Volume 34, Issue 1 & 2
Fall 2000 and Winter 2001
Symposium
Competing in the 21st Century:
Title IX, Gender, and Equity, and Athletics
Introduction
The Mixed Message of Title IX
Sherman J. Clark
Articles
The Struggle for Sex Equality in Sport and the Theory Behind Title IX
Deborah Brake
go to abstract
Gender and Intercollegiate Athletics: Data and Myths
Julia Lamber
go to abstract
Pay Equity for Coaches and Athletic Administrators: An Element of Title IX?
Barbara Osborne
Marilyn V. Yarbrough
go to abstract
Equally Bad is Not Good: Allowing Title IX “Compliance” By the Elimination of Men’s Collegiate Sports
Honorable Donald E. Shelton
go to abstract
Speech
An “Olympics” Approach: A More Equitable Approach to Athletics than Title IX Offers
Marcia Federbush
Note
Who Is an Indian? Searching for an Answer to the Question at the Core of Federal Indian Law
Margo S. Brownell
go to abstract
Volume 34, Issue 3
Spring 2001
Articles
Pinocchio in Littleton
William A. Kell
go to abstractThe Attachment Gap: Employment Discrimination Law, Women’s Cultural Caregiving, and the Limits of Economic and Liberal Legal Theory
Laura T. Kessler
go to abstract
Stock Market Volatility and 401(k) Plans
Colleen E. Medill
go to abstractNote
Lengthening the Stem: Allowing Federally Funded Researchers to Derive Human Pluripotent Stem Cells From Embryos
Jason H. Casell
go to abstract
Volume 34, Issue 4
Summer 2001
Articles
Just and Unjust Compensation: The Future of the Navigational Servitude in Condemnation Cases
Alan T. Ackerman
Noah Eliezer Yanich
go to abstractDaubert’s Backwash: Litigation-Generated Science
William L. Anderson
Barry M. Parsons
Dr. Drummond Rennie
go to abstract
Virtual Mothers and the Meaning of Parenthood
Annette Ruth Appell
go to abstract
Note
Title VII Quid Pro Quo and Hostile Environment Sexual Harassment Claims: Changing the Legal Framework Courts Use to Determine Whether Challenged Conduct is Unwelcome
Elsie Mata
go to abstract
ABSTRACTS
Volume 34, Issue 1 & 2
Fall 2000 and Winter 2001
Title IX’s three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test’s relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. The Article then elaborates upon and offers a justification for the theory of equality underlying Title IX’s three-part test. To support this theory, the Article surveys existing feminist legal scholarship on sport and identifies a need for an analysis of women’s position in sport that goes beyond a debate over assimilation versus accommodation, to analyze how educational institutions participate in the construction of sport as a fundamentally masculine domain. To fill this void, the Article explores in detail the processes through which educational institutions construct the different relationships of men and women to sport, through their control over athletic opportunities and the culture of sport. Finally, Professor Brake takes this theory and applies it to other aspects of Title IX law, advocating specific doctrinal reforms that would make Title IX’s overall application to athletics more consistent with the theory articulated in this Article.
Gender and Intercollegiate Athletics:
Data and Myths
Julia Lamber
This Article explores what nondiscrimination means in the context of intercollegiate athletics. After reviewing the Department of Education’s controversial Title IX Policy Interpretation, it critically examines the analytical framework used in Title IX athletic cases and concludes that commonly made analogies to litigation under Title VII of the 1964 Civil Rights Act are inapt. A major part of the Article is an empirical study, looking first at gender equity plans written by institutions of higher education for the National Collegiate Athletic Association and then at data collected from more than 325 institutions pursuant to the Equity in Athletics Disclosure Act. Understanding Title IX and its application to intercollegiate athletics is another context in which to work out the meaning of equality. The purpose of college athletics is for students to learn the kinds of discipline, cooperation, and ability to meet challenges that often produce success in later public and private life. Women are disadvantaged because they are seen to lack these qualities. Giving women a chance to show they understand team play and competitive spirit would be a great accomplishment.
