Monday, April 11, 2011
Should there be co-ed football? Must there be?
Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule. In footnote 8, he explained:
In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.
This would be a great class exercise for law schools at public universities with a large proportion of football devotees. For baseball afficiandos, there will be a footnote later this week.
Suggested by Professor Jessica Silbey
[Image from the Cleveland Plain Dealer, May 1, 2009 via]