37. Sexual Harassment in the Workplace: A Property Rights Perspective

37. SEXUAL HARASSMENT IN THE WORKPLACE: A PROPERTY RIGHTS PERSPECTIVE

EMPLOYERS OFTEN EXPRESS SUCH AN UNWARRANTED FEAR OF sexual harassment claims that they ignore the problem and hope that it will just go away and never happen in their workplace. This fear results from a lack of understanding of the nature of sexual harassment claims, confusion about the true meaning of untidy terms like “severe,” “hostile,” and “pervasive,” and ignorance of appropriate management steps to both prevent harassment in the workplace and provide for a legitimate defense to sexual harassment claims. This article

• examines the kinds of sexual harassment claims that arise under Title VII of the 1964 Civil Rights Act,1 as amended by the Civil Rights Act of 1991, the two key federal statutes used to combat sexual harassment in the workplace,

• expresses concern about the First Amendment free speech conflicts that arise in the context of harassment claims,

• discusses practical steps employers may take to reduce the likelihood of both sexual harassment in the workplace and their possible liability, and

• concludes with a philosophical and economic perspective on the issue based on property rights, free association, contract, and free speech.

THE LAW

Under section 102(a) of the 1991 Civil Rights Act,2 both punitive and compensatory damages and a jury trial are available to plaintiffs who win a sexual harassment suit. Title VII, administered by the EEOC, prior to the 1991 Act, only provided for recovery of back pay and restoration of job benefits. The amount that may be recovered under the 1991 Act depends on the size of the employer and ranges from $50,000 to $300,000.3 In addition, state court tort remedies are available for torts resulting from the harassing conduct such as battery, mental anguish, invasion of privacy, outrageous behavior, and wrongful discharge. Such recovery is governed by the law of the various states.

In applying current standards for sexual harassment cases, the courts are becoming more forceful in requiring employers to know about and effectively deal with harassment in the workplace. Employers are accountable for behavior they, “in the exercise of reasonable care,” should have known was occurring.4 Additionally, courts and the EEOC have imposed greater responsibility on management to develop plans to deal quickly and effectively with legitimate sexual harassment claims.5

WHAT DOES IT LOOK LIKE

Sexual harassment in the office means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:6

(a) Submission to such conduct is either explicitly or implicitly made a condition of an individual’s employment;7

(b) Submission to or rejection of such conduct by an individual is used as a basis for an employment decision effecting such individuals;8

(c) Such conduct has a purpose or effect of substantially interfering with an individual’s right to work in an environment free of intimidation, hostility, or threats stemming from acts or language of a sexual nature;9 and/or

(d) the conduct interferes with an employee’s ability to focus on the job responsibilities.10

The EEOC and some courts have found the following to comport with sexual harassment:

(a) Sexually suggestive or obscene comments, threats, insults, slurs, jokes about gender-based traits of a person, or sexual propositions;11

(b) Physical conduct such as intentional touching, pinching, brushing against another’s body, suggesting or coercing sexual intercourse, or physical assault;12

(c) Non-verbal behavior such as leering or staring at another’s body, displaying sexually suggestive photographs, cartoons, or magazines;13

(d) Continued expression of sexual or social interest in an individual after being informed that the interest is unwelcome;14

(e) Belief that an individual is required to consent to the foregoing behavior as a term or condition of her employment;15 and

(f) Employer responsibility for acts of non-employees such as customers or service technicians, when the employer knows, or should have known, of the unwelcome conduct and fails to take immediate or appropriate action.16

Determination of whether conduct amounts to sexual harassment is generally made on a case-by-case basis after looking at all the circumstances. It is apparent, however, that most definitions of sexual harassment turn on an abuse of power in a relationship of unequal power, for example, teacher and student, or supervisor and employee.17

TWO KINDS OF SEXUAL HARASSMENT CLAIMS

The courts and the EEOC recognize sexual harassment claims on two primary theories: quid pro quo sexual harassment and hostile environment sexual harassment. Quid pro quo sexual harassment occurs when a superior conditions the granting of an economic or job benefit upon submission to sexual conduct or punishes the subordinate employee for refusing to comply with the sexual request.18 Hostile environment harassment exists when sexual or gender-related conduct “has the purpose or effect of unreasonably interfering with an individual’s performance or creating an intimidating, hostile, or offensive working environment.”19

In quid pro quo harassment claims, a five-part test has been used by the courts to decide whether the plaintiff has established a prima facie case. In quid pro quo cases, the plaintiff is required to show:20

(a) The employee belongs to a protected group;

(b) The sexual advances were unwelcome;

(d) The individual’s reaction to the advances affected a tangible aspect of employment such as compensation, advancement, terms, conditions, or privileges; and,

(e) Respondeat superior identity has been established.

Once a prima facie case has been established, the burden of going forward shifts to the employer to articulate a nondiscriminatory reason for the employment decision. The employer may show that there is a basis for the same decision even if the harassment had not occurred. To prevail under a quid pro quo theory, some courts require that the plaintiff show some economic injury, like a promotion or pay disparity, arising from the employer’s denial of the employment benefit.21 Here, the employer is strictly liable for the conduct of supervisory employees who are acting within the scope of their authority. Knowledge of the supervisor’s activities is imputed to the employer under a theory that the supervisor is acting as the employer’s agent.22

The hostile environment theory has frightened employers because many believe they are liable for harassment cases that have occurred without their actual knowledge. Further, hostile environment cases may, in cases where the harassment has some relation to the work environment, involve off-job conduct by co-workers or supervisors.23 Under the hostile environment theory, the plaintiff is required to show:

(a) She belonged to a protected group;

(b) She was subjected to unwelcome sexual harassment;

(d) The harassment affected a “term, condition, or privilege, of employment;”

(e) The employer knew or should have known of the harassment in question and failed to take the proper remedial or preventive action.24

Another important concern in hostile environment cases is that the sexual harassment claim need not be based on conduct that is solely sexual in nature, since intimidation and hostility toward gender can result from conduct other than explicit sexual advances. For example name calling, urinating in a gas tank, and refusing to service a company truck driven by new female employees were considered relevant in establishing a hostile work environment based on gender even though the conduct was not explicitly sexual in nature.25 In addition, in a hostile environment case, unlike a quid pro quo case, it is not necessary that the plaintiff suffer any economic loss of employment benefits.26 Finally, sexual or gender stereotyping can contribute to a hostile environment.27

One of the major issues that may arise in a hostile environment case is whether the fact that the alleged victim voluntarily participated in the relevant sexual conduct is a defense to a sexual harassment claim. The question is answered in the leading case of Meritor Savings Bank v. Vinson28 in which the Supreme Court, speaking through Justice Rehnquist, decided that the test is not whether the victim voluntarily participated, in the sense that she was not forced to participate, but whether the sexual advances were unwelcome.29 In Meritor, she was fondled in front of other employees,30 apparently voluntarily visited motels,31 and participated in sexual intercourse forty or fifty times with her supervisor.32 The supervisor also followed her into the restroom during working hours and exposed himself to her.33 She said she participated because she was afraid of the supervisor34 and in order to attain job benefits that included unusually rapid promotions.35

When she eventually left because of the sexual harassment and filed a federal court action, the bank’s defense was that it had no knowledge of the conduct of the supervisor because she didn’t file a grievance36 and that the plaintiff had voluntarily participated in the sexual activity.37 However, the bank had an employee grievance procedure that did not specifically discuss sexual harassment nor inform an employee how to bypass a guilty superior.38 The Supreme Court decided that the test is not whether the victim voluntarily participates, but whether the sexual attention is welcome.39 Other cases have also said that advances that were initially welcome between individuals can become unwelcome if the victim changes her mind and makes it clear to the man that the advances are no longer welcome.40

The Eighth Circuit Court of Appeals has defined unwelcome sexual harassment to mean that “the employee did not solicit or invite it, and the employee regarded the conduct as undesirable or offensive.”41 A woman’s consistent failure to respond to suggestive comments or jokes may be sufficient to express to a man that the conduct is unwelcome.42 On the other hand, the Supreme Court has held that evidence of the plaintiff’s sexually provocative speech or dress may be relevant in determining whether the plaintiff found sexual advances unwelcome.43 In another case, the Eighth Circuit found that nude photographs taken of the plaintiff, and her appearance in a motorcycle publication, were not material to the issue of whether she found the office conduct of other employees hostile.44 Her private life away from work did not mean she acquiesced to sexual comments and advances on the job.45 Finally, if the plaintiff voluntarily initiates or participates in a mutual exchange of sexual comments and jokes with co-workers, this may constitute evidence that the plaintiff welcomed that kind of conduct.46

In a hostile environment case, the harassing conduct must be sufficiently pervasive to alter the conditions of employment and create an abusive environment. Some authorities believe that conduct that keeps the employee from focusing her attention on her job meets this criterion. The plaintiff must also show a practice or pattern of harassment. Usually a single or isolated incident will not be sufficient to establish a hostile environment. Initially the courts decided whether hostile environment existed based on a reasonable person standard. Recently, at least one court has said in cases involving female plaintiffs that the test is a “reasonable woman” standard.47 In that case the court stated:

In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive work environment.48

This reasonable person or reasonable woman standard was not uniformly applied, however, in the various federal circuits. The Supreme Court dealt with this problem in Harris v. Forklift Systems, Inc.49 The defendant employer in Harris claimed that the plaintiff, a strong self-reliant woman, should not prevail because she was unable to show psychological damage resulting from the harassment.50 The company president called Harris “a dumb ass woman,”51 asked her to visit a motel with him to talk about her raise,52 asked her to get coins out of his pocket,53 tossed objects on the floor for her to pick up,54 said she closed a sale by promising sex to the customer,55 and made sexual innuendos about her clothing.56 The Supreme Court rejected the employer’s psychological harm defense and defined the appropriate standard as (1) whether a reasonable woman would find the harasser’s conduct sufficiently severe or pervasive to alter conditions of employment, and (2) whether subjectively the victim perceived the environment as abusive.57 The majority said that “Title VII comes into play long before the harassing conduct leads to a nervous breakdown.”58 If the environment is hostile and abusive to an employee, there is no additional need for it also to be psychologically injurious.59

What are we to make of the requirements that the conduct be “severe” or “pervasive” enough to create a hostile or abusive environment for the plaintiff or a reasonable person? These terms are troubling to a First Amendment student because neither the EEOC nor the courts bother to define them. “Severe,” “hostile,” and “pervasive” are perplexing terms. Reasonable people, even of the same philosophical perspectives, will differ on what they mean. It is a bit like nailing Jell-O to the wall. We do know that these words have been construed to refer to crude political statements about a member of the congress,60 a painting61 pinups,62 an explicit card,63 and a telephone call.64 Given the “Jell-O-ness” of the rule, it is difficult to judge how others will apply it. There is a real danger that some fact finders, or more likely regulators, will conclude that various religious or political statements, vulgar jokes,65 or indecent art can be severe and pervasive enough to create a hostile environment. More so when the regulators find the expression personally disagreeable or politically incorrect. So, there is a real potential that sexual harassment law can be used to suppress protected speech. It is the nature of the employment context.

