Rhonda Reaves, Associate Professor of Law, Loyola Law School, Loyola Marymount University. © 2001 Rhonda Reaves. Do not cite, quote, or circulate without the author's permission. A version of this Artiele was presented at the University of Iowa College of Law's Symposium-A Critical Legal Perspective on Entertainment: Sports, Sex and Identity-hosted by the Joumal of Gender, Race & Justice on October 15-16, 1999. A Loyola Law School Summer Research Grant supported work on this project. I would like to thank William Ataiza, Sande Buhai, Robert Chang,. Catherine Fisk, Lisalyn Jacobs, Lary Lawrence, Audrey McFarlane, Sherene Razack, Sean Scott, Theodore Seto, and Gary Williams for their thoughtful cornments and suggestions on earlier drafts. I would also like to thank Robert Sievers and Petty Tsay for their excellent research assistance and Mark Graham of the Joumal ofGender, Race & Justice for his editorial assistance.
Dugan:Are you crying?
Dugan:Are you crying?
Dugan:Are you crying? There's no crying in baseball. There's no
crying in baseball. Roger Hornsby was my manager and he
called me a talking pile of pig shit. And that was when my
parents drove all the way down from Michigan to see me play
the game. And did lcry?
Dugan:No. No. And do you know why?
Dugan:Because there's no crying in baseball. There's no crying in
baseball. No crying.
Umpire:What's the matter, Jimmy?
Dugan:She's crying, sir?
Umpire: Perhaps you chastised her too vehemently. Good rule of thumb. Treat each of these girls as you would treat your mother.1
The film, A League of Their Own, is based on the All-American Girls Professional Baseball League.2 Chicago Cubs' owner, Philip K. Wrigley, and other major league baseball club owners started the league in 1943 to replace men's major league baseball, which had been put bn hold during the World War TI years.3 Meant as a temporary substitute, the league survived the end ofthe war and lasted until 1954.4
Women's participation in the league, which in sorne ways paralleled women's participation in the workforce during the war years in previously male-dominated industries, raised questions about proper gender roles.5 One concern was that women's participation in sports (or in certain jobs) would have the negative effect of masculinizing women. While one response to this concern might have been to exclude women from sports or from certain jobs, the exigencies of the war and the profit motives of the baseball club owners Page 284 precluded this response.6 Given the participation of women in previously male-dominated sectors, the concems shifted to. how the women were to behave, and how they were to be treated. Was their similarity to men to be emphasized? Or their difference?7 ..
These questions are encapsulated in A League of Their Own.8 In the film, Tom Hanks plays Jimmy Dugan, an alcoholic former baseball star who manages one ofthe new women's teams, the Rockford Peaches.9 In the early games of the season, a barely lucid Dugan pays
scant attention to his team. They are not worth his attention because he does not consider them to be legitimate professional athletes. As the Peaches begin to win, Dugan begins to regard them as athletes and takes more of an interest in their success.10 In the aboye excerpt, Dugan scolds one of the players, the right fielder, for an error that costs the team the lead. The player is reduced to tears.11
Dugan justifies the scolding by pointing out that that was the way he was treated when he was a professional player, and says that if the pIayer wants to be considered a "ballplayer" she must learn to "take it like a man.,,12 Dugan's diatribe demonstrates the view that to be taken seriously as an athlete, women must replicate the behaviors prevalent in male-dominated sports. Acceptance of this modelleaves no room for women to complain of conditions that are unique to them or disparately affect them because they are women and also athletes.13 The insistence on sameness might provide opportunities for women, but it comes at a costo The umpire's response that emphasizes difference, for example, while providing for kinder treatment, Page 285 can result in foreclosing opportunities. After all, there are sorne things that you might not want to let your mother do. Different notions of proper gender roles anímate the "sameness" vs. "difference" debate.14
Although the AH-American Girls Professional Baseball League provided an opportunity to explore the intersection of gender and sports, its early demise in 1954 led to this discussion being put onhold. Today, with the ever-increasing participation of girls and wornen in sports, it is time to revisit that conversation. While A League of Their Own· involved professional sports, this Article focuses on sports in the educational context as an irnportant opportunity for legal intervention because of the stronger role that the law plays in this environrnent. Because the law involves the allocation of resources and the policing of behavior by the governrnent, this discussion prompts us to ask how resources should be allocated and what kinds of behavior should be encouraged and discouraged in promoting gender equity. In particular, the analysis of sports within educational programs offers an opportunity for a critical examination of current models of athletic participation that foster an environment in which harassment often occurs.
In Part n, I examine the role that Title IX has had in increasing the participation of girls and wornen in sports. This increase has brought attention to the treatment of athletes, both men and women. High-profile accounts of verbal and physical abuse of athletes by coaches and by Other athletes have led to a re-examination of coachlathlete and athlete-athlete relations. I examine sorne of these accounts. In Part III, I focus on sexual harassrnent as the prirnary area where law, through Title IX, places constraints on behavior. I focus on harassrnent as an important situatión which causes law and sports to intersect. Law, by defining the negative, helps to shape what can take place in the positive sphere by defining allowable behavior and treatrnent of athletes. Thus, looking at what is impermissible aHows an exploration of what coaches and athletes ought to do to transform our present notion of what constitutes an athlete and how proper gender roles should be defined. In Part IV, I sketch the prelirninary contours of how we might rnanage the sameness/difference debate by irnagining new models for athletic behavior.
Title IX of the Education Amendments of 1972 15 sets forth a seemingly straightforward mandate: "no person... shall, on the basis of sex, be excluded from, denied the benefits of, or subject to discrimination.under any program" conducted by an educational institution that is the recipient of Page 286 federal financial assistance.16 Title IX not only changed the educational landscape for female students, it also changed the landscape for female athletes because the "programs" covered by the statute applied to athletic programs as well as to admissions and scholarship programs.17 After the passage of Title IX, educational institutions were required to equalize athletic opportunities and programs for men and women or risk losing federal funding. 18
The passage and enforcement of Title IX has provided women with unprecedented opportunities to participate in organized sports at all levelselementary, 19 high school,20 and college. 21 Although Title IX only applies to educational institutions, the increase in participation at the high school and college level has created a pool of talent that has gone on to Earticipate in contests like the Olympic games22 and professional sports. 23 The gold- Page 287 medal-winning women's basketball tearn in the 2000 Summer Olympics, the hockey team in the 1998 Winter Olympics, and the soccer team in the 1999 World Cup are examples of the spectacular successes of women who carne of age in the Title IX era. Even so, increased participation in sports by women is only a partial success.
While Title IX has been successful in getting women "on the playing field," it leaves somewhat unresolved how they should be treated once they get there. Title IX's proclarnation of equality is misleading.24 While mandating formal equality, such as equal training facilities and equal funding,25 it implicitly presumes that the structure of women's sports is to be Page 288 modeled on men's sports.26 Superimposing a male structure encourages women to replicate behaviors prevalent in male-dominated sports27 and fails to account for those areas where the experiences of women athletes may deviate from those of their male counterparts, such as vulnerability to sexual harassment.28
Sex-based 29 harassment of students is a real and serious problem in education at alllevels.30 I use the terro sex-based harassment to allow for a discussion of both the traditional notion of sexual harassment and harassment based on...