David French: 'All people are created equal, and possess equal moral worth, but we are not all created the same. To protect equal opportunity, there are times when the law should recognize differences.'
| June 29, 2023, 12:00 p.m.
In the realm of athletics, however, these two statutes have traditionally worked in remarkably different ways. Race segregation in athletic programs is a legal and cultural taboo. There are no legally segregated white and Black football leagues, for example, and if a school decided to create a Black league and a white league, it would face an immediate civil rights complaint. Excluding a football player from a team simply because of his race is unlawful discrimination.
Let’s go back to the language of the statute itself, which speaks in terms of both “participation” and “benefits.” If you treat people of different races the same, people of all races can both participate and receive the benefits of participation in athletics. If you treat people of different sexes the same, the reality is very different.
Citing this fact is not intended in any way to denigrate women or women’s sports. But I raise such facts because they’re legally important. Last year, a three-judge panel of the appellate court rejected the plaintiffs’ claims. The panel didn’t reject the “chance to be champions” theory entirely, but Judge Denny Chin, writing for the court, said that the plaintiffs had not claimed “an injury in fact” because “all four plaintiffs regularly competed at state track championships as high school athletes, where plaintiffs had the opportunity to compete for state titles in different events.
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