The so-called Equal Rights Amendment was defeated over two decades ago, but courts persist in seeking to use the Equal Protection Clause of the Fourteenth Amendment towards the same end.  Enacted to combat the vestiges of slavery, that Amendment has become a tool for mandating a unisex society.  

The State of Michigan features more participation by girls in high school sports than most states.  It attributes this to assigning different seasons (fall, winter or spring) for the boys and girls teams. For example, boys play basketball in the winter while girls play in the fall.  This schedule enables each team to enjoy exclusive use of the gym.

Feminist groups, most notably the National Women’s Law Center, joined litigation to stop this scheduling practice.  Don’t they want to maximize participation by girls in competitive sports? Perhaps that is not their real goal.  Many proponents of equality pursue it at the expense of opportunity.

A handful of plaintiffs sued the Michigan High School Athletic Association to force it to schedule high school sports in an identical manner for boys and girls.  They demanded that girls’ basketball be played in the winter just like the boys’ and that the seasons for volleyball, golf, tennis, swimming and soccer also be shifted.

The federal trial judge happily obliged, finding the Association to be a state actor under the Constitution and thus bound by the Fourteenth Amendment.  The judge ordered the Association to make numerous changes in scheduling, and an appeal soon followed.

Clinton-appointed appellate judge Ronald Lee Gilman seized the day to expand the Constitution.  Writing for the Sixth Circuit, he held that the Equal Protection Clause requires the Association to treat the girls like the boys in sports scheduling.  Communities for Equity v. Michigan High School Athletic Ass’n, Inc., 377 F.3d 504 (6th Cir. 2004).

He stated that a difference between girls and boys in sports can only stand if there is “an exceedingly persuasive justification.”  Quoting the Supreme Court decision that ordered Virginia Military Institute (VMI) to admit women, he held that differences in sports scheduling between boys and girls cannot “rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”       

The Court cited anecdotal and often contradictory reasons for demanding that the girls’ seasons be shifted to that of the boys.  Judge Gilman declared that scheduling competitions earlier in the school year is advantageous to students seeking to attract interest by colleges.  But then he insisted that girls’ basketball and swimming be moved to later in the school year.

The Court cited anecdotal and often contradictory reasons for demanding that the girls’ seasons be shifted to that of the boys.  Judge Gilman declared that scheduling competitions earlier in the school year is advantageous to students seeking to attract interest by colleges.  But then he insisted that girls’ basketball and swimming be moved to later in the school year.

The Sixth Circuit interprets federal law for Michigan, Ohio, Kentucky and Tennessee.  This decision shifts the burden for treating boys and girls differently to the schools to prove an “exceedingly persuasive justification.”  It is difficult to see how any difference in treatment between boys and girls could survive this difficult standard.

For example, this holding would render illegal the single-sex classes initiated at Moten Elementary School in Washington, D.C.  In its first year of separating boys from girls in the classroom, this school in an impoverished and crime-ridden area saw an increase from 50% to 91% in the top two categories on reading tests.  Math scores likewise improved in the top categories from 49% to 88%.

The principal had segregated the boys and girls on his own, without approval by his supervisor. Predictably, he soon resigned due to his frustration in dealing with administrators.  The scores dropped the following year, and virtually no one in public schools has challenged the coeducation since.

In Michigan, treating girls like boys in the up-coming sports season will likely result in fewer resources for both.  Equality’s gain is opportunity’s loss.