The Case for Discrimination

38. THE BOY SCOUTS, FREEDOM OF ASSOCIATION, AND THE RIGHT TO DISCRIMINATE: A LEGAL, PHILOSOPHICAL, AND ECONOMIC ANALYSIS

IN BOY SCOUTS OF AMERICA V. DALE,1 THE SUPREME COURT WAS faced with one of the most contentious questions facing today’s society. That is whether an organization like the Boy Scouts can determine with whom it associates, or whether there is some overriding public interest in compelling associational acceptance of, as in this case, an avowed homosexual. Are the Boy Scouts to be regarded by some as heroic defenders of James Madison’s treasured idea of freedom of association? Or are they to be seen, as they are in many quarters, as evil discriminators against individuals who have a privacy right to their sexual orientation? This controversy commenced when the complainant James Dale became a scout in 1978 at the age of eight.2 He remained one until he turned eighteen.3 Dale was an exceptional scout and achieved its highest honor, the rank of Eagle Scout.4 About the time he left home to attend Rutgers University, the Boy Scouts approved his application for the adult position of assistant scout master in Troop Seventy-Three.5 When Dale arrived at Rutgers University, he acknowledged that he was gay and eventually became the co-president of the Rutgers Lesbian/Gay Alliance.6 Later, Dale was interviewed by a newspaper reporter writing about the psychological and health needs of lesbian and gay teenagers.7 “[T]he newspaper published the interview and Dale’s photograph over a caption identifying him as the co-president of the Lesbian/Gay Alliance.”8

Not surprisingly, Dale then received a letter from the Monmouth council executive revoking his adult membership.9 In response to Dale’s inquiry about his revocation, the executive responded by letter indicating that the Boy Scouts “specifically forbid membership to homosexuals.”10

Thereafter, Dale responded by filing a complaint against the Boy Scouts in New Jersey Superior Court.11 He alleged that the Boy Scouts had violated New Jersey’s public accommodations statute and its common law by revoking his membership based solely on his sexual orientation.12 “New Jersey’s public accommodations statute prohibits, among [many] things, discrimination on the basis of sexual orientation in places of public accommodation.”13 Some of the places listed in the statute do not appear to be physical “places” in the traditional meaning of the word.

Nevertheless “[t]he New Jersey Superior Court’s Chancery Division granted summary judgment in favor of the Boy Scouts.”14 The superior court decided that the Boy Scouts was not a place of public accommodation but rather was a distinct private group exempt from coverage under New Jersey’s accommodation law.15 The court also decided that the Boy Scouts’ beliefs about homosexuality were unmistakable and that the First Amendment freedom of “expressive association”16 prevented the state from compelling the organization to associate with Mr. Dale as an adult leader.17

On appeal, the New Jersey Superior Court’s Appellate Division reversed and remanded Dale’s claim holding that the state’s public accommodations law applied to the Boy Scouts.18 Thus, the court rejected the Boy Scouts’ federal constitutional claim of freedom of association.19

The Boy Scouts appealed to the New Jersey Supreme Court.20 The Scouts argued that the application of New Jersey’s public accommodations law violated their constitutional rights “to enter into and maintain … intimate or private relationships … [and] to associate for the purpose of engaging in protected speech.”21 However, the New Jersey Supreme Court concluded that the Boy Scouts’ “large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not ‘sufficiently personal or private to warrant constitutional protection’ under the freedom of intimate association.”22 In regard to the Boy Scouts’ claimed right of expressive association, the New Jersey Supreme Court “agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development of its members.”23 However, the court noted that it was “not persuaded … that a ‘shared goal[ ]’ of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral.”24 Therefore, the court held that “Dale’s membership does not violate Boy Scouts’ right of expressive association because his inclusion would not ‘affect in any significant way’ [Boy Scouts] existing members’ ability to carry out their various purposes.”25 The New Jersey court also determined that the State had a compelling interest in eliminating “the destructive consequences of discrimination from our society,”26 and that the State’s public accommodations law does no more than necessary to accomplish its purpose of stamping out such “destructive discrimination.”27

The Boy Scouts relied on Hurley v. Irish-American Gay, Lesbian, & Bi-sexual Group of Boston28 to support its First Amendment right to exclude Dale from the organization.29 The New Jersey Supreme Court decided that Hurley was not definitive. In the court’s view, Hurley was distinguishable because “the reinstatement of Dale [did] not compel [the] Boy Scouts to express any message.”30

THE MAJORITY

In Boy Scouts of America v. Dale,31 Chief Justice Rehnquist commenced his analysis of the issue by citing Roberts v. United States Jaycees32 for the proposition that “implicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.”33 He pointed out that government actions may constitutionally burden this freedom in many ways.34 A prime example includes “intrusion into the internal structure or affairs of an association”35 like imposing a “regulation that forces the group to accept members it does not desire.”36 Obviously, forcing a group to accept members it does not desire may impair the ability of the group to express the views that it wants to articulate. Relying on Roberts, Rehnquist explained, “freedom of association … plainly presupposes a freedom not to associate.”37 Consequently, he said “the forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association”38 when his presence has an effect on the group’s ability to advocate their views.39

The freedom of expressive association, however, is not always absolute.40 For instance, the Supreme Court ruled that this freedom may be impacted “by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”41 The Chief Justice then turned to a determination of whether or not the Boy Scouts are entitled to protection because they engage in “expressive association.”42 His inquiry led to an examination of the Boy Scouts’ mission statement. The gist of this document is essentially that the Boy Scouts seek to instill values in young people that will lead them to make ethical choices in their life experiences.43

Relying on the Boy Scouts’ mission statement, the Chief Justice noted that it seems indisputable that the Boy Scouts were seeking to transmit a system of values by engaging in expressive activity.44

Having decided that the Boy Scouts’ stated mission denotes expressive activity, the next inquiry was “whether the forced inclusion of Dale as an assistant scout master would significantly affect [their] ability to advocate public or private viewpoints.”45 This inquiry required the Court to briefly examine the Boy Scouts’ views on homosexuality.46 A careful reading of the mission statement clearly reveals that the Boy Scouts do not expressly mention sexual orientation in their Scout Oath or Scout Law.47 However, according to the Boy Scouts, homosexual conduct is inconsistent with the important life values found in the Scout Oath and Scout Law.48 Accordingly, the values that the Scouts claim to instill in their members are based on the same Oath and Law.49 So from where do these values arise? In the view of the organization, the values it seeks to instill are represented by the terms “morally straight” and “clean.”50 Hence, such terms are incompatible with homosexuality.”51

Certainly, reasonable people can derive different meanings of the terms “morally straight” and “clean.”52 Many people might believe that homosexual conduct falls within these parameters. Further, others may maintain that sexual orientation is no one else’s business. Still others, apparently including the Boy Scouts, believe that homosexuality is incompatible with living a morally straight and clean life.53

The Supreme Court observed the New Jersey Supreme Court’s conclusion that “exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy Scouts’ commitment to a diverse and ‘representative’ membership … [and] contradicts Boy Scouts’ overarching objective to reach ‘all eligible youth.’”54 The New Jersey court concluded that the Boy Scouts violated the State’s discrimination law, in part, because the exclusion of homosexual members “appears antithetical to the organization’s goals and philosophy.”55

Chief Justice Rehnquist would have none of this. His ringing response was to reject the entire notion that a court could rebuff a private organization’s philosophy.56 He said that “it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent.”57 Further, “[a]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.”58 He continued, “[r]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.”59 In their appellate briefs, the Boy Scouts claimed they taught their members that homosexual conduct is not morally straight.60 The Court accepted that assertion as true.61 For that reason, there was no need to inquire forther.62 Why? Because it is not the business of the Court to determine if a particular view is unwise or irrational, and the record clearly establishes the Boy Scouts’ view on homosexuality.63 The Court concluded that the Boy Scouts’ professed beliefs about homosexual conduct were sincere.64 Finally, the majority noted the fact that the Boy Scouts had publicly and consistently expressed the same views with respect to homosexual conduct by its pleadings in prior litigation.65

The next question faced by the Court was “whether Dale’s presence as an assistant scout-master [would place a significant burden on] the Boy Scouts’ desire to ‘not promote homosexual conduct as a legitimate form of behavior.’”66 The Chief Justice noted, “[a]s we give deference to an association’s assertions regarding the nature of its expression, we must also give deference to an association’s view of what would impair its expression.”67 Collectively, given Dale’s publicized interview about his sexual orientation, his co-presidency of the gay and lesbian organization in college, and his continued gay rights activities, it is obvious that his presence would force the Boy Scouts to send a message, against their will, that they accept and even highly regard homosexual conduct as a legitimate form of behavior.68

The Court turned to the holding in Hurley as a basis for its belief that Dale’s presence would force the Boy Scouts to send a message that they condone homosexual conduct.69 Recall that Hurley involved the question of whether Massachusetts’ public accommodations law would require the organizers of a private St. Patrick’s Day parade to include among the marchers an Irish-American gay, lesbian, and bi-sexual group called GLIB.70 GLIB contended that the parade organizers violated their First Amendment rights by denying them the opportunity to march.71 In that case, the Court observed “that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner.”72 The Court stated:

[A] contingent marching behind the organization’s banner would at least bear witness to the fact that some Irish are gay, lesbian, or bi-sexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals. … The parade’s organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB’s message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government’s power to control.73

Here, the Court found that the Boy Scouts legitimately believe “that homosexual conduct is inconsistent with the values it seeks to instill in its … members.”74 That is so, just “[a]s the presence of GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade organizers’ [First Amendment rights not to be forced] to propound a particular point of view.”75 Dale’s presence as an assistant scout master in a Boy Scout troop would just as surely interfere with the Boy Scouts’ choice not to suggest a view on homosexuality contrary to its own beliefs.76

Next, the Court turned to the New Jersey court’s “determination that the Boy Scouts’ ability to disseminate its message was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster.”77 The New Jersey Court found that “Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts include sponsors and members who subscribe to different views in respect of homosexuality.”78

Chief Justice Rehnquist wholly disagreed with the New Jersey Supreme Court’s conclusion for three reasons. First, he fiercely stated that associations did not have to associate “for the ‘purpose’ of disseminating a certain message in order to be entitled to the protections of the First Amendment.”79 It is enough that an association may engage in expressive activity that could be impaired by Dale’s presence in order to be entitled to protection.80 Rehnquist cited Hurley for the proposition that a gay group could be excluded from marching in a parade even when the purpose of the parade was not to espouse any views whatsoever about sexual orientation.81

Second, Chief Justice Rehnquist said that even if the Boy Scouts discouraged leaders from disseminating views on sexual issues, “the First Amendment protects the Boy Scouts’ method of expression.”82 Even if Boy Scout leaders try to dodge questions of sexuality and teach only by example, their approach does not impeach the sincerity of their beliefs concerning homosexuality.83

Third, Rehnquist found that “the First Amendment … does not require … every member of a group agree on every issue in order for the group’s policy to be ‘expressive association.’”84 Dale argued that the Boy Scouts do “not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts’ policy on sexual orientation.”85 The Court decided that even if true, this statement is irrelevant.86 The fact that the Boy Scouts take an official position with respect to homosexual conduct is in itself sufficient for First Amendment purposes.87 The Chief Justice opined that “[t]he presence of an avowed homosexual and gay rights activist [like Mr. Dale] in an assistant scoutmaster’s uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy.”88 The Boy Scouts clearly have a First Amendment right to choose one message and not the other.89 The fact that this organization tolerates dissent within its ranks does not mean that its views are stripped of their First Amendment protection.90

The next question that the Court faced was whether the imposition of New Jersey’s public accommodations law requiring the Boy Scouts to accept Dale violates the Boy Scouts’ freedom of expression.91 The Court was very concerned about the broad parameters of New Jersey’s public accommodations law.92 The Statute lists over fifty different types of places in its definition of a place of public accommodation.93 The Court pointed out that the New Jersey Supreme Court “applied its public accommodations law to a private entity without even attempting to tie the term ‘place’ to a physical location.”94 The law covers traditional places like taverns, hotels, shops, and libraries.95 However, the law also sweeps within its grasp more imprecise locations such as summer camps and playing fields.96

The Court declared in cases such as Roberts and Board of Directors of Rotary International v. Rotary Club of Duarte97 that the “states have a compelling interest in eliminating discrimination against women in public accommodations.”98 Nevertheless, the Court declared that in each of those cases enforcement of the public accommodations statutes “would not materially interfere with the ideas that the organization[s] sought to express.”99 In Roberts, the Court said that the “Jaycees [had] failed to demonstrate … any serious burdens on the male members’ freedom of expressive association.”100 In Duarte,101 In the Court wrote:

[I]mpediments to the exercise of one’s right to choose one’s associates can violate the right of association protected by the First Amendment. In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members’ ability to carry out their various purposes.102