The employer’s natural response, given that he does not even know exactly what the terms mean, is to avoid possible liability, and will likely cause him to “shut the employees up.”66 After all, that is the safe approach! An employer concerned about sexual harassment liability can’t profit from the employee’s speech, he can only lose from it.67 This is precisely the chilling effect on protected speech that vague laws and regulations that use untidy words like “pervasive,” “severe,” and “abusive” have.68 Vagueness leads people to steer far wider from the forbidden zone of actual harassment than if the boundaries are clearly marked.69 The employer’s only safe recourse is a zero-tolerance policy. In any case, harassment law poses First Amendment problems regardless of how it is handled because speech that “stigmatizes” or “victimizes” someone does not always strip aside the speaker’s First Amendment protections. Despite these troubling problems, the courts plow on in their quest to cleanse the workplace of “severe” and “pervasive” conduct and speech, whatever the terms mean. The next sexual harassment venture of the Supreme Court was to try to lay down some boundaries for alleged “supervisor” harassment.

LAYING DOWN THE LAW FOR SUPERVISOR HARASSMENT

In two precedent-setting cases,70 the Supreme Court attempted to clarify the liability tests for employers when a supervisor is alleged to have sexually harassed an employee. They provide a roadmap for employer liability and possible defenses in two relatively common instances. First, when an employee is victimized by a supervisor with immediate (or higher) authority over the employee. And, secondly, in situations when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate’s terms or conditions of employment, based on sex, but when rebuffed, does not act to fulfill the threat.

A. FARAGHER71

After resigning as a lifeguard for the city of Boca Raton, Florida, Beth Faragher sued the city and her two immediate supervisors, alleging that the male supervisors had created a “sexually hostile atmosphere”72 by repeatedly subjecting her and other female employees to “uninvited and offensive touching,”73 by making lewd remarks, and by speaking of women in offensive terms.74 She claimed this conduct constituted discrimination in the “terms, conditions, and privileges of her employment”75 in violation of Title VII of the Civil Rights Act.76 Faragher never complained to higher city officials about the treatment.77 Another supervisor once told another female employee, “the city just doesn’t care.”78 There was no showing that higher-echelon officials of the city (employer) had actual knowledge of the two supervisors’ conduct.79 The city had a sexual harassment policy but failed to provide it to the beach employees.80 It made no effort to keep track of the conduct of the two beach supervisors,81 and the city’s policy failed to provide for a procedure to bypass harassing supervisors in filing a complaint.82 The lower courts split on the issue of the city’s liability.

The Supreme Court decided that “[an] employer is subject to vicarious liability to a victimized employee for an actionable hostile sexually environment [claim] created by a supervisor with immediate (or successively higher) authority over the employee.”83 The term “vicarious” generally means performed, exercised, received, or suffered in place of another.84 When the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, firing, failure to promote, reassignment with different responsibilities, undesirable working conditions, or a decision resulting in a significant reduction in benefits, the liability is absolute.85 This is so because tangible employment decisions are the means by which the supervisor brings the official power of the enterprise (employer) to bear on the employee.86 A tangible employment decision, such as a retaliatory discharge for rebuffing sexual advances, requires an official act of the enterprise, a company act.87 For these reasons, a tangible employment action taken by the supervisor becomes, for Title VII purposes, an act of the employer.88

The next question is whether there is employer liability when the commission of supervisor sexual harassment does not result in a tangible employment action.89 Here, the answer is less obvious. However, the Court did provide important guidance for management on steps that may be taken to avoid liability.90 The Court did so by establishing two affirmative defenses that may be raised when no retaliation or loss of tangible job benefits has occurred.91

THE EMPLOYER DEFENSES

In Faragher, the Court said that when no tangible job action is taken against the employee, the employer may raise two affirmative defenses to liability or the award of damages:92

(a) [T]hat the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) [T]hat the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Justice Souter wrote that the need for a stated sexual harassment policy and grievance procedure suitable to the employment circumstances may be addressed in litigating the first element of the defense,93 and that a demonstration that the complaining employee unreasonably failed to use the established complaint procedure will normally suffice to satisfy the second element.94 Applying the two affirmative defenses to the facts of Faragher, the court found as a matter of law that the city could not have exercised reasonable care because it failed to provide its sexual harassment policy to beach employees, made no attempt to keep track of the two beach supervisors’ conduct, and its policy failed to provide a procedure to bypass harassing supervisors.95

B. BURLINGTON V ELLERTH96

Kimberly Ellerth quit her job after 15 months as a salesperson with Burlington Industries, alleging she had been subjected to sexual harassment by a mid-level supervisor, Ted Slowik.97 Slowik had authority to hire and promote employees, subject to higher approval: he was not a policy maker.98 Ellerth claimed to have been subjected to repeated boorish and offensive sexual remarks and gestures and was threatened with a loss of job benefits.99 On one occasion when she failed to respond to remarks Slowik made about her breasts, he told her, “you know Kim, I could make your life very hard or very easy at Burlington.”100 Ellerth rebuffed all of Slowik’s advances, yet suffered no retaliation and was, in fact, promoted once.101 Moreover, she never informed anyone in authority of Slowik’s conduct despite knowing about Burlington’s sexual harassment policy.102

Justice Kennedy again held that an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate, or successively higher, authority over an employee.103 The liability is absolute when the employee has suffered the loss of a tangible job benefit, like a promotion, for rebuffing the sexual harassment.104 Again, the Court maintained that when no tangible job action has been taken against the employee, the employer may raise the two affirmative defenses of reasonable care to prevent and promptly correct sexually harassing behavior and the unreasonable failure of the employee to take advantage of preventative or corrective opportunities provided by the employer’s sexual harassment policy.105 The Court remanded the case to the trial court for a determination of whether Ellerth had a claim for vicarious liability and whether the affirmative defenses applied.106

PUBLIC POLICY GOALS OF THE COURT

The decisions in Faragher and Burlington clearly illustrate several public policy goals of the Supreme Court. First, the Court is clearly sending a signal to employers that the actions of a supervisor, which affect a tangible job benefit of the harassed employee, will trigger absolute employer liability because they are company acts.107 Secondly, the primary purpose of Title VII is to “make whole persons who suffer discrimination.”108 The Court is advancing this primary purpose by demanding that employers publish, educate employees and supervisors about, and enforce sexual harassment grievance procedures. Finally, the Court is encouraging employees to mitigate any damage to their employment by requiring them to take advantage of those employer-promulgated sexual harassment grievance procedures in order to prevent a hostile environment. It apparently seeks to promote these goals by providing a reward in the form of an affirmative defense to employers who comply and to deny recourse to employees who refuse to follow properly drafted employer sexual harassment grievance procedures. Thus, the next important question is what kind of employer action is necessary to comply and avoid liability for supervisor harassment?

MANAGING SUPERVISOR SEXUAL HARASSMENT LIABILITY

There are several steps the astute employer may take to limit liability for supervisor sexual harassment claims. First, all supervisors should be informed, in writing, that sexual harassment of a subordinate that affects a tangible job benefit, as previously defined, will result in absolute employer liability. This is so because the denial of a tangible job benefit, for the purposes of Title VII, becomes a company act.109 There are, in addition, several preventive steps that must be taken in regard to all employees.110 They are:

(1) The employer should publish a strong, well-articulated policy concerning sexual harassment;

(2) All employees should be informed of, and provided a copy of, the policy;

(3) The CEO should clearly and forcefully advise all employees that sexual harassment will not be tolerated.

(4) The complaint procedure should allow employees to report sexual harassment to someone other than the harassing supervisor;

(5) Supervisors should be informed, in writing, that the employer is absolutely liable for a supervisor’s sexual harassment involving the loss of an employee’s tangible job benefits; and

(6) The employer should swiftly take appropriate remedial action by fairly investigating, taking effective action, protecting the victim from retaliation, and restoring any lost tangible job benefits in a timely manner.

Many astute employers have already taken some or all of these preventive steps. A careful reading of some previous sexual harassment decisions reveals that the courts, as a matter of policy, are requiring employers to educate their employees, adopt effective and fair complaint procedures, guard against retaliation, and effectively deal with sexual harassment complaints. For example, the courts will consider a policy that specifically addresses and effectively deals with sexual harassment when reviewing liability issues.111 Those employers whose sexual harassment policies and procedures do not comport with these decisions are well advised to adopt the appropriate policies forthwith.

As previously stated, employers are very concerned about strict liability under the so-called hostile environment theory, correctly contending that the conduct complained of may have occurred without their knowledge. Given Faragher and Ellerth, what kind of action can the employer take that will constitute a legitimate defense against both quid pro quo and hostile environment sexual harassment claims? The law in this area is still developing, but some commentators say that there are several key steps that employers can take to protect against liability.112 In fact, the EEOC, by regulation, mandates that the existence of a sexual harassment policy and complaint procedure is relevant and will directly affect the employer’s liability.113 Thus, the failure to provide a reasonable policy and complaint procedure for employees is convincing evidence that the employer has ignored the problem, and will likely lead to employer liability for sexual harassment claims.

A careful reading of Meritor also shows that the Supreme Court will consider effective a policy that specifically addresses sexual harassment, rather than merely discrimination, when reviewing liability issues. We also know from Meritor that a procedure requiring the employee to complain to or through the person who is the harasser is an inadequate defense because it violates EEOC guidelines.114 The EEOC guidelines recommend that the employer’s remedy should be “immediate and appropriate.”115

One of the distressing traps that employers have fallen into in the past is, despite their good motives, appearing to be insensitive to the victim of harassment. In one case, the Internal Revenue Service allowed the harasser to continue to send bizarre letters to the victim after he had been told by his superiors to stop. Then, when they failed to stop the harassing conduct, they actually transferred the victim, rather than the harasser, to another city.118 The bottom line is that an employer has an affirmative duty to take immediate action in sexual harassment matters, and that an honest effort to comply with that affirmative duty is often going to be a satisfactory employer defense.

