Still on the Sidelines: Developing the Non-Discrimination Paradigm under Title IX

I. Introduction Despite the promises of equal opportunity for women signalled by the passage of Title IX of the Education Amendments of 1972 (Title IX), 1 little progress in the creditable realization of this goal occurred in intercollegiate or interscholastic athletics between 1972 and 1992. 2 This lack of progress was unfortunate. 3 In many ways, most women were still on the sidelines. However, recent judicial decisions have allowed many, but certainly not all, women to leave the sidelines and enter the playing fields as equals. By virtue of three landmark cases, Cohen v. Brown, 4 Roberts v. Colorado State Board of Agriculture, 5 and Favia v. Indiana University of Pennsylvania, 6 women who are blessed with great athletic ability have earned a mandate for nu- merical parity with men in intercollegiate athletic programs. In these three cases, federal district courts issued injunctions to prevent post-secondary institutions from eliminating certain women\u27s intercollegiate athletic teams, 7 or reducing them to a lower level status. 8 Every decision was affirmed on appeal. 9 The various courts held that the defendant institutions in each of the three cases had engaged in gender discrimination, prohibited by Title IX, 10 by failing to meet any one of three alternative measures established in the Policy Interpretation. 11 These three measures, which are designed to be considered consecutively, attempt to provide for assessment of the opportu- nity for individuals of both genders to compete in athletic programs by de- termining: 1. Whether intercollegiate [or interscholastic ..

Editor\u27s Introduction

Editors Introductio

No Angels in Academe: Ending the Constitutional Deference to Public Higher Education

This Article’s thesis is simple—because public university administrators are no more angelic than other constitutional actors are, the judiciary’s deference to higher education officials must end. There is no reason for greater deference to the academy than to other governmental units. Instead, judges must subject higher education administrators to the same skepticism and doubt as other constitutional actors. This Article has three parts. Part I examines how the Courts treat academe’s constitutional actors more deferentially than constitutional actors in other spheres. Specifically, it discusses different approaches concerning racial preferences, student religious groups’ freedom of association, and due process for students facing life-altering penalties. Part II details the consequences of the judiciary’s unwarranted deference to higher education. Racial preferences have significant costs, frequently do not help disadvantaged students, and are not necessary to the achievement of racial diversity. Forcing religious groups to admit non-believers undermines Confident Pluralism. Diminishing due process protections does nothing to help sexual assault victim-survivors. Part III details the possibility of ending this judicial deference to higher education through state constitutional provisions, federal statutory or regulatory changes, or overruling existing Supreme Court precedents. In particular, it explores the likelihood racial preferences in higher education will be treated the same as racial preferences in other context, student religious groups will have the associational rights as religious organizations outside of academe, and due process protections will be enhanced

The Limits of Christian Legal Society

In Christian Legal Society v. Martinez, a sharply divided Supreme Court held that officials at a public institution might require a student religious group to admit all-comers from the student body, including those who disagree with its beliefs, as a condition of being a recognized student organization. Put another way, the Court declared that the government, through university officials, might force religious groups to choose between compromising their values and receiving benefits that other student groups receive as a matter of constitutional right. While Christian Legal Society remains the controlling constitutional rule until explicitly overruled, there are significant limits on the decision. First, in many instances, state law—whether in the form a state constitutional provision or a state statue—protects the rights student religious organizations to exclude non-believers. In other words, state law may require the opposite result of Christian Legal Society. Second, a 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, establishes that religious groups have a right of religious autonomy—absolute discretion to determine whom its leaders and, by extension, its members will be. This constitutional guarantee of religious autonomy is contrary to Christian Legal Society. Third, a 2013 decision, Agency for International Development v. Alliance for Open Society International, Inc., revives and redefines the unconstitutional conditions doctrine—government may impose conditions that define the program, but may not impose conditions that reach outside the program—so that a religious group may not be forced to surrender its religious autonomy rights as condition of receiving recognition and funding. Each of these limits is explained in more detail

Istwa Sa A Pa Senp : Body, Land, And Family In Haitian Afrofuturist Fiction

This project is primarily a collaboration with eleven Haitian and Haitian-American authors on a collection of short Afrofuturist fiction stories. In analyzing and interpreting their works, I focus especially on the figures of zonbi and lougawou. Empathizing with these multifaceted, sometimes-monstrous beings emphasizes the importance of becoming comfortable and familiar with fragmented selves. In addition to the stories themselves, I discuss the writing and genre-defining processes that shaped them. We began with two workshops, one in Miami and Port-au-Prince, kept in touch with each other via groupchat and social media while writing, and peer-edited and reviewed each other’s submissions. A collective, working definition of Afrofuturism within the Haitian context emerged over the course of this months-long engagement. We identified religious phenomena (the Haitian Creole term for it is mistik) and unresolved endings as noteworthy features that appeared across stories in our collection

Special Solicitude: Religious Freedom at America’s Public Universities

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student religious groups at America’s public campuses. This article examines religious freedom at America’s public universities. This article has three parts. First, it offers an overview of religious freedom prior to Espinoza and Our Lady. Second, it briefly discusses those two cases. Third, it explores the implications of those decisions on America’s public campuses