In contrast, New Jersey’s public accommodations law directly impacts associational rights that enjoy First Amendment protection by compelling the Boy Scouts to accept Dale.103 Accordingly, Dale’s presence places an intolerable burden on the Boy Scouts’ freedom of expressive association. Why? Because his presence implies acceptance of homosexual conduct. The Court stated that New Jersey’s public accommodations law does “not justify such a severe intrusion on the Boy Scouts’ rights to freedom of expressive association.”104 The dissent berates the majority, because the latter fails to recognize that gayness is regarded by many citizens as compatible with a clean and morally straight lifestyle.105 However, the Chief Justice’s retort was that the First Amendment protects expression, popular or unpopular, by citing decisions of unpopular cases involving flag burning and the Ku Klux Klan.106 Rehnquist also mentioned that the Court’s personal views must not influence its decision regarding the Boy Scouts’ treatment of gays, regardless whether such treatment is right or wrong.107 The Court held by a close 5–4 vote that the First Amendment prohibits the State from imposing a requirement that Dale be made an assistant scoutmaster.108

THE DISSENT

Justice Stevens authored a ringing dissent in response to the majority’s determination that Dale’s presence intrudes on the Boy Scouts’ freedom of association. First, in perhaps a gentle jab at the majority (who are normally strong supporters of federalism), Stevens said that New Jersey should be commended for its attempts to eradicate the cancer of discrimination from society.109 The Court, Stevens noted, simply failed to accord that State the respect it is due in our federal system.110 Next, the dissent claims “[i]t is plain as the light of day” that the terms “morally straight” and “clean” have nothing to do with homosexuality.111 Further, it is just as clear that scoutmasters neither give information nor advice about sexual matters, but rather leave that to the parents.112 Finally, the Boy Scouts’ pronouncements simply declare that homosexuality is not “appropriate.”113 Consequently, this idea or principle of excluding gays does not appear to be a part of the Boy Scouts’ publicly taught values and creeds.114 The dissent maintained that there was no connection between these essentially private policy statements and the Boy Scouts’ expressive interests115 that justify the majority’s decision. The dissent seemed to think that the Boy Scouts’ failure to forcefully and publicly advocate their concern with gayness was somehow evidence of an acceptance of homosexuality or the lack of an expressive objection to the practice of that lifestyle.116 Perhaps the question for the Boy Scouts is whether they should have been more outspoken or bigoted toward gays?117

Next, the minority opinion maintained that in order to win an expressive association claim, the Boy Scouts must show more than merely some expressive activity.118 They must also establish a serious burden on the group’s collective effort.119 But in the minority’s view, Dale’s presence was not a serious burden on the Boy Scouts. This was so because the Boy Scouts never demonstrated that Dale would in any way advocate his beliefs to the youngsters in his charge.120

Justice Stevens recognized that the Boy Scouts had a First Amendment right not to talk about homosexuality to its youthful members.121 However, that interest could be accomplished by directing adult leaders not to discuss matters relating to sex and religion.122 According to Stevens, the Boy Scouts’ concern that Dale would use his position as a “bully pulpit”123 to convey his ideas on homosexuality has no basis in fact.124 In addition, there is no indication that Dale would disobey Boy Scout policies.

Next, Justice Stevens took great issue with the majority’s conclusion that Dale’s presence would send a message that the Boy Scouts endorsed a gay life style.125 He argued that the majority’s reliance on Hurley was misplaced.126 Recall in Hurley that a gay group wished to march in a private organization’s St. Patrick’s Day parade with a large banner to express their gay pride.127 The Court concluded that the parade organizers, a private group, could not be compelled to proclaim a belief with which it disagreed.128

Here, Justice Stevens said that Dale’s presence at a scout meeting was nothing like marching in a parade with a banner.129 Contrary to Hurley, Dale neither carries a banner nor openly advocates his views at troop meetings.130 Mere attendance at a meeting is not enough to rise to the level of expression.131 Usually, an expressive association claim involves at least the “avowal and advocacy of a consistent position on some issue over time.”132 The fact that a gay man participates in an organization no more conveys a support for the lifestyle than does a gay person participating in baseball, tennis, or golf.133

Finally, the dissenters reminded us that “[u]nfavorable opinions about homosexuals ‘have ancient roots.’”134 As a result of free interaction between people, these ancient and unfavorable opinions have consistently been modified.135 The minority opinion cited examples of domestic partner legislation, greater understanding in religious faiths, and removal of homosexuality from a list of mental disorders to support this idea of modification.136 Indeed, it is apparent that the publicly avowed view toward gays is heavily tilted toward acceptance. (In contrast, the authors of this article take the position that sexual conduct between consenting adults is absolutely none of the State’s concern.) Of course, the majority’s response to this was that the Boy Scouts’ position on homosexuality did not have to be rational or reasonable to fall under First Amendment protection.137

But what relevance does any of the foregoing have to do with voluntary association? Let us stipulate that Dale is a very honest, upright, religious, witty, and moral person whom we would trust to care for and educate our children. And we further posit that his sexual orientation has absolutely no effect on his abilities to be a wonderful scoutmaster. These provisos notwithstanding, it is still illicit for the government to compel one person to associate with another just because the latter is of good moral character. Perhaps one prefers associating with his or her friends who smoke cigarettes, drink beer, play poker, eat fatty steaks, tell dirty jokes, and watch pornographic movies. Could the government legitimately compel that person to shun his or her disreputable friends and instead go camping with the sainted Mother Theresa, or even Dale, just because they are of good moral character? We think not; the whole idea is preposterous in a free society. In the end, whether gay leaders are compatible with family values is not the fundamental issue. Rather, it is whether an organization has the right to set its own membership rules. These specifications for joining may not fit with some of today’s politically correct social norms. They might be hurtful to an individual’s feelings. But at the end of the day, the alternative to the right of exclusion is total state control of private association. We need not succumb to the tyranny of the supposed good intentions of the state of New Jersey. We think that James Madison would appreciate the Boy Scouts’ moral courage in standing up for his First Amendment.138

PHILOSOPHY

According to the New Jersey Supreme Court, the Boy Scouts are guilty of an egregious offense against morality, propriety, and most importantly, the law, in their decision to exclude gays as scoutmasters. This philosophical position taken on by the court in this decision is that discrimination, on the basis of an entire litany of criteria, is wrong and should be proscribed by law. The finding of this court, however, is philosophically flawed. Indeed, it is so dead from the neck up that even the adherents of this perspective are unable to carry through on their own principles and apply them widely.

For example, while employers may not exclude or discriminate against employees on the basis of race, gender, national origin, sexual preference, etc., the latter are not at all proscribed by law from doing just that with regard to the former. That is, if a prospective employee declines to take a job with Brigham Young, Loyola, or Yeshiva Universities on the grounds that their religious mission offends him, that person is still in full compliance with the law. But let any one of them apply a similar criterion in their hiring of professors, and all hell breaks loose, legally speaking. Needless to say, it would be a matter of outlawry for them to refuse to employ scholars for these reasons.

Suppose people decide to go out to dinner together but eschew all Chinese, black,139 Jewish, and Italian restaurants, not on the ground that their culinary offerings do not appeal to them, but rather because they loathe the nationalities thereby represented. Are they thereby guilty of law breaking? They are not. But were any of these establishments to make similar choices with regard to employees or customers (e.g., by posting a sign on their premises stating “no Chinese, blacks, Jews, or Italians will be allowed entry either as patrons or workers”) then it would be a paradigmatic case of law violation.

This fact, that the burden of non-discrimination is uneven, has further interesting ramifications. For example, sellers are typically forbidden to discriminate, but not buyers; but even this is by no means the end of the story. A diner can patronize an Italian restaurant, avoiding one offering Chinese food, even if this is motivated by racial or ethnic hatred. However, a Greek eating establishment may not ban Turkish diners even when this decision is precipitated by similar emotions. On the other hand, were any of these restaurants to decide not to hire (e.g., purchase the services of) Jews or blacks,140 they would quickly be found to be in violation of anti-discrimination law.

If the same establishments were to avoid purchasing meats or vegetables from gays, females, or Spaniards, their (legal) guilt would turn on the issue of whether they shop for these things in a supermarket (in which case they could discriminate to their heart’s content) or let these things out to competitive bidding contracts (in which case they could not discriminate on race, sex, gender, or ethnicity; however, it would be legal for them to discriminate on the basis of price, e.g., accept the lowest bid). One of the criteria of good law is surely intellectual coherence, something under which such legislation does not pass muster.

Moreover, if it is really true that discrimination is a cancer141 which must presumably be wiped out entirely, then why do we countenance it in personal relations? For example, dating. Why does the law not force all of those who wish to engage in this practice, whether gay or straight, not to discriminate on the basis of race? If blacks142 are fourteen percent of the overall population, then every seventh date of a white person would have to be with a member of this community. Marriage and friendship patterns, too, would have to come under the eagle eye of the discrimination police. Present intermarriage rates are evidence of the fact that blatant discrimination takes place in this arena.

And, as it happens, both heterosexuals and homosexuals are “guilty” of sexual discrimination. Male homosexuals, for example, abjure women as bed partners, as do female heterosexuals. Female homosexuals forswear men which is the same practice of male heterosexuals. If discrimination must be eliminated then all of this “evil” behavior should be proscribed, forthwith. Only bisexuals would be acting lawfully. The logical implication of the court in Dale v. Boy Scouts of America is that of compulsory bisexuality for everyone. Until and unless they are willing to embrace this consistent application of their own philosophy, they are forced by the laws of logic to change their verdict.

Furthermore, “[a]ll-boys schools are attacked for discrimination, but all-girls schools are consistent with the needs of diversity. All-white clubs are verboten, but all-black clubs are a healthy reflection of racial pride. All-Christian schools are pockets of bigotry, but all-atheist schools are essential to pluralism.”143 The law mandates that girls be accepted for boys’ sports teams, but the reverse does not apply. Were girls’ sports teams forced to allow male participation and if ability were still the determining factor for inclusion, this would pretty much spell the death knell for all female participation in athletics, with the possible exception of such activities as golf, and “ballet sports” such as gymnastics, diving, and synchronized swimming.144 Certainly, it would be the rare female who could hold her own vis-à-vis males in football, baseball, basketball, etc.

Consider the fact that the Black Muslim group of Malcolm X was not forced to admit whites; that religious groups such as Mormons, Jews, Catholics, etc., may legally exclude non-members from (certain aspects of) their services. There is also the fact that there is a strict enforcement of male-only and female-only rest rooms: neither may “poach” upon the preserves of the other; each, that is, may exclude the other.

Conceivably, all of these decisions may be “justified.” Perhaps employers are more powerful or have better bargaining power than employees.145 Even if this is so, this is unrelated to racial or gender discrimination. If this is legally offensive, per se, then mere wealth should be irrelevant. After all, the rapist cannot defend his actions on the ground that his victim is richer than himself. In any case, it is the customer, not the owner of the restaurant, “who is always right.” If there is any imbalance of power in that scenario, it presumably cuts in precisely the opposite direction. For example, since the patron of an eating establishment holds a thumbs up or thumbs down vote, then it should be, if anyone, the owner and not the customer who would have the right to freely pick and choose.

This court’s finding is also philosophically flawed in that it ignores the fact that private property rights are in effect a license to exclude. The entire point of such rights is to draw a line between “mine” and “thine.” If a man cannot exclude others from his premises, then there is a strong sense in which they are not his premises at all.

Llewellyn Rockwell states:

But liberty also means the right to exclude because property owners decide questions of access. There is no right to crash a private dinner party, for example. The owners of the house have the right to invite or not invite on any grounds. Similarly, there is no right to invade a private organization.146

If private, male-only golf courses cannot be forced to admit women, it would appear to be a legal stretch to compel the Boy Scouts to welcome gays in their senior ranks.

The New Jersey Supreme Court attempted to argue its way out of this conundrum by defining the Boy Scouts as a “public accommodation.”147 But this is a philosophical howler of the first magnitude. For this organization is not at all “open to the entire public.” Rather, it is receptive only to those members of the public who meet its membership criteria and this most certainly does not include gay scoutmasters. Moreover, were the “public accommodation” doctrine pushed to its logical conclusion, it would spell the death knell of private property. Any property, without exception, is open to some members of the public, even private homes and clubs. To infer that if an owner is willing to engage his property with some people then he, therefore, must be forced to do so with all people is logically invalid.

If the real reason for this attack on the liberties of Americans is not and cannot be a concern with discrimination (as shown by the fact that the court will not consistently apply this tyrannical principle), nor yet is it “public accommodation” (because this mischievous doctrine undermines all property rights), what then is the true explanation for this loss of our liberties?148 In a word, it is concern with victims (but only with some victims) who are embraced by the forces of political correctness. Rockwell asks in this regard:

What if the Boy Scouts had decided to exclude, say, racists as Scout masters. Would the courts have intervened on behalf of, for example, a Klan member’s right to join? Not on your life. This is not an equal application of the law, but one that favors interest groups approved by government.149

In this regard, it is more than passing curiosity that gays, who have long been associated with the view that they should be allowed a sphere of privacy in the bedroom or in the bathhouse for acts between consenting adults, are now intent upon violating the private spaces of those who do not welcome them.

