Students of Rules
November 12, 2013
Those who make rules ought to be students of rules. We mean this in at least the two ways this posting and the next will address.
First, rule makers should know the essence of the existing body of rules which they will be responsible for upholding or modifying during the necessary ongoing review of those rules. These rule makers should have a general awareness of when and why each rule was first adopted, how it might have evolved, how it is now applied and what the major compliance problems have been in the past or may be in the future.
This first requirement is as important for those who prepare the rules for the contests – the playing rules – as for those who promulgate the rules that establish the minimum eligibility standards and the maximum limits for competition. In the face of any proposal to eliminate or greatly modify any rule, rule makers must ask what problems may return if they remove the rule that solved those problems.
Dov Seidman writes in how: Why HOW We Do Anything Means Everything: “Rules, of course, don’t come out of thin air. Legislatures and organizations adopt them usually to proscribe unwanted behaviors but typically in reaction to events. They lower speed limits after automobile accidents become too frequent, regulate pit bulls after a series of dog bites, or institute new expense-tracking procedures after someone is caught trying to get reimbursed for their new iPod. Rules have been established for a reason, but most people are out of touch with the rationale and spirit of why. They don’t read legislative histories and so have a thin, superficial relationship to the rules . . .”
That is not acceptable for those who write, review and revise rules. They have to know where each rule has come from. This is why for the rule makers and for those in our member schools responsible for applying the rules day in and day out, the MHSAA keeps current “The The History, Rationale and Application of the Essential Eligibility Regulations High School Athletics in Michigan."
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.