`
`
`
`Nos. 24-38, 24-43
`
`In the Supreme Court of the United States
`__________
`BRADY LITTLE GOVERNOR OF IDAHO, ET AL.,
`Petitioners,
`
`v.
`LINDSAY HECOX, ET AL.,
`
`__________
`WEST VIRGINIA, ET AL.,
`
`Respondents.
`
`Petitioners,
`
`v.
`B.P.J., BY HER NEXT FRIEND AND MOTHER, HEATHER
`JACKSON,
`
`Respondent.
`
`__________
`On Petitions for Writs of Certiorari to the United
`States Court of Appeals for the Ninth Circuit and the
`United States Court of Appeals for the Fourth Circuit
`__________
`
`
`
`
`
`BRIEF OF BUSINESS LEADERS AS AMICI
`CURIAE IN SUPPORT OF PETITIONERS
`
`__________
`
`
`Jonathan R. Whitehead
`LAW OFFICES OF JONATHAN R.
` WHITEHEAD, LLC
`229 SE Douglas St., Suite 210
`Lee’s Summit, Missouri 64063
`(816) 398-8305
`jon@whiteheadlawllc.com
`Counsel of Record for Amici Curiae
`
`
`
`
`
`
`
`
`i
`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS .............................................. i
`
`TABLE OF AUTHORITIES ........................................ ii
`
`INTEREST OF AMICI CURIAE ................................ 1
`
`SUMMARY OF ARGUMENT ..................................... 2
`
`ARGUMENT ................................................................ 3
`
`I. School athletic participation is highly correlated
`with success in the labor market. .......................... 3
`
`II. Records of athletic accomplishment are also
`correlated with labor market success. ................... 5
`
`III.Petitioners’ position ensures that men and
`women’s sports are treated equally with respect to
`participation and accomplishment. ....................... 8
`
`CONCLUSION .......................................................... 10
`
`TABLE OF APPENDICES ............................... Appx. 1
`
`APPENDIX A – LIST OF INDIVIDUAL AMICI ........... APPX. 2
`
`
`
`
`
`
`
`
`
`
`ii
`
`TABLE OF AUTHORITIES
`
`
`
`
`
`Cases
`
`Chang v. Univ. of Rhode Island, 606 F. Supp. 1161
`(D.R.I. 1985) ............................................................. 8
`
`Other Authorities
`
`Betsey Stevenson, Beyond the Classroom: Using Title
`IX to Measure the Return to High School Sports, 92
`Rev. Econ. & Stat., at 284-301 (2010) .................. 4-5
`Bradley T. Ewing, Athletes and Work, Econ. Letters,
`Apr. 1998 .................................................................. 4
`Bradley T. Ewing, The Labor Market Effects of High
`School Athletic Participation: Evidence from Wage
`and Fringe Benefit Differentials, J. Sports Econ.,
`Jun. 2007 .................................................................. 4
`Daniel Bowen & Jay Greene, Does Athletic Success
`Come at the Expense of Academic Success? J. Res.
`in Educ., Fall 2012 ................................................ 6-7
`Ernst & Young, How can winning on the playing field
`prepare you for success in the boardroom? March
`2020 .......................................................................... 7
`Gallup, Inc., A Study of NCAA Student-Athletes:
`Undergraduate Experiences and Post-College
`Outcomes (2020) ....................................................... 6
`John M. Barron, Bradley T. Ewing & Glen R.
`Waddell, The Effects of High School Athletic
`Participation on Education and Labor Market
`Outcomes, 82 Rev. Econ. & Stat., at 409-421 .......... 3
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`Kevin Kniffin, Brian Wansink, & Mitsuru Shimizu,
`Sports at Work: Anticipated and Persistent
`Correlates of Participation in High School
`Athletics, J. Leadership & Organizational Stud.,
`May 2015 at 217–230 (2015) ................................... 3
`
`Rules
`
`34 C.F.R. § 106.41(c)(1), (10) ................................. 8, 10
`
`
`
`
`
`
`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`The amici are 20 current or retired business ex-
`ecutives and leaders, listed at Addendum A. They
`have significant experience in American business
`leadership and hiring practices. As executives, they
`represent a wide range of experience and industries.