The legal precedent for the present diminution of property rights is the 1948 Supreme Court decision abrogating restrictive covenants that mentioned race.150 Shelley v. Kraemer151 mandated restrictive covenants not be enforced.152 But if property rights and contracts are undermined by judicial decisions, the rot infects our entire society.153 If civilization is built upon these twin pillars, to the extent they are diluted, our entire social order is put at risk.

In sharp contrast to Shelley is the following ringing endorsement of contractual and private property rights mandating that the state not

limit or abridge, directly or indirectly, the right of any person, who is willing or desires to sell, lease, or rent any part or all of his real property, to decline to sell, lease or rent such property to such person or persons as he, in his absolute discretion, chooses.154

“But in 1967, the U.S. Supreme Court struck that amendment down—on the same grounds that the New Jersey court ruled against the Boy Scouts.”155

In Rockwell’s view:

Since then the right of free association has experienced many blows, from the 1964 Civil Rights Act, which defined any business enterprise as a public accommodation to be controlled by government, straight to this New Jersey decision. If a group is politically powerful enough, it can have the tyrants in black robes override anyone’s property rights.156

Libertarians157 oppose not only this attack by a gay man on that venerable institution, the Boy Scouts, they also dispute the entire philosophy upon which such a lawsuit rests. Nor is it only a matter of a “slippery slope;” the iceberg is already upon us, not just its tip. If an organization such as the Boy Scouts can be successfully assaulted in the courts by a gay person then reductio ad absurdum are all but impossible.

ECONOMICS

Why is it that we have run so far off the rails in terms of antidiscrimination law? How is it that we have arrived at a point where compulsory bisexuality is the only practice consistent with legislation in this area? Can it really be required by law that parents be forced to send their impressionable adolescent boys to an organization featuring gay scoutmasters?

There are many plausible explanations for this sorry state of affairs: a failure of the will, rampant immorality, sheer bloody-minded busybody-ness, an altogether perverse interpretation of the otherwise reasonable desire to help the underdog, philosophical confusion, and “bloody cheek” in the British expression. But we must not, in casting around for blame on this matter, neglect the dismal science. Economic illiteracy also goes a long way toward explaining why so many segments of our society should either have embraced the anti-discrimination idea with alacrity or at least accorded it passive acceptance.

The major fallacy underlying the so-called civil rights movement is the idea that discrimination, particularly on the part of the rich and powerful,158 is economically deleterious to the downtrodden. Indeed, this is an important source of poverty, if not the major explanation for this state of affairs.159 Visions of employers turning away blacks160 from the factory door or enforcing sweatshop conditions on economically powerless women dance in the minds of those determined that discrimination shall not legally take place on the basis of race, sex, ethnicity, sexual preference, or any of a continually increasing number of considerations.

The only difficulty with this perspective is that it happens not to be true. For instance, compare the wage “gap” between male and female workers. According to the most popular hypothesis, the fact that females earn only some seventy cents for every dollar garnered by a male is per se proof of male, chauvinist employer exploitation.161 The implicit claim is that, now acknowledged male advantages over females in upper body strength are less and less economically relevant, there are no differences in productivity levels on average between the two genders. This is also, as it happens, a not unreasonable surmise. (If it were conceded that females were less productive in the market place than males, this would furnish an alternative explanation for the wage gap.) This situation gives rise to the following two-by-two matrix:

	Male	Female
Wages	$10	$7
Productivity	$10	$10

Here, males and females have equal productivity at $10 per hour respectively. However, based on a wage gap of 30 percent, the former earn $10 per hour while the latter suffer under wages of only $7 per hour.

There are grave difficulties with such a scenario. Were the scenario true, it could not long endure. For it implies that any employer who hires a woman will earn $3 per hour more in profits than were he to hire a man. Surely, under the conditions specified above, the firm dominated by female employees will be able to underbid, and price out of the market, all competitors with a different make-up in their work forces. Surely, under these conditions, any but the most warped employer would prefer to hire a woman (thus raising her salary) to a man and would continue doing so until the wages of each came to conform to the other. (Given our numerical example, wages in equilibrium would reach $10 for both genders; at this point, there would be no additional profits earned by the entrepreneur for hiring women that would not be available to him were he to hire men.)

What, then, is the true explanation for the undeniable fact that women’s earnings are appreciably below that of their male counterparts? If the discrimination hypothesis must be consigned to the dust bin of economic history, what can take its place? In large part, it is the marital asymmetry hypothesis: men earn more money in the market place than women, because marriage has asymmetrical effects on pay; it enhances that of the husband and reduces that of the wife. Since most people are married for at least some years of their adult lives, this biases the statistical differentials upon which the feminists162 have pegged their misbegotten “wage gap” complaints.

Why the asymmetry? This is because husbands and wives do not equally divide housekeeping and child-rearing responsibilities. Very much to the contrary, the wife assumes the lion’s share of these tasks and the husband assumes a very small proportion, even including repairs and garbage removal. In virtually all marriages, the shopping, cooking, cleaning, sewing, bed making, vacuuming, and dishwashing are almost entirely monopolized by the distaff side. This goes in spades for diapering, PTA meetings, caring for sick children, etc. Also, this is to say nothing of getting up in the middle of the night and being on call every few hours during the day in order to breast feed, a biological impossibility for men.

What is the implication of such a state of affairs? It is what economists call the doctrine of alternative costs. If you want to be a concert pianist and practice your instrument eight hours a day, you probably will not be very good at golf, chess, computers, or hundreds of other things; you certainly will not be as productive in these other tasks but for your tie to the piano. If you load yourself up with house and child-care, compared to your otherwise equally-productive-in-the-marketplace husband, he will gain a march on you in the latter direction. Moreover, if a woman expects to seriously or totally reduce her labor force attachment from the time her first child is born until her last child is in high school and thus relatively independent, she is likely to invest her human capital in less well paid, but presumably more secure arenas, such as secretary, nurse, or school teacher; rather than invest in the more remunerative chemistry, computers, or engineering lest the natural atrophy of her skills during her time of zero or lesser labor force participation hurt her financially. Given that her husband is the primary bread winner for these years, she is far more likely to agree to be the “trailing spouse” in the job market than the reverse, in order to maximize total family income.

What are the results of these considerations? It is that while on average women should earn just as much as men, given that the average woman is just as productive as the average man, matters are quite different when we take into account marital status. If wage ratio of all females to all males is seventy percent to one hundred percent, it drops precipitously for those who have ever been married and rises to virtual equality for those who have never benefited from the institution of marriage. Indeed in many cases, the wage “gap” for those who have never married vanishes almost entirely!163

The same analysis applies to discrimination against any other group, such as blacks,164 homosexuals, or members of the various ethnicities. Discrimination is not the economic bugaboo that it is commonly supposed to be. Much discrimination was aimed at Jews and Orientals165 and yet they had higher than average incomes; discrimination did not reduce their economic viability. Given that blacks166 and Hispanics are also the objects of discrimination, this cannot account for their relative poverty.

If a restaurant does not wish to serve an Oriental167 person, there will be competitors anxious to do just that. They will earn greater profits, other things equal, since they can “monopolize” customers from this sector of society. If a firm does not to choose to employ a gay person, he will find a job elsewhere. His new employer, more likely than not, will be able to undersell and drive into bankruptcy the first one. No, there is nothing to fear from discriminators. They are a paper tiger. Fear of them is certainly not a justification for riding roughshod over the rights of the citizenry to do exactly as they wish, to choose their friends, business associations, and personal relationships, provided only that they keep their mitts off of other people and their property.

STATISTICAL EVIDENCE

What are the facts of the matter? In table one, the ratios of female-to-male median incomes are listed168 [(in 1997 dollars)] for the years 1987–1997.169 As can be seen, the ratio for all males and females ranges from a low of 46.7 percent in 1987 to 55.1 percent in 1997; from 77.9 percent to 81.0 percent for the single, never married during these years; and from a low of 36.9 percent in 1987 to a high of 47.1 percent in 1997 for those who were married, widowed, separated, or divorced. The point at issue is not the slight rise in all these figures over this eleven year period, but rather the fact that the reason female wages lag behind male wages for the total population is that those who had ever married pull down the average for them. That is, the female-to-male wage ratio for this period of 51.3 percent was so low because the ever-married ratio of 41.7 percent pulled it down. Had no one been touched by the institution of marriage, and nothing else changed, the presumption is that the female-male wage ratio would have been 81.8 percent for this roughly decade-long period.

These facts are certainly compatible with the marital asymmetry hypothesis that married, separated, divorced, or widowed females would earn far less than their male counterparts and that this effect would be much weaker for those who were never married. These facts are not at all consistent with the discrimination model, for here, the market, or capitalism, for some reason170 gives all females the “short end of the stick.” If anything, the male, chauvinist pig might, on this hypothesis, be presumed to have greater animus against unmarried females than married ones since his motto is that all women should be “barefoot, pregnant, and in the kitchen” and this ideal is more nearly approached by the latter than the former. Accordingly, we would expect that if sexism were a strong explanatory variable, the very opposite; namely, that those females who have never married would have lower wages relative to their male counterparts than would obtain in the case of those who have ever married. However, any such contention is flat out contradicted by the empirical evidence.

Table two171 tells much the same marital asymmetry story as does table one, only in a different and complementary manner.172 The reason that the female-to-male median income ratio is so high for those aged fifteen to twenty-four is because relatively few people in this age cohort are married. This ratio tends to decline as we move up the age ranges because more and more people have ever been married (this includes the separated, divorced, married, and widowed) as they become older. The facts are perfectly congruent with the marital asymmetry hypothesis of the wage gap but not at all with the discrimination hypothesis. Again, posit malevolent, male, chauvinist pigs who are in a position to impose their will on society, wage-wise; they hate females with a passion and wish above all else to do them ill in this regard. Why would they be so variable in their detestation? Why not penalize all women equally for the “crime” of being female? Why pass over young women or women who have never married? The facts of the matter simply make no sense when perused through these particular eyeglasses.

Economic theory is universal; it applies to all epochs as well as to all geographical areas and political jurisdictions. Let us, then, range more widely and peruse the evidence supplied by a different country, Canada, going back over several decades. We shall consider female/male wage ratios based on income averages, or means, not medians, as has been shown so far. According to one report, the female/male earnings ratio in Canada in 1971 for those never married was 99.2 percent; for those ever married, it was 33.2 percent; and for both, together, it was 37.4 percent.173 According to another report, the never-married female-to-male average annual earnings for full-time workers in Canada with a university degree was 109.8 percent in 1971;174 that is, females actually earned almost 10 percent more than their male counterparts.175 In very sharp contrast, the equivalent figure for ever-marrieds with these qualifications was 56.8 percent176 and for the entire sample 61.2 percent.177 And in 1982, Canadian women with these educational attainments who were never married earned 91.3 percent of their male counterparts,178 while their ever-married sisters registered only 64.4 percent in this regard.179 The ratio for the entire sample was 67.2 percent.180

CONCLUSION

In the free society, James Dale would no more be free to impose his presence upon the unwilling Boy Scouts than an avowed and militant heterosexual would be able to join the Rutgers University Lesbian/Gay Alliance; or than the Black Muslim organization would be forced to accept a white person as a member; or than a religious-affiliated university would be compelled to allow an atheistic professor to join its theology faculty. Freedom of association is a necessary condition of a civilized order; laws prohibiting discrimination violate this freedom and must be repealed. All of them.

_____________________

Roy Whitehead, Jr. and Walter Block, Oklahoma City University Law Review 29 no. 3 (Fall 2004).

181 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

182 Id. at 644.

183 Id.

184 Id.

185 Id.

186 Id. at 645.

187 Id.

188 Id.

189 Id.

190 Id. (citations omitted).

191 Id.

192 Id.

193 Id. see N.J. Stat. Ann. §10:5-5 (West Supp. 2004), stating:

A place of public accommodation shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be constructed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students.

194 Boy Scouts of America v. Dale, 530 U.S. at 645.

195 Id.

196 Id. at 648.

197 Id. at 645–46.

198 Id. at 646.

199 Id.

200 Dale v. Boy Scouts of America, 734 A.2d 1196, 1219 (N.J. 1999), rev’d, 530 U.S. 640 (2000).

201 See id. (quoting Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 544 (1987)).

202 Id. at 1221.

203 Id.

204 Id. 1223–24 (alteration in original) (citing Roberts v. United States Jaycees, 468 U.S. 609, 636 (1984)).

205 Id. at 1225 (alteration in original) (citations omitted).

206 Id. at 1227.

207 Id.

208 Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, 515 U.S. 557 (1995). Here, as we will explore in greater detail later, the Supreme Court held that a gay group did not have a First Amendment right to march in a St. Patrick’s Day parade. The Court decided that inclusion of the gay group would interfere with the parade organization’s First Amendment rights by giving the impression that they sponsored the views of the gay group. See id. at 572–73. The Court determined that the parade is an inherently expressive undertaking. Id. at 573–78.