What responsibility, if any, does a victim of sexual harassment have, and how can the victim protect herself?119 Many victims tolerate harassing behavior for a considerable period of time because they believe that if they do not say anything the problem will just disappear. This is probably the worst approach to follow because the harassment may be motivated as much by the exercise of power over the victim as by sexual interest. Generally, the victim should speak up and make quite clear to the harasser that the unwelcome conduct will not be tolerated. The victim should keep careful records of what is happening, including times, dates, and locations. The victim should also create a record by writing a letter to the perpetrator or to a trusted friend carefully outlining what has occurred.120

Employers clearly have a responsibility to develop effective policies to deal with sexual harassment in the workplace. Those employers who have not already developed separate and effective sexual harassment policies are placing their financial assets at risk. The successful sexual harassment policy will be supported by the chief executive officer,121 offer a clear and convenient, separate method of complaining about sexual harassment,122 provide for an immediate and fair investigation,123 and demonstrate to employees that sexual harassment will not be tolerated and that disciplinary action will be taken swiftly.124 Employers who establish and follow an appropriate sexual harassment policy will benefit from a lessened risk of employer liability. The employer who heeds Justice Ginsberg’s admonition that “[i]t suffices to prove that a reasonable person subjected to discriminatory conduct would find … that the harassment so altered the working conditions as to make it more difficult to do the job”125 will have little concern about sexual harassment in the workplace. What rational employer wants employees not to focus on the job at hand? But, is this the best way? We now turn to a philosophical, property-rights approach to escaping government coercion.

PHILOSOPHY

We have set the stage for our consideration of sexual harassment law by describing it, giving its rationale, citing cases, and offering advice to employees and employers as to how they can most likely avoid becoming enmeshed in lawsuits concerning this offense. We have in this way, to the best of our ability, analyzed it from a positive perspective. But to do so is only to set the stage for examining these legislative and judicial enactments from the normative point of view. We now leave off our description of these laws and how they work and take up a discussion of whether or not these laws are just and, even, logically coherent. In a word, the answer we offer is, “No.”

It is now time to cast a baleful, philosophical eye on the entire enterprise of sexual harassment legislation, prohibition of quid pro quo agreements, and legal opposition to hostile environments. We do so from the classical liberal perspective, one based on private property, contract, freedom of association, and free-speech rights.126 In this view, all human interaction should be voluntary. The law should prohibit only those acts that violate the rights of people to the sanctity of their persons and justly owned property. To relate this to the issue at hand, the law against rape is certainly a legitimate one. For when this act occurs, a man exerts physical force against a woman127 in opposition to her own will; this is an invasive act, one which attacks a woman’s most important private property right, that in her own person.128 This holds, too, for assault and battery, which encompasses even the slightest of unwanted touching.129

Let us now consider how a hostile environment stacks up in this regard. We argue that it is not a per se violation of human rights. One can readily imagine a scenario in which women are subjected to the most hostile of sexually tinged environments, where they are paid to accept such treatment, and do so willingly—for example, a strip bar. There, men taunt women; they ask them to disrobe; they make lewd and suggestive remarks about their figures, their clothes, their makeup; they tell off-color jokes, etc. It is hard to imagine an environment more sexually hostile than that. If we are to take seriously laws prohibiting a hostile environment, all such establishments should be shut down, forthwith. From the fact that they are not, that is, that firms which provide such services are allowed to operate with legal impunity, we may deduce that the prohibition of a sexually hostile environment is honored more in the breach than in the fact. Further, we may also conclude that there is something philosophically suspect about legislatively proscribing hostile environments. It is as if rape or murder were declared illegitimate, except when it occurs legally. We have here, in other words, a legal system with no less than an inner contradiction.130 We as a society have not banned strip clubs, nor should we, since they are instances of “capitalist acts between consenting adults.”131 But strip clubs are a paradigmatic case of sexual harassment. Therefore, logical consistency requires that since strip clubs are legal, then so should sexual harassment be, for the latter is precisely and exactly what takes place in the former.

And no less is true of quid pro quo, the bête noir of the feminists. The essence of this sort of agreement is voluntary mutually beneficial trade, barter or exchange: you give us this, and we will give you that. As such, quid pro quo is the very basis of the free enterprise system and, indeed, of the entire western cultural vision of society. There are, after all, only two possible ways for human beings to interact with one another: through seizing each other’s person and property, or receiving them (or the use of them) only with the agreement of the other party, typically in return for something of one’s own. Norman Rockwell drew a very famous Saturday Evening Post magazine cover, depicting a milk deliveryman and pie deliveryman, each one sitting in his own truck and partaking of both food items. Nothing can better illustrate quid pro quo than the sort of peaceful trade that occurred immediately prior to this artistic rendering. We are certainly not ready to rule out all purchases and sales on the ground that they are living illustrations of quid pro quo in action. Given this, there are no logical grounds on the basis of which we can insist that they not be allowed in this one aspect of the law.

Consider the fact that prostitution is legal in some parts of Nevada.132 The implication is that, at least in these areas, it is licit to offer consideration for sexual services. But if so, then it is well within the law to make what would otherwise be considered lewd and lascivious offers to women—namely, money for sex.

Suppose that we, the authors of the present paper, set ourselves up as the Blockhead Corporation, located in Reno, Nevada, and wish to hire a female who would function half time as a secretary and half time as a prostitute. We advertise for the usual secretarial skills (typing, filing, correspondence, etc.), and also for those suitable to the other half of the job as well. After she is hired, we avail ourselves of both types of her accomplishments. We have now probably violated, and with a vengeance, every injunction in the panoply of the genus sexual harassment, species quid pro quo and hostile environment. Nevertheless, we should not be considered law violators.133 Prostitution is legal. And this applies too, to secretarial services. Yet, it should not be the case that when we combine two perfectly legal, contractual, employment interactions, the sum total of them should be considered illegal. It is difficult for the logical mind to come to any such conclusion.134 Nor is it any proper objection to our thesis to claim that prostitution is legal in only a small part of the country.135 There are two possible rejoinders to this. First, if quid pro quo contracts with females and the imposition of an environment hostile to them can be demonstrated as behavior which violates no law (even if only in most of Nevada), then we have shown that there is nothing per se problematic about sexual harassment. If so, it should not be proscribed anywhere else, either. Second, a case on libertarian grounds can easily be made on behalf of legalizing prostitution in all other jurisdictions. After all, if a woman really owns her own body, an oft-made contention of the feminist and pro-choice forces,136 then she can decide for herself to use it to provide sexual services to men for a fee. Denying this is to turn back the clock to an era in the U.S. when the signature of an adult woman on a contract would be considered null and void.

Suppose, however, that a foreman of the Blockhead Corporation, unbeknownst to us, makes a quid pro quo offer to a female employee: either go to bed with him and get a raise, or refuse and be fired. Now, it has already been established that we, the owners of the corporation, have a right to do this, provided no physical threat or fraud occurs. And, if it is licit for us to engage in such activities, it is also legitimate for us to pass on to our foreman the right to operate in this manner. We might do so, for example, in lieu of paying a higher salary.

But suppose our policy is not to allow quid pro quo (sex for money) contracts in our corporation on the part of our employees, but our foreman does this on his own initiative. Let us consider the libertarian analysis that applies in this case. Our answer is that while this man did not violate the rights of the woman (after all she, is an adult, a free agent, able to make up her own mind about offers of this sort), he did transgress against us, the owners of the firm. Rothbard’s analysis of the analogous case of payola is worthy of quotation at length:

In a typical payola scandal, a record company bribes a disc jockey to play Record A. Presumably, the disc jockey would either not have played the record at all, or would have played Record A fewer times; therefore, Record A is being played at the expense of Records B, C, and D which would have been played more frequently. … Surely, in a moral sense, the public is being betrayed in its trust in the disc jockey’s sincerity. … But the public has no property right in the radio program, and so they have no legal complaint in the matter. … The other record companies, the producers of Records B, C, and D, were also injured since their products were not played as frequently, but they, too, have no property rights in the program. …

Was anyone’s property rights aggressed against by the disc jockey’s taking of a bribe? Yes, … the disc jockey violated his contractual obligation to his employer … to play those records which in his view will most suit the public. Hence, the disc jockey violated the property of the station owner or sponsor. … [I]t is the disc jockey who accepts payola who has done something criminal and deserves to be prosecuted, but not the record company who paid the bribe.

Furthermore, if the record company had bribed the employer directly … then there would have been no violation of anyone’s property right and therefore properly no question of illegality. Of course, the public could easily feel cheated if the truth came out, and would then be likely to change their listening custom to another station or sponsor.137

As for the payola-accepting jockey, so for the foreman of Blockhead who uses this firm for his own advantage, against his employers’ interest. The woman in the case no more has her rights violated than do the producers of Records B, C, and D, nor the listening public. Further, were the radio station to allow the disk jockey to accept payola from Record Company A, in lieu of a higher wage, it would be entirely within its rights, since the radio station and only the radio station owns the right to play what it wishes. Similarly, if Blockhead pays the foreman with lower wages, but allows him the right to engage in quid pro quo contracts with the female employee, then again no one’s rights are violated.

There is an obvious point to be made here—the owners of the firm own the right to engage in quid pro quo contracts with female employees. If they cede it to a foreman, for mutually agreeable consideration, well and good. But if he seizes this on his own, he is stealing from the firm. The kernel of truth behind legal prohibitions of quid pro quo dealings on the part of employees is this: without the express permission of the employer, it amounts to theft from the employer. Thus, quid pro quo may be legitimately precluded from the workplace in certain circumstances. This arises not due to any intrinsic impropriety, but because it is a prerogative of the firm, and the firm’s owners object to the use of quid pro quo on the part of their male subordinates without permission.

There is a bottom line in all of this: hostility is in the eye of the beholder. There is no such thing as an objectively defined hostile environment. The reasonable woman standard is an exercise in logical futility, for female tastes in this (as in so much more) vary widely. One woman’s hostile environment is another’s ideal employment situation. The female who is comfortable working in Hooters might be very unhappy employed by a nunnery; one who can prosper in the milieu of a house of prostitution might feel out of place in a kindergarten. Similarly, those who yearn to work in a library, bank, elementary school, or law office might not find a safe and happy harbor as a waitress in a topless restaurant.138

CRITIQUE OF THE LAW

Let us now consider in detail some of the specifics of this law discussed above in a purely descriptive manner. We shall intersperse commentary into the citation of the law. As we state above:139

Sexual harassment in the office means unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when:

(a) Submission to such conduct is either explicitly or implicitly made a condition of an individual’s employment.140

This may be disregarded. If it is agreed to by consenting adults, there is no warrant for setting such a contract aside, any more than there is for any other such agreement.

(b) Submission to or rejection of such conduct by an individual is used as a basis for an employment decision effecting such individuals.141

There is no other rational way in which the bordello employer can decide whom to employ.

A woman may indeed have such a right.143 But if she does, she also has a right to renounce it, for a fee, if she so wishes. To deny the latter is to deny the former. That is, if the EEOC maintains that a female does not have the right to relinquish what would otherwise be her right not to be continually approached in a sexual manner, then she cannot have that right in the first place, contrary to the views of this regulatory body.

