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Too young. Too good. Too foreign. Too… female? In the past few weeks, it seems the sports world has experienced an abundance of discriminatory action, or at least attention, from unhappy folks in youth and professional sports. First, controversy erupted regarding the age of certain Chinese gold-winning gymnasts, who are rumored to be one to two years younger than the mandated age sixteen cutoff for Olympic participation. Then, the Youth Baseball League of New Haven threatened to disband a team because its ten-year-old member, Jericho Scott, was throwing 40-mph fastballs that blew away the competition. Almost that same day, the LPGA announced that, beginning in 2009, it will require English proficiency tests for its foreign players, who must receive passing marks in order to avoid suspension from the tour (the penalty aspect of this requirement has since been retracted). And, as if those did not generate enough headlines, the talented fourteen-year-old kicker Kacy Stuart was just removed from a private high school’s football team by administrators of the league simply “because she’s a girl.”
On the surface, legal remedies for these groups do not seem promising. The Fourteenth Amendment prohibits the deprivation of one’s “life, liberty, and property without due process of law,” but, of course, this is a protection against actions of the state, not private organizations. Even if these discriminatory actions were government-sponsored, the Equal Protection Clause would provide little help. Of the four “classifications,” only the LPGA’s rule directed at foreign players would be looked at under a “strict scrutiny” test. For the Chinese gymnasts (jurisdictional issues aside) Scott and Stuart, the action would stand so long as it met the “rational basis” (age, ability) or “intermediate scrutiny” (sex) tests—a small obstacle in the government’s way.
As a brief overview, if the goal of the discriminatory action is compelling, and the means of accomplishing that goal are the least restrictive, then the action passes the “strict scrutiny” test; if the goal is important, and the means are substantially related to the furtherance of that goal, then theaction passes the “intermediate scrutiny” test; if the goal is legitimate, and the means are rationally, or reasonably, related, then it passes the “rational basis” test.
Some might argue that the goal behind each regulation or decision actually has considerable merit. The age requirement for participation in the Olympics is designed to protect the bones and muscles of young athletes who are still in their developing years. According to LPGA deputy commissioner Libba Galloway, the English proficiency test is to help foreign golfers with their professional development: “There are more fans, more media and sponsors. We want to help our athletes as best we can succeed off the golf course as well as on it.” And as for Scott, who was playing in a first-timer instructional league, his fastball was discouraging others from developing any interest in the sport. The only person left without a rationalization, one that must be “important” under the “intermediate scrutiny” test, is Stuart. Sources say she has the ability to be a successful kicker, and it seems the only reason that board chairman Hank St. Denis won’t allow her to play is because she is a girl.
On their face, the age, talent, and English proficiency requirements seem warranted. But beneath the surface, controversy is brewing due to potential conflicts of interest, and a general negative feeling regarding how the appropriate parties have handled the disputes. Scott, whose parents seemingly enjoyed watching him beat up on the competition, was prohibited from playing at least in part by a league director whose employer sponsored the second-place team chasing Scott’s team. The LPGA requirement was initially revealed in a meeting to which only the South Korean constituency was invited—the LPGA’s membership includes 121 international players from twenty-six countries, forty-five of which hail from South Korea. It is important to note that seven of the LPGA’s Top 20 players are Korean. Coincidence? And the Chinese gymnastics team just happened to win the gold medal. Quite expectedly, most of the gripes following the competition arose from the silver-winning American team.
There may be no recourse, but the lessons remain. If you are good enough to compete at a higher level, move up and give it a shot. Carrots can provide a greater incentive than sticks when it comes to learning a language. If you want to compete on the world’s grandest stage, be prepared to meet the world’s greatest competition. And if you are going to prevent a female from playing a traditionally male sport, give a better explanation than “because she’s a girl.”
– Andrew Cunningham
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