“Ending” Discrimination by Encouraging It: How NYC Went Down the Wrong Path

In response to a Title IX lawsuit last year alleging unequal athletic opportunities for males and females, the New York City Department of Education created a rule that new schools can only allow for girls’ teams. To put it bluntly, no creation of boys’ teams in new schools is permitted.

The plan, which outright condones discrimination based on gender, is a pretty egregious attempt at complying with Title IX, a law that states “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

As expected, the mainstream press in New York City and elsewhere failed to pick up on such a blatant violation of the law. Only the Queens Chronicle has covered what’s going on: two articles and an op-ed by Elizabeth Crowley, NYC Councilwoman for the 30th District in west-central Queens. Unfortunately, while they oppose the new policy, their rationale on what would constitute a “fair” rule is all wrong.

Support for proportionality measures is the culprit. After citing discrepancies in sports participation rates among boys and girls in NYC (about 8 percent), Ms. Crowley writes, “A more fitting solution would be to evaluate each school based on its individual merits. Just as the NCAA would not punish St. John’s University if Ohio State were non-compliant, the DOE should not punish a brand-new school with no established imbalance because another has a large participation gap. The discrepancies between boys’ and girls’ sports teams need to be evaluated on a school-by-school basis so that we can target the individual schools with well-documented inequalities and allow new schools to grow diverse, robust sports programs.”

In other words, it’s permissible for the City to target schools who have unbalanced gender ratios for participation and school enrollment. That’s still discriminatory, as readers of this blog already know, because proportionality measures encourage results like cut and capped mens’ teams, roster management schemes and many unhappy students. Disparate numbers do not necessarily mean discrimination; instead, they could reflect a lack of interest, emphasis on other extracurricular activities or any number of reasons. School administrators and government officials fail to recognize that, and in a way, that distracts them from addressing inequalities like distinctly different facilities, equipment or overall treatment.

Instead of responding to a lawsuit by playing into proportionality management and grossly promoting discrimination against boys, the New York City Department of Education should have accounted for the perverse outcomes of their decisions and figured out ways to determine whether the difference in numbers meant lack of opportunities or just lack of interest.

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