(d) The conduct interferes with an employee’s ability to focus on the job responsibilities.144

Consider again the Blockhead firm located in Reno, Nevada (or anywhere else where prostitution is legal). None of our sexual advances can be considered unwelcome since the woman we hire will contractually agree to accept these overtures. It is an explicit part of the contract; by signing it, she obligates herself to perform these duties. We may indeed legitimately threaten her if she withholds sexual services because in such a case she is guilty of contract violation. Our threat would be similar to that of any (ordinary) employer whose secretary refuses to type and file, or whose bordello prostitute refuses to entertain men in bed: she will be fired and her salary go unpaid. It is impossible, moreover, for our conduct to interfere with the employee’s ability to focus on job responsibilities because these are precisely her job responsibilities. We continue to cite from our previous description of the law:

Some behaviors found by the EEOC and the courts to constitute sexual harassment are:

(a) Sexually suggestive or obscene comments, threats, insults, slurs, jokes about gender-based traits of a person, or sexual propositions.145

But it is obvious, the politicians responsible for these laws notwithstanding, that this is precisely what occurs in a peep show emporium, or with regard to a Victoria’s Secret catalogue. If the law does not prohibit these activities, and it does not, then it is intellectually incoherent for it to proscribe so-called sexual harassment.

(b) Physical conduct such as intentional touching, pinching, brushing against another’s body, suggesting or coercing sexual intercourse, or physical assault.146

Coercing sexual intercourse is rape. Intentional unwanted touching and pinching and brushing constitute battery. No responsible legal commentator opposes the prohibition of such per se criminal behavior. But suggesting sexual intercourse is surely an entirely different matter. If the EEOC and the courts ever succeeded in eliminating such suggestions, this would sound the death knell for the human race. That the dating and mating game should be played out only, perhaps, at least so far, in bars, while legally prohibited from churches, universities, and the workplace, is certainly not mandated by the idea that coercion should be banned from human interaction.

The point is, suggesting sexual intercourse has widely been interpreted as promoting a hostile environment, or constituting sexual harassment, when it occurs on a college campus, especially if the suggestor is a male professor and the suggestee is a female student. Similar findings have been made for the business firm, particularly if the initiator of this suggestion is a male boss, and it is made to a female subordinate. And yet, as we have seen, suggesting sexual intercourse is the paradigmatic action at the Blockhead company. We have already established the legal validity of this firm’s practices (at least in most parts of Nevada). Legal consistency requires that, at the very least, suggesting sexual intercourse be allowed in these domains. Suggesting sexual intercourse, at least at some point in the heterosexual relationship, is the primary vehicle for the perpetuation of the human race. If this is deemed per se illegal harassment, it can only serve the interests of those who oppose heterosexuality.

(c) Non-verbal behavior such as leering or staring at another’s body, displaying sexually suggestive photographs, cartoons, or magazines.147

Movies, television, and Broadway shows are nowadays replete with partial, frontal, and total nudity; it is unreasonable to expect that viewers would resist leering or staring at another’s body. Were such a law to be carried out in a logically consistent manner, not only could there be no such industries, women would be confined to wearing chadors, as is the practice of the Taliban in Afghanistan and in many of the Islamic countries. This is hardly the direction in which we really want to go.

(d) Continued expression of sexual or social interest in an individual after being informed that the interest is unwelcome.148

There are many thousands and thousands of cases on record of successful marriages of several decades and more duration where the husband’s initial overtures to the wife were at first rebuffed. But the male, as was his wont,149 persevered. He was pressing and persistent. This might not please the feminists in the courts and in the EEOC, but this is part and parcel of male human nature.150 According to what might be called the heterosexual norm, or ethic, the man is the pursuer, the woman the pursued. She sets up roadblocks, he overcomes them. The female, not the male, is the coy one. But this model does not resonate well in these modern, politically correct times. Here, the sexes are supposed to be equal. The woman has as much right to initiate contact as the man.151

Of course, it is possible to go too far in this direction. There is, after all, such a thing as harassment, in contrast to rape. Even if the male expression of interest is limited to sending flowers, notes by mail, and leaving telephone messages (as opposed to physical invasion), it is possible for enough to be more than enough. But, for such cases, we already have remedies on the books (obtaining a protective order and anti-stalking statutes) and hardly need the minions of politically correct EEOC feminists to improve matters.

To anticipate the burden of the next section, on how a free market can alleviate legitimate harassment problems, reflect on the following: mail sent by an unrequited suitor is now delivered by the public postal monopoly; were this industry fully privatized,152 there is little doubt that firms would deal with junk mail far more efficaciously than at present. Telephone messages come courtesy of one of the most highly government regulated of industries. A bit more economic freedom here, too, might well eventuate in the more efficient elimination of junk phone calls. Flowers are commonly delivered on public streets. Under full free enterprise for this industry, there is little doubt that unwanted flower deliveries, too, would be better squelched.153

(e) Belief that an individual required to consent to the foregoing behavior as a term or condition of her employment.154

Sexually suggestive comments are precisely what the secretary-prostitute of Blockhead signed up to tolerate. Nor were her duties limited just to tolerating off-color comments either. There is no way that sexual intercourse can be coerced here any more than in a house of prostitution. Nor need one resort to the Blockhead case to deal with leering or staring at another’s body. Such behavior occurs in every Hooters, every Playboy Club, in every topless establishment, in every restaurant where women wear micro miniskirts and other revealing costume. They are hired for the express purpose of being leered at, with their own consent. Were they not the sort of people to call forth this type of male behavior, they would be fired, or not hired in the first place.

THE ECONOMICS OF HARASSMENT

So far, we have been arguing that sexual harassment law is illogical, insofar as it involves voluntary, mutually agreeable behavior between consenting adults. That is, unless there is a fraudulent promise that normal heterosexual overtures will not take place in given premises, any woman who is on the receiving end of such behavior is free to take a different job; that she stays in her present position, where such overtures occur, is an indication that she values the package of work plus being “victimized” more highly than her next best alternative. Laws attempting to prohibit such occurrences thus constitute an ill-conceived response to what is a non-problem: ordinary heterosexual male-female, water-cooler-type interaction. This does not at all mean that, in this view, modesty and decorum and non-aggressive male behavior are out of reach for the women who do not yearn to be artists, models, actresses, prostitutes, or topless waitresses. The solution, in this perspective, may not emanate from the courts and the EEOC, but it nonetheless plays an important role in our society.

Very much to the contrary of the usual supposition on these matters, the answer is provided by the free enterprise system. In order to see this, we must discuss some concepts in labor economics. Heterosexual males vary in their presentations of themselves to heterosexual females, all the way from courtly behavior suitable to the Knights of the Round Table to that of the boor and lout.155 Consider the position of a manager of a firm with a large number of females on staff, who is called upon to deal with one of the latter.

As is well known in economics, wages tend to equal the marginal revenue productivity of the worker.156 But this includes not only the amount that the employee himself can add to the bottom line, but his effect on the contribution of others.157 Let loose a few churls in the establishment, even those who full well know their job, and the productivity of most if not all of the females will plummet. Thus, as an employer, you would either not hire the barbarian, or you would only be willing to pay him a very low wage (perhaps, even, a large, negative one) which is but another way of saying you would not hire him at all. A firm which also employed a large number of females, particularly ones sensitive to crude male behavior, and insisted upon hiring such men, would be consigned to the dust bin of economics, i.e., bankruptcy.

The market, then, is a woman’s best protector against untoward male behavior. The scalpel of the free enterprise system will better rid women of unwanted attention than the bludgeon of government law. For if the government errs (as we have been arguing) there is no automatic feedback mechanism which forces it to mend its ways. If it loses money, it can always make up for this shortfall by increasing taxes, or reducing other expenditures. In the private sector, in contrast, a loss of profit is absolutely crucial. The market is a better supplier not only of women’s rights,158 but of comfort in social settings than is the law (which can legitimately be used only to quell assault, battery, and rape).

Yet another example of business coming to the rescue of female sensibilities concerns restaurants and other such establishments that are open to the public and earn profit only from satisfied customers. Bouncers in a bar put a damper on verbiage that borders on abuse. The last thing an owner wants is for women to be made uncomfortable in his emporium. The search for profits leads the proprietor, as if by an invisible hand,159 to do that which is in the interests of his female customers.

However, consider wolf whistles that typically occur on sidewalks. Feminists, and even others, take sharp exception to these outbursts. To them, this type of behavior shows male contempt for females; the interpretation is that the former see the latter only as a form of meat or sexual object.160 But there is a reason why this objectionable behavior still occurs; nowhere is it written in stone that the market is supposed to come to the rescue of all maidenly sensibilities.

These wolf whistles are predominantly launched by construction workers and their ilk. The economic analysis we have offered does not apply to such situations because of externalities: the victimized women and the victimizing men are not employed by the same firm. If they were, the arguments mentioned above would provide sufficient incentive for the employer to bring them to a quick halt. Most economists would characterize this as a market failure.161 But it is no such thing.162 It is due not to a market failure, but to a failure to allow markets to operate in the first place. For example, if the streets were privately owned,163 the proprietor of the sidewalk would have exactly the same financial incentive we have attributed to the owner of the bar and restaurant. Women who were annoyed by wolf whistles would not frequent his street establishment; since his profits depend upon the number of satisfied customers, he would have every inducement to deal with street whistlers as with offensive lounge lizards.

Consider the kinds of establishments for which boorish men typically work, if not in organizations that employ numerous women. After all, there are an awful lot of men who act in this manner, and they have to work somewhere.

Traditionally, the market solution is segregation. Boorish men tend to be diverted to places where they will do the least harm to the fairer sex: in the forests, deep sea fishing, merchant seamen, steel mills, putting out fires, etc. The problem with affirmative action164 is that it breaks down such answers to the problem; such firms are forced to hire females. It is as if there were two groups of people who hated each other on sight (e.g., boorish men, and women who view their treatment of women as very harmful). The market, naturally enough, would tend to segregate them, so that they would not be continually at war with one another. Along comes government, not able to refrain from interfering, and pursues policies that put these two groups into close and unwelcome proximity with one another. The result, of course, is chaos.165

The same economic analysis that applies to cigarette smoking can be utilized in the present context. Perhaps this furnishes a better analogy. Here, there is one group of people (the smokers) that create a nuisance (second-hand smoke), and another group that feels victimized. The government, in its infinite wisdom, bludgeons all establishments into adopting the same rules: previously, to set up smoking sections; but now, more and more, to ban indoor smoking entirely.166 In sharp contrast, the market, driven by profit considerations (e.g. customer satisfaction), wields a scalpel. Some shops, such as those which supply health foods, ban smoking entirely. Others, such as pool halls, billiard rooms, bowling lanes, bars and grills, place no rules whatsoever against this practice. And then, in the vast middle ground, there are a plethora of rules stipulating smoking times, days, sections, etc., all in an attempt to tailor their response to consumer demands.167

So far, we have analyzed male-female interaction from the former vantage point. Let us now consider the latter perspective. Suppose, now, that most females, as contended by those responsible for the repression of sexual harassment, are very reticent and shy. For them, the ordinary behavior of robust, heterosexual males is odious. Apart from refusing to pollute the work premises by hiring males, as we have just discussed, let us now discuss how the market will protect women from male overtures.