209 Dale v. Boy Scouts of America, 734 A.2d at 1228.

210 Id. at 1229.

211 Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

212 Roberts, 468 U.S. 609 (1984). The Jaycees brought an action contending that Minnesota’s public accommodations law requiring them to admit women violated the male members’ intimate association rights. The Supreme Court concluded that “Jaycees chapters lack[ed] the distinctive characteristics that might afford constitutional protection to the decision … to exclude women.” Id. at 621. The Court emphasized that the local chapters “are neither small nor selective[,]” and that “much of the activity central to the formation and maintenance of the association involves the participation of strangers to that relationship.” Id.

213 Id. at 622.

214 Boy Scouts of America v. Dale, 530 U.S. at 648.

215 Id. (quoting Roberts, 468 U.S. at 623).

216 Roberts, 468 U.S. at 623.

217 Boy Scouts of America v. Dale., 530 U.S. at 648 (quoting Roberts, 468 U.S. at 623).

218 Id.; see also New York State Club Association v. City of New York, 487 U.S. 1, 13 (1988).

219 Boy Scouts of America v. Dale., 530 U.S. at 648.

220 Roberts, 468 U.S. at 623.

221 Id.

222 Boy Scouts of America v. Dale., 530 U.S. at 648.

223 “It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential.” Id. at 649. These values are based on both the Scout Oath and the Scout Law which state:

Scout Oath: On my honor I will do my best [t]o do my duty to God and my country and to obey the Scout Law; [t]o help other people at all times; [t]o keep myself physically strong, mentally awake, and morally straight.

Scout Law: A Scout is: [t]rustworthy [o]bedient [l]oyal [c]heerful [h]elpful [t]hrifty [f]riendly [b]rave [c]ourteous [c]lean [k]ind (and] [r]everent.

Id. at 649.

224 Id. at 650 (citing Roberts, 468 U.S. at 636 (O’Connor, J., concurring) (“Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement”).

225 Id.

226 Id.

227 Id.

228 Id.

229 Id.

230 Id.

231 Id.

232 Id.

233 Id.

234 Id. at 650–51 (quoting Dale v. Boy Scouts of America, 734 A.2d 1196, 1226 (1999), rev’d, 530 U.S. 640 (2000)).

235 Dale, 734 A.2d at 1226.

236 Boy Scouts of America v. Dale, 530 U.S. at 651.

237 Id.

238 Id. (quoting Democratic Party of the United States v. Wisconsin ex rel La Follette, 450 U.S. 107, 124 (1981)).

239 Id. (quoting Thomas v. Review Board of Indiana Employment Security Division, 450 U.S. 707, 714 (1981)).

240 Id.

241 Id.

242 Id. at 651–52.

243 Id. at 652. The Boy Scouts’ 1993 position statement reads:

The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA.

      Id. (citations omitted).

244 Id. at 652–53; see Curran v. Mount Diablo Council of Boy Scouts of America, 952 P.2d 218 (Cal. 1998).

245 Boy Scouts of America v. Dale, 530 U.S. at 653 (quoting Reply Brief for Petitioners at 5, Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (No. 99-699)).

246 Id.

247 Id.

248 Id.

249 Id.

250 Id.

251 Id.

252 Id.

253 Id. at 654 (alteration in original) (quoting Hurley, 515 U.S. 557, 574–75 (1995)).

254 Id.

255 Id.

256 Id.

257 Id.

258 Id. at 654–55 (emphasis in original) (quoting Dale v. Boy Scouts of America, 734 A.2d 1 196, 1223 (N.J. 1999), rev’d, 530 U.S. 640 (2000)).

259 Id.

260 Id.

261 Id.

262 Id.

263 Id.

264 Id.

265 Id.

266 Id. In the view of the Court, the record shed some doubt on Dale’s claim. “For example, the National Director of the Boy Scouts certified that ‘any persons who advocate to Scouting youth that homosexual conduct is’ consistent with Scouting values will not be registered as adult leaders.” Id. at 655 n.1 (citations omitted).

267 Id. at 655.

268 Id. at 655–56.

269 Id. at 656.

270 Id.

271 Id.

272 Id. at 656–57. The majority stated, “Over time, the public accommodations laws have expanded to cover more places. New Jersey’s statutory definition of ‘[a] place of public accommodation’ is extremely broad. The term is said to ‘include but not limited to,’ a list of over [fifty] types of places.” Id.

273 Boy Scouts of America v. Dale, 530 U.S. at 657.

274 Id.

275 Id.

276 Id.

277 Duarte, 481 U.S. 537 (1987).

278 Boy Scouts of America v. Dale, 530 U.S. at 657.

279 Id.

280 Id. at 657–58 (quoting Roberts, 468 U.S. 609, 626 (1984)).

281 In Duarte, 481 U.S. 537 (1987), the Court considered a situation in which the charter of a local chapter of Rotary International was revoked by the national organization, because it admitted female members. Here, the Court concluded “the relationship among Rotary Club members is not the kind of intimate or private relation that warrants constitutional protection.” Id. at 546. It emphasized the Rotary Club’s inclusive membership policy, pointing to its own declaration that “[t]he purpose of Rotary ‘is to produce an inclusive, not exclusive, membership.” Id. Importantly, Rotary’s membership policy was designed to be inclusive in order to enable “the club to be a true cross section of the business and professional life of the community.” Id. (citations omitted).

282 Boy Scouts of America v. Dale, 530 U.S. at 658 (quoting Duarte, 481 U.S. at 548).

283 Id. at 659.

284 Id.

285 See id. at 699–700.

286 Id. at 660 (citing Texas v. Johnson, 491 U.S. 397 (1989) (holding that there is a right to burn one’s American flag); citing also Brandenburg v. Ohio, 395 U.S. 444 (1969) (holding that Ku Klux Klan leaders had a First Amendment right to advocate unlawfulness).

287 Id. at 661.

288 See id.

289 Id. at 663 (citing Justice Brandeis’ comment in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (dissenting opinion),

To stay experimentation in things social and economic is a grave responsibility. … It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.

       The Chief Justice’s response to Brandeis’ comment was that in New State Ice, he was speaking of experimentation regarding economic matters during the depression years. Boy Scouts of America v. Dale, 530 U.S. at 660. Rehnquist implies that Brandeis was a champion of free speech in matters of expression. Id. Brandeis thought that the founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.” Id. at 660–61 (citing Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., 395 U.S. 444 concurring), overruled in part by Brandenburg v. Ohio, (1969)).

290 Boy Scouts of America v. Dale, 530 U.S. at 664.

291 Id. at 668.

292 See id.

293 Id. at 673.

294 Id. “Rather, the 1978 policy appears to be no more than a private statement of a few BSA executives.” Id.

295 Id. at 676.

296 See id. at 677–78.

297 At least that was the opinion of one writer. Writing about the New Jersey Supreme Court decision he said, “By the perverse logic of this decision, the Boy Scouts erred not in the direction of bigotry but rather in not being bigoted enough.” Terence Pell, Not Bigoted Enough, Wash. Post, Aug. 23, 1999, at A17, available at 1999 WL 23299503.

298 Boy Scouts of America v. Dale, 530 U.S. at 682.

299 See id. at 683; see also Roberts, 468 U.S. 609, 626–27 (1984).

300 Boy Scouts of America v. Dale, 530 U.S. at 689.

301 Id. at 688.

302 Id.

303 Id. at 689.

304 Id. “BSA has not contended, nor does the record support, that Dale had ever advocated a view on homosexuality to his troop before his membership was revoked.” Id.

305 See id. at 692–97. Stevens forcefully argued that the majority’s reliance on the simple fact that Dale is gay somehow sent a message endorsing homosexuality was wrong. Such a presumed message is the same as a “constitutionally prescribed symbol of inferiority.” Id. at 696.

306 Id. at 693–95.

307 Hurley, 515 U.S. 557, 561 (1995).

308 See id. at 573.

309 Boy Scouts of America v. Dale, 530 U.S. at 694–95.

310 Id. at 695.

311 Id.

312 Id. at 696.

313 See id. at 697.

314 Id. at 699 (quoting Bowers v. Hardwick, 478 U.S. 186, 192 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003)).

315 Id.

316 Id. at 699–700.

317 See id. at 660.

318 See note 109. According to James Madison, “[t]o compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical” (citations omitted). For more on this question of the government practice of compelling people to support opinions with which they disagree, see Roy Whitehead and Walter Block, “Mandatory Student Fees: Forcing Some to Pay for the Free Speech of Others,” Whittier Law Review 20 (1999): 759, 772.

319 (The non-politically correct language in this article has been left unedited due to one of the authors’ heartfelt insistence.) I (one of the authors) like to treat blacks and whites exactly alike, both personally, professionally, and, of relevance here, linguistically. To call blacks African Americans violates this, unless we also call whites European Americans, and I am not willing to employ this latter language; one, because it seems silly to my ear; and two, because it is simply not in common use and would needlessly raise eyebrows. I certainly would not capitalize white and use lower case for black, or vice versa. And of course, I do no such thing in this paper. Another reason: “African American” is not at all precise. For example, what do you call a man now living in the U.S. with very white skin, blue eyes, blond hair and whose parents have lived in South Africa or Zimbabwe (formerly Rhodesia) for centuries and originally immigrated there from England or Holland? If anyone is an “African American,” this guy surely is. But that would just spread confusion, for this guy looks white to everyone, is white, considers himself white, and would certainly not be eligible for any sort of U.S. affirmative action program reserved for blacks. Yet another reason for my choice of words is that people on the left use “African American.” People on the right do not. I do not consider myself a member of either of these two groups; I am a libertarian. A push in either direction is a violation of my free speech rights. It is an attempt to impose upon me a political stance that I do not wish to embrace.

320 See text accompanying note 139.

321 The New Jersey Supreme Court says that the goal of LAD is to remove the cancer of discrimination. Specifically, the court stated, “[T]he overarching goal on the [LAD] is nothing less than the eradication ‘of the cancer of discrimination.’” Dale v. Boy Scouts of America, 734 A.2d 1196, 1208 (N.J. 1999) (quoting Jackson v. Concord Co., 253 A.2d 793 (N.J. 1969)).

322 See text accompanying note 139.

323 Llewellyn H. Rockwell, Jr., “The Right to Exclude,” Mises Institute, at http://www.mises.org/fullstory.aspx?control=282andid=76.

324 See Roy Whitehead et al., “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?” University of Toledo Law Review 30 (1999): 223; Roy Whitehead and Walter Block, “Christian Landlords and the Free Exercise Clause: Sinners Need Not Apply,” Oklahoma City University Law Review 33, no. 1 (Spring): 115–50

325 This will come as a surprise to the employers of Michael Jordan or of marginal farmers during harvest when they are desperate for workers.

326 Rockwell, see note 143.

327 Id.

328 It is surely a paradox that at a time when the United States armed forces are conducting an expedition ostensibly to promote the liberties of the Iraqis, liberties at home are in great danger.

329 Rockwell, see note 143.

330 Id.

331 Shelley v. Kraemer, 334 U.S. 1 (1948).

332 Id.

333 Rockwell, see note 143.

334 Id. These words appear in a 1964 amendment to the California Constitution. Cal. Const. art. I, §26 (repealed 1974).

335 Rockwell, see note 143; see generally Reitman v. Mulkey, 387 US. 369 (1967).

336 Id. For a philosophical view on the right to discriminate see Jan Narveson, “Have We a Right to Non-Discrimination?” in Business Ethics in Canada (Scarborough, Ont: Prentice-Hall Canada, 1987), pp. 183, 183–98; Walter Block, “Discrimination: An Interdisciplinary Analysis,” Journal of Business Ethics 11 (1992): 241, 241–54; Walter Block, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology 57 (1998): 223, 223–37.

337 For the libertarian philosophy which underscores the underlying intellectual basis of this section, indeed of the entire paper, see Murray N. Rothbard, For A New Liberty; Murray N. Rothbard, The Ethics of Liberty; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics; Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy; Robert Nozick, Anarchy, State, and Utopia; Walter Block, Defending the Undefendable; Walter Block, “Libertarianism vs. Libertinism”; Charles Murray, What it Means to be a Libertarian; Jan Narveson, The Libertarian Idea; Anthony de Jasay, The State.

338 There are three main sources of economic discrimination: on the part of employers, fellow employees, and customers. In keeping with popular sentiment on this matter, we shall confine our remarks to the discrimination on the part of employers where such discrimination, as we shall show, is powerless to harm the economically weak.