Pay Equity for Coaches and Athletic
Administrators: An Element of Title IX?
Barbara Osborne
Marilyn V. Yarbrough
In this Article, Professors Osborne and Yarbrough address the issue of gender discrimination in the compensation of coaches and athletic administrators. They discuss the application of the Equal Pay Act of 1963 and Title VII to pay inequity claims and conclude that both have proven to be inadequate as a means of addressing the problem. Professors Osborne and Yarbrough then present Title IX as a way of countering the problem of gender discrimination in the compensation of coaches. They also discuss the prospects for gender equality in compensation by considering several cases addressing the issue. Finally, they offer recommendations both to help claimants prevail in pay equity claims and to help universities avoid such claims.
Equally Bad is Not Good: Allowing
Title IX “Compliance” By the Elimination of Men’s Collegiate
Sports
Honorable Donald E. Shelton
Athletic participation is an important part of the educational process, instilling important lessons about discipline and teamwork. Title IX was intended to address the historic lack of opportunities for women and girls to participate in school athletics. Unfortunately, the current administrative interpretation of Title IX permits the elimination of male athletic opportunities as a means of complying with the statute's equality standard. This result undermines the purpose of Title IX and the role of athletics in the educational process for all students.
Who Is an Indian? Searching for
an Answer to the Question at the Core of Federal Indian Law
Margo S. Brownell
The definition of Indian is the measure of eligibility for a variety of benefits and programs provided to Indians under federal law. There is confusion, however, at the core of efforts to define “Indian.” This confusion raises many concerns about the role that government plays in defining “Indian.” This Note surveys the most common definitions of “Indian” found in federal statutes, BIA regulations, and state laws. The author argues that the racial basis of many of these laws and regulations are unconstitutional and tread on the sovereignty of Indian tribes. She evaluates efforts of the federal government to avoid these problematic definitions. Finally, she proposes the adoption of a uniform federal definition of “Indian” based on the definition of “Indian” found in the Arts and Crafts Act of 1990. Such a definition would defer to tribal sovereignty and address the financial and administrative concerns of the federal government while remaining within constitutional guidelines.
Volume 34, Issue 3
Spring 2001
Pinocchio in Littleton
William A. Kell
In this Article, Professor Kell proposes a substantial change in policy direction in the wake of school shootings and other tragedies involving young people’s abilities to make mature decisions. First, the Article questions the current state of the law which exclusively deems young people to be mature based on “birthdays and bad acts,” rather than on any concept of demonstrated or earned levels of responsibility. Next, an alternative legal framework is envisioned recognizing young people as increasingly competent citizens who must develop psychosocial maturity, including learning how to judge and utilize advice from others such as parents and peers, weigh risks, and forgo short-term gain for longer-term satisfaction. This alternative framework is then applied to identify initial steps toward legal reform in the contexts of education, employment, community, and government. In conclusion, the Article calls for the development of new stories, framed by law, to foster opportunities for young people to mature and exercise their decision-making abilities.
The Attachment Gap: Employment
Discrimination Law, Women’s Cultural Caregiving, and the Limits of Economic
and Liberal Legal Theory
Laura T. Kessler
Title VII has prohibited employment discrimination on the basis of pregnancy since 1978, when Congress passed the Pregnancy Discrimination Act (“PDA”), but it does not require employers to recognize women’s caregiving obligations beyond the immediate, physical events of pregnancy and childbirth. The Family and Medical Leave Act of 1993 (“FMLA”) also does little more than provide job security to some relatively privileged women in the case of childbirth. Neither of these statutes, which constitute the bulk of the United States’ maternity and parental leave policies, provides for the most common employment leave needs of caregivers, who by all measures are disproportionately women. This lack of protection has served to perpetuate a significant labor force “attachment gap” between men and women that has had serious economic and social consequences for women and children.