Again, the system works through competition. Not only are firms in competition with each other in the product or final goods markets which is well known, they also compete with one another when it comes to hiring workers. The preeminent form of rivalry is, of course, the wage paid. But employers also contend with each other over employees through the provision of working conditions.

Consider, as an analogy to our case in point, the question of air conditioning. The employer faces the choice of whether or not he should install this amenity on his premises for the enjoyment of his workers. If he does, he will undergo a cost. On the other hand, he will more likely satisfy, attract, and retain employees. The profit-maximizing firm will engage in this expense if he can thereby recoup these costs in the form of lower wages paid. Most employees would accept a reduced wage in an air-conditioned factory in preference to the otherwise identical job lacking such favorable working conditions. Those firms which do not install air conditioning have to pay higher wages. Workers tend to sort themselves out based on their tastes for air conditioning. Those who spurn it tend to gravitate to old-fashioned types of surroundings, where they are paid more, and have to forego the benefits of cooler air. Those who like it, but only slightly, can be found in premises of either type. And those who cannot get along without it tend to aggregate in air-conditioned facilities, even at the cost of a wage cut.

Women, too, differ in their taste168 or distaste for assertive/aggressive male behavior (e.g., for what is considered by some to be a hostile environment). There are some, call them Ls, who have a marked aversion to all such goings on. They tend to gravitate to work environments which preclude males altogether (e.g., a nunnery, a kindergarten). Others, at the opposite end of the continuum, call them Ps, relish these sorts of hostile environments. In the middle, the category of probably most females, call them Hs, are those who take an intermediate stance on this issue.

Assume that, apart from this issue, the marketable skills of all three groups are equal. Then, with equal productivity, we would expect money wages not to differ between them. Now, let us introduce the issue of hostility of environment. Under the economic system of laissez faire capitalism, firms are free to institute a policy proscribing a hostile environment or not. That is, completely as a private matter, they can offer contracts to males,169 positing that if they are found guilty of sexual harassment, they will have to pay a penalty, for example, forego a bond they have to post upon being hired. This will undoubtedly imply a cost, as in the air conditioning case, for there will be the additional disbursements in order to monitor the system, hiring hearing officers to determine guilt or innocence, to say nothing of the extra monetary and psychic costs imposed on males.

Let us now consider employer incentives to introduce such a system, given that he is “free to choose.”170 He would do so if he could thereby reduce his costs in the form of lower wages, which he could thereby pay to appreciative females. There are those, of course, who would object to the fact that women have to pay a compensating differential in the form of lower wages. After all, they are the victims, not the aggressors. If this is market fairness, we want less of it, not more, they might say. This objection misses the point, however. Here, we are discussing not the first case where there was a large majority of women, and males were made by the market to either toe the line or not be hired at all. Rather, we are now considering the case of a male-dominated industry or firm (e.g. oil refinery, lumberjack, steel mill, coal mine) where the sensibilities of women work, mainly, to reduce the productivity of men. Under these circumstances, of course, women will have to lose out financially in the market, compared to the situation where they had no such negative effects on the productivity of men. It is the same with all statistical outliers. Men who are over seven feet tall and weigh more than 300 pounds, or who are less than five feet tall and weigh in at under 100 pounds, cannot buy off-the-rack clothes. They must purchase tailor-made products, and these cost more. Similarly, it is costly to tailor the reactions of hordes of men to female sensibilities.

RESPONSIBILITY

Perhaps the most evil and insidious aspect of this whole episode is the requirement that one person be held accountable for the actions of another. Let us here accept, if only for the sake of argument, that there is indeed a crime of sexual harassment. Placing responsibility for such acts on those who have not committed them is highly improper. Whether it is employees of the firm, customers, suppliers, their employees, it matters not one whit—under this law, the employer will be found guilty even though he had no part whatsoever in the harassment.

That alone ought to be enough to establish the illegitimacy of vicarious liability, for the entire corpus of law is built on the bedrock that the guilty party, not anyone else, shall pay for his crime. Suppose a transportation firm hires a driver to convey passengers in its bus from one city to another in a safe and law-abiding manner. Instead, this employee drives recklessly, and hits another vehicle. In justice, only this negligent chauffeur should be forced to compensate the victims. In actual point of fact, however, it is likely that the firm itself will be made liable.172 This stems from an unjustified search for “deep pockets.” Just because the malfeasant driver does not have enough money to fully compensate the victims does not render it appropriate to attack the bank account of a totally innocent person, the owner of the firm.173

The view underlying sexual harassment law, in contrast, is predicated upon vicarious liability or respondeat superior. Here, one person, the employer, can be held liable for the crimes or torts of another, even though the party of the first part did not ask the party of the second to commit the act. No greater injustice can be imagined.

Rothbard goes so far as to characterize this as the “notorious theory of vicarious liability.”174 States Thomas Baty: “In hard fact, the reason for the employer’s liability is the damages are taken from a deep pocket.”175 And in the view of Prosser,

most courts have made little or no effort to explain the result, and have taken refuge in rather empty phrases, such as … the endlessly repeated formula of “respondeat superior,” which in itself means nothing more than look to the man higher up.176

In our own rendition of this aspect of the law, we state, “the employer is strictly liable for the conduct of supervisory employees who are acting within the scope of their authority.”177 (This, of course, was reportorial, not advocated by us.) And, indeed, there is a certain coherence to this way of putting the matter. For if the “employees … are acting within the scope of their authority” in their malfeasance, then, and to that extent, the employer should be responsible for their acts, in that he in effect ordered them to commit the tort. But that is not at all what the EEOC is mandating. Here, there is the far lesser requirement only that the employer “knows, or should have known, of the unwelcome conduct and fails to take immediate or appropriate action.”

But this should not even be relevant. If A knows that B is about to rob a grocer, it is clear who should go to jail when this nefarious activity actually occurs. Obviously B is the guilty party, and A a total innocent.

If the law is going to hold employers responsible for acts of employees, all in the search for deep pockets, there is no rational end to this process. Suppose an employee commits an actual rape of a co-worker. It is clear that, in a just society, only the rapist should go to jail. To incarcerate the employer would be an injustice. Obviously, only the rapist is guilty of the crime, and should do the time, and this holds true whether the rape occurs on the business premises or somewhere else.

But there are other anomalies in this situation. It is unreasonable to hold employers responsible for employees, since the latter are in effect agents of the former; but if we do, then logical consistency requires that we should hold all principals responsible for the acts of their agents. For example, following this line of reasoning, we would hold the tenant or landlord responsible for the acts of the real estate broker; the investor for the acts of the stockbroker; business partners, or spouses, for that matter, for the acts of each other. Alternatively, if the reason we are holding the employer responsible for the acts of the employee is that the former is higher up in the sociological hierarchy than the latter, we might consider generalizing this relationship, too. If we did, we would then jail landlords for the acts of their tenants. But it is merely Marxist drivel to think that employers have more power than employees (tell that to Michael Jordan and Jerry Reinsdorf) or landlords than tenants (tell that to the landlord of Bill Gates or Donald Trump). This being the case, then, we might with equal illogic hold employees responsible for the acts of employers, or tenants responsible for those of their landlords.

Vicarious liability and respondeat superior are a search for deep pockets, not justice.

CUI BONO?

If sexual harassment laws are the unmitigated disaster we have made them out to be, we must now attempt to explain why we have them on the books.

One way to answer this question is to ask, “Who benefits from this legislation?” The underlying theory is that those who gain from these enactments were likely instrumental in their passage in the first place, and in their subsequent support.178

The point is, it is difficult to avoid the conclusion that sexual harassment law in general, and the idiosyncratic definition and interpretation of hostile environments, are aimed at interfering, as much as possible, with normal male-female interaction. As we have seen, it is entirely unremarkable for heterosexual males to take the initiative in setting up relationships with heterosexual females. If they are to do so, they must necessarily at least sometimes make overtures which are unwelcome. There is no way that they can possibly know, for sure, before the fact, whether their suits shall be welcome or not, even apart from the traditional coyness of heterosexual females. To penalize heterosexual males for such behavior is surely an attempt to reduce it.

When looked at in this way, there are some obvious candidates to play the role of beneficiary of these laws: all those who gain from making it more difficult for heterosexual men and women to interact with one another in traditional courtship patterns. This would include lesbians, since if men were kept apart from women, some of the latter might become attached to female homosexuals, whom they previously spurned; also female man-haters, on ideological grounds. Homosexual men would gain in a similar manner, if heterosexual men are cut off from heterosexual women. The point is, there are always people on the margin of homo- and hetero-sexuality; make things more difficult in one of these directions, and at least some of these will become inclined to the other direction.

As well, there are the feminists who oppose [male] freedom almost for the sake of opposing freedom.179 The idea that men, mostly assertive, often boorish, should be able to approach women with impunity for the ultimate purpose of heterosexual intercourse must be anathema to them. To this rogues gallery we must add the over-populationists180 and other radical-wing environmentalists for whom the ideal of fewer people figures heavily in their solution to the earth’s supposed problems. If men and women cannot get together as easily as before, they are likely to breed fewer children, something fervently to be wished for, at least in this quarter.

We do not at this time contend that these groups have been active in promoting the anti-sexual-harassment agenda. This may indeed be the case. We only maintain that this is a likely avenue for future research into the question of who supports such legislation.

CONCLUSION

We conclude, given the foregoing, that sexual harassment law is unjust, and ought to be repealed. We maintain that quid pro quo is part and parcel of economic freedom, and that this has value both instrumentally in creating a prosperous economy, and intrinsically, for its own sake.181 In our view, the market can eliminate a hostile work environment—where there is an economic need for this—far more effectively and justly than can government.

_____________________

Roy Whitehead, Jr. and Walter Block, Journal of Law and Family Studies 4, no. 2 (2002): 229–263.

182 42 U.S.C. § 2000 (e) to 2000 (e) (17) (1982) (amended by the Act of 1991).

183 42 U.S.C.A., § 1981(a)(1) (2001).

