No. 22225 -- State of West Virginia ex rel. Diana Lambert, by
Her Next Friends, Kathleen Lambert and Hobert
Lambert v. The West Virginia State Board of
Education, a Corporation, and The West Virginia
Secondary Schools Activities Commission, a
Neely, J., dissenting in part:
My personal law clerk this year is a woman who played on
the first string Harvard tennis team. Therefore, my office is not
entirely ignorant of the interest that women have in sports, but
Christmas dinner is seldom delayed in America because wives and
mothers are sitting around the television set watching the games.
All of government involves the rationing of scarce
resources. A first best solution to most problems always requires
the existence of A, B, C, D and E. In the real world, however, we
usually don't have A, B, C, D and E simultaneously. Therefore, we
must accept a "second best" solution and decide whether we want B,
C, D and E; A, B, C and D; D, E, A and B; or some other combination
with a missing letter.See footnote 1
In the case of girls' basketball, moving the girls' schedule from the fall to the winter might involve spending substantial money on new athletic facilities in light of the intensity of community support for boys' basketball. Given that
money for education is basically fixed, as the regular defeat of
excess levies these days clearly demonstrates, the money for new
athletic facilities has to be taken from someplace else in
education-- computers, foreign language instruction, vocational
technical training, or science facilities.
The fact that women are equal to men does not mean that
women are exactly like men. Wouldn't we look like jackasses if we
were to agree to enter a court order giving all males between the
ages of 20 and 40 four months of pregnancy leave every three years
simply because such leave is regularly given to women? Although in
some future world that we may conjure up in fantasy, women's sports
teams might draw the same kinds of crowds that men's sports teams
draw, that is certainly not the case today. How many people would
pay $4 apiece to watch the best women's basketball team West
Virginia University ever produced play a comparable team from
Indiana? The answer, of course, is that there wouldn't be nearly
as many as for a comparable men's team. And what that bespeaks is
a market decision made by millions of individuals and expressed
collectively through demand for tickets that women's sports do not
have a very high community priority.
Now all of this might sound like the benighted rantings
of a person nostalgic for the 19th Century; nonetheless, if we go
to most working class schools in small towns where the school is
the center of local social life, we will see that if there is a
problem having boys play basketball in the winter because gym space
must be apportioned between men and women, a new gym will be built!
In fact, the political sentiment in favor of a vigorous sports
program for boys (and cheerleading for girls) at the local level is
so intense that athletic facilities will generally take precedence
over computers, science laboratories, foreign language instruction,
vocational technical facilities and compensatory reading programs.
That's the real world!
Although after detailed scrutiny of the facts of high
school sports none of my fears may be justified, determining when
girls' basketball should be played is a decision to be made by the
State Board of Education in the first instance. Consequently, I
find the majority's holding that there cannot be a sufficiently
compelling governmental reason to justify playing girls' and boys'
sports in different seasons to be contrary to the best interests of
education. We must assume that the State Board of Education and
local boards of education are as concerned about gender fairness as
we are; indeed, the State Board under the pressure of this lawsuit
has concluded that tentatively there is no reason not to merge the
girls' and boys' seasons. If, either on the merits or in deference to political pressures the State Board determines such merger to be
the best course, then so much the better. But I would not tie the
State Board's hands with a premature constitutional ruling
predicated on a meager record.
In government there is no such thing as a free lunch: when you help one group, you almost invariably hurt another group. And, frequently the group that you hurt are not in court and, therefore, must be defended by the judges. The people who need defending in this case where there is no political capital to be made being "against women" are all the users of school programs from which money will be taken if, indeed, moving women's basketball to the winter involves the building of many more gyms or other augmentations of sports-related costs.
Footnote: 1 1Lipsey & Lancaster, "The General Theory of Second Best," 24 Review of Economic Studies 11-33 (1956-57).