339 On the economics of discrimination see Gary S. Becker, The Economics of Discrimination; Walter Block, “Economic Intervention, Discrimination, and Unforseen Consequences,” in Discrimination, Affirmative Action, and Equal Opportunity, Walter E. Block and Michael A. Walker, eds. (Vancouver, British Columbia: The Fraser Institute, 1982): 103–24; Walter Block and Walter Williams, “Male-Female Earning Differentials: A Critical Reappraisal,” Journal or Labor Research 2, pt. 2 (1981): 383–88; 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); Harold Demsetz, “Minorities in the Market Place,” North Carolina Law Review 43 (1965): 271, 271–97; Richard Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Carl Hoffman and John Reed, “When is Imbalance Not Discrimination,” in Discrimination, Affirmative Action, and Equal Opportunity; W.H. Hutt, The Economics of the Colour Bar: A Study of the Economic Origins and Consequences of Racial Segregation in South Africa (London: Andre Deutsch, 1964); Ellen Frankel Paul, Equity and Gender: The Comparable Worth Debate (New Brunswick, N.J.: Transaction, 1989); Thomas Sowell, Ethnic America (New York: Basic Books, 1981); Thomas Sowell, “Weber and Bakke, and the Presuppositions of ‘Affirmative Action’,” in Discrimination, Affirmative Action, and Equal Opportunity; Thomas Sowell, The Economics and Politics of Race: An International Perspective (New York: William Morrow, 1983); Thomas Sowell, Civil Rights: Rhetoric or Reality (New York: William Morrow, 1984); Thomas Sowell, Race and Economics (New York: Longman, 1975); Walter Williams, The State Against Blacks (New York: McGraw-Hill, 1982); Walter Williams, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” in Discrimination, Affirmative Action, and Equal Opportunity, pp. 66–99.

340 See text accompanying note 139.

341 These numbers are for illustrative purposes only.

342 For a critique of feminism see Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary 78, no. 3 (September 1984); Michael Levin, Feminism and Freedom (New York: Transaction Books,1987); Christina Hoff Sommers, Who Stole Feminism? How Women have Betrayed Women (New York: Simon & Schuster, 1994).

343 Block, “Discrimination: An Interdisciplinary Analysis,” pp. 246–48; Block, “Compromising the Uncompromisable: Discrimination,” pp. 223–37.

344 See text accompanying note 139.

345 (The non-politically correct language in this article has been left unedited due to one of the author’s heartfelt insistence.) A similar argument stated previously in note 139 applies to Orientals–Asians. To be fair to both races, if we use “Asian” to describe an Oriental then we would have to (if we are to be logically consistent) use “European” or “American” to describe an Occidental. That would spread confusion. Then, too, to characterize a person whose family has lived in the U.S. for several centuries, but who originally migrated to the U.S. from Korea, Japan, or China, as an “Asian” isn’t just plain silly. Worse, it is confusing.

346 See text accompanying note 139.

347 See text accompanying note 165.

348 Table One:

        Annual Median Income, Entire Population

Year	Males$	Females$	Ratio
1997	25,936	14,281	55.1
1996	25,375	13,686	53.9
1995	24,774	13,233	53.4
1994	24,174	12,787	52.9
1993	24,097	12,645	52.5
1992	24,148	12,664	52.4
1991	24,847	12,756	51.3
1990	25,705	12,849	50.0
1989	26,613	12,978	48.8
1988	26,783	12,641	47.2
1987	26,416	12,331	46.7

        Annual Median Income, Never Married

Year	Males$	Females$	Ratio
1997	15,076	12,208	81.0
1996	14,508	11,820	81.5
1995	14,201	11,523	81.1
1994	13,844	11,295	81.6
1993	13,572	11,040	81.3
1992	13,239	11,341	85.7
1991	13,765	11,732	85.2
1990	14,382	12,052	83.8
1989	15,056	12,131	80.6
1988	15,206	11,855	78.0
1987	14,520	11,614	80.0

        Annual Median Income, Ever Married

Year	Males$	Females$	Ratio
1997	31,517	14,833	47.1
1996	31,140	14,187	45.6
1995	30,648	13,327	43.5
1994	29,845	12,746	42.7
1993	29,584	12,709	43.0
1992	29,942	12,632	42.2
1991	30,474	12,488	41.0
1990	31,296	12,501	39.9
1989	32,281	12,497	38.7
1988	32,285	12,486	37.7
1987	31,949	11,792	36.9

This table is based on one of the author’s calculations, using the following source: U.S. Census Bureau, Historical Income Tables—People, table P-11, Marital Status—People [Eighteen] Years Old and Over by Median Income and Gender: 1974 to 1997, at http:www.census.gov/hhes/income/histinc/pl1.html (last visited November 2, 1999) (on file with Oklahoma City University Law Review) [hereinafter Income Tables].

349 Id.

350 Presumably this is due to sheer nastiness and perversity.

351 Table Two:

      Age Group Ratio (Female/Male Median Income)

Total	53.87
15–24 yrs	84.50
25–34 yrs	65.07
35–44 yrs	57.35
45–54 yrs	52.57
55–65 yrs	45.10
65+	57.70

This table is also based on one of the author’s calculations. The sources for table two are the U.S. Census Bureau, “Money Incomes of Persons – Selected Characteristics, by Income Level: 1995,” in Statistical Abstract of the United States, 1998: The National Data Book (118th ed. 1998), p. 475 and Income Tables, note 171.

