One for You and One for Me: Is Title IX's Sex-Based Proportionality Requirement for College Varsity Athletic Positions Defensible?

Abstract

This paper explores whether Title IX's proportionality requirement can be justified under any of three standard civil rights frameworks. The proportionality requirement has been widely criticized for failing to follow the "careers open to talents" model enforced by Title VII. The paper argues that the critics are correct that the proportionality requirement is inconsistent with the careers open to talents model but contends that the critics' own distribution proposals are also inconsistent with this model. The paper next considers whether the proportionality requirement can be justified by either of two other civil rights models: a utilitarian model (of the sort that underlies the Individuals with Disabilities Education Act) and what is referred to in the text as a tool-giving model (of the sort that underlies the school financing cases). Neither model provides an adequate justification for the proportionality requirement, however. Finally, the paper examines whether the proportionality requirement might best and most honestly be justified on the grounds that it encourages girls to participate in activities and develop traits and attributes that are widely socially valued. The paper concludes that the proportionality requirement is indeed best understood and justified as an openly "perfectionist" resocialization measure.