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Student Gladiators and Sexual Assault: a New Analysis of Liability for Injuries Inflicted Yb College Athletes Michigan Journal of Gender & Law Volume 15 Issue 2 2009 Student Gladiators and Sexual Assault: A New Analysis of Liability for Injuries Inflicted yb College Athletes Ann Scales University of North Carolina-Chapel Hill School of Law Follow this and additional works at: https://repository.law.umich.edu/mjgl Part of the Civil Rights and Discrimination Commons, Criminal Law Commons, Education Law Commons, Entertainment, Arts, and Sports Law Commons, and the Law and Gender Commons Recommended Citation Ann Scales, Student Gladiators and Sexual Assault: A New Analysis of Liability for Injuries Inflicted yb College Athletes, 15 MICH. J. GENDER & L. 205 (2009). Available at: https://repository.law.umich.edu/mjgl/vol15/iss2/1 This Article is brought to you for free and open access by the Journals at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of Gender & Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. STUDENT GLADIATORS AND SEXUAL ASSAULT: A NEW ANALYSIS OF LIABILITY FOR INJURIES INFLICTED BY COLLEGE ATHLETES (_1nn Scales* INTRODUCTION • 206 1. THE CONTEXT • 210 A. Incidents and Cases • 210 1. News Stories • 210 2. Legal Dimensions: The Colorado Football Gang Rape Case • 212 B. American College Football • 217 II. WHAT DOESN'T WORK • 222 A. The National CollegiateAthletic Association • 223 B. The CriminalJustice System • 227 C. Athletic Department and InstitutionalDiscipline • 231 D. Title IX of the Education Amendments of 1972 • 234 1. Title IX Standards for Institutional Liability • 235 2. Dizzy Doctrines Regarding Title IX Remedies • 238 III. THE RELATION BETWEEN BIG-TIME SPORTS AND SEXUAL VIOLENCE . 241 A. The Stilted Causal View • 241 1. Example: District Court in Simpson v. University of Colorado • 242 2. Thinking More Coherently • 243 B. A Serious Public Health Analysis of Sports and Violence • 246 1. Encouragement of Alcohol Abuse • 249 2. Exploitation of Race and Poverty 250 3. Enforcement of Prejudice against Homosexuality 255 Visiting Professor of Law, University of North Carolina-Chapel Hill School of Law; Professor of Law, University of Denver College of Law. Thanks to those who pro- vided research assistance and support, specifically Mathew Shechter, Diane Burkhardt, and Dean Beto Juirez. I'm grateful to Baine Kerr and Kimberly Hult, plaintiffs lawyers in Simpson v. University of Colorado for discussions about that struggle (for disclosure purposes, the author participated as a consultant to plaintiffs lawyers at the appellate level). I also appreciate close readings and suggestions from Jane Caputi, Lissa Broome, Jane Aiken, and participants in the Duke University Law School 2008 Summer Workshops, particularly Paul Haagen and Robert Mosteller. Finally, I am indebted to the editors of the Michigan Journal of Gender & Law for their extraordinary efforts. Ben McJunkin, especially, picked up the ball when I was medically unable to carry it, and brought it home. MICHIGAN JOURNAL OF GENDER & LAW [Vol. 15:205 4. Glorification of Violence as a Source of Masculine Self-Esteem and Maximization of the Asymmetry of Gender • 257 IV. WHAT MIGHT HELP: A STATE CONSTITUTIONAL CHALLENGE . 261 A. PreliminaryDoctrines • 265 B. Interpretationof State Prohibitionson Sex Discrimination • 266 1. Rejecting Federal Law • 269 2. Is it Sex Discrimination? • 272 C. Applying the State ConstitutionalProvisions • 274 1. The State Interest in Revenue Production • 275 2. The State Interest in Group Cohesion: Something to Cheer and Talk About • 276 3. The State Interest in Catharsis • 278 D. Realistic Remedies • 282 CONCLUSION • 288 INTRODUCTION In forty years of conversations with educators working at institu- tions that participate in NCAA Division I-A1 athletics, I have heard one metaphor over and over again: big-time sports are the tail that wags the academic dog.2 But the controversy came well before I became aware of it, and before the advent of the National Collegiate Athletic Association, and it had everything to do with football. By the turn of the twentieth century, the Harvard faculty had voted on numerous occasions to abolish football,3 to no effect. When the ven- erable Charles W Eliot, by then President of Harvard for three and a half decades, was asked in 1905 to "call a conference [of colleges] to 1. The National Collegiate Athletic Association classifies member institutions by the number of teams fielded, the number of contests per season, and the number of par- ticipants in sports. Division I institutions, for example, must sponsor at least seven sports for men and seven sports for women (or six sports for men and eight sports for women). Among institutions that sponsor football, Division I-A universities are now called "Football Bowl Subdivision" schools and must meet both minimum fan atten- dance and minimum player financial aid standards. http://www.ncaa.org/wps/ncaa? ContentlD=418 (last visited Nov. 20, 2008). 