352 Id.

353 Block, “Unforeseen Consequences,” p. 112.

354 Block and Walker, Focus on Employment Equity, p. 51.

355 Id.

356 Id. at 50.

357 Id. at 48.

358 Id. at 51.

359 Id. at 50.

360 Id. at 48.

• 1Philip Blumstein and Pepper Schwartz, American Couples: Money, Work, Sex (New York: William Morrow, 1983).
• 2See lewrockwell.com.
• 3See lewrockwell.com.
• 4“The Evil of Term Limits,” lewrockwell.com.
• 5See Hans-Hermann Hoppe, Democracy—The God That Failed: The Economics and Politics of Monarchy, Democracy, and the Natural Order (New Brunswick, N.J.: Transaction, 2001).
• 6See, e.g., Thomas Sowell, Race and Culture: A Worldview (New York: Basic Books, 1994).
• 7James Buchanan, Cost & Choice (Chicago: Markham Publishing, 1969), especially pp. 47–48; G.F. Thirlby, “Subjective Theory of Value and Accounting Cost,” Economica 13 (February 1946): 32–49; Ludwig von Mises, Human Action, 3rd ed. (Chicago: Regnery, 1963), pp. 242, 395.
• 8A female/male income ratio of 485 can be derived from Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207 (Ottawa: Statistics Canada, 1979), p. 99.
• 9Ratna Ray, Women in the Labour Force: Facts and Figures, Catalogue L 38-30/1977-2 (Ottawa: Department of Labour, Women’s Bureau, 1977), page i. Other economic studies of interest in this regard include Alan S. Blinder, “Wage Discrimination: Reduced Form and Structural Estimates,” Journal of Human Resources 8 (1973): 436–55; Morley Gunderson “Male-Female Wage Differentials and the Impact of Equal Pay Legislation,” Review of Economics and Statistics 57 (1975): 462–70; Morley Gunderson, “Work Patterns,” in Opportunity for Choice: A Goal for Women in Canada, ed. G. Cook (Ottawa: Statistics Canada, 1976).
• 10The average age of all employed Canadian men was 37 years in 1980. This placed the typical man in the highest male earnings age bracket (35–44 years old). The average age of all employed Canadian women was 34 years in 1980. This placed the typical woman in the fourth highest male earnings age bracket (25–34 years old). See The Labour Force, Statistics Canada, Catalogue 71-001, (Ottawa: Statistics Canada, 1980), page 75; and Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207 (Ottawa: Statistics Canada, 1979), pp. 104–09.
• 11Occupational segregation such as shown in the table below cannot properly be interpreted as the result of employer discrimination. After all, the employer cannot hire a nurse as a doctor, nor a person with secretarial training as an engineer or accountant.
• 12In 1978, the percentage of female Canadian union members was 28.7 percent; males comprised 71.3 percent of the membership. Source: Corporations & Labour Unions Returns Act, Part II, Labour Unions, Statistics Canada, Catalogue 71-202, p. 41. On the question of male/female productivity differentials, see Jacob Mincer and Solomon Polachek, “Family Investments in Human Capital: Earnings of Women,” Journal of Political Economy 82, no. 2, part 2 (March 1974): 76–108.
• 13In 1980, 94.1 percent of employed Canadian males worked full time, 5.9 percent worked part time; 76.2 percent of employed Canadian females worked full time, 23.8 percent worked part time. In 1979, 72.9 percent of employed Canadian males worked 50–52 weeks, 27.1 percent worked 1–49 weeks; 60.1 percent of Canadian females worked 50–52 weeks, 39.9 percent worked 1–49 weeks. Source: The Labour Force, Statistics Canada, December 1980, p. 105, Catalogue 71-001; Income Distributions by Size in Canada, 1979, Statistics Canada, Catalogue 13-207, p. 112.
• 14These figures are derived from computations based on data cited for elementary school teachers’ earnings and percentages of teachers by sex: Salaries and Qualifications of Teachers in Public, Elementary & Secondary Schools, 1979–80, Statistics Canada, Catalogue 81-202, p. 25; university teachers’ earnings and percentages of university teachers by sex: Teachers in Universities, 1978–1979, Statistics Canada, Catalogue 81–241, p. 57. Note that while we have corrected the female/male income ratio for several phenomena not related to discrimination, a still more accurate assessment would have to normalize for all of these variables, together, and include other variables such as continuity of employment, earned degrees, labor force participation, location, industrial concentration, public or private employment, productivity, seniority, as well as such imponderables as motivation, “stick-to-it-iveness,” resourcefulness, ambition, expectations, etc.
• 15Thomas Sowell, Affirmative Action: Reconsidered (Washington, D.C.: American Enterprise Institute, 1975), pp. 23–34.
• 16Jesse Bernard, Academic Women (University Park: Pennsylvania State Univ. Press, 1964), pp. 220–26; Jesse Bernard, The Future of Motherhood (New York: Penguin Books, 1974), pp. 165–70; Bryan and Boring, American Psychologist 2 (January 1947): 18; Lee Rainwater, And the Poor Get Children (Chicago: Quadrangle Books, 1960), pp. 67–69; Wayne R. Bartz and Richard A. Rasor, Surviving With Kids (San Luis Obispo, Calif.: Impact, 1978), p. 147; Martin Meissner, “Sexual Division of Labour and Inequality: Labour and Leisure,” in Women in Canada, pp. 166–74; Nancy Chodorow, “Being and Doing: A Cross Cultural Examination of the Socialization of Males and Females,” in Women in Sexist Society, ed. Vivian Gornick and Barbara K. Moran (New York: Basic Books, 1971), pp. 183–84; Roslyn S. Willett, “Working in ‘A Man’s World’: The Woman Executive,” in Women in Sexist Society, p. 368; Jean Tepperman, “Two Jobs: Women Who Work in Factories,” in Sisterhood is Powerful, ed. Robin Morgan (New York: Random House, 1970), pp. 115, 121.
• 17Gail C.A. Cook, “Opportunity for Choice: A Criterion,” in Opportunity for Choice: A Goal for Women in Canada, ed. Gail C.A. Cook (Ottawa: Statistics Canada and C.D. Howe Research Institute), Catalogue IC 23-15/1976, p. 4; Gail C.A. Cook and Mary Eberts, “Policies Affecting Work,” in Opportunity for Choice, p. 145; Richard A. Lester, Antibias Regulations of Universities (New York: McGraw-Hill, 1974), p. 39; Willett, “Working in ‘A Man’s World’,” p. 368; Pat Mainardi, “The Politics of Housework,” in Sisterhood Is Powerful, pp. 447–54; Jesse Bernard, The Future of Motherhood, pp. 157–65; Kathryn E. Walker, “Time Used by Husbands for Household Work,” Family Economics Review (June 1970): 8–10; M. Meisner, E.W. Humphries, S.M. Meis, and W.J. Scheu, “No Exit for Wives: Sexual Division of Labour and the Cumulation of Household Demands,” Canadian Review of Sociology and Anthropology 12 (1975): 424–39.
• 18Barbara B. Reagan, “Two Supply Curves for Economists? Implications of Mobility and Career Attachment of Women,” American Economic Review 65, no. 2 (1975): 102; Jacquelyn S. Crawford, Women in Middle Management (Ridgewood, N.J.: Forkner, 1977), p. 63.
• 19E.W. Burgess and Paul Wallin, Engagement and Marriage (New York: Lippincott, 1953), pp. 614, 618; and Reagan, “Two Supply Curves,” p. 104. See also Beth Neimi, “The Female-Male Differential in Unemployment Rates,” Industrial and Labour Relations Review 27, no. 3 (April 1974): 331–50.
• 20Alan E. Bayer, “Marriage Plans and Educational Aspirations,” American Journal of Sociology 75 (1969): 239–44; Reagan, “Two Supply Curves,” p. 103; Bernard, The Future of Motherhood, pp. 91, 151, 181; Jean Tepperman, “Two Jobs,” p. 123; Betty Friedan, The Feminine Mystique (New York: Dell, 1974), p. 31; Meg Luxton, More Than a Labour of Love: Three Generations of Women’s Work in the Home (Toronto: Women’s Educational Press, 1980), p. 16; Margaret Luxton, “Urban Communes and Co-ops in Toronto,” (M. Phil. dissertation, University of Toronto, 1973), cited in Luxton, More Than a Labour of Love; Ann Oakley, Women’s Work: The Housewife Past and Present (New York: Vintage Books, 1976); Eli Zaretsky, Capitalism, The Family, and Personal Life (New York: Harper & Row, 1976), p. 17; Simone de Beauvoir, The Second Sex (New York: Vintage Books, 1974), p. 482.
• 21Let us imagine an experiment. We offer a large number of employed married couples the following option: jobs in city A, where the husband will earn $200,000 per year and the wife $150,000, or in city B, where the wife will earn $200,000 per year, and the husband $150,000. (The type of employment and the amenities of the cities are assumed to be identical in each case.) How many of the husbands would prefer city B? How many wives would prefer city A? Although there is only casual evidence on this, since such an experiment has not yet been done, one may speculate that there will be more wives who will prefer city A than there will be husbands who will prefer city B. The motivations behind these choices may vary. Some husbands may feel “less of a man” if their wives earn more than they do; others may feel it is just “not fitting” that their incomes should be lower; some wives may feel less damaged psychologically from earning less than their spouses; others may subscribe to the societal pressures which teach, at a young age, that “nice girls don’t outcompete boys.” But whatever the reason, there is abundant anecdotal evidence that many women have great psychological and other personal difficulties in competing with men, and are thus, when married, more likely than men to purposefully keep their earnings below those of their spouses—with important implications for the low female/male earnings ratios for married people.
• 22Unfortunately, only the “married” and “total” columns are widely published in official Canadian Statistics. To say the least, this gives rather a biased account of the true state of the female/male earnings ratio, and its basic cause (marital status and its widely diverging effects on male and female earnings).
• 23Not only does marriage have asymmetrical effects on earnings by sex, but it is reasonable to believe that so does “living together” or “cohabitation”—and for similar reasons. Moreover, this category has become more statistically significant in recent years, though actual data are lacking. Table 3, in distinguishing between the ever married and the never married, cannot separate those who have ever lived together—whether married or unmarried—from those who have never lived together. If cohabitation as well as ever-married status could be controlled for, one would thus expect the female/male ratio to be higher than 992. There is also, however, a reason for believing that 992 may be somewhat of an overestimate of the “true” female/male earnings ratio: never-married females are older than never-married males (46.2 years vs. 43.7 years old), have more schooling (10.9 vs. 9.3 years), work more weeks (45.6 vs. 42.3 weeks), and work on a part-time basis to a lesser degree (10.6 percent vs. 11.8 percent). (All figures based on calculations made from data presented by Kuch and Haessel; see Table 3 for full citation.)
• 24Some may argue that private discriminatory behavior is immoral and ought to be prohibited by force of law. Others may hold that, while discrimination is a negative characteristic, each individual is nevertheless entitled to make whatever decision suits his conscience—whether in commercial dealings, employment practices, housing decisions, or personal relations—provided only that he not commit fraud upon, or initiate aggression against, minority group members. Whatever the solution to this philosophical question, both sides may perhaps take comfort from one of the findings in Block and Walker, Discrimination, Affirmative Action, and Equal Opportunity: the tendency of the marketplace to financially penalize those who indulge in discriminatory practices, and thus to reduce, over time, the scope of this activity.
• 25There would appear to be numerous criteria upon which discrimination has, or is alleged to have, taken place, and upon which quotas, affirmative action, or preferential treatment are now demanded. Some of the grounds include (1) obesity: see “Obese Are Victims of Bias: Professor,” Toronto Globe & Mail (August 5, 1980), p. 13; (2) blindness: see “Group for Blind Suggests Job Quota,” Toronto Globe & Mail (August 2l, 1980), p. 1, and “Blind Woman and Guide Dog Win Rights Fight,” Vancouver Sun (August 18, 1980), p. 8; (3) residence: see “Stop Provinces Reserving Jobs for Residents, Rights Chief Says,” Toronto Globe & Mail (June 4, 1980), p. 10; (4) “reverse” discrimination: see “Barring White in Native Class Is Ruled Illegal,” Toronto Globe & Mail (February 13, 1980), which tells of an Alberta Human Rights Commission finding against the University of Calgary for discriminating against a non-Indian woman by denying her admission to a special course specifically set up for native peoples; (5) ugliness: see “More to an Interview than Meets the Eye,” Toronto Globe & Mail (July 19, 1980), p. F3, which shows that persons of “unattractive appearance” (and even sometimes persons of beauty) are discriminated against in hiring practices; (6) political beliefs: see “They’re Biting the Hand that Won’t Feed Them,” Toronto Globe & Mail (August 9, 1980), p. 8, which tells of a Prince Edward Island Provincial Human Rights Commission finding that a public employee had been wrongfully dismissed for his political beliefs; (7) hirsuteness: see “Supreme Court Refuses a Motion to Force Grocery Clerk to Shave,” Toronto Globe & Mail (February 10, 1980), which tells of a Winnipeg employer who could not legally compel his grocery clerk to either shave his beard, work nights “out of the sight of customers,” or fire him.
• 26The situation with regard to discriminatory practices on the part of the government is a unique matter. It cannot be argued, as it could in the private case, that, no matter how morally reprehensible discrimination is, at least in the market sector it is done by an individual in his own name and with his own money.
• 27Although many people interpret prejudice or discriminatory behavior as a willingness to engage in physical aggression against a despised person or group, this interpretation is about as far away as it is possible to get from a clear understanding. On the contrary, a sharp distinction must be made between refusing to interact at all with a person, and threatening physical abuse against him. The former is all that is done by a hermit, although on a larger scale; and if it is no crime to refuse to deal with all of humanity, then it might be argued that it can scarcely be a rights violation to avoid dealing with only some people.
• 28Ludwig von Mises, Human Action, p. 109.
• 29Toronto Globe & Mail (April 14, 1980), p. 6. See also Toronto Globe & Mail (January 25, 1980).
• 30See “Drea Tells Firm to Stop Questions” and the editorial “Wearing Nothing but a Seat Belt,” both in Toronto Globe & Mail (July 31, 1980), pp. 5, 6.
• 31These agencies include the Federal Reserve Board, the Comptroller of the Currency, the Federal Deposit Insurance Corp., the Federal Home Loan Bank Board, and the National Credit Union Administration.
• 32Wall Street Journal (June 22, 1978). On age bias, see also Toronto Globe & Mail (February 18, 1980), p. 5.
• 33They cannot. Loansharks, black marketeers, usurers, and underworld lenders have not been driven out of business. With age-affirmative action for legitimate concerns, these alternatives would be given a new lease on life.
• 34Toronto Globe & Mail (September 14, 1979).
• 35Toronto Globe & Mail (July 1, 1980), p. 12.
• 36Ralph Keyes, The Height of Your Life (Boston: Little, Brown & Co., 1980). Also Toronto Globe & Mail (July 10, 1980), p. 15.
• 37Toronto Globe & Mail (March 26, 1980), pp. 5, 8.
• 38True, laws can be passed prohibiting this latter alternative, but they are hard to police. Even if such a law decreases discriminatory activity on the basis of race, it is not likely to succeed. Government will have first unleashed a bout of discrimination upon the private sector, through its unwise rent control law, and only then have attempted to eradicate it. The net result will inevitably be an increase in discrimination compared to the situation in which government did not act at all. The government will, of course, take credit for its (secondary) efforts in “solving” the problem. It will be the rare individual who can follow the somewhat complex chain of reasoning necessary to see the government’s true role. Anti-tenant-discrimination legislation, moreover, will have unintended negative consequences similar to those created by affirmative action programs.
• 39For an account of landlord discrimination, under rent control, against: (1) families with children, see “Choosey Landlords Targets of Council,” Vancouver Sun (September 24, 1980), p. A8; (2) male college students, see “Report Biased Landlords, Male Students Are Urged,” and “Preferred,” Toronto Globe & Mail (August 18, 1980), p. 9, 6; (3) the handicapped, see “Landlords Won’t Rent to Man in Wheelchair,” Vancouver Sun (October 25, 1980), p. A3, and “Landlords Close Doors to Thalidomide Victim: Deformity Makes Her an Unwanted Tenant,” Vancouver Sun (January 14, 1981), p. B1. Whether these landlords are allegedly discriminating on their own account, or in behalf of tenants, however, is by no means clear.