184 42 U.S.C.A., § 1981 (b)(3) (2001).

185 Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991) and Jenson v. Eveleth Taconite Co., 824 F. Supp. 847 (D. Minn. 1993).

186 Faragher v. City of Boca Raton, 524 U.S. 775, 808 (1998).

187 29 C.F.R. § 1604.11(a)(1)(2001).

188 Id. at 1604.11(a)(2).

189 Id. at 1604.11(a)3).11

190 Id.

191 Ellison v. Brady, 924 F.2d 872, 874 (9th Cir. 1991).

192 Lipsett v. University of Puerto Rico, 864 F. 2d 881, 901 (1st Cir. 1988).

193 Jones v. Wesco Investments, 846 F.2d 1154, 1155 (8th Cir. 1988).

194 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1494 (M.D. Fla. 1991).

195 Ellison v. Brady, 924 F.2d 872, 874 (9th Cir. 1991).

196 Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).

197 29 C.F.R. § 1604.11(b)(2001).

198 See, e.g., Roy Whitehead, Pam Spikes, and Brenda Yelvington, “Sexual Harassment in the Office,” The CPA Journal (February 1996): 42–45.

199 Hall v. Gus Construction Company, 842 F.2d 1010 (8th Cir. 1988).

200 Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).

201 Jones v. Flagship International, 793 F.2d 714, 721–22 (5th Cir. 1986).

202 Carrero V. N.Y. Housing Authority, 890 F.2d 569, 579 (2d Cir. 1989).

203 Kotcher v. Rosa and Sullivan Appliance, 957 F.2d 59, 62 (2d Cir. 1992).

204 Kaufman v. Applied Signal, 970 F.2d 178, 185 (6th Cir. 1992).

205 Jones v. Wesco Investments, 846 F.2d 11561, 1 166 (8th Cir. 1988).

206 See Hall v. Gus Construction Company, 842 F.2d 1010, 1013–14 (8th Cir. 1988).

207 Meritor Savings Bank v. Vinson, 477 U.S. 57, 67–68 (1986).

208 Ellison v. Brady, 924 F.2d 872, 881 (9th Cir. 1991).

209 Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

210 Id. at 68.

211 Id. at 60.

212 Id.

213 Id.

214 Id.

215 Id.

216 Id. at 60.

217 Id. at 72.

218 Id. at 68.

219 Id. at 72.

220 Id. at 68.

221 Ellison v. Brady, 924 F.2d 842, 873–74 (9th Cir. 1991).

222 Moylan v. Manes County, 792 F.2d 746, 749 (8th Cir. 1986). For a discussion of the term “unwelcome” see Swentek v. U.S. Air, Inc., 830 F.2d 552, 557 (4th Cir. 1987).

223 Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir. 1988).

224 Meritor, 477 U.S. at 68–69.

225 Bums v. McGregor, 989 F.2d. 959, 963 (8th Cir. 1993).

226 Id.

227 Moylan v. Maries County, 792 F.2d 746, 749 (8th Cir. 1986).

228 Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991).

229 Id.

230 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993).

231 Id. at 20.

232 Id. at 19.

233 Id.

234 Id.

235 Id.

236 Id.

237 Id.

238 Id. at 21–22.

239 Id. at 22.

240 Id.

241 Several Navy officers, concerned about Congresswoman Pat Schroeder’s role in the investigation of the “Tail Hook” Sexual Harassment incident, displayed a banner at an on base party that said, “Hickory Dickory Dock, Pat Schroeder can suck my cock.” See Eugene Volkh, “Freedom of Speech and Workplace Harassment,” UCLA Law Review 39 (1992): 1791, 1802 n. 54.

242 Complaint regarding a painting, hanging in the City Hall of Murfreesboro, Tennessee, that showed a woman with one breast exposed. Jennifer Goode, “It’s Art vs. Sexual Harassment,” The Tennessean, March 1, 1996, at A1.

243 See Robinson v. Jacksonville Shipyards Inc., 760 F.Supp. 1486, 1493 (M.D. Fla. 1991), a case that imposed liability for centerfolds.

244 Bartlett v. United States, 835 F.Supp. 1246, 1256 (E.D. Wash. 1993).

245 Intlekofer v. Turnage, 973 F.2d 773, 775 (9th Cir. 1992) (relying in part on a telephone call at home from a co-worker to support a hostile environment claim).

246 Morgan v. Hertz Corp.,542F. Supp. 123, 128 (W.D. Tenn. 1981), aff’d 725 F.2d 1070 (6th Cir. 1984) (condemning remarks like, “Did you get any over the weekend”).

247 See, e.g., Eugene Volokh, “What Speech Does ‘Hostile Work Environment’ Harassment Restrict?” Georgetown Law Journal 85 (1997): 627, 635.

248 See, e.g., Mark I. Schickman, “Sexual Harassment: The Employer Role In Prevention,” Compleat Lawyer 13 (1996): 24, 24–25.

249 See Volokh, note 68.

250 See Volokh, note 62.

251 Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

252 524 U.S. 775 (1998).

253 Id. at 780.

254 Id.

255 Id.

256 Id. at 780.

257 Id.

258 Id. at 782.

259 Id. at 783.

260 Id. at 784.

261 Id. at 808.

262 Id.

263 Id.

264 Id. at 807.

265 Webster’s College Dictionary (1973).

266 524 U.S. at 790.

267 Id. at 790–91.

268 Id. at 804–5.

269 Id. at 802.

270 Id. at 807.

271 Id.

272 Id.

273 Id.

274 Id.

275 Id. at 807–8.

276 Id. at 808.

277 Burlington Industries v. Ellerth, 524 U.S. 742 (1998).

278 Id. at 747.

279 Id.

280 Id. at 747–48.

281 Id. at 748.

282 Id.

283 Id.

284 Id. at 765.

285 Id.

286 Id.

287 Id. at 766.

288 Faragher, 524 U.S. at 807.

289 Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975).

290 See generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

291 Roy Whitehead and Kenneth Griffin, “The Supreme Court Finally Lays Down The Law On Employer Liability For Sexual Harassment,” The CPA Journal (November 1998): 70–71.

292 See, e.g., Meritor Savings Bank v. Vinson, 447 U.S. 57, 72–73 (1986), Barrett v. Omaha National Bank, 26 F.2d 424, 427 (8th Cir. 1984), and Roy Whitehead, Pam Spikes, and Brenda Yelvington, “Sexual Harassment In The Office,” The CPA Journal (February 1996): 45–49.

293 See Roy Whitehead, Kenneth Griffin, and Pam Spikes, “Preparing For Same Sex Sexual Harassment,” The CPA Journal (June 1998): 54–55.

294 29 C.F.R. 1604.11(0) (2001).

295 See Meritor, 477 U.S. at 73.

296 29 C.F.R. 1604.11(d) (2001).

297 726 F.2d 424, 427; see also Nash v. Electrospace System, 9 F.3d 401, 404 (5th Cir. 1993).

298 Katz v. Dole, 709 F.2d 251, 256 (4th Cir. 1983).

299 Ellison v. Brady, 924 F.2d 872, 882 (9th Cir. 1991).

300 For simplicity, we have been speaking as if all victims are female and all harassers male. Actually both roles can be filled by either gender. See generally Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998) (male victim) and Kinman v. Omaha Public School District, 94 F.3d 463 (8th Cir. 1996) (female harasser).

301 See Jean O. Hughes and Bernie R. Sandler, “In Case of Sexual Harassment, A Guide for Women Students,” in The Project on the Status and Education of Women (Washington, D.C.: Association of American Colleges, 1986).

302 See generally Barrett v. Omaha National Bank, 726 F.2d 424 (8th Cir. 184).

303 See generally Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

304 See generally Ellison, 924 F.2d 872.

305 Id.

306 Harris v. Forklift Systems, 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring) (internal quotation marks omitted).

307 See generally Murray N. Rothbard, For a New Liberty (New York: Macmillan, 1973); Murray N. Rothbard, The Ethics of Liberty (New York: New York University Press, 1998); Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (Dordrect, Holland: Kluwer Academic Publishers, 1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (Dordrect, Holland: Kluwer Academic Publishers, 1993); Robert Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974); Walter Block, Defending the Undefendable (San Francisco, Calif.: Fox and Wilkes, 1991); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117; Charles Murray, What it Means to be a Libertarian (New York: Broadway Books, 1997); Jan Narveson, The Libertarian Idea (Philadelphia, Penn.:Temple University Press, 1988); J. Patrick O’Brien and Dennis O. Olson, “The Great Alaskan Money Give Away Program,” Economic Inquiry 18 (1990): 604; Jerry W. Dauterive, William Barnett, and Everett White, “A Taxonomy of Government Intervention,” Journal of Southwest Society of Economics 12 (1985).

308 We will continue to speak as if only males can commit such acts, and only women can be victimized by them. Obviously, while these two categories may be the most statistically significant, they certainly do not exhaust the four different possibilities.

309 For the implications of this viewpoint on abortion law, see generally Walter Block, “Abortion, Woman and Fetus: Rights in Conflict?” Reason (April 1978), pp. 18–25; Walter Block, Compromising the Uncompromisable: A Private Property Rights Theory of Abortion (manuscript on file with author); Walter Block, Libertarianism, Positive Obligations, and Property Abandonment: Children’s Rights (manuscript on file with author).

310 On this point, esteemed legal scholars Professors Prosser and Keeton explain that “the plaintiff is entitled to demand that the defendant refrain from the offensive touching, although the contact results in no visible injury,” and “the defendant may be liable when intending only a joke, or even a compliment, as where an unappreciated kiss is bestowed without consent (citations omitted).” See W.P. Prosser et al., Prosser and Keaton on the Law of Torts, Section 9 (Los Angeles: West Group, 1984).

311 Suppose there were a private amusement facility called “Murder Park.” Here, each customer would be issued a revolver with six bullets, and told to have at anyone else in the arena (surrounded by tall, thick walls so that the mayhem would be confined to the premises) who was there for that purpose. There would be a ceasefire for 10 minutes every hour so that the dead bodies could be hauled away, and the remaining combatants issued new ammunition. Such an establishment would not at all violate laws against murder, for that crime is the killing of people against their will. Here, on the contrary, all customers by purchasing a ticket demonstrate that they are engaging in the otherwise murderous interaction on a voluntary basis.

312 This is the very felicitous phrase of Robert Nozick. See Nozick, Anarchy, State, and Utopia.

313 This applies to every county in the state of Nevada apart from Clark County. See Nev. Rev. Stat. 201.300 (1998).

314 Of course, if this is to be a licit commercial arrangement, there can be no fraud. That is, the employer must be crystal clear as to the contents of the contract. Without a meeting of the minds over the specifics, any demands for sex as part of the job description would be fraudulent.