This Article examines the theoretical bases for the law’s inability to recognize women's cultural caregiving, i.e., the caregiving work that women perform within the family that is unrelated to reproductive sex differences. Why has our law failed to address the conflicts between work and family that continue to disproportionately burden women? The author suggests that the answer lies in Title VII’s categorical framework, which is fundamentally unable to account for cultural experiences that are not universally shared by all women; in societal and judicial commitments to formal equality; and in the pervasive influence on our law of certain core concepts underlying liberal and economic theory, particularly the value of formal equality and the assumption that legal agents are autonomous, rational decision makers.
In the final part of the Article, the author reviews some of the primary responses offered by feminist legal theorists to the dominant paradigm, and suggests that such responses have failed to challenge it fully. Feminist theorists have focused on characterizing women’s experiences of caregiving as a condition of impaired agency growing out of gender socialization, attempting to fit women’s nurturing work into the limited but recognized exceptions to the autonomous, equal, and rational person assumed by the dominant framework. While this strategy has worked to obtain legal recognition of women’s biological experiences of pregnancy and childbirth, this Article suggests that it has proved less capable of addressing the rhetoric of choice that legitimates discrimination on the basis of women’s cultural experience of caregiving. It is clear that a refinement of the theoretical constructs underlying our law will be necessary before there will be any significant recognition of women's disproportionate responsibility for caregiving as it affects their wage work. This Article suggests that the beginnings of such a construct should focus on the fundamental importance and value to society and to women of women's caregiving labor, not upon depictions of caregiving as a socially determined, gendered activity. The Article concludes by outlining the beginnings of an alternative paradigm on which to build a theory of workplace accommodation for women’s unpaid caregiving work, and reviews a number of concrete legal reforms that might be consistent with this alternative vision.
Stock Market Volatility and 401(k) Plans
Colleen E. Medill
Many workers today depend on their 401(k) plan to provide them with an adequate income during retirement. For these workers to achieve retirement income security, their 401(k) plan investments must perform well over their working lifetime. Employers’ selection of investment options for the 401(k) plan, a fiduciary duty under the Employee Retirement Income Security Act of 1974 (ERISA), plays a critical role in determining investment performance. In this Article, Professor Medill uses a series of hypothetical litigation scenarios to illustrate how interpretation of the employer’s duty of prudence and duty of loyalty under ERISA present different policy choices for the federal courts. Professor Medill examines various hypothetical situations involving mutual fund fees and company stock where ERISA’s duty of loyalty will require the federal courts to determine if an employer has received permissible incidental benefits or engaged in prohibited self-interested conduct when selecting 401(k) plan investment options.
Because employers today rely upon the Department of Labor’s 404(c) Regulations to allow participants to select among plan investment options without incurring potential fiduciary liability, Professor Medill examines various policy issues likely to arise as federal courts interpret the details of the 404(c) Regulations. The Article cautions against judicial interpretations of the 404(c) Regulations that will have a potential chilling effect on voluntary plan sponsorship by employers. The Article also addresses an important exception to the 404(c) Regulations, the automatic enrollment plan. Professor Medill argues for a judicial interpretation of ERISA that encourages employers to select a default investment option for automatically enrolled participants that is broadly diversified in the equity markets, rather than a low-earning money market fund.
The Article concludes by examining the potential remedies available under ERISA for 401(k) plan participants injured by their employer's breach of fiduciary duty. Professor Medill concludes that, consistent with existing caselaw precedent, federal courts can and should afford injured 401(k) plan participants a remedy under ERISA.
Lengthening the Stem: Allowing Federally
Funded Researchers to Derive Human Pluripotent Stem Cells from Embryos
Jason H. Casell
Recent developments in fetal tissue research and
stem cell research have led to dramatic breakthroughs in the search for cures
for Parkinson’s disease, Alzheimer’s disease, diabetes, and a host
of neurological disorders. Because this research involves fetal tissue and stem
cells from human embryos, many complicated ethical and legal implications surround
it. This Note explores the history of fetal tissue research and stem cell research,
examines the surrounding ethical and legal issues, looks at the current state
of federal law, and concludes that Congress should allow federally funded researchers
to derive stem cells from discarded human embryos obtained from in vitro fertilization
clinics.
