Sports in schools are a uniquely American phenomenon. Athletic programs flourish in high schools, colleges, and universities with traditionally very little interference by legislatures or courts. The most notable, if not limited, exception to this deference is Title IX of the Civil Rights Act of 1964 (Title IX), which prohibits educational institutions receiving federal financial assistance from discriminating on the basis of gender. As applied to athletic programs, Title IX is often cited as a public policy success. The law has led to the creation of meaningful sports participation opportunities for women and girls and shaped new norms for sports in general by sending a message that women and girls are entitled to participate on terms equal to men and boys. Statistics amply demonstrate that women’s and girls’ athletic participation rates since Congress passed the statute have increased dramatically. Despite these gains, however, many women and girls, especially those of color and from disadvantaged backgrounds, still do not participate in sports in numbers comparable to males. More broadly, data show that most children do not get nearly enough daily physical activity, and many consider childhood obesity a national crisis. These statistics occur against the backdrop of media attention and social science research persistently highlighting troubling issues with the elite, “win-at-all-costs” model for athletics that predominates in our schools and its effects on children’s ability and willingness to participate in sports. Nevertheless, policy discourse around education-based sports programs focuses almost exclusively on gender discrimination and lack of robust Title IX enforcement. Using the theory of “problem definition,” this article explains the political focus on gender discrimination and Title IX as the primary point of legal intervention in education-based sports and asserts that such a focus is no longer justified. Instead, this article asserts that the time is ripe for a redefinition of the policy problem with education-based sports programs and suggests a pathway for legal reform in an effort to stimulate policy solutions that ultimately will benefit all students.
The Obese and the Elite: Using Law to Reclaim School Sports, 67 Okla. L. Rev. 383 (2015)