Category: Legal News

Don’t Bring It On to Judge Underhill: He Didn’t Say Cheerleaders Aren’t Athletes

By , August 11, 2010 6:38 am

Thank you, Kirsten, for applauding the ruling in Biediger, et al v. Quinnipiac

In July, federal district court judge Stefan Underhill held that, for purposes of Title IX compliance, cheerleading is not a sport.  The background is this: In March 2009, Quinnipiac University cut its volleyball program, replacing it with a competitive cheerleading squad.  The reason, of course, was budget cuts. Five volleyball players and the Quinnipiac coach sued under Title IX, which requires any institution taking federal money to “provide equal athletic opportunity for members of both sexes.” 34 CFR 106.41.

In 2008, the Office of Civil Rights for the Department of Education issued a memorandum outlining factors for deciding whether a sport meets Title IX guidelines. In the absence of such guidelines, schools could skirt the law by calling anything a sport and meet Title IX. For example, Big State U. could have Men’s Football, Basketball, and Baseball, with Women’s Basketball, Ping Pong, and Horseshoes if it could schedule Ping Pong and Horseshoes with other colleges.

The OCR said 1) Program Administration and Structure, and 2) Team Preparation and Competition would be considered, with several guidelines for these underneath.  Judge Underhill relied heavily on these, essentially applying the OCR’s guidelines to the facts in the Quinnipiac case.  His conclusion was that competitive cheerleading “is still too underdeveloped and disorganized to be treated as offering genuine varsity athletic participation opportunities for students.”

The reaction on the interwebs was predictable:  Sports sites linked with mocking “proof” that cheerleading is not a sport, where women’s sites called the judge a sexist.

Note that the basis for Underhill’s ruling was not on the merits of the relative “athleticism” of cheerleading.  He held that the governing boards and organized competitions were not, for lack of a better word, “official” enough to qualify for Title IX.  It’s not recognized by the NCAA, the Department of Education, there’s no official playoff system (insert BCS comment here), and the National Competitive Stunts and Tumbling Association is unincorporated and disorganized.  There’s no governing board, no voting system for its members to make decisions about competition rules, it applies inconsistent scoring methods—heck, it doesn’t have a website that I can find.  The judge gives an exhaustive list of factors separating competitive cheerleading from “varsity” sports.


In fact, in my reading, this is an encouraging decision for women.  By having a high standard for what constitutes a varsity sport, schools can’t skirt Title IX by having, say, a Women’s Ping Pong or Horseshoes team.  In fact, the judge explicitly says that if the governing boards of cheerleading get more organized and the university provides resources befitting a varsity sport, cheerleading will be a sport for purposes of Title IX.

The Catch-22 is Quinnipiac cut volleyball for cheerleading because of a lack of resources.  Though Quinnipiac doesn’t have a program, this is where we have the argument about football, which my sports-loving friends will say fund women’s sports.  Then I, a sports-lover myself, will counter with actual data and evidence showing football is basically state-subsidized entertainment that drains university resources and administrator time and focus.  But we’ll have that one later, maybe on the Hill by the Campanile before the K-State game.

If the Arizona Immigration Law Didn’t Legalize Racial Profiling, There Would Be No Point to the Arizona Immigration Law

By , May 16, 2010 9:17 pm

So let’s take a look at the original Arizona SB 1070, shall we?  There’s a lot of stuff here, but let’s focus specifically on the part about when you can ask somebody for their proof of citizenship or legal immigration status.  The law says that an officer verify immigration status upon “lawful contact” with a person.  In legal language, what does that mean?

There are several different categories of contact an officer can have with a person; the relevant ones here are:  “probable cause” that you committed a crime, “reasonable suspicion” that you have or may commit a crime, or, in the language of the Arizona bill, “lawful contact.”  In simplified terms, reasonable suspicion includes instances when an officer arrests a person, detains him for probable cause that he’s committed a crime, or stops him when the officer has reasonable suspicion that he has or may commit a crime (known as a “Terry Stop”).

