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Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1. 20 U.S.C. § 1681(a) (2015).
2. Grove City College v. Bell, 465 U.S. 555 (1984).
3. Civil Rights Restoration Act of 1987, Pub. L. 100–259, 102 Stat. 28 § 3(a)(2)(A).
4. 34 C.F.R. § 106.41 (2015).
5. 34 C.F.R. § 106.41(b) (2015).
6. Williams v. School District of Bethlehem, Pa. 998 F.2d 168 (3d Cir. 1993).
7. 998 F.2d at 175.
8. Mercer v. Duke University, 190 F.3d 643 (4th Cir. 1999).
9. Mercer v. Duke University, 50 Fed. Appx. 643 (4th Cir. 2001).
10. Mercer v. Duke University, 401 F.3d 199 (4th Cir. 2005).
11. 34 C.F.R. § 106.41(c)(1)-(10) (2015).
12. Department of Health, Education and Welfare. A Policy Interpretation: Title IX and Intercollegiate Athletics. 44(239) Fed. Reg. 71413, http://www2.ed.gov/about/offices/list/ocr/docs/t9interp.html (11 December 1979).
13. Pederson v. Louisiana State University, 213 F.3d 858, 878 (5th Cir. 2000).
14. McCormick ex rel. McCormick v. School District of Mamaroneck, 370 F.2d 275, 281 (2d Cir. 2004).
15. 370 F.2d at 293.
16. In the article, I used the term ‘affirmative action’ to refer to such positive steps. (Francis Citation1993, 38). Despite all the opprobrium that has been heaped on the term as requiring unjustifiably exclusionary quotas, ‘reverse discrimination’, or rejection of appropriate qualifications, the need for positive steps was its original meaning and should not be forgotten. As originally conceived, affirmative action did not require injustice; it required consideration of what practical steps could be taken to address existing discrimination. See, e.g. Office of Federal Contract Compliance Programs, Executive Order 11246, EEO Affirmative Action Guidelines for Federal Contractors Regarding Race, Color, Gender, Religion, and National Origin, http://www.dol.gov/ofccp/regs/compliance/fs11246.htm (24 September 1965). The Guidelines provide: ‘Each Government contractor with 50 or more employees and $50,000 or more in government contracts is required to develop a written affirmative action program (AAP) for each of its establishments. A written affirmative action program helps the contractor identify and analyze potential problems in the participation and utilization of women and minorities in the contractor’s workforce. If there are problems, the contractor will specify in its AAP the specific procedures it will follow and the good faith efforts it will make to provide equal employment opportunity. Expanded efforts in outreach, recruitment, training and other areas are some of the affirmative steps contractors can take to help members of the protected groups compete for jobs on equal footing with other applicants and employees’.
17. Alexander v. Choate, 469 U.S. 287 (1985). The plaintiffs in the case were Tennessee Medicaid recipients challenging the state’s limitation of hospital days per year covered under the program. Although the Court held that the plaintiffs had not shown that they lacked meaningful access to hospital services, its adoption of the meaningful access standard has proved critical for subsequent plaintiffs challenging disability discrimination. (Silvers and Francis Citation2008).
18. American Council of the Blind v. Paulson, 525 F.2d 1256 (D.C. Cir. 2008).
19. Tennessee v. Lane, 541 U.S. 509 (2004).
20. Innes v. Board of Regents of the University System of Maryland, 29 F. Supp. 3d 566 (D. Md. 2014).
21. E.g. Van Velzor v. City of Burleson, 43 F. Supp. 3d 746 (N.D. Texas 2014).
22. From the report of the National Federation of State High School Associations, 2014–2015 High School Athletics Participation Survey, http://www.nfhs.org/ParticipationStatics/PDF/2014-15_Participation_Survey_Results.pdf, calculations by the author.
23. McCormick v. School District of Mamaroneck, 370 F.2d 275, 286 (2004).
24. US Youth Soccer, Olympic Development Program, http://www.usyouthsoccer.org/programs/olympicdevelopmentprogram/.
25. (about) education, History of Women’s Basketball in America, http://womenshistory.about.com/od/basketball/a/timeline.htm.
26. NCAA, Divisional Differences and the History of Multidivision Classification, http://www.ncaa.org/about/who-we-are/membership/divisional-differences-and-history-multidivision-classification.
27. Football Geography.com, History of FBS (I-A) vs. NCAA Division II/III & NAIA, http://www.footballgeography.com/history-of-fbs-i-a-vs-ncaa-division-iiiii-naia/
28. ESPN, The Bowl Championship Series: A Golden Era, http://www.bcsfootball.org/news/story?id=10172026.
29. College Football Playoff, Chronology, http://www.collegefootballplayoff.com/chronology.
30. The Pac-12 deal, beginning in 2012 and running for 10 years, is worth $225 million/year for the conference, ESPN, Pac-10 announces ESPN/Fox deal, http://sports.espn.go.com/ncf/news/story?id=6471380. The Big-10 has adopted scheduling rules designed to increase TV revenues, SB Nation Big Ten’s 3 new scheduling rules are as much about TV money as about the Playoffs, http://www.sbnation.com/college-football/2015/8/3/9086867/big-ten-football-schedule-rules-espn.
31. Scholarship Stats.com, College Football & Scholarship Opportunities, http://www.scholarshipstats.com/football.html.
32. Women’s Sports Foundation, Title IX Legislative Chronology, http://www.womenssportsfoundation.org/home/advocate/title-ix-and-issues/history-of-title-ix/history-of-title-ix.
33. Women’s Sports Foundation, Title IX Legislative Chronology, http://www.womenssportsfoundation.org/home/advocate/title-ix-and-issues/history-of-title-ix/history-of-title-ix.
34. Fed. Reg. 40(108) at 24,134 (4 June 1975).
35. Mixed double sculls is featured in the Paralympics; the US won its first medal in the sport in 2012. (Fredrick Citation2012).