2. The conversation started early for me as my father was the President of Wake Forest University from 1967-83, a member of the athletically high-powered Atlantic Coast Conference. 3. Ronald A. Smith, Harvardand Columbia and a Reconsideration of the 1905-06 Foot- ball Crisis, 8 J. SPORT HISTORY 5, 5, 10 (1981). 2009] STUDENT GLADIATORS AND SEXUAL ASSAULT either reform or ban football," he promptly declined, stating that ad- ministrators "certainly cannot reform football, and I doubt if by themselves they can abolish it."4 Stanford and the University of Califor- nia did abolish football from 1906-19 and 1906-15, respectively, replacing it with rugby, until war and market pressures forced them to return to football.5 When University of Michigan President James Bur- rill Angell, in an effort to restore the integrity of college football, persuaded other colleges to form a new league with Michigan, in 1906 legendary Michigan football coach Fielding Yost went over the Presi- dent's head to the Board of Trustees and got them to restore the status quo. 6 Thus have academics historically thrown up their hands, and that has been the eventual response to date of most faculties and administra- tions faced with the excesses of intercollegiate athletic programs-at least those in NCAA Division I-A-in the ensuing century. Educators' objections to intercollegiate athletics (particularly football) have been many. The concerns expressed a century ago-brutality, professionaliza- tion, commercialization, moral corruption, dilution of education, and usurpation of academic control of the university-persist today. In the last century, they have been exponentially magnified This Article will focus, however, on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of 4. Id. at 13. 5. Roberta J. Park, From Football to Rugby--and Back, 1906-1919: The University of California-StanfordUniversity Response to the "FootballCrisis of 1905", 11 J.SPORT HISTORY 5, 27-28, 36 (1984). 6. JAMES J. DUDERSTADT, INTERCOLLEGIATE ATHLETICS AND THE AMERICAN UNIVER- SITY: A UNIVERSITY PRESIDENT'S PERSPECTIVE 232-33 (2003). It seems integral to the hegemony of football for such football coaches always to be described as "legen- dary." See infra text accompanying note 212. 7. There is an immense recent literature on the conflict between sports and academic goals. See e.g., WILLIAM G. BOWEN & SARAH A. LEVIN, RECLAIMING THE GAME: COLLEGE SPORTS AND INSTITUTIONAL VALUES (2003); WALTER BYERS, UNSPORTS- MANLIKE CONDUCT: EXPLOITING COLLEGE ATHLETES 297-319 (1995) (authored by the Director of the National Collegiate Athletic Association from 1951-66); DUDER- STADT, supra note 6, at 189-204; JAMES L. SHULMAN & WILLIAM G. BOWEN, THE GAME OF LIFE: COLLEGE SPORTS AND EDUCATIONAL VALUES (2001); RICK TE- LANDER, THE HUNDRED YARD LIE: THE CORRUPTION OF COLLEGE FOOTBALL AND WHAT WE CAN Do TO STOP IT (1996); JOHN R. THELIN, GAMES COLLEGE PLAY: SCANDAL AND REFORM IN INTERCOLLEGIATE ATHLETICS 24-27, 182-83, 200 (1994)). Perhaps most significant is the ongoing work of the Knight Foundation Commission on Intercollegiate Athletics, founded in 1991 by a distinguished group of academic administrators and other experts to consider ways of corralling the threats to education posed by big-time intercollegiate athletics. See Knight Commis- sion on Intercollegiate Athletics, www.knightcommission.org. MICHIGAN JOURNAL OF GENDER & LAW [Vol. 15:205 the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, in- cluding educational and sexual harms. My theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; that football worship by both men and women 8 is weirdly and widely accepted in spite of the huge costs of football; and that football has a darkly gendered underside that deserves serious consideration. I emphasize three notions right up front. First, I do not advocate the abolition of intercollegiate football. Rather, I present an analysis that will, I hope, assist lawyers and courts to participate constructively in the widely-shared goal of bringing football into balance with universities' larger educational mission. Second, perhaps I am
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