`They are each familiar with the hiring practices of
`their employers and their industries, and with the
`skills and acumen necessary to succeed in competitive
`business.
`
`These amici are also familiar with the role that
`records of athletic participation and accomplishment
`play in hiring decisions.
`
`Records of athletic participation and accom-
`plishment predict labor market success. Achievement
`under a fair Title IX standard is a remarkably strong
`indicator of the skills necessary to lead teams. There-
`fore, your amici have an interest in making sure that
`athletic records of men and women continue to provide
`relevant hiring information, and in making sure that
`the records are set and retained using the same level
`of fairness for men and women. Your amici believe the
`position of the petitioners in Little, et al., v. Hecox, et
`
`1 Pursuant to Rule 37.6, counsel for amici curiae certifies that no
`counsel for a party authored the brief in whole or in part. No
`person other than the amici curiae or their counsel made a mon-
`etary contribution to fund the preparation or submission of this
`brief. Pursuant to Rule 37.2, all parties of record below received
`notice of intention to file this brief more than ten days in ad-
`vance.
`
`
`
`
`
`
`
`
`
`2
`
`al., No. 24-38, and West Virginia, et al., v. B.P.J., No.
`24-43, secures this fundamental fairness for female
`athletes. Thus, they respectfully encourage the Court
`to grant the petitions for writ of certiorari to the Ninth
`Circuit and Fourth Circuit, respectively.
`
`The amici appear here as individuals. While
`present or past employers are noted to show the
`amici’s relevant experience, the statements here are
`not made on behalf of persons or businesses other than
`the amici.
`
`1.
`
`2.
`
`3.
`
`
`
`
`
`SUMMARY OF ARGUMENT
`
`Athletic participation is highly correlated with
`labor market success and gender equality.
`Records of athletic accomplishment are also cor-
`related with labor market success.
`Petitioners’ position ensures that men and
`women’s sports are equally subject to social con-
`cerns about transgender athlete participation.
`
`
`
`
`
`
`
`
`
`
`
`
`I.
`
`3
`
`ARGUMENT
`
`SCHOOL ATHLETIC PARTICIPATION IS HIGHLY
`CORRELATED WITH SUCCESS IN THE LABOR
`MARKET.
`
`Academic study after academic study confirms
`what your amici know through experience: participa-
`tion in high school athletics is correlated with career
`success.
`
`A 2015 study showed that managers who hire
`employees associate participation in athletics with
`higher leadership, self-confidence and self-respect
`compared to students that participate in non-athletic
`extracurricular activities. See Kevin Kniffin, Brian
`Wansink, & Mitsuru Shimizu, Sports at Work: Antici-
`pated and Persistent Correlates of Participation in
`High School Athletics, J. Leadership & Organizational
`Stud., May 2015 at 217–230 (2015). The same study
`also used biodata to show that male varsity athletes
`continued to have higher-status careers sixty years af-
`ter high school. Id. Varsity athletes also showed more
`pro-social behaviors, like often volunteering their
`time. Id.
`
`In 2000, three scholars found evidence that ath-
`letic participation directly increases wages and educa-
`tional attainment. See John M. Barron, Bradley T.
`Ewing & Glen R. Waddell, The Effects of High School
`Athletic Participation on Education and Labor Market
`Outcomes, 82 Rev. Econ. & Stat., at 409-421.
`
`
`
`
`
`
`
`
`4
`
`In 1998, Bradley T. Ewing, now a professor at
`Texas Tech University, published a seminal analysis
`showing former high school athletes are more likely to
`be in jobs associated with better labor market out-
`comes than non-athletes. Bradley T. Ewing, Athletes
`and Work, Econ. Letters, Apr. 1998, at 113 .
`
`In another study by Professor Ewing, in 2007,
`high school athletes were found to fare better in terms
`of compensation structure (wages and fringe benefits)
`than their non-athlete counterparts. See Bradley T.
`Ewing, The Labor Market Effects of High School Ath-
`letic Participation: Evidence from Wage and Fringe
`Benefit Differentials, J. Sports Econ., Jun. 2007,
`at 255–265 .
