Should male college athletes be allowed time off for paternity leave?

That's the question posed by a pending lawsuit filed against the NCAA by Kansas defensive tackle Eric Butler, who was denied an extra year of eligibility by the NCAA after missing the 2001 season following the birth of his daughter, Angelina (Kelly Whiteside, USA Today, 8/24/06, "Suit tests ban on leave for father-athletes"). NCAA regulations give a student-athlete 5 years to complete 4 years of playing season eligibility. However, the NCAA's pregnancy exception states a school "may approve a one-year extension of the five-year period of eligibility for a female student for reasons of pregnancy." Butler brought a federal civil rights claim alleging the NCAA violated Title IX since its pregnancy waiver applies only to females. A U.S. District Court has already denied Butler's request for a temporary restraining order, and Butler has requested emergency relief from the United States Court of Appeals for the Tenth Circuit because Kansas' season opens Sept. 2 against Northwestern State.

Butler argues that the NCAA should give college athletes the same opportunities that people in the normal workplace have, citing the federal Family and Medical Leave Act of 1993 which gives men who work at companies with 50 employees or more the right to take up to 12 weeks of paternity leave. Experts for the National Women's Law Center say that if eligibility is extended for child rearing then it should extend equally to men, but if eligibility is extended because of the physical effects of pregnancy then it should not extend equally to men. And the NCAA's position is that the rule explicitly states that it only applies to female students whose physical condition due to pregnancy prevents their participation in intercollegiate athletics.

The legal question in this case for purposes of establishing a Title IX claim is simply whether the NCAA's rule "discriminates on the basis of sex". I don't think it does. The rule doesn't treat women different from men; it treats pregnant women different from men as well as non-pregnant women. Many women (those who are not pregnant) are treated the same as men under the rule, and thus the rule does not treat similarly situated persons differently on the basis of sex.

But even if the rule does treat people differently because of, or on the basis of, their sex, disparate treatment prohibits "unjustified" sex-based distinctions. A rule that discriminates on the basis of sex is justified if the rule is necessary to address the special needs of a particular sex. For example, a rule that prohibits female students from participating in contact sports with male students is justified based upon the physical differences that exist between men and women. Here, the pregnancy exception is necessary because pregnant women can't physically participate in collegiate athletics.

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