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Alfred Dennis Mathewson

excerpted from: Alfred Dennis Mathewson Remediating Discrimination Against African American Female Athletes at the Intersection of Title IX and Title VI, 2 Wake Forest Journal of Law and Policy 295 (2012)(195 Footnotes Omitted)


In Black Women, Gender Equity and the Function at the Junction (Function at the Junction), I visited the intersection of race and gender in examining the impact of Title IX on black female athletes. I applied Professor Kimberle Crenshaw's single-axis critique of anti-discrimination laws and Professor Angela Harris's critique of essentialism to African American females in college athletics. Using the works of both to explore the intersection of the forces of race and gender discrimination against black female athletes, I asked whether this intersection concerned the existence of a unique type of discrimination that specifically targeted African American females or the combination of race and gender discrimination acting simultaneously on African American female athletes. I argued that Title IX benefitted white female athletes more than it did African American females. The problem was that Title IX was designed to target discrimination and promote equality along the single-axis of gender. Equal access remedies were premised on the notion that interest and athletic ability were equally distributed between genders. There was no corresponding premise about even distribution across genders within racial groups. As a consequence, educational institutions could comply under Title IX simply by providing more opportunities for white women. I described the problem but only proposed some theoretical fixes.

Professor Tonya Evans pointed out this shortcoming in her article, In the Title IX Race Toward Gender Equity, the Black Female Athlete Is Left to Finish Last: The Lack of Access for the Invisible Woman, and she called for the development of specific policy or regulatory solutions. In this paper, I hope to return to the arguments I made in Function at the Junction and respond to Professor Evans.

In Part I, I present a brief treatment of intersectionality in anti-discrimination law focusing on the distinction between cause of action and remedy. Harm caused by gender or racial discrimination may give rise to causes of action based on equal protection principles. In the case of a claim based on race or gender, there is no question of the existence of a cause of action under existing anti-discrimination laws; the difficulty, however, may primarily be one of proof. In the case of a claim based on a combination of race and gender discrimination or a unique form of discrimination specifically against African American females, there is a question as to whether a cause of action exists under current single-axis-based anti-discrimination laws. Both the combined forms and a unique form of discrimination against African American females lack a similarly situated class with which to show inequality under existing anti-discrimination norms. The combination or unique form of discrimination may be actionable, just on other grounds. The harm resulting therefrom still presents equality considerations even if existing law would not recognize a basis for liability. Nevertheless, the harm suffered or incurred by African American women resulting from the simultaneous effect or a unique form may be identical and worthy of redress. Although I have embraced the existence of a unique force of discrimination directed toward African American females, this conclusion is irrelevant to the basic premise of this Article. In this paper, I focus primarily on the issue of remedy rather than cause of action.

In Part II, I accordingly go further and argue that the primary intersectionality problem presented by Title IX is one of remedy. I conclude that the differences in the remedial effects of Title IX result, in part, from unremedied racial discrimination, a conclusion that begins with Professor Jerome Dees's argument that Brown v. Board of Education and anti-discrimination laws based on the single-axis of race are more responsible for the gains of African American female athletes in intercollegiate athletics. However, I will show that the gains are due to the application of both gender- and race-based anti-discrimination laws. The problem is not one of a single-axis cause of action, but rather one of single-axis remedies. Anti-discrimination laws currently do not take into account the confluence of race and gender when fashioning a remedy for either type of discrimination. Consequently, I will argue that Title IX, in remediating gender discrimination, does not mitigate the effect of racial discrimination against African American females, creating an imbalance in gains between African American and white female athletes. I focus on the flaws in Title IX because Title VI, the race-based counterpart on which it was patterned, has not been used as extensively to target racial inequality in athletics.

Finally, in Part III, I offer a policy solution invoking both gender- and race-based anti-discrimination laws. Accordingly, I advocate for the promulgation of regulations or a policy statement pursuant to Title VI and Title IX to specifically address the unremedied racial discrimination against African American female athletes under Title IX and the unmitigated gender discrimination under Title VI. I draw upon the work of Professor Derek Black in The Mysteriously Reappearing Cause of Action: The Court's Expanded Concept of Intentional Gender and Race Discrimination in Federally Funded Programs to argue that the Department of Education has the authority under the race- and gender-based anti-discrimination statutes, TitleVI and Title IX, to make specific findings of racial discrimination against African American female athletes in educational institutions and to prescribe appropriate remedies. Moreover, the Department should specifically target middle school and high school athletics programs. The basis for this intervention is equity in the public funding of athletic programs.

I primarily focus on African American females in this paper, although I acknowledge that the analyses and principles presented here may be applicable to women of color in general or women in other specific racial or ethnic groups. It is not my intent to exclude others--it is my intent to assure that African Americans are explicitly included in discussions of diversity. As in Function at the Junction, I do not deal with intersectionality issues regarding the imposition of the burden of funding remedies for Title IX on African American males who participate in football and basketball.

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Legal scholars have written about inequities for African American female athletes in intercollegiate sports for decades. The time has come to move beyond the acknowledgement of the existence of intersectionality issues confronting African American female athletes. It is at least time for regulatory agencies to act. I have proposed a modest fix in this paper. I propose to use TitleVI, prohibiting racial discrimination, and Title IX, prohibiting gender discrimination, to tackle the issue. The fix consists of using multiple-axes-based remedies to address single-axis-based causes of action for discrimination. The fix recognizes that the law cannot remediate discrimination against African American female athletes under one axis without taking the other into account. I am also proposing to go a step further and use essentialism critiques to include other axes such as socioeconomic class. For too long, African American female athletes have been invisible; with these changes, they will become visible in positive law.

. © 2012. Henry Weihofen Professor of Law and Acting Director, Africana Studies Program, University of New Mexico.