• 40Laws which make it more difficult for legitimate lenders to legally repossess their funds upon default of the loan have a similar effect.
• 41Louw, “Free Enterprise and the South African Black,” p. 3.
• 42According to anecdotal evidence, interest charges demanded (and received!) by loan sharks varies from 2 percent to 5 percent to 20 percent per week, depending on the time period of the loan, and the creditworthiness of the borrower. See in this regard “Joey,” with Dave Fisher, Killer: Autobiography of a Mafia Hit Man (New York: Simon and Schuster, Pocket Book, 1974), p. 86.
• 43See Walter Block, ed., Zoning: Its Costs and Relevance for the 1980s (Vancouver, British Columbia: The Fraser Institute, 1980).
• 44The truth seems to be that the juxtaposition of many supposed “incompatible uses” is perceived by some as a benefit but by others as a harm. See Block, Zoning, pp. 35, 36.
• 45Louw, “Free Enterprise and the South African Black,” p. 3
• 46Bernard H. Seigan, Land Use Without Zoning (Toronto: Lexington Books, 1972), p. 29.
• 47Seigen, Land Use Without Zoning. This does not imply, of course, that each voter does an intensive cost-benefit analysis of the effect of such legislation on his or her pocketbook. But it does indicate a rough way that people correctly perceive their self-interest in zoning.
• 48See generally Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993), cert. denied, 510 U.S. 1004 (1993); Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996), cert. denied, 520 U.S. 1186 (1997).
• 49Prior to trial on the merits of the Brown University cases, the district court granted the plaintiffs a preliminary injunction, ordering the women’s volleyball and gymnastics teams be restored from club to university-funded status. See Brown University I, 809 F. Supp. at 1001. The first circuit upheld the district court’s decision after reviewing the district court’s analysis of Title IX and the implementing regulations. See Brown University II, 991 F.2d at 906. On remand, the district court found that Brown’s intercollegiate program violated Title IX and the supporting regulations. See Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III). Brown University appealed and on November 21, 1996, the First Circuit affirmed. See Cohen v. Brown University, 101 F.3d 155 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
• 50912 F. Supp. 892 (M.D. La. 1996).
• 51Letter from Norma Cantu, Assistant Secretary for Civil Rights, U.S. Dep’t of Education, to Colleges and Universities (Sept. 20, 1995) (on file with author).
• 52Brown University I, 809 F. Supp. at 985.
• 53Brown University II, 991 F.2d at 895.
• 54Id.
• 55Cohen v. Brown University (Brown University II), 991 F.2d 888, 897 (1st Cir. 1993).
• 56Id.
• 57Id. at 898.
• 58Id.
• 59Id.
• 60Id.
• 61Id.
• 62Id.
• 63Id. at 906.
• 64Id. at 898.
• 65Cohen v. Brown University (Brown University II), 991 F.2d 888, 898 (1st Cir. 1993).
• 66Id.
• 67Id. at 899.
• 68Id.
• 69Id. at 899–900.
• 70Id. at 900.
• 71The Manual at 9.
• 72Brown University II, 991 F.2d at 901.
• 73Id.
• 74Id. at 902–03.
• 75Cohen v. Brown University, 991 F.2d 888, 903 (1st Cir. 1993) (Brown University II).
• 76Id. at 904.
• 77Cohen v. Brown University, 879 F. Supp. 185, 186 (D.R.I. 1995) (Brown University III).
• 78Cohen v. Brown University, 101 F.3d 155, 167 (1st Cir. 1996) (Brown University IV), cert. denied, 520 U.S. 1186 (1997).
• 79Id. at 162.
• 80Id. at 174.
• 81Id.
• 82Id. at 175.
• 83Id. at 176.
• 84Id. at 179.
• 85Id. at 180.
• 86Id. at 188 (Torruella, J., dissenting).
• 8734 C.F.R. § 106.41(b) (1992).
• 88Cohen v. Brown University, 101 F.3d 155, 188 (1st Cir. 1996) (Brown University IV) (Torruella, J., dissenting).
• 89912 F. Supp. 892 (M.D. La. 1996).
• 90Id. at 904–5.
• 91Id. at 913.
• 92Id. at 914.
• 93Id. at 913.
• 94Id. (citing Title IX, 20 U.S.C. § 1681(a) (1972)).
• 95Id.
• 96Id. at 913–15.
• 97Id.
• 98Id. at 915.
• 99Pederson v. Louisiana State University, 912 F. Supp. 892, 915–16 (M.D. La. 1996).
• 100Id. at 915.
• 101Id. at 916.
• 102Id. at 916–18.
• 103Id.
• 104Id.
• 105Id.
• 106Id. at 919.
• 107Id. at 916–18.
• 108Id. at 913–14.
• 109Office for Civil Rights, Clarification of Intercollegiate Athletics Policy Guidance: The Three-Part Test (Washington, D.C.: U.S. Department of Education, 1996), hereinafter “The Clarification.”
• 110Id. at 1–2.
• 111Id. at 2.
• 112Id. at 5.
• 113See note 108 and accompanying text.
• 114The Clarification at 6.
• 115Id.
• 116Id. at 192.
• 117The Supreme Court has strongly cautioned lower courts against comparisons to the general population when special interests or qualifications are required. See Hazelwood School District v United States, 433 U.S. 299, 308 n.13 (1977). In a recent voting rights case, the Supreme Court held that proportionality cannot serve as a shortcut to determine whether a set of districts unlawfully dilutes minority voting strength. See Johnson v. Florida, 512 U.S. 997 (1994).
• 11820 U.S.C. § 1681(b) (1972).
• 119St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 514 (1993) (interpreting a Title VII employment discrimination claim). See also Cannon v. University of Chicago, 648 F.2d 1104, 1109 (7th Cir. 1981), cert. denied, 454 U.S. 1128 (1981) (stating that “a violation of Title VI requires an intentional discriminatory act and that disparate impact alone is not sufficient to establish a violation. We shall therefore adopt that standard under Title IX.”).
• 12020 U.S.C. § 168 1(b).
• 121Cannon, 648 F.2d at 1109.
• 122Alexander v. Choate, 469 U.S. 287, 293 (1985). Additionally, Title IX is patterned after Title VI. See Grove City v. Bell, 465 U.S. 555, 566 (1984). By setting up the same administrative structure and using virtually the same language, Congress intended that the interpretation of Title IX was to be the same as Title VI. See Hearing Before the Subcomm. on Post Secondary Education of the House Comm. on Education and Labor, 94th Cong. 16, 150 (1971).
• 123The Roberts Court was apparently relying on Guardians Association v. Civil Service Commission of New York to justify a holding that a federal agency, or in this case a court, may proscribe, as discriminatory, conduct which the statute itself does not prohibit. See Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 832 (10th Cir. 1993); Guardians Association v. Civil Service Commission of New York, 463 U.S. 582, 584 (1982). The court’s reliance is misplaced because the Guardians court found that the authority was delegated to the agency by statute. Unlike Guardians, Congress in Title IX specifically withheld authority to take action on account of a statistical imbalance between the sexes. See 20 U.S.C. § 1981(b) (1972).
• 12434 C.F.R. § 106.41 (c)(1) (1992).
• 125City of Richmond v. J.A. Croson Co., 488 U.S. 469,501 (1989); Mayor of Philadelphia v. Educational Equity League, 415 U.S. 605, 620 (1974).
• 126Todd Traub, While Footing the Bill: Football Also Creates Title IX Imbalance, Arkansas Democrat-Gazette (Little Rock, Ark.), November 14, 1996, p. C1.
• 127Favia v. Indiana University of Pennsylvania, 812 F. Supp. 578 (W.D. Pa. 1993), aff’d, 7 F.3d 322 (3d Cir. 1993).
• 128Cohen v. Brown University, 991 F.2d 888 (1st Cir. 1993) (Brown University II); Cohen v. Brown University, 879 F. Supp. 185 (D.R.I. 1995) (Brown University III).
• 129Roberts v. Colorado State Board of Agriculture, 998 F.2d 824 (10th Cir. 1993).
• 130See generally Denise K. Magner, “Judge Blocks Cal-State Bakersfield’s Plan to Cap Size of Wrestling Team,” Chronicle of Higher Education, March 12, 1999, p. A44.
• 131See generally Pederson v. Louisiana State University, 912 F. Supp. 892 (M.D. La. 1996).
• 132See, e.g., Hazelwood School District v. United States, 433 U.S. 299 (1977); Castaneda v. Partida, 430 U.S. 482 (1977).
• 133For example, the backlash in football has been very strong. See generally Bob Holt, “Court Ruling Raises Alarm on Title IX: ASU’S Dowd Calls Decision ‘Idiotic,’” Arkansas Democrat-Gazette (Little Rock, Ark.), Apr. 22, 1997, p. C1. Unfortunately, some schools have helped justify their decisions to cut men’s sports by blaming Title IX, according to NCAA president Cedric Dempsey, and a recent GAO study shows a drop in men’s participation in NCAA sports. See generally, “GAO Study Shows Drop in Men’s Participation, but Reason Is Unclear,” NCAA News, July 5, 1999, p. A1; Erik Lords, “More Women and Fewer Men Participate in Intercollegiate Athletics, Study Finds,” Chronicle of Higher Education, July 9, 1999, p. A40.
• 134The NCAA Gender-Equity Task Force Report states that it should be the ultimate goal of each institution that the numbers of male and female athletes are substantially proportionate to their undergraduate population. See The Report, note 4, p. 3. The Report also stresses that maintaining current revenue-enhancing programs like football is essential to enhancing opportunities for women athletes (see id).
• 135The conventional wisdom does make one set of exceptions in the case of sex: it “concedes” that men and women have different biological characteristics, and that only females can become pregnant and give birth. We applaud this concession to reality.
• 136See generally Cohen v. Brown University, 809 F. Supp. 978 (D.R.I. 1992) (Brown University I).
• 137See generally Thomas Sowell, Civil Rights: Rhetoric or Reality (New York: William Morrow, 1984); Thomas Sowell, A Conflict of Visions: Ideological Origins of Political Struggles (New York: William Morrow, 1987); Thomas Sowell, The Economics and Politics of Race: An International Perspective (New York: William Morrow, 1983); Thomas Sowell, Ethnic America (New York: Basic Books, 1981); Thomas Sowell, Pink and Brown People (Stanford, Calif.: Hoover Institution Press, 1981); Thomas Sowell, Race and Culture: A World View (New York: Basic Books, 1994);Thomas Sowell, Race and Economics (New York: Longman, 1975); Thomas Sowell, The Vision of the Anointed (New York: Basic Books, 1995); Walter E. Williams, South Africa’s War Against Capitalism (New York: Praeger, 1989); Walter E. Williams, The State Against Blacks (New York: McGraw-Hill, 1982); Thomas Sowell, “Preferential Policies,” in Thinking about America: The United States in the 1990s, Annelise Anderson and Dennis L. Bark, eds. (Stanford, Calif.: Hoover Institution Press, 1988); Thomas Sowell, “Weber and Bakke and the Presuppositions of ‘Affirmative Action’,” in Discrimination, Affirmative Action, and Equal Opportunity, Walter Block and Michael Walker, eds. (Vancouver, British Columbia: Fraser Institute, 1982); Walter E. Williams, “On Discrimination, Prejudice, Racial Income Differentials, and Affirmative Action,” in Discrimination, Affirmative Action, and Equal Opportunity.
• 138Sowell, The Vision of the Anointed, p. 33.
• 139Id., pp. 35–57.
• 140See generally Steven Farron, “Prejudice is Free but Discrimination has Costs,” Journal Libertarian Studies 14, no. 2 (Summer 2000): 179–245.
• 141One might expect Jews to be among the most vociferous opponents of affirmative action, given their historical experiences with this phenomenon. Why this is not the case is explored by Walter Block, “The Mishnah and Jewish Dirigisme,” in International Journal of Social Economics 23, no. 2 (1996): 35–44; Milton Friedman, “Capitalism and the Jews,” in Morality of the Market: Religious and Economic Perspectives, Walter Block, Geoffrey Brennan, and Kenneth Elzinga, eds. (Vancouver, British Columbia: The Fraser Institute, 1985), pp. 429–42.
• 142Sowell, The Vision of the Anointed, p. 35.
• 143Michael Lynch and Rick Henderson, “Team Colors,” Reason, July 1998, p. 21.
• 144Ibid., p. 20. It is often charged that while blacks are hired as players in professional sports leagues, there is in effect a “glass ceiling” which prevents them from rising to management, coaching, and other staff positions after they retire as athletes. This contention cannot be supported by the reported facts. Blacks comprise only 14 percent of the U.S. population. See U.S. Census Bureau, Statistical Abstract of the United States: 1998, p. 14, table 13 (1998). Thus, they are statistically overrepresented in the NBA and NFL not only as players, but also as managers, coaches and staff. Therefore, were employment equity strictly applied to the professional athletics industry, at least insofar as these two leagues are concerned, there would be a massive firing of blacks as players, as well as roughly half of the black general managers and coaches in the NBA, and coaches in the NFL would have to be dismissed.
• 145For antidotes, see generally Richard A. Epstein, Forbidden Grounds: The Case against Employment Discrimination Laws (Cambridge, Mass.: Harvard University Press, 1992); Michael E. Levin, Feminism and Freedom (New York: Transaction Books, 1987).
• 146Golf may well be an exception. If so, and to that extent, its pedigree as a legitimate athletic event comes into question. In other words, we may perhaps distinguish between “real” sporting activities and mere “play” on the basis of whether adult males and females are competitive with each other. True, female Olympic athletes of 1998 can swim rings around males of an earlier era (e.g., Buster Crabbe, Johnny Weismuller), but records have been significantly improving over the intervening decades. These two swimmers, Crabbe and Weismuller, who later played the role of Tarzan in the movies, could best their female contemporaries of the day by similar margins as men now outdistance women in the pool.
• 147Lillian B. Rubin, Families on the Fault Line: America’s Working Class Speak About the Economy, Race, and Ethnicity, 1st ed. (New York: Harper Collins, 1994); Rodney Stark, “Socialization and Social Roles,” in Sociology, 7th ed. (1998), pp. 160–62.
• 148See generally Robert M. Axelrod, The Evolution of Cooperation (New York: Basic Books, 1984); David M. Buss, The Evolution of Desire: Strategies of Human Mating (New York: Basic Books, 1994); Richard Dawkins, River out of Eden: A Darwinian View of Life (New York: Basic Books, 1995); Richard Dawkins, The Selfish Gene (Oxford University Press, 1989); R.H. Frank, Passion within Reason: The Strategic Role of the Emotions (London: Norton, 1988); Donald Symons, The Evolution of Human Sexuality (Oxford University Press, 1979); Robert Trivers, Social Evolution (Menlo Park, Calif.: The Benjamin Cummings Publishing Company, 1985); E.O. Wilson, Sociobiology: A New Synthesis (Cambridge, Mass.: Harvard University Press, 1975); Robert Wright, Moral Animal: The New Science of Evolutionary Psychology (New York: Vintage, 1994); R. Axelrod and W.D. Hamilton, “The Evolution of Cooperation,” Science 211 (1981): 1390–96; John Tooby and Leda Cosmides, “Evolutionary Psychology and the Generation of Culture,” Ethnology and Sociobiology 10 (1989): 375–424; John Tooby and Leda Cosmides, “On the Universality of Human Nature,” Journal of Personality 58 (1990): 17–67; R. Wright, “Feminists, Meet Mr. Darwin,” New Republic, Nov. 28, 1994, p. 43.
• 149Dawkins, The Selfish Gene, p. 1.
• 150See generally Adam Smith, An Inquiry in the Nature and Causes of the Wealth of Nations (New York: Modern Library, 1965). The invisible hand was thought by Smith to be God’s ordering of the human condition such that we are automatically led, by selfish interest and even greed, to do that which is in the best interests of our fellow human beings.
• 151For an economic account of male/female earnings differentials in terms of unequal sharing of family, household, and child rearing tasks, see generally Walter Block and Michael A. Walker, Focus on Employment Equity: A Critique of the Abella Royal Commission on Equality in Employment (Vancouver, British Columbia: The Fraser Institute, 1985); Walter Block and Walter Williams, “Male-Female Earnings Differentials: A Critical Reappraisal,” Journal of Labor Research 2, no 2 (Fall 1981): 385–88. But doesn’t this just put back the real question? The claim might be made that women have fewer dollar votes in the first place because of male discrimination in the labor market. Even if, then, goods and services are provided according to spending power, females still get the short end of the stick due to this prior injustice.
• 152This is on the assumption that the feminist agenda is actually one of promoting the welfare and best interests of women. An alternative hypothesis emanates from the Public Choice School of Economics, according to which there may be, in addition or possibly instead, a hidden agenda. The disparate treatment accorded President Bill Clinton and Supreme Court Justice Clarence Thomas suggests that it is to promote Democrats, or socialists, at the expense of Republicans, or conservatives, and not at all to help females. See generally James M. Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy (Ann Arbor: University of Michigan Press, 1971); Christina Hoff Sommers, Who Stole Feminism? How Women have Betrayed Women (New York: Simon and Schuster, 1994).