315 For a critique of the status quo ante on blackmail, see Eric Mack, “In Defense of Blackmail,” Philosophical Studies 41 (1982): 274; Murray N. Rothbard, Man, Economy, and State (Auburn, Ala.: The Mises Institute, 1993), p. 443, n.49; Walter Block, “The Blackmailer as Hero,” The Libertarian Forum 4, no. 12 (December 1972): 1; Walter Block, Defending the Undefendable (San Francisco, Calif.: Fox and Wilkes, 1999), p. 44–49; Walter Block and David Gordon, “Extortion and the Exercise of Free Speech Rights: A Reply to Posner, Epstein, Nozick, and Lindgren,” Loyola Los Angeles Law Review 19, no. 1 (1985): 37; Walter Block, “Trading Money for Silence,” University of Hawaii Law Review 8 (1986): 57; Walter Block, “The Case for De-Criminalizing Blackmail: A Reply to Lindgren and Campbell,” Washington University of St. Louis Law Review 24 (1997): 225; Walter Block, “A Libertarian Theory of Blackmail,” Irish Jurist 33 (1998): 280; Walter Block and Robert W. McGee, “Blackmail from A to Z,” Mercer Law Review 50 (1999): 569.

316 There is a parallel between this phenomenon and blackmail, which also combines two acts, each of which is legal in isolation (e.g., asking for money, threatening to tell about an embarrassing secret) but prohibited by law when combined. For support of the status quo on this law, see Peter Alldridge, “Attempted Murder of the Soul: Blackmail, Privacy, and Secrets,” Oxford Journal of legal Studies 13 (1993): 368; Scott Altman, “A Patchwork Theory of Blackmail,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1639; James Boyle, “A Theory of Law and Information: Copyright, Spleens, Blackmail, and Insider Trading,” California Law Review 80 (1992): 1413; Jennifer Gerarda Brown, “Blackmail as Private Justice,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1935; Debra J. Campbell, “Why Blackmail Should be Criminalized: A Reply to Walter Block and David Gordon,” Loyola Los Angeles Law Review 21 (1988): 883; Ronald Coase, “The 1987 McCorkle Lecture: Blackmail,” Virginia Law Review 74 (1988): 655; George Daly and J. Fred Giertz, “Externalities, Extortion, and Efficiency: Reply,” American Economics Review 68, no. 4 (September 1978): 736; Sidney W. DeLong, “Blackmailers, Bribe Takers, and the Second Paradox,” University of Pennsylvania Law Review 141, no. 5 (May 1993): 1663.

317 But only as regards abortion. For a libertarian perspective on this issue, see note 130.

318 Rothbard (1998), pp. 129–30.

319 Or maybe not. The point is, no one can say anything for sure on this matter apart from noting that tastes will differ.

320 See note 2 and accompanying text.

321 29 C.F.R. §1604.11(a)(l) (2001).

322 Id. at §1604.11(a)(2).

323 Id. at §1604.11(a)(3).

324 If so, then so does a man; men and women have equal rights in the libertarian society.

325 Ellison v. Brady, 924 F.2d 872, 877 (9th Cir. 1991).

326 Lipsett v. University of Puerto Rico, 864 F.2d 881, 906 (1st Cir. 1988).

327 Jones v. Wesco Investments, 846 F.2d 1154, 1155 (8th Cir. 1988).

328 Robinson v. Jacksonville Shipyards, 760 F. Supp. 1486, 1494 (M.D. Fla. 1991).

329 Ellison v. Brady, 924 F.2d 872, 874–75 (9th Cir. 1991) at 151.

330 See on this Jerome H. Barkow, Leda Cosmides, and John Tooby, The Adapted Mend: Evolutionary Psychology and the Generation of Culture (Oxford: Oxford University Press, 1992); David M. Buss, The Evolution of Desire (New York: Basic Books, 1994); Richard Dawkins, The Selfish Gene (Oxford: Oxford University Press 1989); Robert H. Frank, Passion Within Reason: The Strategic Role of the Emotions (London: W.W. Norton, 1988); Mark Ridley, The Red Queen: Sex and the Evolution of Human Nature (New York: MacMillan, 1993); Donald Symons, The Evolution of Human Sexuality (Oxford: Oxford University Press, 1979); R. Trivers, Social Evolution Reading (Menlo Park, Calif.: Benjamin/Cummings Publishing, 1985); E. O. Wilson, Sociobiology: A New Synthesis (Cambridge, Mass.: Harvard University Press, 1975); Robert Wright, “Feminists, Meet Mr. Darwin,” New Republic 211 (1994): 34. Sociobiologically speaking, females are supposed to be flirtatious—males, pressing and persistent.

331 There is a wealth of anecdotal evidence attesting to male assertiveness and female reticence. Some of it is in the form of humor. According to one joke:

If a general says “yes,” he means “yes.” If he says “no,” he means “no.” If he says “maybe,” he is not a general. If a diplomat says “yes,” he means “maybe.” If he says “maybe,” he means “no.” If he says “no,” he is not a diplomat. If a girl (virgin) says “no,” it means “maybe.” If she says maybe, it means “yes.” If she says “yes,” she is not a girl (virgin).

And according to another bit of folk wisdom, when a woman says “No,” it means “Maybe”; when she says “Maybe,” it means “Yes.”

In sharp contrast, the feminists have launched a campaign around the motto “No means no.” We wonder what planet they are from, in terms of an understanding of human nature. Anyone who believes that every time a woman declines a man’s advances she is serious about it only evidences his ignorance of the human condition.

332 For a recent critique of the modem mores, and a defense of the more traditional ones, see Danielle Crittenden, What our Mothers Didn’t Tell Us (New York: Simon and Schuster, 1998); Richard Dooling, Blue Streak: Swearing, Free Speech, and Sexual Harassment (New York: Random House 1996); Ellen Fein and Sherrie Schneider, The Rules: Time-Tested Secrets for Capturing the Heart of Mr. Right (New York: Warner Books, 1996).

333 The case for privatizing the post office is offered by Douglas K. Adie, The Mail Monopoly: Analyzing Canadian Postal Service (Vancouver, British Columbia: The Fraser Institute, 1990); Douglas K. Adie, Monopoly Mail: Privatizing the United States Postal Service (New Brunswick, N.J.: Transaction Publishers, 1988); Douglas K. Adie, “Why Marginal Reform of the US. Postal Service Won’t Succeed,” in Free the Mail: Ending the Postal Monopoly, Peter J. Ferrara ed., (Washington, D.C.: The Cato Institute,1990); Thomas G. Moore, “The Federal Postal Monopoly: History, Rationale, and Future” in Free the Mail: Ending the Postal Monopoly; Stuart M. Butler, “Privatizing Parcel Mail,” Management 6 (1986); Stephen Moore, “Privatizing the US. Postal Service,” in Privatization: A Strategy for Taming the Federal Budget Fiscal Year 1988 (Washington, D.C.: Heritage Foundation, 1988).

334 See on this Walter Block, “Public Goods and Externalities: The Case of Roads,” Journal of Libertarian Studies 7 (1983): 1, 34; Walter Block, “Road Socialism,” International Journal of Value-Based Management 9 (1996): 195–207; Walter Block, “Theories of Highway Safety,” Transportation Research Record 912 (1983): 4; Walter Block, “Congestion and Road Pricing,” Journal of Libertarian Studies 4 (1980): 299; Walter Block, “Free Market Transportation: Denationalizing the Roads,” Journal of Libertarian Studies 3 (1979); 209; Michelle S. Cadin and Walter Block, “Privatize the Public Highway System,” The Freeman 47 (1977): 96; Gerald Gunderson, “Privatization and the 19th-Century Turnpike,” Cato Journal 9 (1989): 191; Daniel B. Klein, John Majewski, and Christopher Baer, “Responding to Relative Decline: The Plank Road Boom of Antebellum New York” Journal of Economic History 53 (1993): 106; Daniel B. Klein and G.J. Fielding, “Private Toll Roads: Learning from the Nineteenth Century,” Transportation Quarterly 46 (1992): 321; Daniel Klein and G.J. Fielding, “How to Franchise Highways,” Journal of Transport Economics and Policy 62 (1993): 113; Gabriel Roth, The Private Provision of Public Services in Developing Countries (Oxford University Press, 1987); Gabriel Roth, Paying for Roads: The Economics of Traffic Congestion (Harmondsworth, England: Penguin 1967); Murray N. Rothbard, For a New Liberty; William C. Woolridge, Uncle Sam, the Monopoly Man (New Rochelle, N.Y.: Arlington House, 1970).

335 Simmons v. Lyons, 746 F.2d 265, 269 (5th Cir. 1984).

336 For the purpose of this analysis, we assume that anything worse, e.g., from slight to heavy physical abuse to actual rape, does not exist; such acts are dealt with by the forces of law and order, not by ordinary businesses on the shop floor.

337 See, e.g., Morgan O. Reynolds, Economics of Labor (Cincinnati, Ohio: South-Western, 1995).

338 A significant part of the reason a Michael Jordan or a Kobe Bryant is so productive in basketball is not due entirely to their own points, rebounds, or steals total, but because they also made their teammates into better players. This phenomenon is hardly confined to that particular sport, or, indeed, to the realm of athletics in general.

339 This is because we have argued that women have a right not to niceness but only to security of their persons.

340 See Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, Kathryn Sutherland, ed. (Oxford: Oxford University Press,1993). For a critique from the free-enterprise perspective, see Murray N. Rothbard, The Logic of Action: Method, Money, and the Austrian School (Cheltenham, U.K.: Edward Elgar, 1997).

341 We assume away, for argument’s sake, the claim that, although crude and unwelcome, wolf whistles are not per se rights violative, and do sometimes serve their purpose of allowing men to introduce themselves to women. That is, we temporarily adopt the leftist perspective that to see a woman as a sexual object is to commit in effect an assault upon her.

342 See Gene Callahan, Economics for Real People (Auburn, Ala.: Ludwig von Mises Institute, 2001) or any other introduction to microeconomics or public finance on this matter. That is, in the view of most practitioners of the dismal science, the economics of discrimination as depicted above accurately describes intra-firm activity, but not that which occurs inter-firm.

343 For a critique of the “externalities as market failure” literature, see Hans-Hermann Hoppe, “Fallacies of the Public Goods Theory and the Production of Security,” Economics and Ethics of Private Property; Jeffrey Hummel, “National Goods vs. Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; Walter Block, “Public Goods and Externalities: The Case of Roads,” Journal of Libertarian Studies 4 (1983): 1.

344 See note 155.

345 For critiques, see Walter E. Williams and Walter Block, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research 2, no. 2 (1981): 385; Discrimination, Affirmative Action, and Equal Opportunity (Vancouver, British Columbia: The Fraser Institute, 1982).

