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No Easy Fix

February 13, 2015

“If we don’t fix this problem, even our friends and allies may turn against us.”

That was the dire warning one of the MHSAA staff members gave to the rest of us at a weekly staff meeting recently, during which this staff member was receiving emails from people appalled over the mid-season transfer of a basketball player from one school to another.

The “fix” that some people want is a rule that makes every transfer student ineligible for a full year, regardless of the reason for the change of schools or the circumstances of the student. Of course, that rule would never survive judicial scrutiny, and legislators in every corner of the state would be advocating change for the sake of one child or another.

A more moderate remedy is to utilize a rule that applies the full-year period of ineligibility to those students whose circumstances do not fit one of the already established 15 exceptions that make a student eligible without delay following a transfer. That half-measure would not stop many transfers that would still frustrate people, and it would snag many transfers that would continue to anger people.

The rules we already have in place are tools for schools to use to stop many of the transfers that frustrate without snaring those transfers that anger: the athletic-motivated transfer rule and especially the athletic-related transfer rule (or links law).

Before our friends and allies turn their backs on us, they need to turn in the transfer situations where the rules already apply, and the undue influence (recruiting) they can document. They need to give the system a chance to work to the full extent of its potential. We should not make tougher rules if schools fail to utilize the rules they already have.

Adopting rules is usually easy for the organization. Applying rules is often much harder for the schools.

Cheering for Equal Opportunity

February 14, 2017

Guided by the spirit of Title IX, the Michigan High School Athletic Association created girls competitive cheer in 1993 for the express purpose of providing an additional winter sport for girls to equalize athletic opportunities between the sexes. Before that, girls in Michigan had fewer athletic opportunities in the winter than in fall or spring and fewer athletic opportunities than boys overall.

Like all girls sports under MHSAA regulations, participation in MHSAA Girls Competitive Cheer Tournaments has been limited to girls. Since the 1977-78 school year (after a team of four boys won an Illinois High School Association girls state bowling championship), the MHSAA Handbook has included the following rule: “Boys may not participate on a girls team in MHSAA sponsored postseason meets and tournaments.” The MHSAA also encourages member schools not to permit boys to participate on girls teams during regular season play.

Without a policy prohibiting boys from displacing girls from teams and from the playing surface, athletic opportunities for girls would be in serious jeopardy, as many courts examining this issue have concluded. In short, permitting boys to displace girls would be antithetical to the fundamental purpose of Title IX.

The overwhelming majority of federal and state courts have concluded that “no-boys-on-girls-teams” rules are lawful and necessary. These cases conclude that maintaining and promoting athletic opportunities for girls and redressing past discrimination against women in athletics are important objectives. And, second, they conclude that excluding boys from girls’ sports – even if girls may participate on boys’ teams – is substantially related to that important interest.

Case law provides two separate, simple explanations; each of which, standing alone, establishes the legitimacy of the rule. First, having all-girl teams creates or maintains opportunities for females that would not otherwise exist, thereby providing females opportunity to develop programs equal to boys.

Second, because there are recognized, innate physiological differences between the sexes that give boys inherent advantages in most athletic events, to permit boys to participate on girls’ teams – irrespective of the sport – would displace girls from competition to a substantial extent, thereby diminishing female opportunity in athletics.

  • A federal court in a Tennessee case wrote in 1977: “[it] takes little imagination to realize that were play and competition not separated by sex, the great bulk of females would quickly be eliminated from participation and denied any meaningful opportunity for athletic involvement.” 

  • A federal court in Arizona wrote in 1989: “If males are permitted to displace females ... even to the extent of one player ..., the goal of equal participation by females in interscholastic athletics is set back, not advanced.”

The MHSAA created girls competitive cheer expressly to provide overall equal athletic opportunity for girls that did not exist before it was added as an MHSAA sport. That a boy now wishes to participate on a girls competitive cheer team, despite the abundance of athletic opportunities for boys in other sports, does not establish a violation of Title IX. And Title IX has never been so construed. The MHSAA’s rule creates for girls the opportunity to enjoy highly competitive athletic opportunity in the same number of sports as boys – precisely satisfying Title IX.

The MHSAA made its move toward girls competitive cheer two decades before entrepreneurs invented coed “stunt” for schools’ and colleges’ consideration. By that time, participation in girls competitive cheer had tripled in Michigan high schools. Girls competitive cheer is now the eighth-most popularly sponsored high school sport in Michigan, above sports like tennis, golf and swimming & diving which had a 20-year head start.