• 153This is a bit of a misnomer, since enterprises of this sort are privately owned. Nor are they necessarily “open to the public.” On the contrary, this is precisely the point at issue.
• 154Both heterosexuals and homosexuals discriminate in their choice of bed partner on the basis of gender. Of all groups, only bisexuals are completely without sexual bias. The law, if logically consistent, would thus impose this practice upon us all. But even bisexuals discriminate on the basis of other characteristics: beauty (they are guilty of “lookism”), talent, sense of humor, intelligence, etc. It would appear that there are no people innocent of prejudice in this regard. Perhaps all of humanity ought to be incarcerated on this ground.
• 155Civil Rights Act of 1964, 42 U.S.C. § 2000c to 2000c-17.
• 156The Antislavery Argument, W. and J. Pease, eds. (New York: Bobbs-Merrill, 1965), citing William Lloyd Garrison, Declaration of Sentiment of the American Anti-Slavery Convention (Boston: R. F. Wallcut, 1833).
• 157Id.
• 158See 22 Annals of Cong. 982–85 (1853).
• 159Id.
• 160Id.
• 161See Walter Block, Defending the Undefendable (1985); Walter Block, “Libertarianism vs. Libertinism,” Journal of Libertarian Studies 11 (1994): 117.
• 162For some, there is no legitimate role for the government at all. On this, see Terry L. Anderson and P.J. Hill, “An American Experiment in Anarcho-Capitalism: The Not So Wild, Wild West,” Journal of Libertarian Studies 3 (1979): 9; Randy E. Barnett, The Structure of Liberty: Justice and the Rule of Law (1988); Bruce L. Benson, “Enforcement of Private Property Rights in Primitive Societies: Law without Government,” Journal of Libertarian Studies 9 (1989): 1, 1–26; Bruce L. Benson, “The Impetus for Recognizing Private Property and Adopting Ethical Behavior in a Market Economy: Natural Law, Government Law, or Evolving Self-Interest?” Review of Austrian Economics 6 (1993): 43; Bruce L. Benson, To Serve and Protect (1998); Bruce L. Benson, “The Spontaneous Evolution of Commercial Law,” Southern Journal of Economics 55 (1989): 644, 644–661; Bruce L. Benson, The Enterprise of Law: Justice Without the State (1990); Alfred G. Cuzan, “Do We Ever Really Get Out of Anarchy?” Journal of Libertarian Studies 3 (1979): 151; Anthony de Jasay, The State (1985); Anthony de Jasay, Against Politics: On Government, Anarchy, and Order (1997); David Friedman, The Machinery of Freedom: Guide to a Radical Capitalism (1989); David Friedman, “Private Creation and Enforcement of Law: A Historical Case,” Journal of Legal Studies 8 (1979): 399, 399–415; Hans-Hermann Hoppe, A Theory of Socialism and Capitalism: Economics, Politics, and Ethics (1989); Hans-Hermann Hoppe, The Economics and Ethics of Private Property: Studies in Political Economy and Philosophy (1993); Hans-Hermann Hoppe, “The Private Production of Defense,” Journal of Libertarian Studies 14 (1998–99): 27; Jeffrey Rogers Hummel, “National Goods Versus Public Goods: Defense, Disarmament, and Free Riders,” Review of Austrian Economics 4 (1990): 88; James J. Martin, Men Against the State: The Expositors of Individualist Anarchism in America 1827–1908 (1970); Andrew P. Morris, “Miners, Vigilantes, and Cattlemen: Overcoming Free Rider Problems in the Private Provision of Law,” Land and Water Law Review 33 (1998): 581, 581–696; Franz Oppenheimer, The State (1914); Murray N. Rothbard, For A New Liberty (1978); Murray N. Rothbard, The Ethics of Liberty (1982); Murray N. Rothbard, “Society Without a State,” in Anarchism: Nomos XIX (1978), p. 191; Murray N. Rothbard, Man, Economy, and State (1993); Aeon J. Skoble, “The Anarchism Controversy,” in Liberty for the 21st Century: Essays in Contemporary Libertarian Thought (1995), p. 71; Larry J. Sechrest, “Rand, Anarchy, and Taxes,” Journal of Ayn Rand Studies 1 (1999): 87, 87–105; Lysander Spooner, No Treason (1966); Edward Stringham, “Market Chosen Government,” Journal of Libertarian Studies 14 (1998): 53, 53–77; Patrick Tinsley, “With Liberty and Justice for All: A Case for Private Police,” Journal of Libertarian Studies 14 (1998): 95; Tennehill, et al., The Market for Liberty (1984); William C. Woolridge, Uncle Sam the Monopoly Man (1970).
• 163On limited government libertarianism as defined above, see The Libertarian Reader (1982); Tibor Machan, “Against Non-Libertarian Natural Rights,” Journal of Libertarian Studies 2 (1978): 233; Tibor Machan, Capitalism and Individualism (1990); Ludwig von Mises, The Anti-Capitalist Mentality (1972); Ludwig von Mises, Bureaucracy (1969); Ludwig von Mises, Omnipotent Government (1969); Ludwig von Mises, Socialism (1969); Ludwig von Mises, Theory and History (1957); Charles Murray, What It Means to be a Libertarian (1997); Robert Nozick, Anarchy, State, and Utopia (1974); Leonard E. Read, Awake for Freedom’s Sake (1977); Leonard E. Read, Anything that’s Peaceful (1964).
• 164For the libertarian case in opposition to the criminalization of discrimination, see Walter Block, “Compromising the Uncompromisable: Discrimination,” American Journal of Economics and Sociology 57 (1998): 223; Walter Block, “Discrimination: An Interdisciplinary Analysis,” Journal of Business Ethics 11 (1992): 241; Richard Epstein, Forbidden Grounds (1992); Linda Gottfredson, “The Practical Significance of Black-White Differences in Intelligence,” Behavioral and Brain Science 10 (1987): 510; Linda Gottfredson, “Reconsidering Fairness: A Matter of Social and Ethical Priorities,” Journal of Vocational Behavior 33 (1988): 293; Richard Hernstein and Charles Murray, The Bell Curve (1994); Michael Levin, “Comparable Worth: The Feminist Road to Socialism,” Commentary 78 (1984): 13; Michael Levin, Feminism and Freedom (1987); Michael Levin, “Why Race Matters: A Preview,” Journal of Libertarian Studies 12 (1996): 287; Michael Levin, Why Race Matters: Race Differences and What They Mean (1997); Charles Murray, “Affirmative Racism,” The New Republic, Dec. 1984, p. 18; Charles Murray, What It Means to be a Libertarian (1997); Jan Narveson, “Have We a Right to Non-Discrimination?” in Business Ethics in Canada (1987); Robert Nozick, Anarchy, State, and Utopia (1974); Murray N. Rothbard, For a New Liberty (1973); J. Philippe Rushton, “Race Differences in Behaviour: A Review and Evolutionary Analysis,” Personality and Individual Difference 9 (1988): 1009; Daniel Seligman, A Question of Intelligence: The IQ Debate in America (1992).
• 165Our critics might think that a good name for this hotel, in view of our last names, would be “Chez Blockhead.”
• 166The same goes for Jews, blacks, homosexuals, females, old people, young people, or any other supposedly “victimized” groups.
• 167We shall henceforth consider the views of the minarchists, or limited-government advocates alone, so as to obviate for argument’s sake the point made by the anarchist libertarians, that government should not exist at all.
• 168There is only one exception to this general rule. If the legitimate function of the government pertains to any of these distinctions, then that may be taken into account. For example, if the police must infiltrate the Mafia, it cannot ask a black cop to do so; for the Bloods or the Crips, a Jewish officer simply will not do; if the police must send someone in to spy on a gang of criminals composed of females, or lesbians, a male is counter indicated.
• 169See text accompanying note 1.
• 170See text accompanying note 1.
• 171We abstract from the question of whether or not the testing instrument accurately distinguishes the one group from the other, assuming for the sake of argument that it does.
• 172See Robert B. Reich, “How Selective Colleges Heighten Income Inequality,” Chronicle of Higher Education Review, http://www.prospect.org/. Mr. Reich criticizes analogous policies (elite universities accepting only very sharp-witted students) because they increase income inequality. This reason should be sharply distinguished from our own: that awarding scholarships to the “best and the brightest” is an instance of statist discrimination. In our view, private citizens, in sharp contrast to governmental agencies, are entirely justified in acting in ways which increase income inequality.
• 173What about ostensibly “private” institutions of higher learning such as Harvard, Yale, and Columbia? These, too, would be considered public in that an inordinate percentage of their budgets emanate from coercive tax levies.
• 174For the application of this argument to Nazi concentration camps, and the voluntary army employed to support an unjust war, see Walter Block, “Against the Volunteer Military,” Libertarian Forum, August 15, 1969, p. 4.
• 175See Thomas Sowell, The Vision of the Anointed (1995), p. 35: “No one regards the gross disparity in ‘representation’ between blacks and whites in professional basketball as proving discrimination against whites in that sport.” See also Jon Entine, Taboo: Why Black Athletes Dominate Sports, and Why We’re Afraid to Talk about it (2000).
• 176See, e.g., White Men Can’t Jump (20th Century Fox, 1992). Also, “white man’s disease” is now common parlance in basketball circles, and refers to the inability of white men to jump high for rebounds, blocks, or slam-dunks.
• 177See below Appendix 1.
• 178See note 155.
• 179See Walter Block and Roy Whitehead, “Human Organ Transplantation: Economic and Legal Issues,” Quinnipiac Health Law Journal 3 (2000): 87; Walter Block and Roy Whitehead, “Environmental Justice Risks in the Petroleum Industry,” William and Mary Environmental Law and Policy Review 24 (2000): 67; Walter Block and Roy Whitehead, “Direct Payment of State Scholarship Funds to Church-Related Colleges Offends the Constitution and Title VI,” BYU Journal of Public Law 14 (2000): 191; Walter Block and Roy Whitehead, “Gender Equity in Athletics: Should We Adopt a Non-Discriminatory Model?” University of Toledo Law Review 30 (1999): 223; Walter Block and Roy Whitehead, “Mandatory Student Fees: Forcing Some to Pay for the Free Speech of Others,” Whittier Law Review 20 (1999): 759; Walter Block and Roy Whitehead, “The Unintended Consequences of Environmental Justice,” Forensic Science International 100 (1999): 57; Walter Block and Roy Whitehead, “Sexual Harassment in the Workplace: A Property Rights Perspective,” University of Utah Journal of Law and Family Studies 4 (2002): 229; Walter Block and Roy Whitehead, “Crying ‘Wolf’ in American: Reevaluating Drug Prohibition Policy,” (unpublished).
• 180Hernstein and Murray (1994), pp. 556–58. Whites and males are likely to be over-represented in the provision of these goods and services to the government.
• 181Most women, on the other hand, even executives, do not consider housework demeaning.
• 182In 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.
• 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 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.
• 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.
• 186There 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.
• 187Another 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.
• 188This 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:
• 189Economic 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.”
• 190Men 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.
• 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.
• 194Not 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.
• 195As 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.
• 196This 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.
• 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.
• 202() 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.
• 203In 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.
• 204Given 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.
• 205Discrimination 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.
• 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.
• 207The 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.
• 208Insurance 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.
• 209A 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.
• 210Another 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.
• 211There 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.
• 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.
• 213Forcing 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.
• 214Affirmative 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.
• 215Similar 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.)
• 216But 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.
• 217Another 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.
• 218Nepotism, 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.
• 219At 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.
• 220But 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,
• 221In 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.
• 222Enter 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.
• 223Zoning 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.
• 224This 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.
• 225Zoning 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.
• 226Nor 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:
• 227The 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.
• 228The 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?
• 229To 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.
• 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.
• 232The 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
• 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
• 234shall 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.
• 235The 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.
• 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.
• 240With 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.
• 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.
• 244The 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.
• 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.
• 247Brown 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.
• 248The 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.
• 249Second, 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.
• 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.
• 251Brown 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.
• 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.
• 256Finally, 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.
• 257Brown 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.
• 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.
• 262The 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.
• 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.
• 264Finally, 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.
• 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.
• 266Schools 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.
• 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.
• 269In 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.
• 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.
• 271Relying 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.
• 272The 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.
• 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.
• 276Clearly, 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.
• 277Because 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.
• 278The 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.
• 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 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.
• 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.
• 282By 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.
• 283The 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.
• 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.
• 285In 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.
• 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.
• 288A 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.
• 289On 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.
• 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.
• 292where 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.
• 293The so-called “safe harbor” test is still safe as far as the OCR is concerned, despite the reluctance of the LSU court.
• 294Among 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.
• 295Finally, the Clarification suggests that schools have flexibility in choosing a nondiscriminatory method of determining athletic interests and abilities provided they meet the appropriate requirements.
• 296Given 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.”
• 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.