346 There is a slight misanalogy here, in that in the case described in the text, there is mutual hatred and abuse emanating from both groups, while in sexual harassment one category of people are the harassors, and the other, the harassees. For Ronald H. Coase, however, this would be a valid analogy, in that in order to stop the harassors from victimizing the harassees, one would have to bring discomfort to the former. See “The Problem of Social Cost,” Journal of Labor Economics 3 (1960): 1. That is, for Coase, there can be no such thing as harassment: all such interactions are reciprocal.

For critics of Coase, see Walter Block, “Ethics, Efficiency, Coasian Property Rights, and Psychic Income: A Reply to Harold Demsetz,” Review of Austrian Economics 8 (1995): 61; Walter Block, “O.J.’s Defense: A Reductio Ad Absurdum of the Economics of Ronald Coase and Richard Posner,” European Journal of Law and Economics 3 (1996): 265–86; Roy E. Cordato, “Subjective Value, Time Passage, and the Economics of Harmful Effects,” Hamline Law Review 12 (1989): 229; Elisabeth Krecke, “Law and the Market Order: An Austrian Critique of the Economic Analysis of Law,” in Commentaries on Law and Economics, Robert W. McGee, ed. (South Orange, NJ: Dumont Institute for Public Policy Research, 1977), p. 86; Gary North, The Coase Theorem (Stone Mountain, Georgia: Publisher Services, 1992); Murray N. Rothbard, “Law, Property Rights, and Air Pollution,” in Economics and the Environment: A Reconciliation, Walter E. Block ed. (Vancouver, British Columbia: The Fraser Institute, 1990), p. 233.

347 Since January 1, 1998, California has banned smoking in virtually all indoor public places including bars. See Ted Reuter, “California Living: Snuff Out that Cigarette, Please,” Christian Science Monitor, January 12, 1998.

348 See Walter Block, “Tobacco Advertising,” International Journal of Value-Based Management 10 (1997): 3, 221–35.

349 See Gary Becker, Human Capital (Washington, D.C.: The National Bureau of Economic Research, 1964).

350 See Gary Becker, The Economics of Discrimination (Chicago: The University of Chicago Press, 1957).

351 This is the felicitous title of a book by Milton and Rose Friedman. See Milton and Rose Friedman, Free to Choose (New York: Harcourt Brace Jovanovich, 1980).

352 C.F.R. §1604.11(d) (2001).

353 Assume there is no insurance policy in effect.

354 A counter argument is that the employer was causally related to the accident, and therefore at least in part responsible for it, in that had he not hired this particular driver, it would not have occurred. This is subject to the reductio ad absurdum response that there are many other people also causally responsible for the accident, and it would be highly unjust to make them pay for it. For example, the accident would not have occurred had not the driver been able to buy clothes, and food; had the car or road not been built in the first place. Thus, we can also implicate in this accident those who mined the iron necessary to construct the bus.

355 Murray N. Rothbard, “Law, Property Rights, and Air Pollution.”

356 Id. at 247.

357 Id.

358 See note 20.

359 This is the methodology employed by Elvis Cole and all other great detectives. See Robert Crais, Sunset Express (New York: Hyperion, 1996). Apart from means and opportunity, the motive for the crime is often the best way to discern the identity of the criminal.

360 See Michael Levin, Feminism and Freedom (New York: Transaction Books, 1987); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary (September 1984): 39.

361 See Paul R. Ehrlich, The Population Bomb (New York: Ballantine, 1968); Paul R. Herlich and Anne H. Ehrlich, The Population Explosion (New York: Simon and Schuster, 1990); David Foreman, “Only Man’s Presence Can Save Nature,” Harpers (April 1990); Al Gore, Earth in the Balance: Ecology and the Human Spirit (Boston: Houghton-Mifflin, 1992).

For rejoinders, see Daniel Coffey and Walter Block, “Postponing Armageddon: Why Population Growth Isn’t Out of Control,” Humanomics 15 (1999): 66; Julian Simon, The Ultimate Resource (Princeton, N.J.: Princeton University Press 1981); David Friedman, Laissez faire in Population: The Least Bad Solution (Population Council 1972); Peter T. Bauer, “Population Scares,” Commentary, (November 1987): 39.

362 See James Gwartney, Robert Lawson, and Walter Block, Economic Freedom of the World, 1975–1995 (Vancouver, British Columbia: The Fraser Institute, 1996).

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.
118St. 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.”).
11920 U.S.C. § 168 1(b).
120Cannon, 648 F.2d at 1109.
121Alexander 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).
122The 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).
12334 C.F.R. § 106.41 (c)(1) (1992).
124City 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).
125Todd Traub, While Footing the Bill: Football Also Creates Title IX Imbalance, Arkansas Democrat-Gazette (Little Rock, Ark.), November 14, 1996, p. C1.
126Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 322 (3d Cir. 1993).
127Cohen 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).
128Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993).
129See 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.
130See generally Pederson v. Louisiana State University, 912 F. Supp. 892 (M.D. La. 1996).
131See, e.g., Hazelwood School District v. United States, 433 U.S. 299 (1977); Castaneda v. Partida, 430 U.S. 482 (1977).
132For 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.
133The 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).
134The 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.
135See generally Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (Brown University I).
136See 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.
137Sowell, The Vision of the Anointed, p. 33.
138Id., pp. 35–57.
139See generally Steven Farron, “Prejudice is Free but Discrimination has Costs,” Journal Libertarian Studies 14, no. 2 (Summer 2000): 179–245.
140One 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.
141Sowell, The Vision of the Anointed, p. 35.
142Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21.
143Ibid., 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.
144For 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).
145Golf 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.
146Lillian 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.
147See 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.
148Dawkins, The Selfish Gene, p. 1.
149See 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.
150For 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.
151This 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).
152This 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.
153Both 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.
154Civil Rights Act of 1964, 42 U.S.C. § 2000c to 2000c-17.
155The 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).
156Id.
157See 22 Annals of Cong. 982–85 (1853).
158Id.
159Id.
160See Walter Block, Defending the Undefendable (1985); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117.
161For 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).
162On 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).
163For 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).
164Our critics might think that a good name for this hotel, in view of our last names, would be “Chez Blockhead.”
165The same goes for Jews, blacks, homosexuals, females, old people, young people, or any other supposedly “victimized” groups.
166We 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.
167There 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.
168See text accompanying note 1.
169See text accompanying note 1.
170We 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.
171See 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.
172What 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.
173For 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.
174See 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).
175See, 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.
176See below Appendix 1.
177See note 155.
178See 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).
179Hernstein 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.
180For 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.
181See 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.
182Most women, on the other hand, even executives, do not consider housework demeaning.
183In 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.
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 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.
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.
187There 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.
188Another 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.
189This 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:
190Economic 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.”
191Men 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.
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.
195Not 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.
196As 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.
197This 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.
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.
203() 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.
204In 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.
205Given 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.
206Discrimination 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.
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.
208The 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.
209Insurance 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.
210A 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.
211Another 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.
212There 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.
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.
214Forcing 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.
215Affirmative 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.
216Similar 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.)
217But 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.
218Another 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.
219Nepotism, 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.
220At 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.
221But 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,
222In 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.
223Enter 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.
224Zoning 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.
225This 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.
226Zoning 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.
227Nor 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:
228The 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.
229The 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?
230To 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.
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.
233The 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
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
235shall 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.
236The 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.
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.
241With 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.
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.
245The 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.
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.
248Brown 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.
249The 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.
250Second, 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.
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.
252Brown 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.
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.
257Finally, 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.
258Brown 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.
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.
263The 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.
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.
265Finally, 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.
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.
267Schools 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.
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.
270In 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.
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.
272Relying 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.
273The 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.
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.
277Clearly, 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.
278Because 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.
279The 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.
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 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.
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.
283By 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.
284The 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.
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.
286In 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.
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.
289A 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.
290On 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.
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.
293where 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.
294The so-called “safe harbor” test is still safe as far as the OCR is concerned, despite the reluctance of the LSU court.
295Among 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.
296Finally, the Clarification suggests that schools have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet the appropriate requirements.
297Given 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.”
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.”
299Second, 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.”
300Second, 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.”
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.”
303Colorado 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.
304Colorado 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.
305The 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.
306Finally, 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.”
307Some 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.
308Some 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.
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.
311A 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.”
312A 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.”
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.”
314There 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.
315The 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.”
316This 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.
317This 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.
318Sowell points to the following facts about which “it is virtually impossible to claim that the statistical differences in question are due to discrimination:”
319• 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.
320All 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.
321All 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.
322It 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.
323RACIAL AND ETHNIC COMPOSITION OF PROFESSIONAL ATHLETIC EMPLOYMENT (IN PERCENT)
324As 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.
325First, 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.
326The 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.”
327Clearly, 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.
328According 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.
329But 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.
330Why 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.
331Why 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.
332The 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.
333So 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?
334So 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?
335Second, 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.
336So 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.”
337Finally, 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.
338Finally, 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.
339Mr. 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.
340This 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!
341Since 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.
342What 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.
343Given 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.
344This 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. 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 hotel 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.
345This 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. 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 hotel 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.
346This 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. 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 hotel 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.
347If 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. 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. 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.
348If 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. 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. 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.
349Let us consider a few examples. First, as mentioned above, 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.” 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.
350Let us consider a few examples. First, as mentioned above, 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.” 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.
351We 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.
352That 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? 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.
353The 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, 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.
354The 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.
355Let us now consider the characteristic of athletic ability. It is a well-known fact that, with the exception of a few sports such as swimming and diving, yachting, hockey, and handball, blacks exceed whites in terms of athleticism. Certainly, in football and basketball, whether at the college or professional level, blacks are vastly over-represented. 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.
356Let us now consider the characteristic of athletic ability. It is a well-known fact that, with the exception of a few sports such as swimming and diving, yachting, hockey, and handball, blacks exceed whites in terms of athleticism. Certainly, in football and basketball, whether at the college or professional level, blacks are vastly over-represented. 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.
357Let us now consider the characteristic of athletic ability. It is a well-known fact that, with the exception of a few sports such as swimming and diving, yachting, hockey, and handball, blacks exceed whites in terms of athleticism. Certainly, in football and basketball, whether at the college or professional level, blacks are vastly over-represented. 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.
358Furthermore, 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.
359Let us conclude by considering two objections to the foregoing. First, advocates of free enterprise and economic freedom, such as ourselves, 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?
360Further, 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. 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.
361We 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. 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.
362RACIAL AND ETHNIC COMPOSITION OF PROFESSIONAL ATHLETIC EMPLOYMENT (IN PERCENT)

The Case for Discrimination