Fifty Years After Brown v. Board of Education
In 1954, after years of prevaricating and equivocating, the United States Supreme Court finally decided that the “separate but equal” test established in Plessy v. Ferguson was discriminatory and unconstitutional. For the next fifty years, people of color have been slowly integrated into our still-racist society. Today, blacks are no longer required to go to the back of the bus or find lunch counters apart from white folks. Aside from the most ignorant misanthropes among us, we modern Americans agree that this is a good and righteous arrangement.
Yet, fifty years after “Brown,” when it comes to sexual divisions, the separate but equal clause continues to flourish without opprobrium.
Democracy can be funny: What’s “right” and “wrong” don’t necessarily correspond to a concrete moral code. Sometimes what’s “right” is what the majority believes — even when the majority’s position is offensive to an enlightened minority. In the early part of the 20th century, the majority of Americans thought that whites and blacks shouldn’t mix. Thanks to historical forces like two world wars, jazz music, and the triumph of industry over agriculture, minds were slowly changed, and we look back on our forefathers as prejudiced heathens. Today, in the early years of the 21st century, most people believe that men and women should have separate (but equal) public toilet facilities and separate (but equal) athletic leagues. Maybe the hypocrisy of this conviction will become clear in another fifty years, when historians will look back on the first decade of the new millennium and remind their readers that “it wasn’t that long ago that men and women competed in separate divisions at the Olympic Games.”
Perhaps the most obvious implementation of the “separate but equal” test may be found in Title IX of the Education Amendments of 1972. The preamble of Title IX says, “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any educational programs or activity receiving federal financial assistance. Civil rights laws have historically been a powerful mechanism for effecting social change in the United States. They represent a national commitment to end discrimination and establish a mandate to bring the excluded into the mainstream. These laws ensure that the federal government delivers on the Constitution’s promise of equal opportunity so that every individual has the right to develop his or her talents. Title IX of the Education Amendments of 1972 bolsters this national agenda and prohibits sex discrimination in federally assisted education programs.”
What could be objectionable about such a noble document? Well, as most intercollegiate athletic programs can attest, the separate but equal provisions of Title IX have been used to force athletic departments to grant financial assistance based on the raw number of male and female athletes, regardless of their value to the school. The test is financial proportionality. The total amounts of athletics aid must be substantially proportionate to the ratio of male and female athletes. So even though the football program generates millions of dollars in income (which allegedly gets plowed back into academic research and education), the money-losing women’s soccer squad must get their “fair share” of financial aid.
Another key proviso of Title IX is the “Accommodation of Athletic Interests & Abilities.” This says that the selection of sports and the level of competition must effectively accommodate the students’ interests and abilities. All other benefits, opportunities, and treatments afforded sports participants are to be equivalent, but not necessarily identical. Title IX specifically looks at the following program components, which I’ve copied from a Title IX Web site:
- Equipment & Supplies: quality, suitability, quantity, availability, maintenance, & replacement.
- Scheduling of Games & Practice Time: number of competitive events per sport, number and length of practice opportunities, time of day competitive events and practice opportunities are scheduled, opportunities to engage in available pre-season and post-season competition, the season a sport is scheduled, & the length of season.
- Travel & Per Diem Allowances: modes of transportation, housing furnished during travel, length of stay before and after competitive events, per diem allowances, & dining arrangements.
- Opportunity to Receive Academic Tutoring: availability of tutoring, tutor qualifications and experience, rates of pay, & employment conditions.
- Opportunity to Receive Coaching, Assignment, & Compensation: availability, assignment, & compensation of full-time coaches, assistants, graduate assistants, or restricted earnings coaches.
- Locker Rooms, Practice, & Competitive Facilities: quality, availability, exclusivity of use, maintenance and preparation of facilities.
- Medical & Training Facilities and Services: quality and availability of medical personnel; athletic trainers; weight and conditioning facilities; training facilities; & health, accident, and injury insurance coverage.
- Housing & Dining Facilities and Services: housing and dining benefits available during the regular year, the provision of pre-game and post-game meals, & housing and dining services provided when classes are not in session.
- Publicity: availability and quality of sports information personnel access to publicity resources, & quantity and quality of publications and other promotional devices.
- Support Services: administrative support, clerical and secretarial support, office space, equipment and supplies, & availability of other support staff.
- Recruitment of Student-Athletes: opportunities for coaches or other personnel to recruit, whether financial and other resources are equivalently adequate, & treatment of prospective student-athletes.
Now, this all may be the right and fair thing to do. Or it might not be. I’m not sure. But I am certain of this: each of these conditions is based on the concept of “separate but equal.” Why we find this concept so noxious when applied to race and so palatable when it comes to sex puzzles me. Fifty years hence, another landmark case might come before the Supreme Court, and we’ll learn then that democracy’s idea of fairness is as fluid and dynamic as our views on skin color.