly sponsored high school sport in Michigan, above sports like tennis, golf and swimming & diving which had a 20-year head start.
Correctable Error?
May 30, 2017
A decade has passed since the court-ordered change in several sports seasons for Michigan high schools. Ten years has brought resignation more than satisfaction; and yet there remains hope in some places that the new status quo is not permanent, at least for those sports seasons changes that were and are seen by many people as collateral damage in a fight over seasons for girls basketball and volleyball.
Actually, the lawsuit sought to place all girls seasons in the same seasons as boys, like college schedules. The federal court did not require simultaneous scheduling; but the court did bring the intercollegiate mindset to the case. It determined, regardless of other facts, that the intercollegiate season was the “advantageous” season for high school sports. And the principle upon which it approved the compliance plan for high school sports in Michigan was that if all the seasons were not simultaneous for boys and girls, then there should be rough equality in the number of boys and girls assigned to “disadvantageous” seasons.
So, for example, from the federal court’s perspective, fall is the advantageous season for soccer, winter for swimming & diving, and spring for tennis. As for golf, the court opined that, even though it’s not the season of the NCAA championships, maybe fall was the better season. The court began with tortured logic and ended with hypocrisy.
As a result, in the Lower Peninsula, regardless of the preferences of the people involved, girls and boys had to switch seasons in two sports to even up the number of boys seasons and girls seasons in what the court had determined were disadvantageous. Schools thought the switch of golf and tennis for the genders was less injurious than switching soccer and swimming.
In the Upper Peninsula, because swimming and golf are combined for the genders in the winter and spring, respectively, the court’s option was to switch boys and girls seasons for either soccer or tennis. The schools chose soccer as the least disruptive change.
As people count the damaging effects and think about challenging the court-ordered placements a decade later, they must understand the court was looking for balance, for having the genders share the burden of participating in disadvantageous seasons. Moving Lower Peninsula boys golf to join girls in the fall and/or switching Lower Peninsula boys and girls tennis back to what was preferred and in place before judicial interference would recreate the imbalance the federal court conjured up and sought to remedy.
Those of us involved see many advantages to conducting fall golf for both genders in the Lower Peninsula and switching Lower Peninsula tennis seasons for boys and girls, no matter when colleges schedule those sports or how impractical the court’s logic and how inconsistently it was applied. Nevertheless, correcting the court’s errors could be both contentious and costly.