More on Title IX: When Gregg Easterbrook Attacks

Over at ESPN.com, Nancy Hogshead-Makar, the senior director of advocacy for the Women's Sports Foundation and professor at Florida Coastal School of Law, has a good article up defending the recent decision in the competitive cheerleading-Quinnipiac Title IX case. Hogshead-Makar does a particularly strong job of responding to Gregg Easterbrook’s attack—also posted on ESPN.com—of the decision and of Title IX itself. For those of you who missed it, Easterbrook’s column focuses on two arguments: First, he essentially concludes that Title IX is no longer needed, has descended into “absurdity,” and “slog[s] on, causing asinine intrusions.” Second, he challenges the court’s conclusion that competitive cheerleading is not a sport for purposes of Title IX. As Easterbrook puts it, “where does a federal judge get off saying it is not athletics athletics yet a volleyball bouncing back and forth across a net is?.... Courts have no business sticking their noses into such issues.”

I respect and enjoy Easterbrook’s work (both sports and non-sports related), but he misses the mark on both arguments. Let’s take his attack on Title IX first. Easterbrook relies largely on anecdotal evidence and a loose (or mis)reading of the opinion to draw the sweeping conclusion that Title IX is unnecessary, if not destructive. For example, Easterbrook asserts that “[g]irls' and women's sports are now successful, popular and in some cases even self-sustaining. You can find the proof of that at almost any high school in the United States. My kids' high school fields 15 girls' or coed athletic teams.” Of course, Easterbook’s kid goes to Winston Churchill High School (Easterbrook links to that fact in his column—I didn’t track it down on my own), which happens to be ranked as one of the top 100 high schools in America, and is located in Potomac, Maryland, which happens to be one of the wealthiest and most well-educated towns in America.

Easterbook can’t really believe that the opportunities for female athletes at Churchill High School prove that women have equal opportunities across the country and that Title IX is unnecessary--that’s like arguing that we no longer need Title VII because we have a black president--and Hogshead-Makar takes him to task for ignoring the evidence. She notes that the “simple facts are incontestable. Women still lag substantially behind men overall nationwide in every measure of equality in athletic departments, including scholarships, budgets, coaching salaries, facilities and competitive opportunities. In 2005-2006, male athletes received approximately $162 million more than female athletes in college athletic scholarships at NCAA member institutions.” Significantly, the impact of this inequality extends well beyond sports. Earlier this year, a column in the New York Times detailed two studies that showed that increasing girls’ sports participation had a direct effect on women’s education and employment and on long-term health.

Has Title IX helped women achieve more athletic opportunities? Yes. But, as Hogshead-Makar points out, there is more work to be done, and Title IX is an important tool for ensuring that women get equal access and opportunity to athletics (and for maintaining the access and opportunities they eventually achieve).

Easterbrook’s second criticism—that a judge should not be responsible for defining what activities constitute a “sport”—simply misses the point. The Quinnipiac case did not ask the judge to decide if competitive cheerleading constitutes a sport. Instead, the case asked if competitive cheerleading constitutes a sport for purposes of Title IX. That’s not just a semantic distinction. As Judge Underhill explained, for an athletic opportunity to count as a sport under Title IX, “it must be genuine, meaning that it must take place in the course of playing an actual ‘sport’ and it must allow an athlete to receive the same benefits and experience that she would receive if she played on another established varsity squad.”

Judge Underhill did not conclude that competitive cheerleading was unworthy of being called a “sport,” and was somehow inferior to other sports. Instead, he concluded that it was unworthy of constituting a sport for purposes of Title IX because it did not provide athletes with the same experience they would receive if they played on an established varsity squad. Why? First, the team competed against varsity cheer teams, club cheer teams, sideline cheer teams, all-star teams, and even high school cheerleaders. As Judge Underhill wrote, “no other Quinnipiac varsity team is forced to play such a motley assortment of competitors…If Quinnipiac is serious that its competitive cheer team is a legitimate varsity sport, then it should not tolerate its team playing against non-varsity collegiate teams, non-scholastic all-star teams, and, especially, athletes who are still in high school.” Second, there was no uniform set of rules for the cheerleading competitions—the team competed in 10 events with at least 5 different sets of rules. Third, no members of the cheer team were recruited off campus. Instead, every cheerleader was selected from students already enrolled at Quinnipiac. Fourth, there was no genuine postseason competition—the “national championship” for competitive cheerleading was open to all schools’ cheerleading teams, even non-competitive cheerleading teams. And, the championship included an element never used during the regular season competitions (a “spirit” segment, where teams were judged based on the reaction their routine elicited from the crowd).

In other words, Judge Underhill’s decision had nothing to do with competitive cheerleading’s status as a “sport.” If any college had a team—whether it be cheerleading, volleyball, or baseball—that competed against a “motley assortment” of teams without a uniform set of rules, recruiting, or a real postseason, it would not be considered a sport for purposes of Title IX because it would not provide student athletes with a genuine, real opportunity to participate in varsity athletics.

Reasonable minds will continue to disagree about the methods and impact of Title IX, but if we can agree that gender equality in athletic participation is a goal, we still have a long way to go, and the Quinnipiac decision is a step in the right direction. The case did not sound the death knell for competitive cheerleading. Instead, it will force schools to improve the sport so that it can provide a genuine athletic opportunity for student-athletes. As Hogshead-Makar wrote, “[c]heerleading has long been part of athletic events and will continue to be part of athletic departments. The opinion will not change that fact. Instead, the opinion assures that Quinnipiac will provide all female athletes…with the full range of varsity benefits.”

[For an interesting perspective on competitive cheerleading, please check out this new post from Howard Jacobs over at the Athletes Lawyer blog.]

Update: The College Sports Council, a national coalition of coaches, athletes, parents, and fans who are devoted to preserving and promoting the student athlete experience, has posted a response to Hogshead-Makar's piece. It is definitely worth a read.

Posted in: