The Case for Discrimination

36. SHOULD THE GOVERNMENT BE ALLOWED TO ENGAGE IN RACIAL, SEXUAL, OR OTHER ACTS OF DISCRIMINATION?

EXTANT LAW AND ITS COMPATIBILITY WITH THE UNITED STATES CONSTITUTION

A. THE LAW OF ARKANSAS

THE STATE OF ARKANSAS PROVIDES TO GRADUATES OF ARKANSAS secondary schools who demonstrate “extraordinary academic ability” a full academic scholarship for enrollment in a state-approved public or private Arkansas institution of higher education.1 The sole measure of the graduate’s “extraordinary ability” is demonstrated by scoring 32 or above on the American College Test (ACT), or at least 1410 on the Scholastic Aptitude Test (SAT), and selection as a finalist in the National Merit Scholarship competition or achievement of a high school grade point average of at least 3.5 on a scale of 4.0.2 The purpose of the Governor’s Scholarship Program, according to the enabling legislation, is “that outstanding students are an essential ingredient for the economic and social benefit of the State of Arkansas. Benefits accrue to the state when a majority of National Merit Scholars, National Achievement Scholars, and superior students attend Arkansas institutions of higher learning and remain in the state.”3 The scholarship award dollar amount equals the tuition, room and board, and mandatory fees charged for a regular full-time student by the approved institution of higher education in which the student is enrolled.4 For students who are first-time entering freshman after July 1, 2002, a new $10,000.00 maximum will be in effect.5 There are eight public and seven private, church-related, approved institutions participating in the program.6

The dollar value of the scholarship award varies considerably between public and private institutions. It is estimated, for example, that a scholarship recipient enrolled in Hendrix, a private church-related institution, costs the state about $15,474 per year. In contrast, a distinguished scholar enrolled at Southern Arkansas University, a public institution, will cost the state only about $5,088 per year.7 It is critical to understand that the scholarship funds are disbursed from the state directly to the approved public and private, church-related institutions.8 No funds are sent to the parents or recipients.9 The responsibility for selecting the scholarship recipients rests with the Arkansas Department of Higher Education (DHE).10

As a condition of participation in the program, each institution of higher education, public or church-related, has to agree to provide to the state the same level of administrative services in administering the program. Among these services are the following: appointing an institution representative to act as administrator of the program for that campus; receiving all disbursements; completing all forms and rosters; verifying all data; and ensuring compliance with all DHE program rules and regulations.11 In addition, the institution, public or private, must do the following: maintain disbursement records; prepare an annual Institutional Financial Information Sheet for all programs administered by DHE; prepare a list of program drop-outs; certify full-time enrollment; provide DHE with an institutional verification of compliance at least twice yearly; and, finally, submit from time to time to a DHE review of the institution’s records to demonstrate its due diligence as a steward of state funds.

The program has been much used. The state awarded a total of 808 Distinguished Governor’s Scholarships for the 1997–98, 1998–99, and 1999–2000 academic years.12 Of those, 425 (52.6 percent) chose to attend a public institution, and 383 (47.4 percent) chose to attend a private, church-related institution. The approximate expenditure of state funds for the scholarship program has resulted in disbursements of $6,149,087.00 to the private, church-related institutions and $3,666,371.00 to their public counterparts.13 As a result, 62.6 percent of the total state distinguished scholarship funds were forwarded directly to the former, and 37.4 percent to the latter.14 Of the scholarship recipients, 4 (0.4 percent) were African American, 19 (2.0 percent) Asian, 5 (0.5 percent) Native American, 885 (94.6 percent) Caucasian, 3 (0.3 percent) Hispanic, and 20 (2.1 percent) were other or unknown. Finally, 532 (56.8 percent) of the scholars were male, and 404 (43.2 percent) female.15

B. FEDERAL GOVERNMENT JURISDICTION OVER STATE DISCRIMINATION

Does the federal government have jurisdiction over states when and if they engage in racial discrimination against their citizens? Some argue that state courts lack jurisdiction over a plaintiff’s federal damage claims under §1983 because states are not persons amenable to suit under §1983.16 See 42 U.S.C. § 1983 (1994). However, it is well-settled in the judicial circuit including Arkansas that, to survive a motion to dismiss, all a plaintiff must do is plead that a facially neutral practice’s adverse effects fall disproportionately on a group protected by Title VI.

As the Court of Appeals for the Eighth Circuit explained in the Fair Housing Act discrimination case of Ring v. First Interstate Mortgage,17 “the prima facie case under [disparate impact] analysis is an evidentiary standard—it defines the quantum of proof plaintiff must present to create a rebuttable presumption of discrimination.”18 According to the Federal Rules of Civil Procedure, “an evidentiary standard is not a proper measure to determine whether a complaint fails to state a claim.”19

Additionally, the Supreme Court has stated, “[W]hen a federal court reviews the sufficiency of a complaint … the issue is not whether the plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support such claims.”20 The State of Arkansas has promulgated a program that clearly has a disparate impact on black students.21 They are underrepresented among the scholarship winners.22 Given this, a clear implication exists that they are entitled under Ring to offer evidence to support their claims.

C. GETTING PAST THE NOTION OF STATE IMMUNITY

Under certain circumstances, the United States Congress can pass laws that give individual citizens a right of action in federal court against an non-consenting state. The circumstances require, first, that “Congress has ‘unequivocally expressed its intent to abrogate the immunity,’”23 which “must be obvious from a ‘clear legislative statement.’”24 Second, Congress must have acted “pursuant to a valid exercise of power.”25 The Supreme Court has held that Congress can abrogate state immunity when it acts pursuant to Part 5, the enforcement provision of the Fourteenth Amendment, which provides that “the Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”26

Congress, through the legislation that established Title VI, abrogated state immunity in order to give effect to the provisions of the Fourteenth Amendment of the United States Constitution.27 A private right of action under a federal statute requires analysis of the factors set forth in Cort v. Ash.28 The Cort factors ask:

First, is the plaintiff “one of the class for whose especial benefit the statute was enacted”—that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?29

Plaintiffs fit squarely under the Cort rationale.

D. A PRIVATE CAUSE OF ACTION FOR ARKANSAS PLAINTIFFS

An individual affected by the disparate impact of the Arkansas scholarship distributions fits squarely within the circumstances where private citizens have a right of action in federal court. Section 601 of Title VI of the Civil Rights Act of 1964 provides that “No person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”30 Moreover, section 602 of Title VI authorizes and directs federal departments and agencies that extend federal financial assistance to particular program or activities to effectuate the provision of 2000d by issuing rules, regulations, or orders of general applicability.31

The Department of Education, in exercising statutory authority under section 602, promulgated such a regulation, which prohibits a funding recipient from “utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.”32 So any action alleging disparate impact resulting from administration of the Arkansas Distinguished Scholarship Program [hereinafter Program] would be fairly based on the foregoing statutes and regulations prohibiting discriminatory effects in educational programs.

While it is well established that a private cause of action exists under § 601 of Title VI of the Civil Rights Act of 1964 to redress intentional discrimination,33 the Supreme Court has never specifically ruled that a private right of action exists where regulations promulgated under § 602 have resulted in disparate impact as opposed to intentional discrimination.34 In fact, in Alexander v. Sandoval the Supreme Court recently found there is no such private right of action under § 602, a decision referred to in the dissent as “unfounded in our precedent and hostile to decades of settled expectations.”35

While this recent Supreme Court decision precludes a private cause of action for Arkansas plaintiffs under § 602, a viable claim under 42 U.S.C. § 1983 nevertheless still exists. In South Camden Citizens in Action v. New Jersey Department of Environmental Protection,36 the United States District Court of New Jersey acknowledged the Sandoval ruling that no private right of action exists under § 602.37 The Camden court went on to find that, “[I]t is equally clear that Sandoval did not address, nor does it affect, Plaintiffs’ right to bring a claim for disparate impact discrimination in violation of the § 602 regulations under § 1983.”38

With respect to whether the plaintiffs would have a claim under 42 U.S.C. § 1983, we begin with the statute:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.39

A § 1983 action has two essential elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that this conduct deprived a citizen or other person of rights, privileges, or immunities secured by the Constitution or laws of the United States.40

When a § 1983 plaintiff seeks damages against state officials in their official or personal capacities, the action may be maintained even if a named individual acted in his official capacities in the matter at issue.41 A “government official in the role of personal capacity … fits comfortably within the statutory term ‘person.’”42 The Supreme Court has held that a state official sued for injunctive relief is a person under § 1983 because the action of prospective relief is not treated as a suit against the state.43 “[A] state official in his official capacity when sued for injunctive relief, would be a person under § 1983 because ‘official-capacity actions for prospective relief are not treated as actions against the State.’”44

Once a plaintiff has identified a federal right that has allegedly been violated, there arises a “rebuttable presumption that the right is enforceable under § 1983.45 The presumption is rebutted “if Congress ‘specifically foreclosed a remedy under § 1983 … [either] expressly, forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.”46

Neither Title VI, nor the regulation promulgated there, restricts the availability of relief under § 1983. Thus, defendants must make the difficult showing that allowing a § 1983 action to go forward in these circumstances would be inconsistent with Congress’s carefully tailored scheme.47 Neither Title VI, nor the Department of Education regulations, establishes an elaborate procedural mechanism to protect the rights of plaintiffs.48 Plaintiffs in such a case would have identified and pled disparate impact discrimination, the Fourteenth Amendment “evil” or wrong that Congress intended to remedy by Title VI.49 It is thus clear that the propriety of the Section 5, Fourteenth Amendment legislation must be judged with reference to the historical reference of racial discrimination it reflects.50 Consequently, given the historical record of racial discrimination in violation of the Fourteenth Amendment’s Equal Protection Clause, arising from the State of Arkansas’ Program, plaintiffs would be entitled to maintain their § 1983 action against the individual defendants pursuant to the enforcement provisions of the Fourteenth Amendment.

E. RIPENESS

The doctrine of ripeness poses the query of “whether the harm asserted has matured sufficiently to warrant judicial intervention.”51 The Supreme Court has held that the ripeness doctrine’s purpose is “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.”52

In Columbia Broadcasting System v. United States,53 the Court held ripe for review a Federal Communications Commission regulation that pronounced that the agency would not license local stations that maintained certain contracts with chain broadcasting networks.54 The Court stated, although the rule was only a statement of intentions and that no license had yet been denied or revoked, this type of regulation had the effect of law both before and after its sanctions were enforced.55 The regulation could be challenged because expected conformity to the rule caused an injury that a court could recognize.

In Frozen Food Express v. United States,56 an order of the Interstate Commerce Commission exempting vehicles that carried certain commodities from licensing regulations was held reviewable. The Court held that the order was a final agency action under the A.P.A. Frozen Food holds that “where there has been formal action, as the adoption of a regulation … presumptively the action is reviewable.”57

In Abbot Laboratories, the Supreme Court observed that “the cases dealing with judicial review of administrative action have interpreted the ‘finality’ element in a pragmatic way”58 and concluded that there was no reason to deviate from those precedents. In that case, regulations published by the Commissioner of Food and Drug were found to be a final agency action and, thus, subject to judicial review under the A.P.A. and the Declaratory Judgment Act.

F. FITNESS OF ISSUES FOR JUDICIAL REVIEW

The issues raised by the type of lawsuit contemplated by this paper are fit for judicial decision because Arkansas has enacted the Governor’s Distinguished Scholarship program into law. This law, and the connected implementing regulations, has been in effect for a period of over three years. The critical and concrete factor dispositive of the issue of justiciabililty is that there has been formal action on the part of the Arkansas General Assembly, the Governor of Arkansas, and the Arkansas Department of Higher Education.59 The law and DHE regulations have a concrete and lasting effect on the citizens of Arkansas. It is entirely appropriate that the state’s formal action be reviewed by a court, particularly in light of the seriousness of the continuing disparate impact on minority citizens of the state.

G. HARDSHIPS TO THE PARTIES CAUSING ACTIONABLE HARM

A hardship has been suffered by plaintiffs because, as stated in Columbia Broadcasting System v. United States,60 the “expected conformity” to the rule causes an injury that a court can recognize.61 The authors of Griggs v. Duke Power Co.62 and of Connecticut v. Teal63 would be astonished if the continuing disparate impact on African Americans resulting from conformity to the present regulations of this program were not considered to cause them actionable harm.

An even stronger argument that harm has occurred to African American students in Arkansas because disparate impact is found in a Pennsylvania school funding case. The Third Circuit, in Powell v. Ridge,64 decided all the plaintiff must do is plead that the adverse effects of a facially neutral practice fall disproportionately on a group protected by Title VI and its implementing regulations.65 That court cited Guardians Association v. Civil Service Commission for the proposition that administrative regulations incorporating disparate impact standards (like the regulations of the Department of Higher Education) are actionable.66 The law and regulations are final, and the plaintiffs have suffered the egregious harm of disparate impact. Consequently, the matters raised in the complaint are ripe for judicial review. In a recent case, the Supreme Court held that a school official’s deliberate indifference to discrimination amounted to an intentional violation of Title IX.67

H. VIOLATION OF THE ESTABLISHMENT CLAUSE

The First Amendment to the United States Constitution says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”68 It is settled that “the Fourteenth Amendment has rendered the legislatures of the states as incompetent as the Congress to enact such laws.”69 Consequently, the Arkansas General Assembly is constitutionally prohibited from enacting laws respecting an establishment of religion. But what sort of state action offends the Establishment Clause? Does the Distinguished Scholarship Program that provides for direct payment of state funds to private, church-related institutions of higher education offend the prohibitions of the First Amendment? The answer lies in the intent of the founders and the relevant cases.

First, let us visit James Madison. Thomas Jefferson’s famous letter about the separation of church and state to the Danbury Baptist Association is often cited as the primary authority regarding the intent of the Establishment Clause. However, two Madison veto messages and a letter to the Baptist Churches of Neal’s Creek and Black Creek, North Carolina, are arguably more revealing of the intent of the writers of the Constitution and the First Amendment. Jefferson’s letter reflected his concern over the establishment of a state religion. Madison’s veto messages and letter dealt with situations like the Arkansas scholarship program and revealed his notion that religious societies should remain pure and apart from government influence.

In 1811, Congress passed a bill giving certain powers to an Episcopal Church in Virginia.70 Among them was the authority to provide for the support of the poor, and the education of their children.71 On February 11, 1811, President Madison returned the bill to Congress with a veto message. Madison argued that the government had no authority over the affairs of the church because of the Establishment Clause. He said the bill violated the Constitution because it “would be a precedent for giving religious societies, as such, a legal agency in carrying into effect a legal and public duty.”72 Again, in February, 1811, Madison vetoed another bill that, in part, reserved a parcel of government land in the Mississippi Territory for the Baptist Church at Salem Meeting House. He maintained that the bill violated the principle of the Establishment Clause prohibiting the use of government money to support religious societies.73 Shortly thereafter, Madison received a letter from two Baptist churches in North Carolina indicating approval of his veto of the bill to provide support to the Mississippi Baptist church.74 In his response, Madison wrote that “having regarded the practical distinction between Religion and Civil Government as essential to the purity of both and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty.”75

It is clear that Madison believed that government possesses no authority to impose a duty or responsibility on a religious body. Nor is it authorized, as evidenced in the Baptist Church at Salem Meeting House matter, to use government funds to directly support a religious society. Madison believed that the Constitution granted the government absolutely no power over religion. Religion was to be entirely removed from governmental influence, and the best way to separate them is to forbid the government from imposing any responsibilities or duties on religious societies. To maintain this “purity,” government was given no constitutional authority or cause to directly support religious societies. This attitude arose not from hostility to religion, but from a desire to protect it from the heavy hand of government regulation. Why? Because we know that government regulation follows government funds. What better witness than Madison himself?

How has the Supreme Court dealt with this issue? In Lemon v. Kurtzman, the Supreme Court announced a three-pronged test to determine whether the Establishment Clause had been violated.76 According to Lemon, a statute does not violate the Establishment Clause when: (1) it has a secular legislative purpose; (2) its primary effect neither advances nor inhibits religion; and (3) it does not excessively entangle government with religion.77 In Lemon, the Court considered a Pennsylvania statute that authorized the state to “[purchase] certain ‘secular educational services’ from nonpublic schools, directly reimbursing those schools solely for teacher salaries, textbooks, and instructional materials.”78 Most of the schools were affiliated with the Roman Catholic Church.79 These schools were subject to state audit and had to “identify the ‘separate’ cost of the ‘secular educational service’” to receive reimbursement.80

Here, the Court decided that the State statute violated the Establishment Clause because “schools seeking reimbursement must maintain accounting procedures that require the State to establish the cost of the secular as distinguished from the religious instruction.”81 The court then warned of the dangers of providing state financial aid directly to a church-related school citing Waltz v. Tax Commission82 for the proposition that “obviously, a direct money subsidy would be a relationship pregnant with involvement and, as with most government grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards.”83

According to the Supreme Court, the history of government grants reveals that they typically result in various measures of government control and surveillance.84 Here, the state’s power to audit, inspect, and evaluate a church-related school’s expenditures creates an intimate and continuing relationship between church and state.85 The Pennsylvania arrangement violated the First Amendment because the intent of the Establishment Clause is to protect religion from government interference or supervision.86 Direct payments and state supervision would certainly violate Mr. Madison’s expressed “purity” view of the proper relationship between church-related schools and the state.

In Committee for Public Education and Religious Liberty v. Nyquist,87 the Supreme Court dealt with a program that provided direct money grants to certain nonpublic schools for the following: repair and maintenance; reimbursements to low-income parents for a portion of the cost of private school tuition, including sectarian school tuition; and granting to other parents certain tax benefits.88 The Justices decided that the maintenance and repair provisions of the New York statute violated the Establishment Clause because its effect was to subsidize and advance the religious mission of sectarian schools.89 The Court also held that the tuition reimbursement plans, if given directly to sectarian schools, would similarly violate the Establishment Clause.90 This was notwithstanding the fact that the grants were delivered to the parents rather than the schools, as the effect of the aid is unmistakably to provide financial support for nonpublic sectarian institutions.91

The Nyquist holding concerning payments to parents was substantially weakened with respect to vouchers by Agostini v. Felton.92 Here, the Supreme Court stated, “we have departed from the rule … that all government aid that directly aids the educational function of religious schools is invalid.”93 The Court rejected the argument that government and religion are too closely linked merely because a school voucher program transfers money from the government to sectarian schools.94 It stated, “we reject the argument, primarily because funds cannot reach a sectarian school unless the parents or student decide independently of the government, to send their child to a sectarian school.”95

Consequently, Agostini supports the proposition that when parents or students choose to use funds provided to them by the state to attend a church-related school, the Establishment Clause is not offended. This is because the state funds are paid to the student or parent rather than directly to the church-related school. The state, then, has no call to compel a church-related school to perform administrative tasks for it, or submit to its audit. This benefit-to-the-parent approach (allowing a tax deduction for parents for certain educational expenses whether they were incurred in private, church-related or public schools) is also seen in Mueller v. Allen.96 The Court stressed that all the decisions invalidating aid to parochial schools have involved direct transmission of assistance from the states to the schools themselves.97 However, the decision left the Nyquist prohibition of aid “directly” paid to a church-related school unaffected.

In School District of the City of Grand Rapids v. Ball98 the Supreme Court dealt with a district that adopted a shared time and community education program with nonpublic schools.99 The program was conducted for nonpublic school children at state expense in classrooms located in, and leased from, the private schools. It offered state-funded classes during the regular school day that were intended to supplement, for the private school students, the “core curriculum” courses required by the state.100 The shared-time teachers were full-time employees of public schools.101 Of the forty-one private schools involved in the program, forty were church related.102

The Supreme Court decided that this initiative had the “primary or principal” effect of advancement of religion, and, therefore, violated the Establishment Clause.103 According to the Justices, even the praiseworthy secular purpose of providing for the education of school children “cannot validate government aid to parochial schools when the aid has the effect of promoting a single religion or religion generally or when the aid unduly entangles the government in matters religious.”104 They said:

The symbolic union of church and state inherent in the provision of secular state-provided public instruction in the religious school buildings threatens to convey a message of state support for religion to students and to the general public … the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility.105

The Court also said that the Establishment Clause “rests on the belief that a union of government and religion tends to destroy government and degrade religion.”106 Clearly, the most instructive case for our purposes is Witters v. Washington Department of Services for the Blind.107 In Witters, the Supreme Court ruled on the denial of funds to Mr. Witters under the state of Washington’s vocational rehabilitation program for the visually handicapped.108 The funds were sought to finance petitioner’s training at a Christian college.109 The record showed that, were assistance provided to Mr. Witters, the funds would have gone directly to the student, who would then have transmitted them to the educational institution of his choice.110 The Washington statute authorized the state to “‘provide for special education and/or training in the professions, business or trades’ so as to ‘assist visually handicapped persons to overcome vocational handicaps and to obtain the maximum degree of self-support and self-care.’”111 Mr. Witters, who suffered from a progressive eye disease, was eligible for vocational rehabilitation assistance under the terms of the statute. He attended Inland Empire School of the Bible, a private Christian College in Spokane, Washington.112 He was studying the “Bible, ethics, speech, and Church administration in order to equip himself for a career as a pastor, missionary, or youth director.”113

The Washington court ruled that the “principal or primary effect” of the state financial assistance to Witters was to train him to become a pastor, missionary, or church youth director.114 In the view of the court, the state aid clearly had the primary effect of advancing religion and violated the Establishment Clause.115 On appeal, the Supreme Court reversed this decision. It said:

It is well settled that the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution. For example, a State may issue a paycheck to one of its employees, who may then donate all or part of that paycheck to a religious institution, all without constitutional barrier; and the State may do so even knowing that the employee so intends to dispose of his salary.116

The Court continued, “[i]t is equally well settled, on the other hand, that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is ‘that of a direct subsidy to the religious school’ from the State.”117 The issue “is whether, on the facts … [the] extension of aid to petitioner and the use of that aid by petitioner to support religious education is a permissible transfer similar to the hypothetical salary donation described above, or is an impermissible direct subsidy.”118

In the opinion of the United States Supreme Court, the facts central to the inquiry in the Witters case were the following: whether “[a]ny aid provided under Washington’s program that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients”;119 that “it is not one of ‘the ingenious plans for channeling state aid to sectarian schools that periodically reach this Court’”;120 that “[i]t creates no financial incentive for students to undertake sectarian education”;121 that “[it] does not tend to provide greater or broader benefits for recipients who apply their aid to religious education”;122 and that “[in] this case, the fact that aid goes to individuals means that the decision to support religious education is made by the individual, not the State.”123

Importantly, “nothing in the record indicates that … any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education.”124 The Court stated, “amici supporting respondent are correct in pointing out that aid to a religious institution unrestricted in its potential uses, if properly attributable to the State, is ‘clearly prohibited under the Establishment Clause.’”125 But the respondent’s argument did not apply in that case because there was no direct aid to the religious school.126 The Court decided, on the facts presented, the Washington program did not constitute sufficiently direct support of religion so as to violate the Establishment Clause.127 Justice Powell, concurring, said that the Washington scheme was constitutionally permitted because the student or parent directly received the State payments. He cited Mueller v. Allen for the proposition that payments directly to parents are constitutional because any benefit to religion results from “numerous private choices of individual parents of school-age children.”128

Before we turn to the Arkansas scholarship program, it will be helpful to review the common threads woven through these cases that bind them together. First, requiring church-related schools to maintain administrative and accounting procedures for review by the state offends the Establishment Clause.129 Second, payment of financial aid directly to a church-related school offends the Establishment Clause.130 Third, when there is a disparity in the amount of state funds spent on public and church-related students, the Establishment Clause is offended.131 Fourth, the Establishment Clause is offended if the scholarship program creates a financial incentive for the student to attend a church-related school.132 Finally, perhaps the most troubling issue is whether the Arkansas Program is an ingenious scheme designed to channel state aid directly to church-related schools, a practice condemned by the decision in Committee For Public Education and Religious Liberty v. Nyquist.133

I. ARKANSAS LAW AND THE ESTABLISHMENT CLAUSE

The State of Arkansas attempts to cloak itself in the recent case of Mitchell v. Helms.134 Unfortunately for the State of Arkansas, the cloak does not fit because the Mitchell case concerned Chapter II of the Education Consolidation and Improvement Act of 1981.135 Chapter II channels federal funds to the local educational agencies, which are usually public school districts, through state educational agencies, to implement programs to assist children in elementary and secondary schools. Among other things, Chapter II provides aid for “the acquisition and use of instructional and educational materials, including library services and materials (including media materials), assessments, reference materials, computer software and hardware for instructional use, and other curricular materials.”136 In effect, the Chapter II program was a neutral, per capita aid program. In sharp contrast, however, the Arkansas scholarship program is clearly not a per capita aid program.

Further, as Justice O’Connor highlights in her concurring opinion, Justice Thomas, writing for the Mitchell plurality, did not even consider issues important and decisive to Arkansas plaintiffs.137 The issues for litigation in Arkansas are: whether any aid provided under the Arkansas program that ultimately flows to a religious institution does so only as a result of the genuinely independent private choices of scholarship recipients; whether or not the program is one of the ingenious plans for channeling state aid to sectarian schools that periodically occur; whether or not it creates a financial incentive for students to undertake sectarian education; and whether or not it intends to provide greater or broader benefits for recipients who apply their aid to religious institutions.

As Justice O’Connor wrote in concurring with the plurality in Mitchell, “Specifically, we decided Witters and Zobrest on the understanding that the aid was provided directly to the individual student who, in turn, made the choice of where to put that aid to use. … Accordingly, our approval of the aid in both cases relied to a significant extent on the fact that ‘[a]ny aid … that ultimately flows to religious institutions does so only as a result of the genuinely independent and private choices of aid recipients.’”138

Justice O’Connor continued by saying she believed that the distinction between a per capita school aid program and a true private choice program is significant for the purposes of endorsement.139 “In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students who, in turn, decide to use the aid at the same religious schools.”140

Finally, Justice O’Connor wrote that “the distinction between a per capita aid program and a true private-choice program is important when considering aid that consists of direct monetary subsidies.”141 The Supreme Court has recognized special Establishment Clause dangers when the government makes direct money payments to sectarian institutions.142 Consequently, there are important distinctions between the issue dealt with in the Mitchell case and the line of cases finding direct payments of state monies to church-related institutions offensive to the Establishment Clause.

A reasonable conclusion is that the Arkansas Distinguished Scholarship Program violates the Establishment Clause for a wide variety of reasons. First, the program requires church-related institutions to agree to perform administrative tasks and ensure compliance with state regulations.143 The institution must submit to a review of its records and demonstrate its due diligence as a steward of state funds.144 One would reasonably believe that the administrators of church schools would strongly object to the grubby hands of state officials thumbing through their private school files. Does this mean they agree to have the Legislative Audit look at their books? Apparently, yes! In any case, the regulations clearly offend the Establishment Clause holdings that the state may not compel religious societies to perform state administrative tasks.145

Second, the state funds are paid directly to church-related institutions.146 This direct aid offends the Establishment Clause.147 If there is one thing certain under all these cases, it is that state money paid directly to a church-related school is unconstitutional. This is so because the scholarship funds are a direct subsidy condemned in all the cases cited. This issue was not even raised in Mitchell.148

Third, there is a considerable disparity between the amount of state funds per distinguished scholarship provided church-related institutions and public institutions under the program. Recall that, for example, Hendrix will typically receive $15,000 and Southern Arkansas $4,730 per scholarship student.149 There is also a disparity in the total funds sent to private and public schools. Church-related schools received $2,182,000 and public institutions $1,334,000 in the years 1998–99.150 This disparity in treatment of public and church-related institutions offends the Establishment Clause.151

Fourth, the program creates a financial incentive for the Distinguished Scholarship student to attend a church-related school because the program provides more funds to do so. The state formerly paid whatever the church-related institution considered a reasonable level of tuition and fees, and now only caps that amount at $10,000.152 The state sponsored creation of a considerable financial incentive to attend a church-related school is offensive to the Establishment Clause.153

Finally, the distinguished scholarship program, if newspaper reports are accurate, may be a scheme to channel state aid directly to church-related schools, offending the Establishment Clause under Witters.154 This is most disturbing. According to Doug Smith, the impetus for the distinguished scholars program did not emanate from the Department of Higher Education.155 Rather, state senators proposed it.156 The legislation that came back was not that proposed to the General Assembly by the DHE. The DHE had little choice because thirty-five senators sponsored the enabling legislation. One of its sponsors is quoted as stating that the bill was brought to him by the President of the Independent Colleges and Universities Association, and by the Association’s lobbyist.157 This certainly raises the issue of a scheme to support religious schools. It will be interesting to see why the Association would want the State rummaging around in their private, church-related educational programs to determine stewardship of state funds. The North Carolina Baptists who wrote to Mr. Madison would surely be offended.158

Mr. Madison would be saddened by the abuse of his Amendment on the part of the DHE of the State of Arkansas. His two veto messages, and letter to the Baptist Churches of Neal’s Creek and Black Creek, North Carolina, in 1811, sent a powerful message that government has no (none at all) business regulating a religious society, giving a religious society legal agency to carry into effect a public duty, or giving direct aid to a religious society.159 The Arkansas Distinguished Scholars Scholarship Program has the unique and dubious distinction of offending all of Madison’s notions of separation of religion from influence and regulation by the government.

This was not so because of hostility toward religion but rather to protect religion from the government. He believed that the Constitution granted government no power over religion. It surely follows, as in the Arkansas example, that when a religious society accepts government funds in this manner, the heavy hand of government regulation is sure to follow.160 It makes no Constitutional difference that church-related schools volunteer for regulation. It still offends the Constitution!

POLITICAL PHILOSOPHY

In this section, we will review the issue of discrimination from a libertarian point of view. We will utilize that perspective in order to focus on the issue of whether the government should be allowed to discriminate between its citizens, and if so, on what basis. In this section, we take a much broader perspective than that of the Constitution as it applies to racial discrimination by the government in the field of education in one state. We apply this theory, generally, to all discrimination, be it federal, state, or local government, in any field, on any basis.

A. LIBERTARIANISM

Since we shall be applying libertarianism to this thorny terrain, it behooves us to begin with a review of that philosophy. Libertarianism is the political philosophy which maintains that justice can only be attained by an adherence to the non-aggression axiom: all acts are legitimate, except those that transgress against a person or his legitimately owned property. That is, murder, kidnapping, rape, theft, trespass, fraud, assault and battery, and all such other invasive acts should be illegal, but no other deeds should be prohibited by law. Included in the latter category are victimless crimes such as pornography, prostitution, gambling, drug abuse, homosexuality, etc.161

What is the proper role of government in this system? For most libertarians, it consists solely of the duty to protect persons and property from invasion.162

Given that government should exist at all, there are three, but only three, legitimate state institutions: armies to keep foreign aggressors from attacking us; police to quell crimes emanating from local evil doers; and courts to distinguish between victims and criminals.163

B. DISCRIMINATION

Whichever of the two versions of this philosophy is under discussion, both are united on the proposition of free association: all interaction between people shall be voluntary; no one should be forced to deal with another person against his will. Thus, discrimination against certain individuals or groups or segments of society would also be considered a “victimless crime.” Since no one has a right to force anyone to interact with him against the will of the latter, it would be no crime under libertarian law to refuse to buy from, sell to, employ, marry, befriend, join, or in any other way whether commercial or personal, interact with people on the basis of race, religion, sex, or, indeed, any other criteria.

This implies that all laws which seek to compel people to engage with one another, such as the so-called Civil Rights Act of 1964, would be invalid under libertarian law.164 If the authors of this article believed that left handers are the spawn of the devil, and placed a sign on the front door of their hotel165 reading “No dogs or left handed people allowed on the premises,” we would not be subjected to any legal penalty under the libertarian code of law.166

Private discrimination, however, must be sharply differentiated from the public variety. Individual citizens, in this view, have the right to freedom of association. This is so important it deserves to be emphasized. To say that they do not have the freedom to associate with whomever they wish is actually to claim the legitimacy of outright slavery. For the only thing wrong with that “curious institution” was that it violated the rights of freedom of association of the slaves. Forget about the whips and the chains. There is nothing unique about these to slavery; sado-masochists engage in their use every day. The problem with slavery was that its victims had no right to quit; that is, to disassociate themselves from their masters. If they but had a right to free association, this would render slavery innocuous. It would reduce it to no worse than the status of voluntary sado-masochism.

But government is not an individual person, with rights to associate with those it wishes to, and to avoid those with whom it wishes to have no interaction. Very much to the contrary, the state has responsibilities, not rights.

If the limited government and anarchist wings of libertarianism are united on the claim that private individuals or groups have a complete and total right to discriminate on any basis they choose, and against any group or individual they wish, both would also agree that government, if it is justified at all, should not be allowed to do so.167 The point here is that the purpose of the state is to protect the lives, liberties, and fortunes of all of its citizens, and on a basis that does not distinguish between them. Government, in this philosophy, is not only to be blind to the race, color, natural or ethnic origin, religion, sex, disability, age, sexual orientation, or veteran status, the usual suspects, but is to totally ignore all other criteria as well.168 For example, the state must not discriminate on the basis of intelligence, athletic ability, eye color, business acumen, initiative and ambition, unless these characteristics are somehow related to conducting its business of protecting personal or property rights.

Let us consider a few examples. First, as mentioned above,169 the State of Arkansas provides a full academic scholarship to a state-approved public or private Arkansas institution of higher education for graduates of Arkansas secondary schools who demonstrate “extraordinary academic ability.”170 Previously, we criticized this policy on the ground that a disproportionately high number of the members of one racial group wins these scholarships, whites, and a disproportionately low number of another, blacks, fail to do so.

We are now in a position to criticize this scholarship plan on a much more radical basis. Even if the same proportion of whites and blacks won these scholarships, the program would still be contrary to libertarian law, since it would continue to make invidious comparisons between inept and brilliant students, awarding tax money to virtually all of the latter and none to the former.171

That is to say, even if the program were not problematic on racial grounds, it would be so on the basis of intelligence. The scholarships would be awarded to smart students of either race, while ignorant students of both races would be victimized by state discrimination. But where is the warrant for governments to divide the population on the basis of intelligence, supporting those who exhibit this characteristic to a great degree and ignoring those who do not?172 There is no such justification. If it is illegitimate for the government to discriminate on the basis of IQ, then it may not give out scholarships on this basis. If it wishes to award scholarships to students, it must do so in an actuarially “fair” way, for example, by lottery.

The same goes for entrance requirements at public universities. They are also part of the apparatus of government. If the state is prohibited by libertarian law from awarding scholarships on the basis of perspicaciousness, then colleges cannot do this either, nor can they pick and choose among applicants for admission on this basis. It cannot be denied that the University of California at Berkeley,173 for example, would lose its reputation for prestige under these conditions. However, it is no part of libertarian law to preserve or enhance the renown of institutions such as these which are illegitimate in the first place. Short of complete privatization of state colleges, reducing their level of excellence would be entirely acceptable from the perspective of this political philosophy.

The point is, if something is illegitimate at its core, as public education is from the libertarian perspective, but somehow we stipulate that it must exist, then it is a positive benefit for it be run as inefficiently as possible. True, it would be the death knell for prestigious public institutions of higher learning to be forced not to discriminate in favor of the highly intelligent. But this is precisely what is required by considerations of justice. If an institution should not exist at all, but somehow persists, then equity entails that it be ineffective.174

Let us now consider the characteristic of athletic ability. It is a well-known fact175 that, with the exception of a few sports such as swimming and diving, yachting, hockey, and handball, blacks exceed whites in terms of athleticism.176 Certainly, in football and basketball, whether at the college or professional level, blacks are vastly over-represented.177 Therefore, the logic of our case against the Governor’s Scholarship Program of Arkansas based on intelligence mitigates against any and all athletic scholarship awards on the part of all state institutions. If the academic scholarships favor whites at the expense of blacks, and must therefore be rescinded, then athletic scholarships that elevate blacks to the detriment of whites must be repealed on the same ground.

Furthermore, just as we were able to offer a more radical critique of the Governor’s Scholarship Program in that it disadvantaged the ignorant, so can we criticize all athletic scholarships in that they discriminate against those who are inept in sports. That is, even if it were the case that blacks and whites won athletic scholarships in exact proportion to their overall numbers, these awards would still be unjustified in that athletic whites and blacks would be treated better than their more awkward counterparts in both racial groups. The authors of the present paper realize full well that if athletic scholarships were bestowed in a manner unrelated to athleticism, this would spell the death knell for competitiveness. Yet, from a libertarian perspective, promoting competitiveness is certainly not part of the mandate of limited government. If institutions wish to field excellent teams, they would have the option of privatizing. Otherwise, mediocrity would be their (deserved) fate.178

C. OBJECTIONS TO THE LIBERTARIAN ANALYSIS

Let us conclude by considering two objections to the foregoing. First, advocates of free enterprise and economic freedom, such as ourselves,179 typically oppose affirmative action, quotas, and equal proportionality. In the present case, the very opposite is true. Namely, we are on record herein as supporting these programs. We consider in some detail scholarships based on intelligence and athletic ability as cases in point, but would generalize to cover any other such criteria. Why the difference?

This is because, while we oppose the imposition of quotas for private individuals or firms, this certainly does not hold true with regard to the minions of the state. Very much to the contrary, in this philosophy, anything to rein in the unjustified use of government power is all to the good. Not only schools, but also libraries, museums, art galleries, opera, and symphony orchestras, for example, discriminate against blacks, vis-à-vis whites, since the latter make greater proportional use of them. Moreover, and just as important, expenditures in these directions vitiate against the stupid and those who are, and wish to remain, ignorant. Even if blacks and whites availed themselves of these services strictly according to their proportion to the overall population, this would still be an unwarranted discrimination on the part of the government against various elements of the population. As long as smart people use these resources to a greater degree than their ignorant counterparts, this is an illegitimate incursion of government into the economy. Therefore, government is unjustified in offering these goods and services no matter what the relative utilization of them by blacks and whites.

Further, if government purchases from the private sector the land, labor, and capital necessary to provide those “intellectual” services, then this holds true for things such as desks, pencils, paper, computers, jet planes, pistols, bazookas, battleships, police and soldiers’ uniforms, paper clips, rubber bands, and envelopes. These, too, discriminate against those on the low end of the bell curve.180 Thus, if government is prevented from financing the former, this holds for the latter as well. This is obviously an attempt at a reductio ad absurdum of the libertarian position in that, were the state not allowed to purchase this latter set of items, it could not fulfill its obligations under minarchism.

The reply is that the provision of armies, courts, and police are part and parcel of the proper scope of government, while competing with industries which do or could provide intellectual services is not. This applies, as well, for the myriad of other services supplied by government (i.e., in health and welfare) which have nothing to do with upholding the rights to personal safety and property mandated by the libertarian vision. It must be conceded that it would be possible for the public sector to provide all sorts of goods and services on a non-discriminatory basis, not only in terms of race, sex, and ethnicity, but also intelligence and other abilities. Each could be supplied on a “fair” basis through lottery selection. However, this would still be inappropriate in the libertarian view, since these concepts are not within the proper scope of a limited government.

CONCLUSION

We will conclude with a word on federal/state relations. Ordinarily, writers such as ourselves who favor markets, private property, and the freedom of association also approve of subsidiaries for government.181 That is, when there is a conflict between different levels, we advance the cause of the most local (cities vis-à-vis states, and the latter when in conflict with the federal government). However, in the present case we are taking the side of the federal government vis-à-vis the state of Arkansas.

There are three possible theories on this matter which, when taken together, are seemingly exhaustive. First, the federal government always has jurisdiction over the states. Second, the states are supreme vis-à-vis the federal government; therefore, the federal government never has jurisdiction over the states. Third, whenever there is a conflict between the two levels of government, the presumption is in favor of the least centralized. Thus, the nod must go to the state when in conflict with the federal and to the town or county when in conflict with the state.

It is our contention, however, that there is a fourth alternative that is superior to any of these three. It is to ignore the level of government which is taking any given position on the ground that it is irrelevant to libertarianism. Instead, take the correct position, regardless of the level from which government it is emanating.

In the present circumstance, this is our story and we are sticking to it. That is, it cannot be denied that the State of Arkansas, with its Governor’s Scholarship Program, not only discriminates against black people, but against those on the left side of the bell curve of intelligence as measured by IQ as well. Therefore, it is an unwarranted discrimination on the part of this state government.

APPENDIX 1

RACIAL AND ETHNIC COMPOSITION OF PROFESSIONAL ATHLETIC EMPLOYMENT (IN PERCENT)182

		White	Black	Hispanic	Other
Total Population		73	12	11	4
NBA	Players	20	79	0	0
	General Managers	72	28	0	0
	Coaches	67	33	0	0
	Staff	77	17	2	3
NFL	players	31	66	1	0
	General Managers	83	17	0	0
	coaches	75	24	1	0
	Staff	80	15	3	2

_____________________

183 Ark. Code Ann. § 6-82-305 (Michie 1996 and Supp. 1999), amended by 2001 Ark. Acts 1761.

184 Ark. Code Ann. § 6-82-302(a) (Michie 1996), amended by 2001 Ark. Acts 1761.

185 Ark. Code Ann. § 6-82-301 (Michie 1996 and Supp. 1999), amended by 2001 Ark. Acts 1761.

186 Ark. Code Ann. § 6-82-312(b) (Michie 1996 and Supp. 1999), amended by 2001 Ark. Acts 1761.

187 Ark. Code Ann. § 6-82-312(c) (Michie 1996 and Supp. 1999), amended by 2001 Ark. Acts 1761.

188 Arkansas Department of Higher Education, Student Enrollments, Table III, State Appropriations Per Student for Arkansas Governor’s Distinguished Scholars for 1999–00 Fiscal Year, May 2000.

189 Id.

190 Arkansas Department of Higher Education, Program Rules and Procedures, Rule 5.

191 Id.

192 Ark. Code Ann. § 6-82-304 (3) (Michie 1996), amended by 2001 Ark. Acts 1761.

193 Arkansas Department of Higher Education, Rules and Procedures, Rule 5.

194 Arkansas Department of Higher Education, Student Enrollments, Table 1, Comparison of The Number of Arkansas Governor’s Distinguished Scholarship Awards by Institution for the 1997–98 Through 1999–00 Academic Years.

195 Arkansas Department of Higher Education, Table II, Amount of Arkansas Governor’s Distinguished Scholarship Awards by Institution.

196 Id.

197 Id.

198 See 42 U.S.C. § 1983 (1994).

199 984 F.2d 924 (8th Cir. 1993).

200 Id.

201 Id. at 926.

202 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

203 See text accompanying notes 13–19.

204 See note 13.

205 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)).

206 Id. at 55.

207 Seminole Tribe, 517 U.S. at 55.

208 U.S. Const. amend. XIV, § 5.

209 See Atascadero State Hospital v. Scanlon, 473 U.S. 234, 246–47 (1985).

210 422 U.S. 66 (1975).

211 Id. at 78 (citations omitted).

212 Civil Rights Act of 1964, 42 U.S.C. § 2000d (1994).

213 Id.

214 34 C.F.R. § 100.3(b)(2) (2000).

215 Alexander v. Sandoval, 121 S.Ct. 1511, 1516 (2001) (5–4 decision) (Stevens, J., dissenting).

216 Id. at 124 (Stevens, J., dissenting).

217 Id. at 124 (Stevens, J., dissenting).

218 Camden Citizens in Action v. N.J. Department of Environmental Protection, 145 F. Supp. 2d 505, 518 (D.N.J. 2001).

219 Id.

220 Id.

221 42 U.S.C. § 1983 (1994 and Supp. 1999).

222 See Powell v. Ridge, 189 F.3d 387, 400 (3d Cir. 1999).

223 Hafer v. Melo, 502 U.S. 21, 27 (1991).

224 Id. (quoting Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989)).

225 Will v. Michigan Department of State Police, 491 U.S. 58, 71 n.10 (1989).

226 Id. (quoting Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985)).

227 Blessing v. Freestone, 520 U.S. 329, 341 (1997).

228 Id. (quoting Smith v. Robinson, 468 U.S. 992, 1005 n.9 (1984).

229 Blessing, 520 U.S. at 341 (1997).

230 Id.

231 See College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board 527 U.S. 627, 639–40 (1999).

232 Id.

233 Sierra Club v. Marita, 46 F.3d 606, 611 (7th Cir. 1995) (quoting Warth v. Seldin, 422 U.S. 480, 499 n.10 (1975)).

234 Abbott Labs. v. Gardner, 387 U.S. 136, 148–149 (1967).

235 Columbia Broad. Systems v. United States, 316 U.S. 407 (1942).

236 Id.

237 Id.

238 351 U.S. 40, 44–45 (1956).

239 Louis L. Jaffe, Judicial Control of Administrative Action 407 (1965).

240 Abbott Labs., 387 U.S. at 149.

241 See Frozen Food, 351 U.S. at 44–45.

242 Columbia Broad. Systems v. United States, 316 U.S. 407 (1942).

243 Id. at 418–19.

244 401 U.S. 424, 431 (1971).

245 457 U.S. 440, 448–49 (1982).

246 Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999).

247 Id. at 393.

248 Guardians Association v. Civil Service Commission, 463 U.S. 582, 607 (1982).

249 Davis v. Monroe County Board of Education, 526 U.S. 629, 653 (1999).

250 U.S. Const. amend. I.

251 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).

252 22 Annals of Cong. 982–85 (1853).

253 Id.

254 Id.

255 Id.

256 Id.

257 Id.

258 Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).

259 Id.

260 Id. at 602 (citations omitted).

261 Id.

262 Id. at 609–10.

263 Id. at 620.

264 Waltz v. Tax Commission, 397 U.S. 664, 675 (1970).

265 Lemon, 403 U.S. at 621.

266 Id.

267 Id. at 621–22.

268 Id. at 623.

269 Commission for Public Education and Religious Liberty v. Nyquist 413 U.S. 756 (1973).

270 Id. at 756–57.

271 Id. at 779–80.

272 Id. at 780.

273 Id.

274 521 U.S. 203 (1997).

275 Id. at 225.

276 Id. at 226.

277 Id. at 230.

278 Mueller v. Allen, 463 U.S. 338 (1983).

279 Id. at 399.

280 School District Of Grand Rapids v. Ball, 473 U.S. 373 (1984).

281 Id.

282 Id. at 375.

283 Id. at 376.

284 Id. at 379.

285 Id. at 379.

286 Id. at 382.

287 Ball, 473 U.S. at 397.

288 Id. at 398.

289 474 U.S. 481 (1986).

290 Id.

291 Id. at 482.

292 Id. at 487.

293 Witters, 474 U.S. at 483 (quoting Wash. Rev. Code § 74.16.181(1981)).

294 Id.

295 Id.

296 Id. at 485.

297 Id. at 484–85.

298 Id. at 486–87.

299 Witters, 474 U.S. at 487 (quoting School District of Grand Rapids v. Ball, 473 U.S. 373, 394 (1985)).

300 Id.

301 Id.

302 Id. at 488 (quoting Nyquist, 413 U.S. 756, 782–83, n.38 (1973)).

303 Id. (quoting Nyquist, 413 U.S. at 785–86).

304 Witters, 474 U.S. at 488.

305 Id.

306 Id.

307 Id. at 489 (quoting School District of Grand Rapids, 473 U.S. at 395).

308 Id.

309 Id.

310 Mueller at 388, 399.

311 Lemon, 403 U.S. 602, 620 (1971); Agostini v. Felton, 521 U.S. 203, 221–22 (1997).

312 Lemon, 403 U.S. at 607; Nyquist, 413 U.S. 756, 779–80 (1973); School District of Grand Rapids, 473 U.S. at 397; Mueller, 463 U.S. at 400; Witters, 474 U.S. at 487; see also Waltz, 397 U.S. 664, 675 (1970).

313 See Witters, 474 U.S. at 488.

314 Id.

315 See Nyquist, 413 U.S. at 785; Witters, 474 U.S. at 488.

316 530 U.S. 793 (2000).

317 20 U.S.C. § 7301–7373 (1994).

318 20 U.S.C. § 7351(b)(2) (1994).

319 Mitchell v. Helms, 530 U.S. 793 (2000) at 841 (O’Connor, J., concurring).

320 Id. (quoting Witters, 474 U.S. at 487).

321 Id. at 482.

322 Id. at 842–43.

323 Id. at 843.

324 Id.

325 Revised Rules and Regulations for the Arkansas Governor’s Scholarship Program, D.H.E. Rule 56.1.H (2001).

326 Id.

327 Lemon, 403 U.S. 602, 620–22 (1971).

328 Revised Rules and Regulations for the Arkansas Governor’s Scholarship Program, D.H.E. Rule 5.1.A.

329 Lemon, 403 U.S. at 621; Waltz, 397 U.S. 664, 675 (1970); Nyquist, 413 U.S. 756, 780 (1973); Witters, 474 U.S. 481, 487 (1986).

330 Mitchell.

331 See generally Ark. Code Ann. § 6-82-312(b) (Michie Supp. 1999) (establishing guidelines for calculating scholarship amounts).

332 Id.

333 Witters, 474 U.S. at 487.

334 Ark. Code Ann. § 6-82-312(b), (Michie 1996 and Supp. 1999), amended by 2001 Ark. Acts 1761.

335 Witters, 474 U.S. at 487.

336 Id.

337 Doug Smith, “Pushing and Shoving For the State’s Top Scholars,” Arkansas Times, (August 27, 1999), p. 13.

338 Id.

339 Id.

340 See 22 Annals of Cong. 982–85 (1853).

341 Id.

342 Id.

343 See Walter Block, Defending the Undefendable (1985); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117.

344 For some, there is no legitimate role for the government at all. On this, see Terry L. Anderson and P.J. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West,” Journal of Libertarian Studies 3 (1979): 9; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1988); Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” Journal of Libertarian Studies 9 (1989): 1, 1–26; Bruce L. Benson, “The Impetus for Recognizing Private Property and Adopting Ethical Behavior in a Market Economy: Natural Law, Government Law, or Evolving Self-Interest?” Review of Austrian Economics 6 (1993): 43; Bruce L. Benson, To Serve and Protect (1998); Bruce L. Benson, “The Spontaneous Evolution of Commercial Law,” Southern Journal of Economics 55 (1989): 644, 644–661; Bruce L. Benson, The Enterprise of Law: Justice Without the State (1990); Alfred G. Cuzan, “Do We Ever Really Get Out of Anarchy?” Journal of Libertarian Studies 3 (1979): 151; Anthony de Jasay, The State (1985); Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (1997); David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism (1989); David Friedman, “Private Creation and Enforcement of Law: A Historical Case,” Journal of Legal Studies 8 (1979): 399, 399–415; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (1993); Hans-Hermann Hoppe, “The Private Production of Defense,” Journal of Libertarian Studies 14 (1998–99): 27; Jeffrey Rogers Hummel, “National Goods Versus Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; James J. Martin, Men Against the State: The Expositors of Individualist Anarchism in America 1827–1908 (1970); Andrew P. Morris, “Miners, Vigilantes, and Cattlemen: Overcoming Free Rider Problems in the Private Provision of Law,” Land and Water Law Review 33 (1998): 581, 581–696; Franz Oppenheimer, The State (1914); Murray N. Rothbard, For A New Liberty (1978); Murray N. Rothbard, The Ethics of Liberty (1982); Murray N. Rothbard, “Society Without a State,” in Anarchism: Nomos XIX (1978), p. 191; Murray N. Rothbard, Man, Economy, and State (1993); Aeon J. Skoble, “The Anarchism Controversy,” in Liberty for the 21st Century: Essays in Contemporary Libertarian Thought (1995), p. 71; Larry J. Sechrest, “Rand, Anarchy, and Taxes,” Journal of Ayn Rand Studies 1 (1999): 87, 87–105; Lysander Spooner, No Treason (1966); Edward Stringham, “Market Chosen Government,” Journal of Libertarian Studies 14 (1998): 53, 53–77; Patrick Tinsley, “With Liberty and Justice for All: A Case for Private Police,” Journal of Libertarian Studies 14 (1998): 95; Tennehill, et al., The Market for Liberty (1984); William C. Woolridge, Uncle Sam the Monopoly Man (1970).

345 On limited government libertarianism as defined above, see The Libertarian Reader (1982); Tibor Machan, “Against Non-Libertarian Natural Rights,” Journal of Libertarian Studies 2 (1978): 233; Tibor Machan, Capitalism and Individualism (1990); Ludwig von Mises, The Anti-Capitalist Mentality (1972); Ludwig von Mises, Bureaucracy (1969); Ludwig von Mises, Omnipotent Government (1969); Ludwig von Mises, Socialism (1969); Ludwig von Mises, Theory and History (1957); Charles Murray, What It Means to be a Libertarian (1997); Robert Nozick, Anarchy, State, and Utopia (1974); Leonard E. Read, Awake for Freedom’s Sake (1977); Leonard E. Read, Anything that’s Peaceful (1964).

There are still other writers who characterize themselves as libertarians but allow greater scope for government than courts, armies, and police. For such styled libertarians see Tom Bethell, The Noblest Triumph: Property and Prosperity through the Ages (1998); David Boaz and Edward H. Crane, Beyond the Status Quo (1985); David Boaz, Libertarianism: A Primer (1997); Richard A. Epstein, Simple Rules for a Complex World (1995); Milton Friedman, “Alleviation of Poverty and Social Welfare Measures,” in The Economics of American Poverty: An American Paradox (1965); Milton Friedman, Capitalism and Freedom (1962); Milton Friedman and Rose Friedman, Free to Choose (1980); Milton Friedman, Money Mischief: Episodes in Monetary History (1992); Milton Friedman, There’s No Such Thing as a Free Lunch (1975); Milton Friedman and Rose Friedman, Tyranny of the Status Quo (1983); James D. Gwartney and Richard L. Stroup, What Everyone Should Know about Economics and Prosperity (1993); Richard Pipes, Property and Freedom (1999).

346 For the libertarian case in opposition to the criminalization of discrimination, see Walter Block, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology 57 (1998): 223; Walter Block, “Discrimination: An Interdisciplinary Analysis,” Journal of Business Ethics 11 (1992): 241; Richard Epstein, Forbidden Grounds (1992); Linda Gottfredson, “The Practical Significance of Black-White Differences in Intelligence,” Behavioral and Brain Science 10 (1987): 510; Linda Gottfredson, “Reconsidering Fairness: A Matter of Social and Ethical Priorities,” Journal of Vocational Behavior 33 (1988): 293; Richard Hernstein and Charles Murray, The Bell Curve (1994); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary 78 (1984): 13; Michael Levin, Feminism and Freedom (1987); Michael Levin, “Why Race Matters: A Preview,” Journal of Libertarian Studies 12 (1996): 287; Michael Levin, Why Race Matters: Race Differences and What They Mean (1997); Charles Murray, “Affirmative Racism,” The New Republic, Dec. 1984, p. 18; Charles Murray, What It Means to be a Libertarian (1997); Jan Narveson, “Have We a Right to Non-Discrimination?” in Business Ethics in Canada (1987); Robert Nozick, Anarchy, State, and Utopia (1974); Murray N. Rothbard, For a New Liberty (1973); J. Philippe Rushton, “Race Differences in Behaviour: A Review and Evolutionary Analysis,” Personality and Individual Difference 9 (1988): 1009; Daniel Seligman, A Question of Intelligence: The IQ Debate in America (1992).

347 Our critics might think that a good name for this hotel, in view of our last names, would be “Chez Blockhead.”

348 The same goes for Jews, blacks, homosexuals, females, old people, young people, or any other supposedly “victimized” groups.

349 We shall henceforth consider the views of the minarchists, or limited-government advocates alone, so as to obviate for argument’s sake the point made by the anarchist libertarians, that government should not exist at all.

350 There is only one exception to this general rule. If the legitimate function of the government pertains to any of these distinctions, then that may be taken into account. For example, if the police must infiltrate the Mafia, it cannot ask a black cop to do so; for the Bloods or the Crips, a Jewish officer simply will not do; if the police must send someone in to spy on a gang of criminals composed of females, or lesbians, a male is counter indicated.

351 See text accompanying note 1.

352 See text accompanying note 1.

353 We abstract from the question of whether or not the testing instrument accurately distinguishes the one group from the other, assuming for the sake of argument that it does.

354 See Robert B. Reich, “How Selective Colleges Heighten Income Inequality,” Chronicle of Higher Education Review, http://www.prospect.org/. Mr. Reich criticizes analogous policies (elite universities accepting only very sharp-witted students) because they increase income inequality. This reason should be sharply distinguished from our own: that awarding scholarships to the “best and the brightest” is an instance of statist discrimination. In our view, private citizens, in sharp contrast to governmental agencies, are entirely justified in acting in ways which increase income inequality.

355 What about ostensibly “private” institutions of higher learning such as Harvard, Yale, and Columbia? These, too, would be considered public in that an inordinate percentage of their budgets emanate from coercive tax levies.

356 For the application of this argument to Nazi concentration camps, and the voluntary army employed to support an unjust war, see Walter Block, “Against the Volunteer Military,” Libertarian Forum, August 15, 1969, p. 4.

357 See Thomas Sowell, The Vision of the Anointed (1995), p. 35: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.” See also Jon Entine, Taboo: Why Black Athletes Dominate Sports, and Why We’re Afraid to Talk about it (2000).

358 See, e.g., White Men Can’t Jump (20th Century Fox, 1992). Also, “white man’s disease” is now common parlance in basketball circles, and refers to the inability of white men to jump high for rebounds, blocks, or slam-dunks.

359 See below Appendix 1.

360 See note 155.

361 See Walter Block and Roy Whitehead, “Human Organ Transplantation: Economic and Legal Issues,” Quinnipiac Health Law Journal 3 (2000): 87; Walter Block and Roy Whitehead, “Environmental Justice Risks in the Petroleum Industry,” William and Mary Environmental Law and Policy Review 24 (2000): 67; Walter Block and Roy Whitehead, “Direct Payment of State Scholarship Funds to Church-Related Colleges Offends the Constitution and Title VI,” BYU Journal of Public Law 14 (2000): 191; Walter Block and Roy Whitehead, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?” University of Toledo Law Review 30 (1999): 223; Walter Block and Roy Whitehead, “Mandatory Student Fees: Forcing Some to Pay for the Free Speech of Others,” Whittier Law Review 20 (1999): 759; Walter Block and Roy Whitehead, “The Unintended Consequences of Environmental Justice,” Forensic Science International 100 (1999): 57; Walter Block and Roy Whitehead, “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies 4 (2002): 229; Walter Block and Roy Whitehead, “Crying ‘Wolf’ in American: Reevaluating Drug Prohibition Policy,” (unpublished).

362 Hernstein and Murray (1994), pp. 556–58. Whites and males are likely to be over-represented in the provision of these goods and services to the government.

363 For a debate on this issue between two libertarians, see Gene Healy, “Liberty, States’ Rights, and the Most Dangerous Amendment,” Liberty, August 1999, p. 13; Roger Pilon, “In Defense of the Fourteenth Amendment,” Liberty, February 2000, p. 39; Gene Healy, “Roger and Me,” Liberty, February 2000, p. 46; Roger Pilon, “I’ll Take the 14th,” Liberty, March 2000, p. 15.

364 See Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21 (cited in Walter Block et al., “Gender Equity in Athletics: Should We Adopt a NonDiscriminatory Model?” Toledo Law Review 30 (1999): 244. Roy Whitehead, Jr. and Walter Block, Journal of Law and Family Studies 4, no. 2 (2002): 229–263.

• 1Philip Blumstein and Pepper Schwartz, American Couples: Money, Work, Sex (New York: William Morrow, 1983).
• 2See lewrockwell.com.
• 3See lewrockwell.com.
• 4“The Evil of Term Limits,” lewrockwell.com.
• 5See Hans-Hermann Hoppe, Democracy—The God That Failed: The Economics and Politics of Monarchy, Democracy, and the Natural Order (New Brunswick, N.J.: Transaction, 2001).
• 6See, e.g., Thomas Sowell, Race and Culture: A Worldview (New York: Basic Books, 1994).
• 7James Buchanan, Cost & Choice (Chicago: Markham Publishing, 1969), especially pp. 47–48; G.F. Thirlby, “Subjective Theory of Value and Accounting Cost,” Economica 13 (February 1946): 32–49; Ludwig von Mises, Human Action, 3rd ed. (Chicago: Regnery, 1963), pp. 242, 395.
• 8A female/male income ratio of 485 can be derived from Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207 (Ottawa: Statistics Canada, 1979), p. 99.
• 9Ratna Ray, Women in the Labour Force: Facts and Figures, Catalogue L 38-30/1977-2 (Ottawa: Department of Labour, Women’s Bureau, 1977), page i. Other economic studies of interest in this regard include Alan S. Blinder, “Wage Discrimination: Reduced Form and Structural Estimates,” Journal of Human Resources 8 (1973): 436–55; Morley Gunderson “Male-Female Wage Differentials and the Impact of Equal Pay Legislation,” Review of Economics and Statistics 57 (1975): 462–70; Morley Gunderson, “Work Patterns,” in Opportunity for Choice: A Goal for Women in Canada, ed. G. Cook (Ottawa: Statistics Canada, 1976).
• 10The average age of all employed Canadian men was 37 years in 1980. This placed the typical man in the highest male earnings age bracket (35–44 years old). The average age of all employed Canadian women was 34 years in 1980. This placed the typical woman in the fourth highest male earnings age bracket (25–34 years old). See The Labour Force, Statistics Canada, Catalogue 71-001, (Ottawa: Statistics Canada, 1980), page 75; and Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207 (Ottawa: Statistics Canada, 1979), pp. 104–09.
• 11Occupational segregation such as shown in the table below cannot properly be interpreted as the result of employer discrimination. After all, the employer cannot hire a nurse as a doctor, nor a person with secretarial training as an engineer or accountant.
• 12In 1978, the percentage of female Canadian union members was 28.7 percent; males comprised 71.3 percent of the membership. Source: Corporations & Labour Unions Returns Act, Part II, Labour Unions, Statistics Canada, Catalogue 71-202, p. 41. On the question of male/female productivity differentials, see Jacob Mincer and Solomon Polachek, “Family Investments in Human Capital: Earnings of Women,” Journal of Political Economy 82, no. 2, part 2 (March 1974): 76–108.
• 13In 1980, 94.1 percent of employed Canadian males worked full time, 5.9 percent worked part time; 76.2 percent of employed Canadian females worked full time, 23.8 percent worked part time. In 1979, 72.9 percent of employed Canadian males worked 50–52 weeks, 27.1 percent worked 1–49 weeks; 60.1 percent of Canadian females worked 50–52 weeks, 39.9 percent worked 1–49 weeks. Source: The Labour Force, Statistics Canada, December 1980, p. 105, Catalogue 71-001; Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207, p. 112.
• 14These figures are derived from computations based on data cited for elementary school teachers’ earnings and percentages of teachers by sex: Salaries and Qualifications of Teachers in Public, Elementary & Secondary Schools, 1979–80, Statistics Canada, Catalogue 81-202, p. 25; university teachers’ earnings and percentages of university teachers by sex: Teachers in Universities, 1978–1979, Statistics Canada, Catalogue 81–241, p. 57. Note that while we have corrected the female/male income ratio for several phenomena not related to discrimination, a still more accurate assessment would have to normalize for all of these variables, together, and include other variables such as continuity of employment, earned degrees, labor force participation, location, industrial concentration, public or private employment, productivity, seniority, as well as such imponderables as motivation, “stick-to-it-iveness,” resourcefulness, ambition, expectations, etc.
• 15Thomas Sowell, Affirmative Action: Reconsidered (Washington, D.C.: American Enterprise Institute, 1975), pp. 23–34.
• 16Jesse Bernard, Academic Women (University Park: Pennsylvania State Univ. Press, 1964), pp. 220–26; Jesse Bernard, The Future of Motherhood (New York: Penguin Books, 1974), pp. 165–70; Bryan and Boring, American Psychologist 2 (January 1947): 18; Lee Rainwater, And the Poor Get Children (Chicago: Quadrangle Books, 1960), pp. 67–69; Wayne R. Bartz and Richard A. Rasor, Surviving With Kids (San Luis Obispo, Calif.: Impact, 1978), p. 147; Martin Meissner, “Sexual Division of Labour and Inequality: Labour and Leisure,” in Women in Canada, pp. 166–74; Nancy Chodorow, “Being and Doing: A Cross Cultural Examination of the Socialization of Males and Females,” in Women in Sexist Society, ed. Vivian Gornick and Barbara K. Moran (New York: Basic Books, 1971), pp. 183–84; Roslyn S. Willett, “Working in ‘A Man’s World’: The Woman Executive,” in Women in Sexist Society, p. 368; Jean Tepperman, “Two Jobs: Women Who Work in Factories,” in Sisterhood is Powerful, ed. Robin Morgan (New York: Random House, 1970), pp. 115, 121.
• 17Gail C.A. Cook, “Opportunity for Choice: A Criterion,” in Opportunity for Choice: A Goal for Women in Canada, ed. Gail C.A. Cook (Ottawa: Statistics Canada and C.D. Howe Research Institute), Catalogue IC 23-15/1976, p. 4; Gail C.A. Cook and Mary Eberts, “Policies Affecting Work,” in Opportunity for Choice, p. 145; Richard A. Lester, Antibias Regulations of Universities (New York: McGraw-Hill, 1974), p. 39; Willett, “Working in ‘A Man’s World’,” p. 368; Pat Mainardi, “The Politics of Housework,” in Sisterhood Is Powerful, pp. 447–54; Jesse Bernard, The Future of Motherhood, pp. 157–65; Kathryn E. Walker, “Time Used by Husbands for Household Work,” Family Economics Review (June 1970): 8–10; M. Meisner, E.W. Humphries, S.M. Meis, and W.J. Scheu, “No Exit for Wives: Sexual Division of Labour and the Cumulation of Household Demands,” Canadian Review of Sociology and Anthropology 12 (1975): 424–39.
• 18Barbara B. Reagan, “Two Supply Curves for Economists? Implications of Mobility and Career Attachment of Women,” American Economic Review 65, no. 2 (1975): 102; Jacquelyn S. Crawford, Women in Middle Management (Ridgewood, N.J.: Forkner, 1977), p. 63.
• 19E.W. Burgess and Paul Wallin, Engagement and Marriage (New York: Lippincott, 1953), pp. 614, 618; and Reagan, “Two Supply Curves,” p. 104. See also Beth Neimi, “The Female-Male Differential in Unemployment Rates,” Industrial and Labour Relations Review 27, no. 3 (April 1974): 331–50.
• 20Alan E. Bayer, “Marriage Plans and Educational Aspirations,” American Journal of Sociology 75 (1969): 239–44; Reagan, “Two Supply Curves,” p. 103; Bernard, The Future of Motherhood, pp. 91, 151, 181; Jean Tepperman, “Two Jobs,” p. 123; Betty Friedan, The Feminine Mystique (New York: Dell, 1974), p. 31; Meg Luxton, More Than a Labour of Love: Three Generations of Women’s Work in the Home (Toronto: Women’s Educational Press, 1980), p. 16; Margaret Luxton, “Urban Communes and Co-ops in Toronto,” (M. Phil. dissertation, University of Toronto, 1973), cited in Luxton, More Than a Labour of Love; Ann Oakley, Women’s Work: The Housewife Past and Present (New York: Vintage Books, 1976); Eli Zaretsky, Capitalism, The Family, and Personal Life (New York: Harper & Row, 1976), p. 17; Simone de Beauvoir, The Second Sex (New York: Vintage Books, 1974), p. 482.
• 21Let us imagine an experiment. We offer a large number of employed married couples the following option: jobs in city A, where the husband will earn $200,000 per year and the wife $150,000, or in city B, where the wife will earn $200,000 per year, and the husband $150,000. (The type of employment and the amenities of the cities are assumed to be identical in each case.) How many of the husbands would prefer city B? How many wives would prefer city A? Although there is only casual evidence on this, since such an experiment has not yet been done, one may speculate that there will be more wives who will prefer city A than there will be husbands who will prefer city B. The motivations behind these choices may vary. Some husbands may feel “less of a man” if their wives earn more than they do; others may feel it is just “not fitting” that their incomes should be lower; some wives may feel less damaged psychologically from earning less than their spouses; others may subscribe to the societal pressures which teach, at a young age, that “nice girls don’t outcompete boys.” But whatever the reason, there is abundant anecdotal evidence that many women have great psychological and other personal difficulties in competing with men, and are thus, when married, more likely than men to purposefully keep their earnings below those of their spouses—with important implications for the low female/male earnings ratios for married people.
• 22Unfortunately, only the “married” and “total” columns are widely published in official Canadian Statistics. To say the least, this gives rather a biased account of the true state of the female/male earnings ratio, and its basic cause (marital status and its widely diverging effects on male and female earnings).
• 23Not only does marriage have asymmetrical effects on earnings by sex, but it is reasonable to believe that so does “living together” or “cohabitation”—and for similar reasons. Moreover, this category has become more statistically significant in recent years, though actual data are lacking. Table 3, in distinguishing between the ever married and the never married, cannot separate those who have ever lived together—whether married or unmarried—from those who have never lived together. If cohabitation as well as ever-married status could be controlled for, one would thus expect the female/male ratio to be higher than 992. There is also, however, a reason for believing that 992 may be somewhat of an overestimate of the “true” female/male earnings ratio: never-married females are older than never-married males (46.2 years vs. 43.7 years old), have more schooling (10.9 vs. 9.3 years), work more weeks (45.6 vs. 42.3 weeks), and work on a part-time basis to a lesser degree (10.6 percent vs. 11.8 percent). (All figures based on calculations made from data presented by Kuch and Haessel; see Table 3 for full citation.)
• 24Some may argue that private discriminatory behavior is immoral and ought to be prohibited by force of law. Others may hold that, while discrimination is a negative characteristic, each individual is nevertheless entitled to make whatever decision suits his conscience—whether in commercial dealings, employment practices, housing decisions, or personal relations—provided only that he not commit fraud upon, or initiate aggression against, minority group members. Whatever the solution to this philosophical question, both sides may perhaps take comfort from one of the findings in Block and Walker, Discrimination, Affirmative Action, and Equal Opportunity: the tendency of the marketplace to financially penalize those who indulge in discriminatory practices, and thus to reduce, over time, the scope of this activity.
• 25There would appear to be numerous criteria upon which discrimination has, or is alleged to have, taken place, and upon which quotas, affirmative action, or preferential treatment are now demanded. Some of the grounds include (1) obesity: see “Obese Are Victims of Bias: Professor,” Toronto Globe & Mail (August 5, 1980), p. 13; (2) blindness: see “Group for Blind Suggests Job Quota,” Toronto Globe & Mail (August 2l, 1980), p. 1, and “Blind Woman and Guide Dog Win Rights Fight,” Vancouver Sun (August 18, 1980), p. 8; (3) residence: see “Stop Provinces Reserving Jobs for Residents, Rights Chief Says,” Toronto Globe & Mail (June 4, 1980), p. 10; (4) “reverse” discrimination: see “Barring White in Native Class Is Ruled Illegal,” Toronto Globe & Mail (February 13, 1980), which tells of an Alberta Human Rights Commission finding against the University of Calgary for discriminating against a non-Indian woman by denying her admission to a special course specifically set up for native peoples; (5) ugliness: see “More to an Interview than Meets the Eye,” Toronto Globe & Mail (July 19, 1980), p. F3, which shows that persons of “unattractive appearance” (and even sometimes persons of beauty) are discriminated against in hiring practices; (6) political beliefs: see “They’re Biting the Hand that Won’t Feed Them,” Toronto Globe & Mail (August 9, 1980), p. 8, which tells of a Prince Edward Island Provincial Human Rights Commission finding that a public employee had been wrongfully dismissed for his political beliefs; (7) hirsuteness: see “Supreme Court Refuses a Motion to Force Grocery Clerk to Shave,” Toronto Globe & Mail (February 10, 1980), which tells of a Winnipeg employer who could not legally compel his grocery clerk to either shave his beard, work nights “out of the sight of customers,” or fire him.
• 26The situation with regard to discriminatory practices on the part of the government is a unique matter. It cannot be argued, as it could in the private case, that, no matter how morally reprehensible discrimination is, at least in the market sector it is done by an individual in his own name and with his own money.
• 27Although many people interpret prejudice or discriminatory behavior as a willingness to engage in physical aggression against a despised person or group, this interpretation is about as far away as it is possible to get from a clear understanding. On the contrary, a sharp distinction must be made between refusing to interact at all with a person, and threatening physical abuse against him. The former is all that is done by a hermit, although on a larger scale; and if it is no crime to refuse to deal with all of humanity, then it might be argued that it can scarcely be a rights violation to avoid dealing with only some people.
• 28Ludwig von Mises, Human Action, p. 109.
• 29Toronto Globe & Mail (April 14, 1980), p. 6. See also Toronto Globe & Mail (January 25, 1980).
• 30See “Drea Tells Firm to Stop Questions” and the editorial “Wearing Nothing but a Seat Belt,” both in Toronto Globe & Mail (July 31, 1980), pp. 5, 6.
• 31These agencies include the Federal Reserve Board, the Comptroller of the Currency, the Federal Deposit Insurance Corp., the Federal Home Loan Bank Board, and the National Credit Union Administration.
• 32Wall Street Journal (June 22, 1978). On age bias, see also Toronto Globe & Mail (February 18, 1980), p. 5.
• 33They cannot. Loansharks, black marketeers, usurers, and underworld lenders have not been driven out of business. With age-affirmative action for legitimate concerns, these alternatives would be given a new lease on life.
• 34Toronto Globe & Mail (September 14, 1979).
• 35Toronto Globe & Mail (July 1, 1980), p. 12.
• 36Ralph Keyes, The Height of Your Life (Boston: Little, Brown & Co., 1980). Also Toronto Globe & Mail (July 10, 1980), p. 15.
• 37Toronto Globe & Mail (March 26, 1980), pp. 5, 8.
• 38True, laws can be passed prohibiting this latter alternative, but they are hard to police. Even if such a law decreases discriminatory activity on the basis of race, it is not likely to succeed. Government will have first unleashed a bout of discrimination upon the private sector, through its unwise rent control law, and only then have attempted to eradicate it. The net result will inevitably be an increase in discrimination compared to the situation in which government did not act at all. The government will, of course, take credit for its (secondary) efforts in “solving” the problem. It will be the rare individual who can follow the somewhat complex chain of reasoning necessary to see the government’s true role. Anti-tenant-discrimination legislation, moreover, will have unintended negative consequences similar to those created by affirmative action programs.
• 39For an account of landlord discrimination, under rent control, against: (1) families with children, see “Choosey Landlords Targets of Council,” Vancouver Sun (September 24, 1980), p. A8; (2) male college students, see “Report Biased Landlords, Male Students Are Urged,” and “Preferred,” Toronto Globe & Mail (August 18, 1980), p. 9, 6; (3) the handicapped, see “Landlords Won’t Rent to Man in Wheelchair,” Vancouver Sun (October 25, 1980), p. A3, and “Landlords Close Doors to Thalidomide Victim: Deformity Makes Her an Unwanted Tenant,” Vancouver Sun (January 14, 1981), p. B1. Whether these landlords are allegedly discriminating on their own account, or in behalf of tenants, however, is by no means clear.
• 40Laws which make it more difficult for legitimate lenders to legally repossess their funds upon default of the loan have a similar effect.
• 41Louw, “Free Enterprise and the South African Black,” p. 3.
• 42According to anecdotal evidence, interest charges demanded (and received!) by loan sharks varies from 2 percent to 5 percent to 20 percent per week, depending on the time period of the loan, and the creditworthiness of the borrower. See in this regard “Joey,” with Dave Fisher, Killer: Autobiography of a Mafia Hit Man (New York: Simon and Schuster, Pocket Book, 1974), p. 86.
• 43See Walter Block, ed., Zoning: Its Costs and Relevance for the 1980s (Vancouver, British Columbia: The Fraser Institute, 1980).
• 44The truth seems to be that the juxtaposition of many supposed “incompatible uses” is perceived by some as a benefit but by others as a harm. See Block, Zoning, pp. 35, 36.
• 45Louw, “Free Enterprise and the South African Black,” p. 3
• 46Bernard H. Seigan, Land Use Without Zoning (Toronto: Lexington Books, 1972), p. 29.
• 47Seigen, Land Use Without Zoning. This does not imply, of course, that each voter does an intensive cost-benefit analysis of the effect of such legislation on his or her pocketbook. But it does indicate a rough way that people correctly perceive their self-interest in zoning.
• 48See generally Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004 (1993); Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997).
• 49Prior to trial on the merits of the Brown University cases, the district court granted the plaintiffs a preliminary injunction, ordering the women’s volleyball and gymnastics teams be restored from club to university-funded status. See Brown University I, 809 F. Supp. at 1001. The first circuit upheld the district court’s decision after reviewing the district court’s analysis of Title IX and the implementing regulations. See Brown University II, 991 F.2d at 906. On remand, the district court found that Brown’s intercollegiate program violated Title IX and the supporting regulations. See Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III). Brown University appealed and on November 21, 1996, the First Circuit affirmed. See Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
• 50912 F. Supp. 892 (M.D. La. 1996).
• 51Letter from Norma Cantu, Assistant Secretary for Civil Rights, U.S. Dep’t of Education, to Colleges and Universities (Sept. 20, 1995) (on file with author).
• 52Brown University I, 809 F. Supp. at 985.
• 53Brown University II, 991 F.2d at 895.
• 54Id.
• 55Cohen v. Brown University (Brown University II), 991 F.2d 888, 897 (1st Cir. 1993).
• 56Id.
• 57Id. at 898.
• 58Id.
• 59Id.
• 60Id.
• 61Id.
• 62Id.
• 63Id. at 906.
• 64Id. at 898.
• 65Cohen v. Brown University (Brown University II), 991 F.2d 888, 898 (1st Cir. 1993).
• 66Id.
• 67Id. at 899.
• 68Id.
• 69Id. at 899–900.
• 70Id. at 900.
• 71The Manual at 9.
• 72Brown University II, 991 F.2d at 901.
• 73Id.
• 74Id. at 902–03.
• 75Cohen v. Brown University, 991 F.2d 888, 903 (1st Cir. 1993) (Brown University II).
• 76Id. at 904.
• 77Cohen v. Brown University, 879 F. Supp. 185, 186 (D.R.I. 1995) (Brown University III).
• 78Cohen v. Brown University, 101 F.3d 155, 167 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
• 79Id. at 162.
• 80Id. at 174.
• 81Id.
• 82Id. at 175.
• 83Id. at 176.
• 84Id. at 179.
• 85Id. at 180.
• 86Id. at 188 (Torruella, J., dissenting).
• 8734 C.F.R. § 106.41(b) (1992).
• 88Cohen v. Brown University, 101 F.3d 155, 188 (1st Cir. 1996) (Brown University IV) (Torruella, J., dissenting).
• 89912 F. Supp. 892 (M.D. La. 1996).
• 90Id. at 904–5.
• 91Id. at 913.
• 92Id. at 914.
• 93Id. at 913.
• 94Id. (citing Title IX, 20 U.S.C. § 1681(a) (1972)).
• 95Id.
• 96Id. at 913–15.
• 97Id.
• 98Id. at 915.
• 99Pederson v. Louisiana State University, 912 F. Supp. 892, 915–16 (M.D. La. 1996).
• 100Id. at 915.
• 101Id. at 916.
• 102Id. at 916–18.
• 103Id.
• 104Id.
• 105Id.
• 106Id. at 919.
• 107Id. at 916–18.
• 108Id. at 913–14.
• 109Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Washington, D.C.: U.S. Department of Education, 1996), hereinafter “The Clarification.”
• 110Id. at 1–2.
• 111Id. at 2.
• 112Id. at 5.
• 113See note 108 and accompanying text.
• 114The Clarification at 6.
• 115Id.
• 116Id. at 192.
• 117The Supreme Court has strongly cautioned lower courts against comparisons to the general population when special interests or qualifications are required. See Hazelwood School District v United States, 433 U.S. 299, 308 n.13 (1977). In a recent voting rights case, the Supreme Court held that proportionality cannot serve as a shortcut to determine whether a set of districts unlawfully dilutes minority voting strength. See Johnson v. Florida, 512 U.S. 997 (1994).
• 11820 U.S.C. § 1681(b) (1972).
• 119St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 514 (1993) (interpreting a Title VII employment discrimination claim). See also Cannon v. University of Chicago, 648 F.2d 1104, 1109 (7th Cir. 1981), cert. denied, 454 U.S. 1128 (1981) (stating that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation. We shall therefore adopt that standard under Title IX.”).
• 12020 U.S.C. § 168 1(b).
• 121Cannon, 648 F.2d at 1109.
• 122Alexander v. Choate, 469 U.S. 287, 293 (1985). Additionally, Title IX is patterned after Title VI. See Grove City v. Bell, 465 U.S. 555, 566 (1984). By setting up the same administrative structure and using virtually the same language, Congress intended that the interpretation of Title IX was to be the same as Title VI. See Hearing Before the Subcomm. on Post Secondary Education of the House Comm. on Education and Labor, 94th Cong. 16, 150 (1971).
• 123The Roberts Court was apparently relying on Guardians Association v. Civil Service Commission of New York to justify a holding that a federal agency, or in this case a court, may proscribe, as discriminatory, conduct which the statute itself does not prohibit. See Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir. 1993); Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 584 (1982). The court’s reliance is misplaced because the Guardians court found that the authority was delegated to the agency by statute. Unlike Guardians, Congress in Title IX specifically withheld authority to take action on account of a statistical imbalance between the sexes. See 20 U.S.C. § 1981(b) (1972).
• 12434 C.F.R. § 106.41 (c)(1) (1992).
• 125City of Richmond v. J.A. Croson Co., 488 U.S. 469,501 (1989); Mayor of Philadelphia v. Educational Equity League, 415 U.S. 605, 620 (1974).
• 126Todd Traub, While Footing the Bill: Football Also Creates Title IX Imbalance, Arkansas Democrat-Gazette (Little Rock, Ark.), November 14, 1996, p. C1.
• 127Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 322 (3d Cir. 1993).
• 128Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (Brown University II); Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III).
• 129Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993).
• 130See generally Denise K. Magner, “Judge Blocks Cal-State Bakersfield’s Plan to Cap Size of Wrestling Team,” Chronicle of Higher Education, March 12, 1999, p. A44.
• 131See generally Pederson v. Louisiana State University, 912 F. Supp. 892 (M.D. La. 1996).
• 132See, e.g., Hazelwood School District v. United States, 433 U.S. 299 (1977); Castaneda v. Partida, 430 U.S. 482 (1977).
• 133For example, the backlash in football has been very strong. See generally Bob Holt, “Court Ruling Raises Alarm on Title IX: ASU’S Dowd Calls Decision ‘Idiotic,’” Arkansas Democrat-Gazette (Little Rock, Ark.), Apr. 22, 1997, p. C1. Unfortunately, some schools have helped justify their decisions to cut men’s sports by blaming Title IX, according to NCAA president Cedric Dempsey, and a recent GAO study shows a drop in men’s participation in NCAA sports. See generally, “GAO Study Shows Drop in Men’s Participation, but Reason Is Unclear,” NCAA News, July 5, 1999, p. A1; Erik Lords, “More Women and Fewer Men Participate in Intercollegiate Athletics, Study Finds,” Chronicle of Higher Education, July 9, 1999, p. A40.
• 134The NCAA Gender-Equity Task Force Report states that it should be the ultimate goal of each institution that the numbers of male and female athletes are substantially proportionate to their undergraduate population. See The Report, note 4, p. 3. The Report also stresses that maintaining current revenue-enhancing programs like football is essential to enhancing opportunities for women athletes (see id).
• 135The conventional wisdom does make one set of exceptions in the case of sex: it “concedes” that men and women have different biological characteristics, and that only females can become pregnant and give birth. We applaud this concession to reality.
• 136See generally Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (Brown University I).
• 137See generally Thomas Sowell, Civil Rights: Rhetoric or Reality (New York: William Morrow, 1984); Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggles (New York: William Morrow, 1987); Thomas Sowell, The Economics and Politics of Race: An International Perspective (New York: William Morrow, 1983); Thomas Sowell, Ethnic America (New York: Basic Books, 1981); Thomas Sowell, Pink and Brown People (Stanford, Calif.: Hoover Institution Press, 1981); Thomas Sowell, Race and Culture: A World View (New York: Basic Books, 1994);Thomas Sowell, Race and Economics (New York: Longman, 1975); Thomas Sowell, The Vision of the Anointed (New York: Basic Books, 1995); Walter E. Williams, South Africa’s War Against Capitalism (New York: Praeger, 1989); Walter E. Williams, The State Against Blacks (New York: McGraw-Hill, 1982); Thomas Sowell, “Preferential Policies,” in Thinking about America: The United States in the 1990s, Annelise Anderson and Dennis L. Bark, eds. (Stanford, Calif.: Hoover Institution Press, 1988); Thomas Sowell, “Weber and Bakke and the Presuppositions of ‘Affirmative Action’,” in Discrimination, Affirmative Action, and Equal Opportunity, Walter Block and Michael Walker, eds. (Vancouver, British Columbia: Fraser Institute, 1982); Walter E. Williams, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” in Discrimination, Affirmative Action, and Equal Opportunity.
• 138Sowell, The Vision of the Anointed, p. 33.
• 139Id., pp. 35–57.
• 140See generally Steven Farron, “Prejudice is Free but Discrimination has Costs,” Journal Libertarian Studies 14, no. 2 (Summer 2000): 179–245.
• 141One might expect Jews to be among the most vociferous opponents of affirmative action, given their historical experiences with this phenomenon. Why this is not the case is explored by Walter Block, “The Mishnah and Jewish Dirigisme,” in International Journal of Social Economics 23, no. 2 (1996): 35–44; Milton Friedman, “Capitalism and the Jews,” in Morality of the Market: Religious and Economic Perspectives, Walter Block, Geoffrey Brennan, and Kenneth Elzinga, eds. (Vancouver, British Columbia: The Fraser Institute, 1985), pp. 429–42.
• 142Sowell, The Vision of the Anointed, p. 35.
• 143Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21.
• 144Ibid., p. 20. It is often charged that while blacks are hired as players in professional sports leagues, there is in effect a “glass ceiling” which prevents them from rising to management, coaching, and other staff positions after they retire as athletes. This contention cannot be supported by the reported facts. Blacks comprise only 14 percent of the U.S. population. See U.S. Census Bureau, Statistical Abstract of the United States: 1998, p. 14, table 13 (1998). Thus, they are statistically overrepresented in the NBA and NFL not only as players, but also as managers, coaches and staff. Therefore, were employment equity strictly applied to the professional athletics industry, at least insofar as these two leagues are concerned, there would be a massive firing of blacks as players, as well as roughly half of the black general managers and coaches in the NBA, and coaches in the NFL would have to be dismissed.
• 145For antidotes, see generally Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Michael E. Levin, Feminism and Freedom (New York: Transaction Books, 1987).
• 146Golf may well be an exception. If so, and to that extent, its pedigree as a legitimate athletic event comes into question. In other words, we may perhaps distinguish between “real” sporting activities and mere “play” on the basis of whether adult males and females are competitive with each other. True, female Olympic athletes of 1998 can swim rings around males of an earlier era (e.g., Buster Crabbe, Johnny Weismuller), but records have been significantly improving over the intervening decades. These two swimmers, Crabbe and Weismuller, who later played the role of Tarzan in the movies, could best their female contemporaries of the day by similar margins as men now outdistance women in the pool.
• 147Lillian B. Rubin, Families on the Fault Line: America’s Working Class Speak About the Economy, Race, and Ethnicity, 1st ed. (New York: Harper Collins, 1994); Rodney Stark, “Socialization and Social Roles,” in Sociology, 7th ed. (1998), pp. 160–62.
• 148See generally Robert M. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984); David M. Buss, The Evolution of Desire: Strategies of Human Mating (New York: Basic Books, 1994); Richard Dawkins, River out of Eden: A Darwinian View of Life (New York: Basic Books, 1995); Richard Dawkins, The Selfish Gene (Oxford University Press, 1989); R.H. Frank, Passion within Reason: The Strategic Role of the Emotions (London: Norton, 1988); Donald Symons, The Evolution of Human Sexuality (Oxford University Press, 1979); Robert Trivers, Social Evolution (Menlo Park, Calif.: The Benjamin Cummings Publishing Company, 1985); E.O. Wilson, Sociobiology: A New Synthesis (Cambridge, Mass.: Harvard University Press, 1975); Robert Wright, Moral Animal: The New Science of Evolutionary Psychology (New York: Vintage, 1994); R. Axelrod and W.D. Hamilton, “The Evolution of Cooperation,” Science 211 (1981): 1390–96; John Tooby and Leda Cosmides, “Evolutionary Psychology and the Generation of Culture,” Ethnology and Sociobiology 10 (1989): 375–424; John Tooby and Leda Cosmides, “On the Universality of Human Nature,” Journal of Personality 58 (1990): 17–67; R. Wright, “Feminists, Meet Mr. Darwin,” New Republic, Nov. 28, 1994, p. 43.
• 149Dawkins, The Selfish Gene, p. 1.
• 150See generally Adam Smith, An Inquiry in the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1965). The invisible hand was thought by Smith to be God’s ordering of the human condition such that we are automatically led, by selfish interest and even greed, to do that which is in the best interests of our fellow human beings.
• 151For an economic account of male/female earnings differentials in terms of unequal sharing of family, household, and child rearing tasks, see generally Walter Block and Michael A. Walker, Focus on Employment Equity: A Critique of the Abella Royal Commission on Equality in Employment (Vancouver, British Columbia: The Fraser Institute, 1985); Walter Block and Walter Williams, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research 2, no 2 (Fall 1981): 385–88. But doesn’t this just put back the real question? The claim might be made that women have fewer dollar votes in the first place because of male discrimination in the labor market. Even if, then, goods and services are provided according to spending power, females still get the short end of the stick due to this prior injustice.
• 152This is on the assumption that the feminist agenda is actually one of promoting the welfare and best interests of women. An alternative hypothesis emanates from the Public Choice School of Economics, according to which there may be, in addition or possibly instead, a hidden agenda. The disparate treatment accorded President Bill Clinton and Supreme Court Justice Clarence Thomas suggests that it is to promote Democrats, or socialists, at the expense of Republicans, or conservatives, and not at all to help females. See generally James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1971); Christina Hoff Sommers, Who Stole Feminism? How Women have Betrayed Women (New York: Simon and Schuster, 1994).
• 153This is a bit of a misnomer, since enterprises of this sort are privately owned. Nor are they necessarily “open to the public.” On the contrary, this is precisely the point at issue.
• 154Both heterosexuals and homosexuals discriminate in their choice of bed partner on the basis of gender. Of all groups, only bisexuals are completely without sexual bias. The law, if logically consistent, would thus impose this practice upon us all. But even bisexuals discriminate on the basis of other characteristics: beauty (they are guilty of “lookism”), talent, sense of humor, intelligence, etc. It would appear that there are no people innocent of prejudice in this regard. Perhaps all of humanity ought to be incarcerated on this ground.
• 155Civil Rights Act of 1964, 42 U.S.C. § 2000c to 2000c-17.
• 156The Antislavery Argument, W. and J. Pease, eds. (New York: Bobbs-Merrill, 1965), citing William Lloyd Garrison, Declaration of Sentiment of the American Anti-Slavery Convention (Boston: R. F. Wallcut, 1833).
• 157Id.
• 158See 22 Annals of Cong. 982–85 (1853).
• 159Id.
• 160Id.
• 161See Walter Block, Defending the Undefendable (1985); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117.
• 162For some, there is no legitimate role for the government at all. On this, see Terry L. Anderson and P.J. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West,” Journal of Libertarian Studies 3 (1979): 9; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1988); Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” Journal of Libertarian Studies 9 (1989): 1, 1–26; Bruce L. Benson, “The Impetus for Recognizing Private Property and Adopting Ethical Behavior in a Market Economy: Natural Law, Government Law, or Evolving Self-Interest?” Review of Austrian Economics 6 (1993): 43; Bruce L. Benson, To Serve and Protect (1998); Bruce L. Benson, “The Spontaneous Evolution of Commercial Law,” Southern Journal of Economics 55 (1989): 644, 644–661; Bruce L. Benson, The Enterprise of Law: Justice Without the State (1990); Alfred G. Cuzan, “Do We Ever Really Get Out of Anarchy?” Journal of Libertarian Studies 3 (1979): 151; Anthony de Jasay, The State (1985); Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (1997); David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism (1989); David Friedman, “Private Creation and Enforcement of Law: A Historical Case,” Journal of Legal Studies 8 (1979): 399, 399–415; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (1993); Hans-Hermann Hoppe, “The Private Production of Defense,” Journal of Libertarian Studies 14 (1998–99): 27; Jeffrey Rogers Hummel, “National Goods Versus Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; James J. Martin, Men Against the State: The Expositors of Individualist Anarchism in America 1827–1908 (1970); Andrew P. Morris, “Miners, Vigilantes, and Cattlemen: Overcoming Free Rider Problems in the Private Provision of Law,” Land and Water Law Review 33 (1998): 581, 581–696; Franz Oppenheimer, The State (1914); Murray N. Rothbard, For A New Liberty (1978); Murray N. Rothbard, The Ethics of Liberty (1982); Murray N. Rothbard, “Society Without a State,” in Anarchism: Nomos XIX (1978), p. 191; Murray N. Rothbard, Man, Economy, and State (1993); Aeon J. Skoble, “The Anarchism Controversy,” in Liberty for the 21st Century: Essays in Contemporary Libertarian Thought (1995), p. 71; Larry J. Sechrest, “Rand, Anarchy, and Taxes,” Journal of Ayn Rand Studies 1 (1999): 87, 87–105; Lysander Spooner, No Treason (1966); Edward Stringham, “Market Chosen Government,” Journal of Libertarian Studies 14 (1998): 53, 53–77; Patrick Tinsley, “With Liberty and Justice for All: A Case for Private Police,” Journal of Libertarian Studies 14 (1998): 95; Tennehill, et al., The Market for Liberty (1984); William C. Woolridge, Uncle Sam the Monopoly Man (1970).
• 163On limited government libertarianism as defined above, see The Libertarian Reader (1982); Tibor Machan, “Against Non-Libertarian Natural Rights,” Journal of Libertarian Studies 2 (1978): 233; Tibor Machan, Capitalism and Individualism (1990); Ludwig von Mises, The Anti-Capitalist Mentality (1972); Ludwig von Mises, Bureaucracy (1969); Ludwig von Mises, Omnipotent Government (1969); Ludwig von Mises, Socialism (1969); Ludwig von Mises, Theory and History (1957); Charles Murray, What It Means to be a Libertarian (1997); Robert Nozick, Anarchy, State, and Utopia (1974); Leonard E. Read, Awake for Freedom’s Sake (1977); Leonard E. Read, Anything that’s Peaceful (1964).
• 164For the libertarian case in opposition to the criminalization of discrimination, see Walter Block, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology 57 (1998): 223; Walter Block, “Discrimination: An Interdisciplinary Analysis,” Journal of Business Ethics 11 (1992): 241; Richard Epstein, Forbidden Grounds (1992); Linda Gottfredson, “The Practical Significance of Black-White Differences in Intelligence,” Behavioral and Brain Science 10 (1987): 510; Linda Gottfredson, “Reconsidering Fairness: A Matter of Social and Ethical Priorities,” Journal of Vocational Behavior 33 (1988): 293; Richard Hernstein and Charles Murray, The Bell Curve (1994); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary 78 (1984): 13; Michael Levin, Feminism and Freedom (1987); Michael Levin, “Why Race Matters: A Preview,” Journal of Libertarian Studies 12 (1996): 287; Michael Levin, Why Race Matters: Race Differences and What They Mean (1997); Charles Murray, “Affirmative Racism,” The New Republic, Dec. 1984, p. 18; Charles Murray, What It Means to be a Libertarian (1997); Jan Narveson, “Have We a Right to Non-Discrimination?” in Business Ethics in Canada (1987); Robert Nozick, Anarchy, State, and Utopia (1974); Murray N. Rothbard, For a New Liberty (1973); J. Philippe Rushton, “Race Differences in Behaviour: A Review and Evolutionary Analysis,” Personality and Individual Difference 9 (1988): 1009; Daniel Seligman, A Question of Intelligence: The IQ Debate in America (1992).
• 165Our critics might think that a good name for this hotel, in view of our last names, would be “Chez Blockhead.”
• 166The same goes for Jews, blacks, homosexuals, females, old people, young people, or any other supposedly “victimized” groups.
• 167We shall henceforth consider the views of the minarchists, or limited-government advocates alone, so as to obviate for argument’s sake the point made by the anarchist libertarians, that government should not exist at all.
• 168There is only one exception to this general rule. If the legitimate function of the government pertains to any of these distinctions, then that may be taken into account. For example, if the police must infiltrate the Mafia, it cannot ask a black cop to do so; for the Bloods or the Crips, a Jewish officer simply will not do; if the police must send someone in to spy on a gang of criminals composed of females, or lesbians, a male is counter indicated.
• 169See text accompanying note 1.
• 170See text accompanying note 1.
• 171We abstract from the question of whether or not the testing instrument accurately distinguishes the one group from the other, assuming for the sake of argument that it does.
• 172See Robert B. Reich, “How Selective Colleges Heighten Income Inequality,” Chronicle of Higher Education Review, http://www.prospect.org/. Mr. Reich criticizes analogous policies (elite universities accepting only very sharp-witted students) because they increase income inequality. This reason should be sharply distinguished from our own: that awarding scholarships to the “best and the brightest” is an instance of statist discrimination. In our view, private citizens, in sharp contrast to governmental agencies, are entirely justified in acting in ways which increase income inequality.
• 173What about ostensibly “private” institutions of higher learning such as Harvard, Yale, and Columbia? These, too, would be considered public in that an inordinate percentage of their budgets emanate from coercive tax levies.
• 174For the application of this argument to Nazi concentration camps, and the voluntary army employed to support an unjust war, see Walter Block, “Against the Volunteer Military,” Libertarian Forum, August 15, 1969, p. 4.
• 175See Thomas Sowell, The Vision of the Anointed (1995), p. 35: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.” See also Jon Entine, Taboo: Why Black Athletes Dominate Sports, and Why We’re Afraid to Talk about it (2000).
• 176See, e.g., White Men Can’t Jump (20th Century Fox, 1992). Also, “white man’s disease” is now common parlance in basketball circles, and refers to the inability of white men to jump high for rebounds, blocks, or slam-dunks.
• 177See below Appendix 1.
• 178See note 155.
• 179See Walter Block and Roy Whitehead, “Human Organ Transplantation: Economic and Legal Issues,” Quinnipiac Health Law Journal 3 (2000): 87; Walter Block and Roy Whitehead, “Environmental Justice Risks in the Petroleum Industry,” William and Mary Environmental Law and Policy Review 24 (2000): 67; Walter Block and Roy Whitehead, “Direct Payment of State Scholarship Funds to Church-Related Colleges Offends the Constitution and Title VI,” BYU Journal of Public Law 14 (2000): 191; Walter Block and Roy Whitehead, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?” University of Toledo Law Review 30 (1999): 223; Walter Block and Roy Whitehead, “Mandatory Student Fees: Forcing Some to Pay for the Free Speech of Others,” Whittier Law Review 20 (1999): 759; Walter Block and Roy Whitehead, “The Unintended Consequences of Environmental Justice,” Forensic Science International 100 (1999): 57; Walter Block and Roy Whitehead, “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies 4 (2002): 229; Walter Block and Roy Whitehead, “Crying ‘Wolf’ in American: Reevaluating Drug Prohibition Policy,” (unpublished).
• 180Hernstein and Murray (1994), pp. 556–58. Whites and males are likely to be over-represented in the provision of these goods and services to the government.
• 181For a debate on this issue between two libertarians, see Gene Healy, “Liberty, States’ Rights, and the Most Dangerous Amendment,” Liberty, August 1999, p. 13; Roger Pilon, “In Defense of the Fourteenth Amendment,” Liberty, February 2000, p. 39; Gene Healy, “Roger and Me,” Liberty, February 2000, p. 46; Roger Pilon, “I’ll Take the 14th,” Liberty, March 2000, p. 15.
• 182See Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21 (cited in Walter Block et al., “Gender Equity in Athletics: Should We Adopt a NonDiscriminatory Model?” Toledo Law Review 30 (1999): 244. Roy Whitehead, Jr. and Walter Block, Journal of Law and Family Studies 4, no. 2 (2002): 229–263.
• 183Most women, on the other hand, even executives, do not consider housework demeaning.
• 184In the first of these columns, “A Silver Lining in Drug Prohibition,” I noted that real criminals who might not otherwise be caught are sometimes jailed for engaging in the drug trade, which they have every right to do. But fewer murderers and rapists at large is surely a good thing. In the second of these columns, “A Silver Lining in Unjust Executions,” I observed that those executed for murders for which they are innocent (a travesty of justice if ever there was one) were sometimes guilty of committing other capital crimes for which they were not charged. Thus, a critique of the death penalty was not as powerful as otherwise thought. In the third, I tried to clarify my position on this issue vis-à-vis several objections that had been made of it.
• 185In the first of these columns, “A Silver Lining in Drug Prohibition,” I noted that real criminals who might not otherwise be caught are sometimes jailed for engaging in the drug trade, which they have every right to do. But fewer murderers and rapists at large is surely a good thing. In the second of these columns, “A Silver Lining in Unjust Executions,” I observed that those executed for murders for which they are innocent (a travesty of justice if ever there was one) were sometimes guilty of committing other capital crimes for which they were not charged. Thus, a critique of the death penalty was not as powerful as otherwise thought. In the third, I tried to clarify my position on this issue vis-à-vis several objections that had been made of it.
• 186In order for there to be a silver lining, there has to be an evil, and, also, some good must come out of it. I am already on record in taking the position that term limits are highly problematic. I did so on grounds blazed by Professor Hans Hoppe. His argument is based on time preference: other things equal, the longer a politician is in office, the more of a long-run viewpoint he can afford to take. If he can leave the office to his children (e.g., a monarchy), he will act even more responsibly; he doesn’t want to kill the golden goose, otherwise there will be nothing left for his progeny to exploit.
• 187In order for there to be a silver lining, there has to be an evil, and, also, some good must come out of it. I am already on record in taking the position that term limits are highly problematic. I did so on grounds blazed by Professor Hans Hoppe. His argument is based on time preference: other things equal, the longer a politician is in office, the more of a long-run viewpoint he can afford to take. If he can leave the office to his children (e.g., a monarchy), he will act even more responsibly; he doesn’t want to kill the golden goose, otherwise there will be nothing left for his progeny to exploit.
• 188There is no one who has done more to combat this pernicious fallacy than Tom Sowell. But he needs all the help he can get on this mission. It is incumbent upon all men of good will to help him in this regard. And one way that we can do so is to recognize one of the side order benefits of that otherwise insidious policy of term limits: that it disproportionately penalizes female politicians.
• 189Another difficulty is that “equal opportunity” is a subjective, not an objective, phenomenon. Women do not come equipped with a little tag which indicates their productivity, once and for all, in a manner from which no dissent is possible. (Nor, of course, do men.) Productivity, rather, is a continually changing phenomenon which varies with, for example, education, intelligence, age, experience, presence or absence of complementary factors of production, which can only be partially quantified, as well as with such factors as motivation and determination, which are completely incapable of exact measurement.
• 190This is not to say it is completely implausible to support the position that EPFEW laws are required. There is ample evidence to suggest that male and female compensation and promotion rates differ. For example, the overall female/male wage ratio for all employees in Canada was 485 in 1979. That is, females, on average, earned only 48.5 percent as much as males. The question is whether or not this reflects an inherent problem in the labor market. The proponents of EPFEW apparently think so. But it is an error to conclude, from such information, that the state of affairs is a result of conscious and hostile human design (i.e., employer discrimination against women), that this is disgraceful and unfair, and that therefore a determined effort on the part of government is required to “right these wrongs.” Consider, in this regard, the statement of no less an authority than Dr. Ratna Ray, Director, Women’s Bureau, Labour Canada:
• 191Economic self-sufficiency for women? “We’ve only just begun!” Despite sporadic progress, there’s a long way to go. Canadian employers, economic planners, and decision-makers should take a long hard look at these figures. Because they tell a shocking story, a story of shortsightedness and languorous efforts towards the utilization of human resources in the workforce. Our publication comes hard on the heels of the National Council of Welfare’s report Women and Poverty which concludes that “After fifty years or so of unpaid, faithful service a woman’s only reward is likely to be poverty.”
• 192Men and women differ in a wide range of economic, educational, and sociological characteristics, each of which exerts an independent effect, raising expected male incomes and reducing expected female incomes. For example, working men tend to be older than women, more highly concentrated in the higher-paying professions, more heavily unionized in the highly skilled and legislatively protected blue-collar industries, and tend to work, to a greater degree, on a full-time, full-year basis.
• 193Men and women differ in a wide range of economic, educational, and sociological characteristics, each of which exerts an independent effect, raising expected male incomes and reducing expected female incomes. For example, working men tend to be older than women, more highly concentrated in the higher-paying professions, more heavily unionized in the highly skilled and legislatively protected blue-collar industries, and tend to work, to a greater degree, on a full-time, full-year basis.
• 194Men and women differ in a wide range of economic, educational, and sociological characteristics, each of which exerts an independent effect, raising expected male incomes and reducing expected female incomes. For example, working men tend to be older than women, more highly concentrated in the higher-paying professions, more heavily unionized in the highly skilled and legislatively protected blue-collar industries, and tend to work, to a greater degree, on a full-time, full-year basis.
• 195Men and women differ in a wide range of economic, educational, and sociological characteristics, each of which exerts an independent effect, raising expected male incomes and reducing expected female incomes. For example, working men tend to be older than women, more highly concentrated in the higher-paying professions, more heavily unionized in the highly skilled and legislatively protected blue-collar industries, and tend to work, to a greater degree, on a full-time, full-year basis.
• 196Not unexpectedly, when female/male income comparisons have been corrected for these factors, the ratio tends to rise. If working women are assumed to retain their own income levels, but to take on the same age pattern as working men, the female/male income ratio rises from 485 to 521; if we assume that females are divided among elementary and university teaching in the same manner as males, the ratio increases from 743 to 814; if the female/male income ratio is corrected in a similar manner for full-year or part-year status, it increases from 528 to 575. See Table l.
• 197As important as these variables are, the strongest determinant of the so-called male/female earnings “gap” is none of these things. Rather, it is marital status, and the asymmetric effects of marriage on male and female earnings. That is, marriage increases male earnings, and reduces female earnings.
• 198This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 199This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 200This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 201This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 202This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 203This occurs for many reasons. Wives, to a greater degree than husbands, take on a higher and disproportionate share of child care and the housework and homemaker tasks. They are more likely to quit their jobs if their partner receives a better job elsewhere, to interrupt their careers for domestic reasons, to place their homes and families ahead of their jobs or professions, and even to purposefully attempt to keep their earnings below that of their spouses. It is impossible to quantify the effects of such phenomena in driving a wedge between married male and female incomes, but there is little doubt that they are important.
• 204() Married and Total figures are published in each year’s Income Distribution by Size (Statistics Canada, Catalogue 13-207). Single and Other averages are from unpublished tables. Survey of Consumer Finances, Statistics Canada.
• 205In order to remedy this situation, we turn to Table 3, which includes only wages and salaries and specifically excludes all other income. As a test of the hypothesis that marital status has widely asymmetrical effects on earnings by sex, Table 3 is an improvement over Table 2 in yet another way: it collapses the categories of “married” and “other” into “ever-married,” which, as the name implies, includes all people who were ever-married, regardless of the marital status they now occupy. That is, it compares people presently married, divorced, widowed, or separated, with those who were never married in their entire lives. Table 3 thus furnishes a comparison of people who have been touched in some way by the institution of marriage with those who have not.
• 206Given the great difficulties, social costs, and unintended negative consequences of proportional representation requirements, quotas, and other similar prescriptions based on retrospective results, and given the market’s ability to reduce discriminatory behavior—in the absence of legislation which retards this process—a case is made, throughout this book, against the employment of affirmative action programs in the private sector. We also noted above that the incentive system operating in the private sector may not work in the public sector. Accordingly, we must now assess the case for equal opportunity programs (based on quotas and proportional representation) in the field of public employment.
• 207Discrimination in the public sector, moreover, is considered unjust and immoral by many. The funds which pay for government employment come from all citizens—including minority members. For anyone to be excluded from a public job because of race, sex, national origin, sexual preference, skin color, or any other such criteria, after being forced to pay for this very same unemployment through coercive taxes, is nothing more than a cleverly disguised, but particularly insidious, form of exploitation.
• 208Discrimination in the public sector, moreover, is considered unjust and immoral by many. The funds which pay for government employment come from all citizens—including minority members. For anyone to be excluded from a public job because of race, sex, national origin, sexual preference, skin color, or any other such criteria, after being forced to pay for this very same unemployment through coercive taxes, is nothing more than a cleverly disguised, but particularly insidious, form of exploitation.
• 209The difficulty is that quotas are unjust. The beneficiaries (in those rare cases where someone actually benefits) are the wrong people: the 18- to 21-year-olds, applying for their first jobs, who never bore the brunt of past employment discrimination, by definition. The real victims are those who would have liked to have been police officers, firefighters, letter carriers, and civil servants in the past but were not even considered, even though fully qualified, because of their race or sex. But these people, for the most part, are already either settled in their present jobs or retired from the labor force. If anything, monetary settlements might seem a preferable alternative.
• 210Insurance is an industry dedicated to pooling and spreading risk. While health, injury, or sickness of any one person is beyond prediction, actuarial tables have been established for the probability of such occurrences in the aggregate. Because of this, insurance companies can charge premiums to large numbers of people and underwrite the costs of the unfortunate few; all customers pay a relatively small amount, in effect, for the security that should they be struck by calamity, they or their loved ones would be protected from great expenses, and thus would remain financially secure.
• 211A case in point is the recent Canadian Human Rights Commission regulation condemning discrimination between men and women with regard to pension plans. It is a plain actuarial fact—established through years of insurance experience—that women tend to live longer than men. With sexual discrimination prohibited, equal pension premiums would render men more profitable customers to insurance companies, as on average they will collect benefits for fewer years. The Canadian Human Rights Commission prohibition will therefore tend to result in (1) the encouragement of male over female labor (men will now be cheaper to employ); (2) the segregation of the labor force by sex (so that no one employer would have to make different contributions on this basis); (3) the withdrawal of employers, especially small ones, from pension plans altogether; and/or (4) the migration of companies to areas which do not prohibit discrimination in pension premium payments on the basis of sex. Needless to say, any of these eventualities would effectively discourage workers from pooling risks concerning retirement income.
• 212Another case in point is the order of the Ontario Consumer and Commercial Relations Ministry to the Fireman’s Fund Insurance Company. The ministry enjoined the insurance company from questioning its clients about their convictions on alcohol or sex-related offences, on whether they are usually restless, sad, or sweaty at night, and on other personal subjects.
• 213There are also affirmative action guidelines approved by several U.S. Bank Regulatory agencies prohibiting discrimination in borrowing. These bar credit application discrimination on the basis of race, color, religion, national origin, gender, marital status, age, and receipt of public assistance benefits. Let us take age as an example, and apply the analysis developed above.
• 214There are also affirmative action guidelines approved by several U.S. Bank Regulatory agencies prohibiting discrimination in borrowing. These bar credit application discrimination on the basis of race, color, religion, national origin, gender, marital status, age, and receipt of public assistance benefits. Let us take age as an example, and apply the analysis developed above.
• 215Forcing banks to ignore the age of the borrower would put them at a competitive disadvantage relative to other lending institutions. And if all lenders could somehow be prohibited from discriminating on the basis of age, this would entail higher recovery costs for bad loans. Banks would thus be forced to offer lower interest payments on savings. This would reduce saving, investment, and lending, with negative repercussions on the economy.
• 216Affirmative action has also been applied, all across Canada, to personal characteristics such as height. In Edmonton, for example, Tall Girls Shops Ltd., a family business with branches in 13 major cities, was refused permission by the Alberta Human Rights Commission to advertise for tall (female) sales clerks. Mr. Gould, the general manager of the concern (which caters to women who average 5’ 10” in height, and excludes women below 5’ 7”), felt that tall sales clerks “could better understand the needs of their customers.” But this line of reasoning was rejected at a Human Rights Commission meeting held in Calgary.
• 217Similar analysis can be applied to the Toronto Towers Tall Club, which limits membership to men above 6’ 2” and women exceeding 5’ 10”. This organization puts on a beauty contest in order to pick a “Miss Tall Toronto”—an “unfair” contest if ever there was one, because it necessarily precludes short women from consideration. (We pass lightly over the question of whether beauty contests per se—and perhaps the institution of marriage, for that matter—improperly discriminate against ugly people.)
• 218But these are matters of aesthetics, unworthy, perhaps, of the attention of dismal economists. More to their interest then will be a statistical study which concludes that 6’ plus men in the United States earn 8 percent more than their shorter counterparts who are under 5’ 6”. This works out to a $500 annual pay hike for each additional inch of height. A Canadian survey shows similar results. Men who earned $25,000 per year or more were 3.7” taller, on the average, than those whose income fell into the $5,000–$10,000 bracket.
• 219Another case of height discrimination took place in Toronto, where local police were criticized in the Clement Report, chaired by the former Attorney General of Ontario. The finding was that the current minimum physical requirements of 5’ 8” and 160 pounds for men are discriminatory.
• 220Nepotism, discrimination, favoritism are the answers; all play an increased role. The landlord cannot (legally) charge more rent; so he feels, with some reason, that he can pick and choose on whatever other basis suits him. If he is so disposed, for example, he can choose beautiful young women as tenants, or people without children, or, given the case we are considering, white persons.
• 221At one fell swoop, the least favored elements of society, the groups who otherwise would bear the brunt of discrimination (tenants with children, ugly women, older persons, homosexuals, blacks, native peoples, minority group members) will have lost the one thing that enables them to compete with more “attractive” individuals: the ability to pay for what they want. Prohibited by law from offering greater financial remuneration, they will be at the bottom of the list of tenants waiting for choice apartments.
• 222But if legitimate lenders face an interest ceiling, they will not be able to recoup their losses on high risk loans with premium interest rates. Their natural inclination will be not to lend money at all to high-risk minorities. Leon Louw says,
• 223In other words, the only way in which poor people can compete with rich people for the available credit or capital is to offset their disadvantage in terms of risk by offering a compensating difference in the form of higher interest. Usury laws limit the maximum permissible interest rate or terms of repayment to that level at which rich people or low-risk borrowers can obtain credit, but at which high-risk borrowers are priced out of the market. This means that the law paraded as being for the protection of the poor against exploitation, in fact discriminates against them and diverts credit and capital from the poor to the rich.
• 224Enter the “loan shark,” or black market lender. Cut off from the normal source of loanable funds, the high risk minority borrower has no alternative but to turn to the underground or underworld economy. Here, such niceties as interest rate ceilings are ignored. The result is much higher interest costs than would otherwise prevail. Nor is the lender hemmed in by time-consuming legalistic machinations; in case of default, he can quickly send in his goon squad with baseball bats and “cement shoes” to ensure loan repayment.
• 225Zoning was conceived in order to preclude the close location of “incompatible land uses,” such as the proverbial glue factory and office tower. But even this noble-sounding mission is fraught with danger for the poor and minority group peoples, for under the guise of eliminating such obvious nuisances, zoning has made it more difficult for any commercial enterprises to infiltrate into the poorer neighborhoods.
• 226This zoning prescription appears as an obvious benefit to those fortunate enough to live in high-quality suburbs. They most often do not work where they live, and usually have automobile access to the business districts, recreational, and shopping areas of their cities. But for many of the poor, prohibiting commercial development in their neighborhoods has meant greater unemployment, or a longer journey to work, and greater difficulties and inconvenience in purchasing amenities.
• 227Zoning laws usually limit the number of people who may occupy, or the amount of housing which may be built on, a given piece of land. The effect is that the poor, who could compete with the rich for prime land by pooling their money and living in higher densities, are precluded from doing so.
• 228Nor are the poor and minorities taken in by the siren song of zoning. An analysis of a straw vote which rejected legislation in Houston indicates that the poorer and more heavily weighted black areas tended to oppose zoning, while the more affluent, exclusionary, and caucasian districts tended to favour it. For example, in an area on the east side of Houston designated “Negro” by the Houston Post, comprising 2/3 tenants and with a 95.3 percent vote for the Democrat in the gubernatorial election, 72.3 percent of the voters rejected zoning. In Sharpstown, an affluent area designated “almost all white” with virtually no tenants, which voted by a 74.3 percent margin for the Republican gubernatorial candidate, only 31.7 percent of the people voted against zoning. Reports Bernard H. Seigan:
• 229The predominant pattern of voting shows that high-income precincts (middle-middle to upper, inclusive) in the newer areas of the city generally supported zoning and that the lesser-income precincts (lower and lower-middle) in the older areas generally opposed it. In general, restricted areas wanted zoning, whereas unrestricted areas rejected it. … There was an exceedingly high correlation between the voter’s record in the straw vote and the voter’s economic status as indicated by median value of home owned or average monthly rental.
• 230The question posed is whether the strong emphasis on proportionality in the Colorado State and Brown University cases is, or should be, the trend in the law. Unfortunately for this determination, the U.S. Supreme Court denied certiorari in both cases. To provide appropriate guidance, the question we must answer is: How will other circuit courts of appeals deal with the regulatory three-prong test, and, ultimately, what will the U.S. Supreme Court do when they eventually grant certiorari?
• 231To answer the question, the remainder of part II of this article deals with the merits and appeals in the four separate decisions involving Cohen v. Brown University, the district court decision in Pederson v. Louisiana State University, and the recent “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” distributed by the U.S. Department of Education, Office of Civil Rights.
• 232To answer the question, the remainder of part II of this article deals with the merits and appeals in the four separate decisions involving Cohen v. Brown University, the district court decision in Pederson v. Louisiana State University, and the recent “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” distributed by the U.S. Department of Education, Office of Civil Rights.
• 233To answer the question, the remainder of part II of this article deals with the merits and appeals in the four separate decisions involving Cohen v. Brown University, the district court decision in Pederson v. Louisiana State University, and the recent “Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test” distributed by the U.S. Department of Education, Office of Civil Rights.
• 234The district court, in Brown University I, while assessing this university’s compliance with Title IX, specifically addressed whether it accommodated effectively “the interest and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.” The appellate court commenced by stating that it may not find a violation solely because there is a disparity between the gender composition of the educational institution and student constituency, on one hand, and its athletic programs, on the other. The appellate court, however, stated that subsection (b) of Title IX also provides that it
• 235The district court, in Brown University I, while assessing this university’s compliance with Title IX, specifically addressed whether it accommodated effectively “the interest and abilities of students to the extent necessary to provide equal opportunity in the selection of sports and levels of competition available to members of both sexes.” The appellate court commenced by stating that it may not find a violation solely because there is a disparity between the gender composition of the educational institution and student constituency, on one hand, and its athletic programs, on the other. The appellate court, however, stated that subsection (b) of Title IX also provides that it
• 236shall not be construed to prevent the consideration in any proceedings … of statistical evidence tending to show that such an imbalance exists with the respect to the participation in, or the receipt of benefits of, any such program or activity by the members of one sex.
• 237The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute, the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments. It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments. The court concluded that Brown University did not meet the requirements of prong one of the three-part test.
• 238The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute, the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments. It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments. The court concluded that Brown University did not meet the requirements of prong one of the three-part test.
• 239The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute, the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments. It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments. The court concluded that Brown University did not meet the requirements of prong one of the three-part test.
• 240The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute, the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments. It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments. The court concluded that Brown University did not meet the requirements of prong one of the three-part test.
• 241The appellate court judges concluded that an institution satisfies prong one (proportionality) if the gender balance of its intercollegiate athletic program substantially mirrors the gender balance of its student enrollment. Taking the view that the phrase “substantially proportionate” must be a standard stringent enough to effectuate the purposes of the statute, the court said that Title IX established a presumption that discrimination exists if the university does not provide participation opportunities to men and women in substantial proportionality to their respective student enrollments. It found that the numerical disparity between male and female athletes in Brown University’s program, approximately 13 percent, was not “substantially proportionate” and was certainly not a mirror image of the gender of the respective male and female enrollments. The court concluded that Brown University did not meet the requirements of prong one of the three-part test.
• 242With regard to prong two, the issue was whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. Prong two illustrates that Title IX does not require the university to leap to complete gender parity in a single bound. It does, however, require an institution to show that it has a history and continued practice of program expansion to increase the number of underrepresented athletes participating in intercollegiate athletics. The court stated that schools may not twist the ordinary meaning of “expansion” to find compliance under prong two when schools have increased their relative percentage of women participating in athletics by making cuts in both men’s and women’s sports. Because Brown University had attempted to comply with prong two by reducing both men and women’s sports to equalize proportionality, the court found it had failed the prong two test.
• 243With regard to prong two, the issue was whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. Prong two illustrates that Title IX does not require the university to leap to complete gender parity in a single bound. It does, however, require an institution to show that it has a history and continued practice of program expansion to increase the number of underrepresented athletes participating in intercollegiate athletics. The court stated that schools may not twist the ordinary meaning of “expansion” to find compliance under prong two when schools have increased their relative percentage of women participating in athletics by making cuts in both men’s and women’s sports. Because Brown University had attempted to comply with prong two by reducing both men and women’s sports to equalize proportionality, the court found it had failed the prong two test.
• 244With regard to prong two, the issue was whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. Prong two illustrates that Title IX does not require the university to leap to complete gender parity in a single bound. It does, however, require an institution to show that it has a history and continued practice of program expansion to increase the number of underrepresented athletes participating in intercollegiate athletics. The court stated that schools may not twist the ordinary meaning of “expansion” to find compliance under prong two when schools have increased their relative percentage of women participating in athletics by making cuts in both men’s and women’s sports. Because Brown University had attempted to comply with prong two by reducing both men and women’s sports to equalize proportionality, the court found it had failed the prong two test.
• 245With regard to prong two, the issue was whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interest and abilities of the members of the underrepresented sex. Prong two illustrates that Title IX does not require the university to leap to complete gender parity in a single bound. It does, however, require an institution to show that it has a history and continued practice of program expansion to increase the number of underrepresented athletes participating in intercollegiate athletics. The court stated that schools may not twist the ordinary meaning of “expansion” to find compliance under prong two when schools have increased their relative percentage of women participating in athletics by making cuts in both men’s and women’s sports. Because Brown University had attempted to comply with prong two by reducing both men and women’s sports to equalize proportionality, the court found it had failed the prong two test.
• 246The court said that prong three—interests and abilities—requires a relatively simple assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to form a new team or require the upgrading of an existing one. Thus, if athletes of the underrepresented gender have both the ability and interest to compete at the intercollegiate level, they must be fully and effectively accommodated. Institutions need not upgrade or create a team where the interest and ability of the students are not sufficiently developed to field a varsity team.
• 247The court said that prong three—interests and abilities—requires a relatively simple assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to form a new team or require the upgrading of an existing one. Thus, if athletes of the underrepresented gender have both the ability and interest to compete at the intercollegiate level, they must be fully and effectively accommodated. Institutions need not upgrade or create a team where the interest and ability of the students are not sufficiently developed to field a varsity team.
• 248The court said that prong three—interests and abilities—requires a relatively simple assessment of whether there is unmet need in the underrepresented gender that rises to a level sufficient to form a new team or require the upgrading of an existing one. Thus, if athletes of the underrepresented gender have both the ability and interest to compete at the intercollegiate level, they must be fully and effectively accommodated. Institutions need not upgrade or create a team where the interest and ability of the students are not sufficiently developed to field a varsity team.
• 249Brown University argued that “to the extent students interests in athletics are disproportionate by gender, colleges should be allowed to meet those interests incompletely as long as the school’s response is in direct proportion to the comparative levels of interest.” In other words, Brown University claimed that it may accommodate fewer than all of the interested and able women if, on a proportionate basis, it accommodates fewer than all the interested and able men.
• 250The court took considerable pains to address why this reading of Title IX was flawed. Brown University argued that they could read the third prong, providing for accommodation of interests and abilities, separately from prong one, requiring substantial proportionality. This view was rejected because the policy interpretation, which requires full accommodation of the underrepresented gender, draws its essence from the statute and requires an evaluation of the athletic program as a whole.
• 251Second, the court stated that any argument is wrong where prong three somehow countervails the meaning of prong one. Such a position overlooks the accommodation test’s general purpose: to decide whether a student has been “excluded from participation in, or denied the benefits of” an athletic program on the basis of sex. The test is whether the athletic program as a “whole” is reasonably constructed to carry out the statute. Brown University’s proposal would be contrary to the purpose of the statute. It would determine athletic interest and abilities of students in such a way as to take into account the nationally increasing levels of women’s interest and abilities as related to their population in the student body. The court clearly did not agree that full and effective accommodation can satisfy the statute when prong-one proportionality is not found.
• 252Second, the court stated that any argument is wrong where prong three somehow countervails the meaning of prong one. Such a position overlooks the accommodation test’s general purpose: to decide whether a student has been “excluded from participation in, or denied the benefits of” an athletic program on the basis of sex. The test is whether the athletic program as a “whole” is reasonably constructed to carry out the statute. Brown University’s proposal would be contrary to the purpose of the statute. It would determine athletic interest and abilities of students in such a way as to take into account the nationally increasing levels of women’s interest and abilities as related to their population in the student body. The court clearly did not agree that full and effective accommodation can satisfy the statute when prong-one proportionality is not found.
• 253Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three: they could not use it to make that determination in the first instance. The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place. The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality. Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.
• 254Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three: they could not use it to make that determination in the first instance. The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place. The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality. Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.
• 255Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three: they could not use it to make that determination in the first instance. The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place. The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality. Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.
• 256Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three: they could not use it to make that determination in the first instance. The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place. The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality. Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.
• 257Brown University’s reliance on student surveys of interest and abilities was also found at fault. The Athletic Investigator’s Manual (The Manual) stated that the intent of its provisions was to use surveys of interest and abilities to follow a determination that an institution does not satisfy prong three: they could not use it to make that determination in the first instance. The court was also concerned that a survey of interests and abilities of the students at Brown University would not be a true measure of their interest and abilities because the school’s recruiting methods could predetermine such interests and abilities in the first place. The judges noted that the test was full and effective accommodation in the whole program, not solely an accommodation of interests and abilities at the expense of disregarding proportionality. Prong three would excuse Brown University’s failure to provide substantial proportionate participation and opportunities only if the university fully and effectively accommodate the underrepresented sex. However, Brown University did not comply with prong three because it failed to increase the number of intercollegiate participation opportunities available to the underrepresented sex and also failed to maintain and support women’s donor-funded teams at Brown University’s highest level, thus preventing athletes on those teams from fully developing their competitive abilities and skills.
• 258Finally, the court found that far more male athletes were being supported at the university-funded varsity level than female athletes, and thus, women receive less benefit from their intercollegiate varsity programs as a whole than do men.
• 259Brown University appealed the district court’s order to effect changes (Brown University III) and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided. It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes. The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court. “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’” Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
• 260Brown University appealed the district court’s order to effect changes (Brown University III) and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided. It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes. The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court. “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’” Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
• 261Brown University appealed the district court’s order to effect changes (Brown University III) and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided. It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes. The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court. “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’” Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
• 262Brown University appealed the district court’s order to effect changes (Brown University III) and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided. It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes. The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court. “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’” Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
• 263Brown University appealed the district court’s order to effect changes (Brown University III) and challenged the analysis of the three-part test employed by the district court in Brown University I, which was approved by the first circuit in Brown University II. The appeals court stunned Brown University by announcing it had squarely rejected Brown University’s reading of the three-part test and that, under the “law of the case” doctrine, the court was precluded from relitigating the issues previously decided. It affirmed the district court’s finding concerning Brown University’s obligation to fully and effectively accommodate the interests and abilities of women athletes. The appellate court did, however, again take strong issue with Brown University’s argument that it could meet prong three of the three-part test by failing to meet the interests and abilities of women to the same extent that it failed to meet the interests and abilities of men. If there is sufficient unmet interest and ability among the underrepresented sex, the institution necessarily failed the test, said the court. “Brown University reads the ‘full’ out of the duty to accommodate ‘fully and effectively.’ Prong three ‘demands not merely some accommodation, but full and effective accommodation.’” Brown University’s interpretation of full and effective accommodation is not in accordance with the law because it cannot withstand scrutiny on legal or policy grounds.
• 264The appellate court again stressed the importance of the proportionality “mirror” image test by observing that a school creates a presumption if it is in compliance when it has achieved a statistical balance. Further, when a statistical balance is not present, the school must fully and effectively accommodate women’s interests and abilities even when that requires a larger slice of the athletic department pie go to women’s programs.
• 265The appellate court again stressed the importance of the proportionality “mirror” image test by observing that a school creates a presumption if it is in compliance when it has achieved a statistical balance. Further, when a statistical balance is not present, the school must fully and effectively accommodate women’s interests and abilities even when that requires a larger slice of the athletic department pie go to women’s programs.
• 266Finally, the court viewed with distaste Brown University’s argument that there is a gender-based difference in the level of sports participation interest that should be considered to allow fewer participation opportunities for women. It viewed such a position as an attempt to ignore the purpose of Title IX and to rely on an outdated stereotyping of women’s interests. In the court’s view, the perceived lack of interest evolves directly from the historical lack of opportunity for women to participate in sports; precisely what Title IX is designed to remedy. Several times the court pointed out that Title IX implementation deserves some credit for the showing of American women athletes in the Olympic summer games.
• 267Finally, the court viewed with distaste Brown University’s argument that there is a gender-based difference in the level of sports participation interest that should be considered to allow fewer participation opportunities for women. It viewed such a position as an attempt to ignore the purpose of Title IX and to rely on an outdated stereotyping of women’s interests. In the court’s view, the perceived lack of interest evolves directly from the historical lack of opportunity for women to participate in sports; precisely what Title IX is designed to remedy. Several times the court pointed out that Title IX implementation deserves some credit for the showing of American women athletes in the Olympic summer games.
• 268Schools with football programs may find some comfort in the dissenting opinion in Brown University because, for the first time, a judge advocated that contact sports, like football, “should be eliminated from the calculus in determining membership numbers for varsity sports.” The judge cited 34 C.F.R. section 106.41(b), which states that a school may have separate teams for members of each sex “when selection is based on … activity involving a contact sport.” In counting participation opportunities for comparison of proportionality, it does not make sense to compare athletes who participate in contact sports that include only men’s teams, said the judge. He believed that not all sports are the same and the school should be able to choose those most beneficial.
• 269Schools with football programs may find some comfort in the dissenting opinion in Brown University because, for the first time, a judge advocated that contact sports, like football, “should be eliminated from the calculus in determining membership numbers for varsity sports.” The judge cited 34 C.F.R. section 106.41(b), which states that a school may have separate teams for members of each sex “when selection is based on … activity involving a contact sport.” In counting participation opportunities for comparison of proportionality, it does not make sense to compare athletes who participate in contact sports that include only men’s teams, said the judge. He believed that not all sports are the same and the school should be able to choose those most beneficial.
• 270Schools with football programs may find some comfort in the dissenting opinion in Brown University because, for the first time, a judge advocated that contact sports, like football, “should be eliminated from the calculus in determining membership numbers for varsity sports.” The judge cited 34 C.F.R. section 106.41(b), which states that a school may have separate teams for members of each sex “when selection is based on … activity involving a contact sport.” In counting participation opportunities for comparison of proportionality, it does not make sense to compare athletes who participate in contact sports that include only men’s teams, said the judge. He believed that not all sports are the same and the school should be able to choose those most beneficial.
• 271In Pederson v. Louisiana State University, the district court examined each prong of the three-part test in the context of whether the university had fully and effectively accommodated the interests and abilities of its female students. The plaintiffs argued that LSU failed to accommodate its female athletes by providing greater athletic opportunities to its male students at a time when sufficient interest and ability existed in its female student population to justify increasing women’s sports opportunities. The specific complaint concerned a perceived failure to provide a women’s fast-pitch softball team.
• 272In Pederson v. Louisiana State University, the district court examined each prong of the three-part test in the context of whether the university had fully and effectively accommodated the interests and abilities of its female students. The plaintiffs argued that LSU failed to accommodate its female athletes by providing greater athletic opportunities to its male students at a time when sufficient interest and ability existed in its female student population to justify increasing women’s sports opportunities. The specific complaint concerned a perceived failure to provide a women’s fast-pitch softball team.
• 273Relying on Colorado State and the foregoing Brown University cases, both plaintiffs and defendants asked the court to find that so long as males and females are proportionally represented in athletics as found in the general student undergraduate population and are given numerically proportionate opportunities to participate in advanced competition, the university should be deemed in compliance with Title IX. Further, if numerical proportionality is not found, the university should be deemed in violation of Title IX.
