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Ghost Athletes: a Subversion of Gender Equity and Violation of Title IX

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Ghost Athletes: a Subversion of Gender Equity and Violation of Title IX University of Pennsylvania ScholarlyCommons Honors Theses (PPE) Philosophy, Politics and Economics 6-26-2019 Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX Simone Unwalla University of Pennsylvania Follow this and additional works at: https://repository.upenn.edu/ppe_honors Part of the Civil Rights and Discrimination Commons, and the Law and Gender Commons Unwalla, Simone, "Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX" (2019). Honors Theses (PPE). Paper 41. This paper is posted at ScholarlyCommons. https://repository.upenn.edu/ppe_honors/41 For more information, please contact [email protected]. Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX Abstract Title IX of the Education Amendments to the 1964 Civil Rights Act established a three-prong test to determine whether or not educational institutions are providing female and male students with equal opportunities for athletic participation. Under the proportionality prong of the test, schools must demonstrate that their overall percentages of female and male athletes are substantially proportionate to their respective enrollment percentages. However, to circumvent the financial costs needed to increase female participation, many schools use roster manipulation to artificially inflate their oporpr tionality numbers. This thesis investigates the practice of using ‘ghost athletes’ on women’s team rosters to artificially achieve Title IX compliant gender proportionality statistics. It analyzes the practice against scholarly research, legal arguments, and relevant Title IX court precedent to argue that it violates Title IX. Relying on expert literature, an autoethnography of my own experience with ‘ghost athletes’ on the University of Pennsylvania varsity women’s fencing team during the 2017-2018 season, and Title IX jurisprudence, this thesis demonstrates that ‘ghost athletes’ do not constitute genuine athletic participation opportunities and cause significant (and legally-relevant) harm to female athletes. The research presented supports the finding that using ghost‘ athletes’ to inflate emalef participation numbers subverts the intentions of equality underlining Title IX and violates the federal statute. Keywords Title IX, discrimination, sports, athletics, ghost athletes Disciplines Civil Rights and Discrimination | Law | Law and Gender This article is available at ScholarlyCommons: https://repository.upenn.edu/ppe_honors/41 Ghost Athletes: A Subversion of Gender Equity and Violation of Title IX Simone Unwalla Submitted to the Philosophy, Politics and Economics Program at the University of Pennsylvania in partial fulfillment of the requirements for Honors. Thesis Advisor: Professor Nancy Hirschmann Date of Submission: June 26, 2019 2 GHOST ATHLETES: A SUBVERSION OF GENDER EQUITY AND VIOLATION OF TITLE IX COPYRIGHT 2019 Simone Unwalla This work is licensed under the Creative Commons Attribution- NonCommercial-ShareAlike 3.0 License To view a copy of this license, visit https://creativecommons.org/licenses/by-nc-sa/3.0/us/ 3 TABLE OF CONTENTS ACKNOWLEDGMENTS .......................................................................................................................... 4 ABSTRACT ............................................................................................................................................ 5 INTRODUCTION .................................................................................................................................... 6 BACKGROUND ................................................................................................................................... 11 SECTION 1: WHY TITLE IX MATTERS .................................................................................................... 17 THE SIGNIFICANCE OF SPORTS IN AMERICA ..................................................................................................... 17 THE INDIVIDUAL BENEFITS OF SPORT PARTICIPATION ....................................................................................... 21 THE IMPORTANCE OF GENDER PROPORTIONALITY ........................................................................................... 27 SECTION 2: AN AUTOETHNOGRAPHIC ANALYSIS ................................................................................ 35 THE AUTOETHNOGRAPHIC APPROACH ........................................................................................................... 35 BEING ON A WOMEN’S SPORTS TEAM WITH ‘GHOST ATHLETES’ ........................................................................ 36 FIGHTING THE USE OF ‘GHOST ATHLETES’ ...................................................................................................... 42 OPEN FORUM AND ITS EFFECTS .................................................................................................................... 47 SITUATING FINDINGS WITHIN SCHOLARLY DISCUSSION ..................................................................................... 55 SECTION 3: APPLYING JUDICIAL REASONING ...................................................................................... 62 EVALUATING THE USE OF ‘GHOST ATHLETES’ AGAINST TITLE IX JURISPRUDENCE .................................................. 62 DEFINING ATHLETIC PARTICIPATION OPPORTUNITIES ....................................................................................... 63 GENUINE PARTICIPATION ............................................................................................................................ 68 DIFFERENTIAL TREATMENT AND HARM .......................................................................................................... 71 CONCLUSION ..................................................................................................................................... 77 BIBLIOGRAPHY ................................................................................................................................... 80 APPENDIX .......................................................................................................................................... 84 4 ACKNOWLEDGMENTS I want to extend a sincere thank you for the help and support I received from the following people while working on this project: Professor Nancy Hirschmann whose genuine care about the inequality I witnessed validated my decision to devote my senior thesis to investigating them and whose guidance was incredibly valuable throughout the entire process. Dr. Doug Paletta whose advice and encouragement transformed my experience as a PPE major and made my success in this endeavor possible. My teammates, female and male, who stood by the fight against ‘ghost athletes’ and supported me when I faced backlash for speaking out. My mentors, professional and athletic, who offered me continued support and guidance in pursuing this issue when I encountered setbacks and obstacles. My friends who were my rocks throughout this entire experience, offering me a lending ear in times of frustration and encouraging me to take action when my words were ignored. And finally, my family who taught me the importance of fighting for what is right and who inspire me to be brave especially when it isn’t easy. 5 ABSTRACT Title IX of the Education Amendments to the 1964 Civil Rights Act established a three- prong test to determine whether or not educational institutions are providing female and male students with equal opportunities for athletic participation. Under the proportionality prong of the test, schools must demonstrate that their overall percentages of female and male athletes are substantially proportionate to their respective enrollment percentages. However, to circumvent the financial costs needed to increase female participation, many schools use roster manipulation to artificially inflate their proportionality numbers. This thesis investigates the practice of using ‘ghost athletes’ on women’s team rosters to artificially achieve Title IX compliant gender proportionality statistics. It analyzes the practice against scholarly research, legal arguments, and relevant Title IX court precedent to argue that it violates Title IX. Relying on expert literature, an autoethnography of my own experience with ‘ghost athletes’ on the University of Pennsylvania varsity women’s fencing team during the 2017-2018 season, and Title IX jurisprudence, this thesis demonstrates that ‘ghost athletes’ do not constitute genuine athletic participation opportunities and cause significant (and legally-relevant) harm to female athletes. The research presented supports the finding that using ‘ghost athletes’ to inflate female participation numbers subverts the intentions of equality underlining Title IX and violates the federal statute. 6 INTRODUCTION In 1972, Congress passed Title IX of the Education Amendments to the 1964 Civil Rights Act and ignited a political and cultural debate over the role of women in athletics that continues to divide America to this day. The law facilitated tremendous growth in women’s sports, but the unrelenting opposition it faced had lasting impacts on its effectiveness as an anti-discrimination instrument. Still, despite legislative attempts to strike down the statute, legal attempts to invalidate the statute, and executive attempts to limit the scope of the statute, Title IX endured. Most directly, Title IX’s survival stemmed from the consistent support it received from the United States Judiciary. The law and its three-prong
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