By Doug Abrams
Fourteen-year-old Keeling Pilaro will play field hockey for Long Island’s Southhampton High School again next season after all. On Tuesday morning, his continued participation was approved by a close vote of an appeals panel of Section 11, which supervises Suffolk County’s high school sports. The ultimate issue was whether Title IX would permit him to play on the girls’ field hockey team because his high school does not field a boys’ team in that sport. “Title IX,” of course, is Title IX of the Education Amendments of 1972, the landmark congressional statute that prohibits gender discrimination in “any education program or activity receiving Federal financial assistance.”
The Pilaro case attracted national, and indeed international, attention as a so-called “reverse discrimination” case, which saw a boy assert rights under a mandate that Congress designed to produce gender equity by overcoming barriers historically imposed against girls and women. Gender-discrimination challenges by boys and men are actually quite common in American law, but these challenges raise eyebrows, even when (as often happens) the male challenger wins in the Supreme Court or the lower courts.
In the Pilaro case, plenty of eyebrows were raised among both supporters and opponents of Keeling and his parents. In Newsday and other interactive newspaper websites, opponents argued, among other things, that (1) the Pilaros should not have hired a lawyer, (2) the Pilaros should not have said that they would challenge an adverse Section 11 ruling in court, and (3) Keeling should choose a “boys’ sport” rather than “girls’ sport.” According to two of the more than 200 readers who have weighed in on Newsday’s website alone, “It’s pathetic that he is not playing lacrosse instead of field hockey,” and “[H]ere is what it comes down to these days, ‘if my kid doesn’t get his way, we’ll just sue sue sue.’”
Vindicating Civil Rights
Each of these three arguments misses the point. Title IX is a civil rights statute, enacted by Congress to eradicate gender discrimination in elementary, secondary and higher education. Indeed, Congress expressly patterned Title IX after Title IV of the Civil Rights Act of 1964, which prohibits discrimination for race, color, or national origin in “any program or activity receiving Federal financial assistance.”
The United States was built on challenges asserted by persons who believed that official action violated civil rights granted to them by statute or the Constitution. And yes, lawyers typically represent these challengers as they seek vindication before administrative agencies and courts. Sometimes challengers win and sometimes they lose, but seeking to vindicate one’s civil rights under law is as American as apple pie.
Field hockey is only a game, of course, and one youngster’s participation or non-participation at one Long Island high school may seem like no big deal in the grand scheme of things. Surely the Pilaro case did not concern world peace, nuclear disarmament, or any of the other momentous public issues that concern us these days. But to a 13-year-old, playing a chosen sport is a big deal. The Pilaro case’s outcome was a big deal because Congress and the U.S. Department of Education have rightfully made civil rights challenges under Title IX — by individual women and men alike — a big deal for the past four decades.
One person’s solitary effort to secure a civil rights law’s protection may seem like small potatoes, but potatoes tend to appear larger when they are your potatoes. I recall Wisconsin v. Yoder, a 1972 case brought by a group of Amish parents who believed that application of the state’s compulsory education act to their older teens violated their First Amendment rights to free exercise of their religion. The state act required parents to send their children to public school until the age of 16 (unless they attended private school or were home schooled), but the Amish parents asserted that their religious beliefs compelled an end to formal schooling at 14. The parents took the case all the way to the Supreme Court – and they won.
What was at stake in the Yoder case? The Supreme Court victory overturned the fine that state authorities had imposed on each parent for violating the compulsory education act. The fines amounted to five dollars each.
Choose Another Sport?
It is no answer to say that Keeling Pilaro could choose another sport. Of course he could, but imposing that choice does not answer the question whether Title IX’s civil rights mandate entitles him to play field hockey. A person denied civil rights can usually find a less palatable alternative, but resolution of civil rights guarantees must come first.
When Rosa Parks refused to move to the back of the bus in Montgomery, Alabama on December 1, 1955, for example, she had alternatives. She could have walked to work, driven to work, asked a friend to drive her, or taken a taxi. Or she could have stayed home altogether. But with the help of lawyers, she challenged discrimination and asserted her civil rights as she saw them. We know the rest of the story as the Civil Rights Movement moved into high gear.
Nor is it an answer to dismiss field hockey a “girls sport.” In most of the rest of the world (including Ireland, where Keeling spent his early years and learned to play), field hockey is a sport for males and females alike in local, regional and high level national competition. Indeed, men’s field hockey worldwide is considerably older than women’s field hockey.
Field hockey evolved as a female sport in the United States partly because of the sort of gender discrimination that Title IX seeks to combat. When I was in high school in the late 1960s, field hockey was one of the few socially acceptable sports for the relatively few girls who chose to play interscholastic sports at all. Without artificial turf that came only later, field hockey was a rather slow game, played on grass that was often too long and usually had the rough surfaces that characterize natural lawns. Players did not get too dirty, and the players typically wore skirts that made them look like — well — girls.
In fact, girls in the United States often participate on boys athletic teams and (less frequently) boys participate on girls teams in sports not classified as contact or collision sports. I found the Readers’ Comments to Newsday’s coverage of the Pilaro case to be tough reading because many missed points such as this, but also because so many comments descended into the snide innuendo that passes for public discussion whenever a newspaper covers a controversial matter these days and invites readers’ responses from the anonymity of the keyboard. I can only imagine the content of the comments that did not pass Newsday.com’s Terms of Service.
As I wrote in last week’s column , Title IX has changed America for the better by helping to bring girls and women closer to the mainstream of our national life. I am glad that the Pilaros stood up for their son in this case, however, and equally glad that they won before the Section 11 appeals panel. I felt that fairness was on the Pilaros’ side, and that they stood an excellent chance on court review of an adverse decision. As I said last week, Keeling “plays clean; fits in well with his coaches and teammates; holds the support of his school’s administration; and poses no safety risk to girls because, at 4’8” and 86 pounds, he is smaller than many of them.”
Unless the safety factor changes in future years, Keeling Pilaro now gets to play his sport as girls strive to develop their own skills to meet the competition. This equation is why the United States has civil rights laws, and why — win or lose — these laws deserve robust enforcement.