• 274The court rejected this proposition and specifically stated that it disagreed with the rationale of the Brown University and Colorado State opinions. “Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes.” Therefore, ending the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Title IX specifically does not require preferential, disparate treatment based on proportionality. Rather, those percentages should be considered as evidence “tending to show that such an imbalance exists with respect to the participation in, or receipt of benefits of, any such program or activity by members of one sex.” Consequently, the clear language of the statute prohibits the requirement of numerical proportionality and regarded the Brown University cases as a “safe harbor” for a university.
• 275The court rejected this proposition and specifically stated that it disagreed with the rationale of the Brown University and Colorado State opinions. “Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes.” Therefore, ending the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Title IX specifically does not require preferential, disparate treatment based on proportionality. Rather, those percentages should be considered as evidence “tending to show that such an imbalance exists with respect to the participation in, or receipt of benefits of, any such program or activity by members of one sex.” Consequently, the clear language of the statute prohibits the requirement of numerical proportionality and regarded the Brown University cases as a “safe harbor” for a university.
• 276The court rejected this proposition and specifically stated that it disagreed with the rationale of the Brown University and Colorado State opinions. “Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes.” Therefore, ending the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Title IX specifically does not require preferential, disparate treatment based on proportionality. Rather, those percentages should be considered as evidence “tending to show that such an imbalance exists with respect to the participation in, or receipt of benefits of, any such program or activity by members of one sex.” Consequently, the clear language of the statute prohibits the requirement of numerical proportionality and regarded the Brown University cases as a “safe harbor” for a university.
• 277The court rejected this proposition and specifically stated that it disagreed with the rationale of the Brown University and Colorado State opinions. “Title IX does not mandate equal numbers of participants. Rather, it prohibits exclusion based on sex and requires equal opportunity to participate for both sexes.” Therefore, ending the inquiry at the point of numerical proportionality does not comport with the mandate of the statute. Title IX specifically does not require preferential, disparate treatment based on proportionality. Rather, those percentages should be considered as evidence “tending to show that such an imbalance exists with respect to the participation in, or receipt of benefits of, any such program or activity by members of one sex.” Consequently, the clear language of the statute prohibits the requirement of numerical proportionality and regarded the Brown University cases as a “safe harbor” for a university.
• 278Clearly, the pivotal element of the LSU analysis is the question of effective accommodation of interests and abilities. Given the foregoing, it was imperative that LSU be acquainted with the interests and abilities of its female students.
• 279Because LSU had not conducted a survey of its female students, the court found that there was no credible evidence to establish their actual interests and abilities. LSU simply had no method, discriminatory or otherwise, by which a determination could be made. This school was, and had been, ignorant of the interests and abilities of its student population for some time.
• 280The trial evidence found that LSU’s student population during the relevant period was approximately 51 percent male and 49 percent female and its athletic participation for the same period was about 71 percent male and 29 percent female. Throughout the relevant period, LSU fielded a men’s baseball team. The court accepted evidence that women’s fast-pitch softball was the closest approximation to this sport.
• 281The trial evidence found that LSU’s student population during the relevant period was approximately 51 percent male and 49 percent female and its athletic participation for the same period was about 71 percent male and 29 percent female. Throughout the relevant period, LSU fielded a men’s baseball team. The court accepted evidence that women’s fast-pitch softball was the closest approximation to this sport.
• 282The plaintiffs established that since 1979, there was sufficient interest and ability at LSU to fill a successful Division I varsity fast-pitch softball team, and that in 1983, for some unknown reason, LSU disbanded that program. The plaintiffs also were able to establish that the interest in fast-pitch softball had increased since 1979. Finally, and most critically, the plaintiffs established that intercollegiate play is provided for male students with similar interests and abilities by way of the varsity baseball team. At the same time, LSU provided absolutely no opportunity for women to compete in fast-pitch softball at any level.
• 283The plaintiffs established that since 1979, there was sufficient interest and ability at LSU to fill a successful Division I varsity fast-pitch softball team, and that in 1983, for some unknown reason, LSU disbanded that program. The plaintiffs also were able to establish that the interest in fast-pitch softball had increased since 1979. Finally, and most critically, the plaintiffs established that intercollegiate play is provided for male students with similar interests and abilities by way of the varsity baseball team. At the same time, LSU provided absolutely no opportunity for women to compete in fast-pitch softball at any level.
• 284By not fielding a women’s fast-pitch softball team, LSU failed to accommodate the female plaintiffs’ interests and abilities individually because the interest and abilities to support a softball team existed in the student undergraduate population. The court’s findings suggested that sex discrimination accounted for the discrepancy.
• 285The court then examined the history of expanding opportunities for women athletes at LSU and concluded that the university has demonstrated a practice not to expand its women’s athletics before it became absolutely necessary to do so. The court could find no evidence of a workable plan of action by the university to address the failure to accommodate interests and abilities of women students and concluded that LSU was in violation of Title IX, noting that LSU was a national leader in resisting gender equity.
• 286The court then examined the history of expanding opportunities for women athletes at LSU and concluded that the university has demonstrated a practice not to expand its women’s athletics before it became absolutely necessary to do so. The court could find no evidence of a workable plan of action by the university to address the failure to accommodate interests and abilities of women students and concluded that LSU was in violation of Title IX, noting that LSU was a national leader in resisting gender equity.
• 287In a harsh assessment of the athletic department, the court wrote that its director’s one-dimensional assessment of programs created an atmosphere of arrogance by management that had continued to be undaunted by the facts, up to the date of the trial. LSU’s action was seen as a direct result of the director’s belief that his “women’s athletics” program was “wonderful.” He equated winning teams, rather than participation, as accommodating interest and abilities. The judge interpreted the violations a result of an arrogant ignorance, and confusion regarding the practical requirements of the law, and a remarkably outdated view of women athletes which created the resistance to change.
• 288In a harsh assessment of the athletic department, the court wrote that its director’s one-dimensional assessment of programs created an atmosphere of arrogance by management that had continued to be undaunted by the facts, up to the date of the trial. LSU’s action was seen as a direct result of the director’s belief that his “women’s athletics” program was “wonderful.” He equated winning teams, rather than participation, as accommodating interest and abilities. The judge interpreted the violations a result of an arrogant ignorance, and confusion regarding the practical requirements of the law, and a remarkably outdated view of women athletes which created the resistance to change.
• 289In a harsh assessment of the athletic department, the court wrote that its director’s one-dimensional assessment of programs created an atmosphere of arrogance by management that had continued to be undaunted by the facts, up to the date of the trial. LSU’s action was seen as a direct result of the director’s belief that his “women’s athletics” program was “wonderful.” He equated winning teams, rather than participation, as accommodating interest and abilities. The judge interpreted the violations a result of an arrogant ignorance, and confusion regarding the practical requirements of the law, and a remarkably outdated view of women athletes which created the resistance to change.
• 290A comparison of LSU with Brown University clearly shows a potential split in the circuits concerning the proportionality requirement. According to the LSU court, the theory that numerical proportionality is a “safe harbor” contradicts the prescriptions of Title IX because it treats women as a class rather than as individuals. This decision appears to support the use of surveys to determine the unmet interests and abilities of the student body. In contrast, Brown University shows surveys are inherently unreliable because they only reflect the predetermined interest of the student body.
• 291On January 16, 1996, the OCR released its long overdue “Clarification of Intercollegiate Athletics Policy Guidance: Three-Part Test” as an enclosure to a letter from the assistant secretary for the OCR. It begins by focusing on the athletics programs as a whole. This focus is interesting because the same language is adopted in Brown University and LSU as well as in the Clarification. The Clarification states that an institution’s failure to provide nondiscriminatory participation opportunities for the whole student body usually amounts to a denial of equal athletic opportunity.
• 292On January 16, 1996, the OCR released its long overdue “Clarification of Intercollegiate Athletics Policy Guidance: Three-Part Test” as an enclosure to a letter from the assistant secretary for the OCR. It begins by focusing on the athletics programs as a whole. This focus is interesting because the same language is adopted in Brown University and LSU as well as in the Clarification. The Clarification states that an institution’s failure to provide nondiscriminatory participation opportunities for the whole student body usually amounts to a denial of equal athletic opportunity.
• 293On January 16, 1996, the OCR released its long overdue “Clarification of Intercollegiate Athletics Policy Guidance: Three-Part Test” as an enclosure to a letter from the assistant secretary for the OCR. It begins by focusing on the athletics programs as a whole. This focus is interesting because the same language is adopted in Brown University and LSU as well as in the Clarification. The Clarification states that an institution’s failure to provide nondiscriminatory participation opportunities for the whole student body usually amounts to a denial of equal athletic opportunity.
• 294where an institution provides intercollegiate level athletic participation opportunities for male and female students in numbers substantially proportionate to the respective full-time undergraduate enrollments, OCR will find that the institution is providing nondiscriminatory participation opportunities for individuals of both sexes.
• 295The so-called “safe harbor” test is still safe as far as the OCR is concerned, despite the reluctance of the LSU court.
• 296Among the factors OCR uses to determine whether female interests and abilities are being accommodated are requests by students and admitted students that a particular sport be added; requests that an existing club sport be elevated to intercollegiate team status; participation rates in particular or intramural club sports; interviews with students, admitted students, coaches, administrators, and others regarding interest in particular sports; results of questionnaires of students and admitted students regarding interest in sports; and participation in particular interscholastic sports by admitted students.
• 297Finally, the Clarification suggests that schools have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet the appropriate requirements.
• 298Given the law, the Brown University case was properly decided because the university failed all three parts of the test, not just mandating proportionality. But there are several problems with both the courts’ and the OCR’s strong emphasis on a “substantially proportionate to female enrollment test.” First, failure to achieve strict proportionality need not be evidence of discrimination and therefore cannot be used as a short cut to determine whether an institution is unlawfully discriminating based on sex. Congress explicitly held that proportionality alone was not relevant when it stated that the statute should not “be interpreted to require … preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentages of persons of that sex participating in … institutional programs.”
• 299Given the law, the Brown University case was properly decided because the university failed all three parts of the test, not just mandating proportionality. But there are several problems with both the courts’ and the OCR’s strong emphasis on a “substantially proportionate to female enrollment test.” First, failure to achieve strict proportionality need not be evidence of discrimination and therefore cannot be used as a short cut to determine whether an institution is unlawfully discriminating based on sex. Congress explicitly held that proportionality alone was not relevant when it stated that the statute should not “be interpreted to require … preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentages of persons of that sex participating in … institutional programs.”
• 300Given the law, the Brown University case was properly decided because the university failed all three parts of the test, not just mandating proportionality. But there are several problems with both the courts’ and the OCR’s strong emphasis on a “substantially proportionate to female enrollment test.” First, failure to achieve strict proportionality need not be evidence of discrimination and therefore cannot be used as a short cut to determine whether an institution is unlawfully discriminating based on sex. Congress explicitly held that proportionality alone was not relevant when it stated that the statute should not “be interpreted to require … preferential or disparate treatment to the members of one sex on account of an imbalance which may exist with respect to the total number or percentages of persons of that sex participating in … institutional programs.”
• 301Second, the courts have no authority to impose liability under a federal antidiscrimination law like Title VI and VII unless a defendant has unlawfully discriminated. Title IX simply provided that no individual may be excluded from a federally funded program on “the basis of sex.” A holding, as in Colorado State, that the lack of proportionality creates a disparate impact without considering the impact on accommodating interest and ability, runs contrary to cases that indicate that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.” There must be a failure to accommodate interests and abilities for a violation to occur. Because Title IX provisions are virtually identical to those of Title VI of the Civil Rights Act of 1964, the court should look to Title VI cases which hold that the act only “reaches instances of intentional discrimination.”
• 302Second, the courts have no authority to impose liability under a federal antidiscrimination law like Title VI and VII unless a defendant has unlawfully discriminated. Title IX simply provided that no individual may be excluded from a federally funded program on “the basis of sex.” A holding, as in Colorado State, that the lack of proportionality creates a disparate impact without considering the impact on accommodating interest and ability, runs contrary to cases that indicate that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.” There must be a failure to accommodate interests and abilities for a violation to occur. Because Title IX provisions are virtually identical to those of Title VI of the Civil Rights Act of 1964, the court should look to Title VI cases which hold that the act only “reaches instances of intentional discrimination.”
• 303Second, the courts have no authority to impose liability under a federal antidiscrimination law like Title VI and VII unless a defendant has unlawfully discriminated. Title IX simply provided that no individual may be excluded from a federally funded program on “the basis of sex.” A holding, as in Colorado State, that the lack of proportionality creates a disparate impact without considering the impact on accommodating interest and ability, runs contrary to cases that indicate that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.” There must be a failure to accommodate interests and abilities for a violation to occur. Because Title IX provisions are virtually identical to those of Title VI of the Civil Rights Act of 1964, the court should look to Title VI cases which hold that the act only “reaches instances of intentional discrimination.”
• 304Second, the courts have no authority to impose liability under a federal antidiscrimination law like Title VI and VII unless a defendant has unlawfully discriminated. Title IX simply provided that no individual may be excluded from a federally funded program on “the basis of sex.” A holding, as in Colorado State, that the lack of proportionality creates a disparate impact without considering the impact on accommodating interest and ability, runs contrary to cases that indicate that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation.” There must be a failure to accommodate interests and abilities for a violation to occur. Because Title IX provisions are virtually identical to those of Title VI of the Civil Rights Act of 1964, the court should look to Title VI cases which hold that the act only “reaches instances of intentional discrimination.”
• 305Colorado State and, to some extent, Brown University I, II, and IV disregard the statute’s plain meaning concerning proportionality. These decisions are not in the institutions’ best interest subject to the law nor to the intended beneficiaries, female students. Colorado State holds conduct discriminatory that the statute does not prohibit and appears to specifically permit without regard to the actual interest of female students. Educational and other institutions should be able to rely on reasonable implementation regulations promulgated by the responsible government agency. That agency has published regulations that contain the three-part test including accommodation of interest and abilities of members of both sexes. The OCR regulations explicitly provide that a sports team must be established when there is interest; ability to play the sport; likelihood that the team can be sustained for a number of years; and a reasonable expectation of competition within the institution’s normal competitive region. Admittedly, it may be difficult in some instances to fashion an instrument to achieve a good measure of the interest and abilities in the particular area. However, a properly designed and conducted study of the institution’s drawing and recruiting area can be used to accurately determine whether the interest and abilities of female athletes are being fully accommodated. Such a survey is a better, and more intellectually honest, measure of compliance with the intent of Title IX than an unreasoning reliance on numbers.
• 306Colorado State and, to some extent, Brown University I, II, and IV disregard the statute’s plain meaning concerning proportionality. These decisions are not in the institutions’ best interest subject to the law nor to the intended beneficiaries, female students. Colorado State holds conduct discriminatory that the statute does not prohibit and appears to specifically permit without regard to the actual interest of female students. Educational and other institutions should be able to rely on reasonable implementation regulations promulgated by the responsible government agency. That agency has published regulations that contain the three-part test including accommodation of interest and abilities of members of both sexes. The OCR regulations explicitly provide that a sports team must be established when there is interest; ability to play the sport; likelihood that the team can be sustained for a number of years; and a reasonable expectation of competition within the institution’s normal competitive region. Admittedly, it may be difficult in some instances to fashion an instrument to achieve a good measure of the interest and abilities in the particular area. However, a properly designed and conducted study of the institution’s drawing and recruiting area can be used to accurately determine whether the interest and abilities of female athletes are being fully accommodated. Such a survey is a better, and more intellectually honest, measure of compliance with the intent of Title IX than an unreasoning reliance on numbers.
• 307The analysis should focus on the athlete’s interest and ability to participate in college sports. One cannot seriously argue that all students have the same ability to participate at the university level. Data collected must focus on the disparity between male and female athletes who have the interest in and ability to compete, rather than on the number of males and females in the entire educational community. A simplistic percentage comparison without considering competitive qualifications for varsity athletics lacks real meaning. The rationale of Colorado State and Brown University IV, insofar as they are based solely on statistical disparity, does not allow the university reasonably to present possible interest and ability justifications.
• 308Finally, a reasonable fact-finder should be able to listen to evidence and decide if a college is making a good faith effort to meet the “interests and abilities” test. In an article appearing in the Arkansas Democrat-Gazette regarding the lack of junior women golfers in the state of Arkansas, Arkansas State University’s women’s golf coach, Neil Able stated, “I would love to recruit girls from Arkansas, but they are not here. There is not a lot of emphasis on girls’ golf, nobody seems to be pushing it. It is really a shame because if a girl can shoot between 78 and 82, she can get her education mostly paid for.”
• 309Some athletic administrators, particularly at football-playing institutions with a majority female enrollment, have placed considerable faith, or maybe hope, in their ability to comply with Title IX by accommodating the interests and abilities of female athletes who have the ability to participate at the collegiate level. This faith, or hope, has been shattered by several courts’ perceived reliance solely on proportionality, the first of the three factors used by OCR to assess the equality of opportunity for individuals of both sexes to participate in intercollegiate programs. In Indiana University, Brown University II & III, and Colorado State, the courts found that the participation rates for male and female students were not proportionate to their respective enrollments. In analyzing these decisions, most commentators have focused solely on the first prong and concluded that effective accommodation always requires substantial proportionality of numbers. There has been an unquestioned acceptance that only the first part of the test is relevant.
• 310Some athletic administrators, particularly at football-playing institutions with a majority female enrollment, have placed considerable faith, or maybe hope, in their ability to comply with Title IX by accommodating the interests and abilities of female athletes who have the ability to participate at the collegiate level. This faith, or hope, has been shattered by several courts’ perceived reliance solely on proportionality, the first of the three factors used by OCR to assess the equality of opportunity for individuals of both sexes to participate in intercollegiate programs. In Indiana University, Brown University II & III, and Colorado State, the courts found that the participation rates for male and female students were not proportionate to their respective enrollments. In analyzing these decisions, most commentators have focused solely on the first prong and concluded that effective accommodation always requires substantial proportionality of numbers. There has been an unquestioned acceptance that only the first part of the test is relevant.
• 311Some athletic administrators, particularly at football-playing institutions with a majority female enrollment, have placed considerable faith, or maybe hope, in their ability to comply with Title IX by accommodating the interests and abilities of female athletes who have the ability to participate at the collegiate level. This faith, or hope, has been shattered by several courts’ perceived reliance solely on proportionality, the first of the three factors used by OCR to assess the equality of opportunity for individuals of both sexes to participate in intercollegiate programs. In Indiana University, Brown University II & III, and Colorado State, the courts found that the participation rates for male and female students were not proportionate to their respective enrollments. In analyzing these decisions, most commentators have focused solely on the first prong and concluded that effective accommodation always requires substantial proportionality of numbers. There has been an unquestioned acceptance that only the first part of the test is relevant.
• 312Some athletic administrators, particularly at football-playing institutions with a majority female enrollment, have placed considerable faith, or maybe hope, in their ability to comply with Title IX by accommodating the interests and abilities of female athletes who have the ability to participate at the collegiate level. This faith, or hope, has been shattered by several courts’ perceived reliance solely on proportionality, the first of the three factors used by OCR to assess the equality of opportunity for individuals of both sexes to participate in intercollegiate programs. In Indiana University, Brown University II & III, and Colorado State, the courts found that the participation rates for male and female students were not proportionate to their respective enrollments. In analyzing these decisions, most commentators have focused solely on the first prong and concluded that effective accommodation always requires substantial proportionality of numbers. There has been an unquestioned acceptance that only the first part of the test is relevant.
• 313A compelling argument can be made that a college which meets the third part of the test—that is, accommodates the interests and abilities of its male and female students—is in compliance with Title IX. The statute’s purpose is to provide equality of opportunity, as supported by Louisiana State. Use of the proportionality test, without considering the interests and abilities of female students, would have little value in providing equal opportunity to the actual students who have the ability to play at the college level. What is the logical extension of the proportionality argument which does not include interests and abilities? Proportionality would demand female teams even if there were no interest on the part of the women students. Should a university force female students to participate in varsity sports in which they have no interest or ability? Substantial proportionality erroneously presumes that men and women in the general student body will have the same interest and ability to participate at the same rates in intercollegiate athletics. There is no valid statistical or any other kind of evidence to support that presumption. Additionally, a strict proportionality approach violates the Supreme Court’s holding concerning the use of statistical analyses to support discrimination claims. Finally, the purpose of the statute and its implementing regulations is to accommodate the interests and abilities of both male and female students who have the ability to participate in intercollegiate sports, not to establish some mechanical, numerical quota based on a student population ratio. The slavish and unreasoned reliance on numbers has already created an unfavorable backlash harmful to gender “equity.”
• 314A compelling argument can be made that a college which meets the third part of the test—that is, accommodates the interests and abilities of its male and female students—is in compliance with Title IX. The statute’s purpose is to provide equality of opportunity, as supported by Louisiana State. Use of the proportionality test, without considering the interests and abilities of female students, would have little value in providing equal opportunity to the actual students who have the ability to play at the college level. What is the logical extension of the proportionality argument which does not include interests and abilities? Proportionality would demand female teams even if there were no interest on the part of the women students. Should a university force female students to participate in varsity sports in which they have no interest or ability? Substantial proportionality erroneously presumes that men and women in the general student body will have the same interest and ability to participate at the same rates in intercollegiate athletics. There is no valid statistical or any other kind of evidence to support that presumption. Additionally, a strict proportionality approach violates the Supreme Court’s holding concerning the use of statistical analyses to support discrimination claims. Finally, the purpose of the statute and its implementing regulations is to accommodate the interests and abilities of both male and female students who have the ability to participate in intercollegiate sports, not to establish some mechanical, numerical quota based on a student population ratio. The slavish and unreasoned reliance on numbers has already created an unfavorable backlash harmful to gender “equity.”