Volume 34, Issue 4
Summer 2001
Just and Unjust Compensation: The Future
of the Navigational Servitude in Condemnation Cases
Alan T. Ackerman
Noah Eliezer Yanich
In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government’s power over land adjoining a navigable waterway by severely qualifying the government’s Fifth Amendment obligation to compensate the landowner. This Article address the issue in the following ways: Part I surveys Congress’ power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional rule represents an illegitimate extension of the original navigational servitude doctrine, which permits Congress to take private property within the waterway (i.e., below its high water mark) without incurring the obligation to pay just compensation. Part III turns to Section 111 of the Rivers and Harbors Act of 1970 and examines cases and statutory language to illustrate its operation. Finally, Part IV of this Article puts Section 111 in the context of instances in which Congress has acted to restore rights to property owners in other situations, and suggests revisions to Section 111 that would bring the rules governing the determination of just compensation in riparian condemnations into full conformity with those applicable to non-riparian condemnations.
Daubert’s Backwash: Litigation-Generated
Science
William L. Anderson
Barry M. Parsons
Dr. Drummond Rennie
In the 1993 landmark case Daubert v. Merrell
Dow Pharmaceuticals, the United States Supreme Court articulated its position
on the admissibility of scientific evidence. The Court reasoned that federal
judges should rely on the processes scientists use to identify unreliable research,
including the process of peer review, to determine when scientific evidence
should be inadmissible. In response, lawyers and their clients, seeking to rely
on such evidence, have begun funding and publishing their own research with
the primary intention of providing support to cases they are litigating. This
Article examines the phenomenon of litigation-generated science, how it potentially
undermines the Daubert review process, and how such evidence should be
handled by the scientific community and by courts under Daubert.
Virtual Mothers and the Meaning of Parenthood
Annette Ruth Appell
Professor Appell supports the use of the traditional
parental rights doctrine, which accords biological parents, particularly mothers,
parental status alienable only voluntarily or upon proof of unfitness. She defends
the doctrine against the criticisms that it is regressive and does not protect
the interests of children or de facto parents. She contends that the attacks
on traditional parental rights doctrine are misguided because they work to the
disadvantage of families who do not easily fit the dominant norm-minority, single-mother,
lower income, or politically and legally under-represented families. After examining
the constitutional underpinnings and application of the parental rights doctrine
as well as proposals to change it, she concludes that the doctrine provides
more concrete standards than any alternative and serves to protect those families
most vulnerable to intervention or dissolution.
Title VII Quid Pro Quo and Hostile Environment
Sexual Harassment Courts Use to Determine Whether Challenged Conduct is Unwelcome
Elsie Mata
In examining the nature of sexual harassment claims,
the author challenges the use of the “unwelcomeness” element to distinguish
actionable conduct from non-actionable conduct. The author contends that the
“unwelcomeness” element demeans women in two ways: (1) it assumes
the male perspective and presumes that the plaintiff appreciated the challenged
conduct unless she proves otherwise; and (2) it allows the defense to engage
in intrusive, irrelevant, and damaging inquiries as it attempts to refute the
plaintiff’s allegation that the challenged conduct was unwelcome.
The author argues for three reforms. First, courts should shift the burden of proving that the challenged behavior was unwelcome from the plaintiff to the defendant, making “unwelcomeness” an affirmative defense rather than an element of the plaintiff’s prima facie case. Second, in order to curb the defense’s ability to attack, embarrass, or stigmatize the plaintiff, courts should more narrowly define what is “relevant” evidence pursuant to Rules 401 and 402 of the Federal Rules of Evidence. Finally, courts should diligently apply the procedural protections contained in the Federal Rules of Evidence and the Federal Rules of Civil Procedure to avoid admitting embarrassing, prejudicial, and ultimately irrelevant evidence.