Lawful contact is not a legal term of art, but we can assume that if the legislature meant “reasonable suspicion,” they would have said “reasonable suspicion.”   So what’s an example of “lawful contact”?  There’s nothing illegal about an officer just coming up to you and asking you some questions—that seems like “lawful contact,” doesn’t it?  It’s not illegal, so it must be lawful.  Obviously, this is a lesser standard than reasonable suspicion, which requires articulable evidence that you have, are, or may commit a crime. 

Now, a bunch of conservative commentators are saying, no, the law says that the person needs to be suspected of committing a crime to have his papers checked.  This is false—otherwise, the law would plainly say that an officer needs “reasonable suspicion” that a crime has or may be committed to ask for papers.  That’s not what they want officers to do.  They want officers to be able to stop anybody at any time to ask for papers.

How do we know this?  Because if you’re under reasonable suspicion, you can already ask for driver’s license, papers, etc.  So, there would be absolutely no point to this stipulation if it didn’t mean “Officers can ask anybody they want for his papers.”

That’s precisely why the Arizona legislature had to go back and change that language in the bill from “lawful contact” to “lawful stop, detention, or arrest.”  In other words, reasonable suspicion.  In other words, the new Arizona law commands officers to do what they were already able to do. 

UMKC constitutional law professor Kris Kobach has been the go-to guy on this law, claiming to help draft it and has been its most vocal supporter in the media.  He’s also totally misconstruing this law.  This op-ed for the New York Times claims that “reasonable suspicion” is a completely reasonable standard that won’t be used to racially profile.  The is bunk on two counts:  1)  I used to write these prosecutor’s memos; you can always find reasonable suspicion for an officer, and 2) the law doesn’t say you need reasonable suspicion; you only need “lawful contact”—that’s a completely different thing.  Apparently, professor, even the Arizona legislature disagreed with you.

Look, you can probably discern how I feel about this law.  But what really bothers me is when lawyers willfully and intentionally misconstrue precise legal language to mislead the public.  I’ve heard so many people say “what’s wrong with asking a jaywalker for his papers” that it’s obvious the public doesn’t really know what this says.  Or, they absolutely do and don’t care because they’re not likely to be asked for their papers, based on the color of their skin.  If that’s the case, one class of Americans is in favor of creating a second class of American citizen, where people are pre-judged by the color of their skin.  If you think this is ok because, hey, we’re fighting illegal immigration, you don’t really care what the Constitution says about Equal Protection under the law.   This is not an argument that no illegal aliens should be arrested and deported; it’s an argument that we should not attempt to constiutionalize the harrassment of American citizens based solely on the color of their skin.

Jay Bilas, Esquire to Digger Phelps: You Can’t Afford Me

By , March 18, 2010 11:01 am

If you’ve ever wondered why Jay Bilas, ubiquitous ESPN talking hoopshead and former starter for a final four Duke team, sounds like he’s talking down to everybody else onscreen, there’s a good explanation:  Bilas is an attorney in North Carolina. In fact, Jay Bilas won a semi-major intellectual property case, Lyons Partnership v. Morris Costumes, Inc., in which he defended a mom-and-pop costume shop in North Carolina against Barney the Dinosaur in a trademark and copyright suit. 

Reading the opinion, this is actually a complicated case, and Bilas did some pretty good lawyerin’.  First, in a standard fact-based intellectual property argument, Bilas straight rejected Barney by showing that “Duffy the Dragon” was not “substantially similar” to nor was “likely to cause confusion” with a Barney costume.   Bilas’ other task was harder.  Instead of showing that “Hillary the Purple Hippopotamus” wasn’t too similar to Barney, Bilas ran a backdoor cut and dunked a Statute of Limitations and Doctrine of Laches argument.

So maybe Bilas had a point during ESPN’s twelve hour NCAA tournament blatherthon on Sunday.  Digger Phelps, when defending Virginia Tech’s weak non-conference schedule, turns to Bilas and says, “If you were litigating this—“.  Jay stops Digger cold:  “You can’t afford me, Digger, but go ahead.” 

Still, Counselor Bilas, even if Digger can’t afford you, don’t say it.  Otherwise, you end up sounding like a Former “Scrappy” Duke Player with a Law Degree.  Don’t be That Guy, Jay.

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