• 315A compelling argument can be made that a college which meets the third part of the test—that is, accommodates the interests and abilities of its male and female students—is in compliance with Title IX. The statute’s purpose is to provide equality of opportunity, as supported by Louisiana State. Use of the proportionality test, without considering the interests and abilities of female students, would have little value in providing equal opportunity to the actual students who have the ability to play at the college level. What is the logical extension of the proportionality argument which does not include interests and abilities? Proportionality would demand female teams even if there were no interest on the part of the women students. Should a university force female students to participate in varsity sports in which they have no interest or ability? Substantial proportionality erroneously presumes that men and women in the general student body will have the same interest and ability to participate at the same rates in intercollegiate athletics. There is no valid statistical or any other kind of evidence to support that presumption. Additionally, a strict proportionality approach violates the Supreme Court’s holding concerning the use of statistical analyses to support discrimination claims. Finally, the purpose of the statute and its implementing regulations is to accommodate the interests and abilities of both male and female students who have the ability to participate in intercollegiate sports, not to establish some mechanical, numerical quota based on a student population ratio. The slavish and unreasoned reliance on numbers has already created an unfavorable backlash harmful to gender “equity.”
• 316There is another factor that should reduce administrators’ comfortable reliance on the Athletic Investigator’s Manual and the three-part test. This is the stated goal of the NCAA Gender Equity Task Force report that the numbers of male and female athletes should be substantially proportionate to their numbers in the institution’s undergraduate population. This report language may soon start appearing in future decisions, given the perceived rationale of Indiana University, Brown University, and Colorado State.
• 317The goal of this section is to take issue with the OCR and to criticize the regulations against discrimination it has promulgated. In our view, the basic premise from which government “equity” laws proceed is that absent discrimination, all groups, whether based on race, ethnicity, or, in the present case, gender, would be exactly alike in all major regards; that if virtually exact proportional representation of all categories of people in all activities and accomplishments has not been achieved, this is “inequitable;” and that this inequity represents an exploitation of the “victims” by the “privileged.”
• 318This politically correct perspective is so well entrenched in legal thinking that to even question it is to call forth the charge of irrational and “outdated stereotyping.” It is so inviolable that to question it is to open the critic to charges of “racism” or “sexism,” which are fighting words in any person’s lexicon. The view that all groups are equally endowed with all sorts of interests and abilities is so impregnable that to even mention evidence for the opposite contention is widely seen as rude, unseemly, or in some other way improper. Such claims are refuted not by providing evidence, but through ad hominem attacks. The findings of Thomas Sowell and Walter Williams, which challenge this conventional wisdom, are dismissed not based on errors that have been found in the logic or empirical evidence they offer, but through personal attacks on these researchers.
• 319This politically correct perspective is so well entrenched in legal thinking that to even question it is to call forth the charge of irrational and “outdated stereotyping.” It is so inviolable that to question it is to open the critic to charges of “racism” or “sexism,” which are fighting words in any person’s lexicon. The view that all groups are equally endowed with all sorts of interests and abilities is so impregnable that to even mention evidence for the opposite contention is widely seen as rude, unseemly, or in some other way improper. Such claims are refuted not by providing evidence, but through ad hominem attacks. The findings of Thomas Sowell and Walter Williams, which challenge this conventional wisdom, are dismissed not based on errors that have been found in the logic or empirical evidence they offer, but through personal attacks on these researchers.
• 320Sowell points to the following facts about which “it is virtually impossible to claim that the statistical differences in question are due to discrimination:”
• 321• In the 1850s, over 50 percent of Melbourne’s clothing stores were owned by Jews, who were less than 1 percent of the Australian population.
• 322All of these facts are simply incompatible with the “vision of the anointed” that absent anything untoward, there would be homogeneity of all groups of people over all activities. Sometimes, this basic premise has annoying, and perhaps even infuriating, results, but mostly on an intellectual plane. An example might be its influence generally in the United States at the close of the twentieth century, and particularly the debate over female participation in college athletics. At other times, however, this flawed philosophy has had far more serious repercussions. For example, the Nazi attempt to exterminate the Jews was, at bottom, due to Hitler’s resentment that this minority was more than proportionately represented among German bankers, professors, university students, playwrights, businessmen, doctors and lawyers, and was far more wealthy than the average citizen. It is crucial to realize that there is a notion of proportionality of representation as the norm at work in both examples.
• 323All of these facts are simply incompatible with the “vision of the anointed” that absent anything untoward, there would be homogeneity of all groups of people over all activities. Sometimes, this basic premise has annoying, and perhaps even infuriating, results, but mostly on an intellectual plane. An example might be its influence generally in the United States at the close of the twentieth century, and particularly the debate over female participation in college athletics. At other times, however, this flawed philosophy has had far more serious repercussions. For example, the Nazi attempt to exterminate the Jews was, at bottom, due to Hitler’s resentment that this minority was more than proportionately represented among German bankers, professors, university students, playwrights, businessmen, doctors and lawyers, and was far more wealthy than the average citizen. It is crucial to realize that there is a notion of proportionality of representation as the norm at work in both examples.
• 324It is a matter of great interest that failure to register statistical homogeneity should be interpreted as discrimination in some cases, but not others. Returning to our focus on athletics, consider this statement by Sowell: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.” Were it not for the miasma of political correctness, this statistical disparity would occasion as much criticism as any other. That this situation is not widely resented is thus more than passing curiosity.
• 325RACIAL AND ETHNIC COMPOSITION OF PROFESSIONAL ATHLETIC EMPLOYMENT (IN PERCENT)
• 326As indicated in the table, the roster of professional athletes includes far fewer whites than would occur were they distributed to this employment slot from a random sampling of the population; and, obversely, we must also reject the null hypothesis that blacks are randomly distributed as well. Yet there is not one person in a million who thinks that the owners of these sports leagues (100 percent white) engage in anti-white, pro-black prejudice; that they turn away better scoring, higher jumping, stronger whites to make room on their rosters for weaker, smaller, less athletic blacks. The thought never occurs that black success in this field is due to anything but the fact that blacks bring to the table a great amount of athleticism, power, strength and grace.
• 327First, if we are to take seriously the non-discrimination ethic, there should be no division between female and male sports programs. Given the feminist contention that the genders are alike (apart from unimportant biological matters), it is an egregious matter of segregation to separate the sexes into two different categories. Gender integration is now commonly practiced for children’s soccer leagues, and based on the premises of the anointed, there is no reason not to follow this practice at the university level.
• 328The problem here is that while seven-year-old girls are reasonably competitive with boys of that age, the same does not at all apply to adult men and women. A perusal of any of the male and female world’s records in activities such as swimming, running, throwing, jumping, rowing, skiing, skating, and bicycling suggests that were there no segregation by sex, there would be virtually no females with the requisite strength, speed or other physical attributes to even earn a berth on a university team. In order to be competitive, males and females of very different vintages must confront one another (e.g., the famous tennis match between Billie Jean King, then at the apex of her tennis game, versus Bobby Riggs, who was long past his prime and never had attained stature among men comparable to King’s stature among women, even at the apex of his abilities). Surely it is inequitable, in at least some reasonable senses of the word, to have special categories for female athletes at all. Were there not any such categories, and universities wished to field as many athletes as they now do, there would be a large number of relatively mediocre male athletes who could instead enjoy this experience. On this basis, then, women “athletes” are favored when universities spend any money on these pursuits, for in a purely “fair” world, where slots on teams were awarded strictly in accordance with ability, few women would be able to break through the “sports ceiling.”
• 329Clearly, we believe this state of affairs is not due to the early conditioning of “culture,” or of females by male misogynist fathers. Mothers do most of the early childhood rearing, of both boys and girls. Nor is it due to “self-hating” mothers, who conspiratorially undermine athletic abilities on the distaff side. Instead, there are good and sufficient sociobiological reasons why females should be weaker and slower, on average, than males, and therefore make poorer athletes.
• 330According to scholars of sociobiology and evolutionary psychology, we are the way we are now in large part because of what it took to survive and leave progeny hundreds of thousands of years ago. In those days, and at present as well, for that matter, women were the genetic bottleneck. Or, to put this the other way around, most males were genetically superfluous. That is, one man could fertilize hundreds of women; the others were, biologically speaking, in effect, drones. In contrast, each female was precious in terms of preserving the human race, in that she could leave progeny with the genetic contribution of a single male. Suppose, a long time ago, there were two tribes of (pre-) humans: one of which sent the women out hunting (which sharply penalized non-athleticism) and accorded the men the role of staying in the relatively safer caves with the children while the other group inverted this process. Which of them would survive and leave descendants? To ask this question is to answer it. In fact, we have a name for the first (presumably imaginary) tribe: “extinct.” Thus, the reason men are now far better athletes than women is that males without such attributes were weeded out of the genetic stock to a far greater extent than females. Stated differently, male, but not female, athleticism contributed to evolutionary success.
• 331But sociobiology is merely an explanation of the human (and other species’) condition. We can transcend our “selfish genes” if we wish. That is, this academic discipline can only account for the fact that girl students would have less interest and ability to pursue intercollegiate competition than boys. However, it is not at all prescriptive. Just because female athletes are vastly inferior to their male counterparts does not mean that their desires to indulge in such activities, lesser though they be, should not be accommodated in modern society. On the other hand, given these sociobiological insights, it is difficult to credit the findings of various courts that lesser support for female athletic programs is evidence of sexist discrimination on the part of university administrations.
• 332Why is it that the market is led by “an invisible hand” to provide goods and services for women, who are not “dominant,” or “aggressive” and are thought to be “victims” of discrimination? It is based on profit and loss. The market provides goods and services in proportion to the dollars which are “voted” in their behalf.
• 333Why is it that the market is led by “an invisible hand” to provide goods and services for women, who are not “dominant,” or “aggressive” and are thought to be “victims” of discrimination? It is based on profit and loss. The market provides goods and services in proportion to the dollars which are “voted” in their behalf.
• 334The assumption of private universities is crucial for the case that government intervention is not needed to fully accommodate the demand for intercollegiate sports teams. To the extent that there are public institutions of higher learning, we can no longer rely on market forces to bring about any such result. Thus, any feminists who pay attention to economics should advocate the privatization of higher education. In public universities, there is no economic profit and loss oversight to counteract any tendencies toward anti-female discrimination.
• 335So far, we have been discussing sexual discrimination from a biological and economic perspective. Let us now conclude with a normative analysis. Setting aside the causes and effects of gender discrimination, and the issue of whether it exists on college campuses (or is due to lesser female interest in sports teams), let us ask the question of whether schools should have a right to discriminate in this regard. Nondiscrimination rules apply to “public” accommodations, such as stores, hotels, and movie theaters, but not to certain private choices. That is, it is illegal for a commercial firm’s owner to discriminate on the basis of sex, race, ethnicity, etc., but this may be done, and commonly is done, in dating, friendship patterns, and marriage. If discrimination is such an utter evil, why should it be countenanced in any realm of human endeavor?
• 336So far, we have been discussing sexual discrimination from a biological and economic perspective. Let us now conclude with a normative analysis. Setting aside the causes and effects of gender discrimination, and the issue of whether it exists on college campuses (or is due to lesser female interest in sports teams), let us ask the question of whether schools should have a right to discriminate in this regard. Nondiscrimination rules apply to “public” accommodations, such as stores, hotels, and movie theaters, but not to certain private choices. That is, it is illegal for a commercial firm’s owner to discriminate on the basis of sex, race, ethnicity, etc., but this may be done, and commonly is done, in dating, friendship patterns, and marriage. If discrimination is such an utter evil, why should it be countenanced in any realm of human endeavor?
• 337Second, even within the area of commerce, there is a curious lack of symmetry. Customers are allowed to discriminate between, say, restaurants selling Chinese, Italian, Indian and Mexican food, while none of these establishments would be allowed by law to reciprocate in a similar manner. That is, none of them could legally restrict their clientele to any one ethnic group, or, indeed, exclude any of them.
• 338So the philosophical premise upon which gender equity is built, far from being impregnable, is, in our view, intellectually incoherent. Perhaps, then, an alternative may one day come to take its place: the right of free association. According to this doctrine, people should be free to associate with whomever they wish, on whatever basis they choose; there should be no law compelling them to deal with those they wish to avoid. Strong historical and moral precedent exists for this approach. It is the philosophy upon which the anti-slavery movement is built. The kidnapping of innocent people is the paradigmatic case of the violation of the law of voluntary association. Forcing individuals to interact with one another when it is not on a mutually agreeable basis is a form of slavery. This basic principle still resonates widely, even in this benighted age of gender “equity.”
• 339Finally, the distinguished scholarship program, if newspaper reports are accurate, may be a scheme to channel state aid directly to church-related schools, offending the Establishment Clause under Witters. This is most disturbing. According to Doug Smith, the impetus for the distinguished scholars program did not emanate from the Department of Higher Education. Rather, state senators proposed it. The legislation that came back was not that proposed to the General Assembly by the DHE. The DHE had little choice because thirty-five senators sponsored the enabling legislation. One of its sponsors is quoted as stating that the bill was brought to him by the President of the Independent Colleges and Universities Association, and by the Association’s lobbyist. This certainly raises the issue of a scheme to support religious schools. It will be interesting to see why the Association would want the State rummaging around in their private, church-related educational programs to determine stewardship of state funds. The North Carolina Baptists who wrote to Mr. Madison would surely be offended.
• 340Finally, the distinguished scholarship program, if newspaper reports are accurate, may be a scheme to channel state aid directly to church-related schools, offending the Establishment Clause under Witters. This is most disturbing. According to Doug Smith, the impetus for the distinguished scholars program did not emanate from the Department of Higher Education. Rather, state senators proposed it. The legislation that came back was not that proposed to the General Assembly by the DHE. The DHE had little choice because thirty-five senators sponsored the enabling legislation. One of its sponsors is quoted as stating that the bill was brought to him by the President of the Independent Colleges and Universities Association, and by the Association’s lobbyist. This certainly raises the issue of a scheme to support religious schools. It will be interesting to see why the Association would want the State rummaging around in their private, church-related educational programs to determine stewardship of state funds. The North Carolina Baptists who wrote to Mr. Madison would surely be offended.
• 341Mr. Madison would be saddened by the abuse of his Amendment on the part of the DHE of the State of Arkansas. His two veto messages, and letter to the Baptist Churches of Neal’s Creek and Black Creek, North Carolina, in 1811, sent a powerful message that government has no (none at all) business regulating a religious society, giving a religious society legal agency to carry into effect a public duty, or giving direct aid to a religious society. The Arkansas Distinguished Scholars Scholarship Program has the unique and dubious distinction of offending all of Madison’s notions of separation of religion from influence and regulation by the government.
• 342This was not so because of hostility toward religion but rather to protect religion from the government. He believed that the Constitution granted government no power over religion. It surely follows, as in the Arkansas example, that when a religious society accepts government funds in this manner, the heavy hand of government regulation is sure to follow. It makes no Constitutional difference that church-related schools volunteer for regulation. It still offends the Constitution!
• 343See Walter Block, Defending the Undefendable (1985); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117.
• 344For some, there is no legitimate role for the government at all. On this, see Terry L. Anderson and P.J. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West,” Journal of Libertarian Studies 3 (1979): 9; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1988); Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” Journal of Libertarian Studies 9 (1989): 1, 1–26; Bruce L. Benson, “The Impetus for Recognizing Private Property and Adopting Ethical Behavior in a Market Economy: Natural Law, Government Law, or Evolving Self-Interest?” Review of Austrian Economics 6 (1993): 43; Bruce L. Benson, To Serve and Protect (1998); Bruce L. Benson, “The Spontaneous Evolution of Commercial Law,” Southern Journal of Economics 55 (1989): 644, 644–661; Bruce L. Benson, The Enterprise of Law: Justice Without the State (1990); Alfred G. Cuzan, “Do We Ever Really Get Out of Anarchy?” Journal of Libertarian Studies 3 (1979): 151; Anthony de Jasay, The State (1985); Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (1997); David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism (1989); David Friedman, “Private Creation and Enforcement of Law: A Historical Case,” Journal of Legal Studies 8 (1979): 399, 399–415; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (1993); Hans-Hermann Hoppe, “The Private Production of Defense,” Journal of Libertarian Studies 14 (1998–99): 27; Jeffrey Rogers Hummel, “National Goods Versus Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; James J. Martin, Men Against the State: The Expositors of Individualist Anarchism in America 1827–1908 (1970); Andrew P. Morris, “Miners, Vigilantes, and Cattlemen: Overcoming Free Rider Problems in the Private Provision of Law,” Land and Water Law Review 33 (1998): 581, 581–696; Franz Oppenheimer, The State (1914); Murray N. Rothbard, For A New Liberty (1978); Murray N. Rothbard, The Ethics of Liberty (1982); Murray N. Rothbard, “Society Without a State,” in Anarchism: Nomos XIX (1978), p. 191; Murray N. Rothbard, Man, Economy, and State (1993); Aeon J. Skoble, “The Anarchism Controversy,” in Liberty for the 21st Century: Essays in Contemporary Libertarian Thought (1995), p. 71; Larry J. Sechrest, “Rand, Anarchy, and Taxes,” Journal of Ayn Rand Studies 1 (1999): 87, 87–105; Lysander Spooner, No Treason (1966); Edward Stringham, “Market Chosen Government,” Journal of Libertarian Studies 14 (1998): 53, 53–77; Patrick Tinsley, “With Liberty and Justice for All: A Case for Private Police,” Journal of Libertarian Studies 14 (1998): 95; Tennehill, et al., The Market for Liberty (1984); William C. Woolridge, Uncle Sam the Monopoly Man (1970).
• 345On limited government libertarianism as defined above, see The Libertarian Reader (1982); Tibor Machan, “Against Non-Libertarian Natural Rights,” Journal of Libertarian Studies 2 (1978): 233; Tibor Machan, Capitalism and Individualism (1990); Ludwig von Mises, The Anti-Capitalist Mentality (1972); Ludwig von Mises, Bureaucracy (1969); Ludwig von Mises, Omnipotent Government (1969); Ludwig von Mises, Socialism (1969); Ludwig von Mises, Theory and History (1957); Charles Murray, What It Means to be a Libertarian (1997); Robert Nozick, Anarchy, State, and Utopia (1974); Leonard E. Read, Awake for Freedom’s Sake (1977); Leonard E. Read, Anything that’s Peaceful (1964).
• 346For the libertarian case in opposition to the criminalization of discrimination, see Walter Block, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology 57 (1998): 223; Walter Block, “Discrimination: An Interdisciplinary Analysis,” Journal of Business Ethics 11 (1992): 241; Richard Epstein, Forbidden Grounds (1992); Linda Gottfredson, “The Practical Significance of Black-White Differences in Intelligence,” Behavioral and Brain Science 10 (1987): 510; Linda Gottfredson, “Reconsidering Fairness: A Matter of Social and Ethical Priorities,” Journal of Vocational Behavior 33 (1988): 293; Richard Hernstein and Charles Murray, The Bell Curve (1994); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary 78 (1984): 13; Michael Levin, Feminism and Freedom (1987); Michael Levin, “Why Race Matters: A Preview,” Journal of Libertarian Studies 12 (1996): 287; Michael Levin, Why Race Matters: Race Differences and What They Mean (1997); Charles Murray, “Affirmative Racism,” The New Republic, Dec. 1984, p. 18; Charles Murray, What It Means to be a Libertarian (1997); Jan Narveson, “Have We a Right to Non-Discrimination?” in Business Ethics in Canada (1987); Robert Nozick, Anarchy, State, and Utopia (1974); Murray N. Rothbard, For a New Liberty (1973); J. Philippe Rushton, “Race Differences in Behaviour: A Review and Evolutionary Analysis,” Personality and Individual Difference 9 (1988): 1009; Daniel Seligman, A Question of Intelligence: The IQ Debate in America (1992).
• 347Our critics might think that a good name for this hotel, in view of our last names, would be “Chez Blockhead.”
• 348The same goes for Jews, blacks, homosexuals, females, old people, young people, or any other supposedly “victimized” groups.
• 349We shall henceforth consider the views of the minarchists, or limited-government advocates alone, so as to obviate for argument’s sake the point made by the anarchist libertarians, that government should not exist at all.
• 350There is only one exception to this general rule. If the legitimate function of the government pertains to any of these distinctions, then that may be taken into account. For example, if the police must infiltrate the Mafia, it cannot ask a black cop to do so; for the Bloods or the Crips, a Jewish officer simply will not do; if the police must send someone in to spy on a gang of criminals composed of females, or lesbians, a male is counter indicated.
• 351See text accompanying note 1.
• 352See text accompanying note 1.
• 353We abstract from the question of whether or not the testing instrument accurately distinguishes the one group from the other, assuming for the sake of argument that it does.
• 354See Robert B. Reich, “How Selective Colleges Heighten Income Inequality,” Chronicle of Higher Education Review, http://www.prospect.org/. Mr. Reich criticizes analogous policies (elite universities accepting only very sharp-witted students) because they increase income inequality. This reason should be sharply distinguished from our own: that awarding scholarships to the “best and the brightest” is an instance of statist discrimination. In our view, private citizens, in sharp contrast to governmental agencies, are entirely justified in acting in ways which increase income inequality.
• 355What about ostensibly “private” institutions of higher learning such as Harvard, Yale, and Columbia? These, too, would be considered public in that an inordinate percentage of their budgets emanate from coercive tax levies.
• 356For the application of this argument to Nazi concentration camps, and the voluntary army employed to support an unjust war, see Walter Block, “Against the Volunteer Military,” Libertarian Forum, August 15, 1969, p. 4.
• 357See Thomas Sowell, The Vision of the Anointed (1995), p. 35: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.” See also Jon Entine, Taboo: Why Black Athletes Dominate Sports, and Why We’re Afraid to Talk about it (2000).
• 358See, e.g., White Men Can’t Jump (20th Century Fox, 1992). Also, “white man’s disease” is now common parlance in basketball circles, and refers to the inability of white men to jump high for rebounds, blocks, or slam-dunks.
• 359See below Appendix 1.
• 360See note 155.
• 361See Walter Block and Roy Whitehead, “Human Organ Transplantation: Economic and Legal Issues,” Quinnipiac Health Law Journal 3 (2000): 87; Walter Block and Roy Whitehead, “Environmental Justice Risks in the Petroleum Industry,” William and Mary Environmental Law and Policy Review 24 (2000): 67; Walter Block and Roy Whitehead, “Direct Payment of State Scholarship Funds to Church-Related Colleges Offends the Constitution and Title VI,” BYU Journal of Public Law 14 (2000): 191; Walter Block and Roy Whitehead, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?” University of Toledo Law Review 30 (1999): 223; Walter Block and Roy Whitehead, “Mandatory Student Fees: Forcing Some to Pay for the Free Speech of Others,” Whittier Law Review 20 (1999): 759; Walter Block and Roy Whitehead, “The Unintended Consequences of Environmental Justice,” Forensic Science International 100 (1999): 57; Walter Block and Roy Whitehead, “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies 4 (2002): 229; Walter Block and Roy Whitehead, “Crying ‘Wolf’ in American: Reevaluating Drug Prohibition Policy,” (unpublished).
• 362Hernstein and Murray (1994), pp. 556–58. Whites and males are likely to be over-represented in the provision of these goods and services to the government.
• 363For a debate on this issue between two libertarians, see Gene Healy, “Liberty, States’ Rights, and the Most Dangerous Amendment,” Liberty, August 1999, p. 13; Roger Pilon, “In Defense of the Fourteenth Amendment,” Liberty, February 2000, p. 39; Gene Healy, “Roger and Me,” Liberty, February 2000, p. 46; Roger Pilon, “I’ll Take the 14th,” Liberty, March 2000, p. 15.
• 364See Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21 (cited in Walter Block et al., “Gender Equity in Athletics: Should We Adopt a NonDiscriminatory Model?” Toledo Law Review 30 (1999): 244. Roy Whitehead, Jr. and Walter Block, Journal of Law and Family Studies 4, no. 2 (2002): 229–263.