`
`Title IX’s protection of equal opportunity plays
`an important part in ensuring women receive these
`benefits. Betsey Stevenson’s groundbreaking 2010
`analysis of the effect of Title IX is widely cited by
`scholars. Professor Stevenson currently teaches at the
`University of Michigan, and she was the chief econo-
`mist of the U.S. Department of Labor from 2010 to
`2011.2 The study “reveal[ed] that a 10-percentage
`point rise in state-level female sports participation
`generates a 1 percentage point increase in female col-
`lege attendance and a 1 to 2 percentage point rise in
`female labor force participation. Furthermore, greater
`opportunities to play sports leads to greater female
`participation in previously male-dominated occupa-
`tions, particularly in high-skill occupations.” Betsey
`
`
`2 See https://fordschool.umich.edu/faculty/betsey-stevenson, last
`accessed Aug. 9, 2024.
`
`
`
`
`
`
`
`
`5
`
`Stevenson, Beyond the Classroom: Using Title IX to
`Measure the Return to High School Sports, 92 Rev.
`Econ. & Stat., at 284-301 (2010).3
`
`
`
`II. RECORDS OF ATHLETIC ACCOMPLISHMENT ARE
`ALSO CORRELATED WITH LABOR MARKET
`SUCCESS.
`
`Your amici also observe that records of athletic
`accomplishment are predictably important to hiring
`decisions. In the experience of these executives, par-
`ticipation in high school athletics involves certain
`skills that predict career success. There is an intuitive,
`corresponding increase in those skills as athletes com-
`pete and succeed at higher levels. Successful records
`at elite levels in high school lead to higher levels of
`competition in college — and can lead to professional
`or Olympic competition.
`
`These higher levels of competition are good
`markers of business leadership and executive talent.
`Especially for elite athletes, correct records of their ac-
`complishments will predictably open opportunities for
`higher level jobs.
`
`Amici’s personal experiences are supported by
`academic and professional studies. It has been easier
`to show that athletic participation is correlated with
`
`
`3 Available at https://www.nber.org/papers/w15728, last accessed
`Aug. 9, 2024.
`
`
`
`
`
`
`
`
`6
`
`better labor market outcomes using statistical sur-
`veys. But a smaller number of studies reveal that rec-
`ords of higher achievement or participation at higher
`levels within athletics also affects labor market out-
`comes.4 So not only does it matter that a student par-
`ticipates in athletics, the student athlete receives
`some market benefits from a record of athletic wins at
`higher levels.
`
`For example, a 2020 study conducted by Gallup
`for the NCAA showed that collegiate athletes fared
`better on several important outcomes after college.
`See Gallup, Inc., A Study of NCAA Student-Athletes:
`Undergraduate Experiences and Post-College Out-
`comes (2020), at 3.5 College athletes were more likely
`to earn advanced degrees than non-athlete students.
`And college athletes were slightly more likely to have
`a good job waiting for them after graduation. Id.
`
`A 2012 study by Daniel Bowen and Jay Greene
`explored the relationship between academic success
`and a high school’s success in sports. Daniel Bowen &
`Jay Greene, Does Athletic Success Come at the Ex-
`pense of Academic Success?, J. Res. in Educ., Fall
`
`
`“Records” in this brief refers to the publicly available rec-
`4
`ords of wins, losses, rankings, and other achievements and hon-
`ors given to athletes, reflecting their success and dedication.
`
`https://www.gallup.com/file/educa-
`at
`Available
`5
`tion/312941/NCAA%20Student-Athlete%20Outcomes.pdf,
`last
`accessed Aug. 9, 2024.
`
`
`
`
`
`
`
`
`7
`
`2012, at 2-23.6 High Schools with more wins are corre-
`lated positively with academic achievement for stu-
`dents in the school, even after controlling for
`demographics. So, far from detracting students from
`academics, students in a school focused on athletic
`achievement can also expect higher performance aca-
`demically.
`
`Thus, elite success opens doors to elite jobs.
`These effects are particularly strong for women ath-
`letes, who can use the fair playing field of school ath-
`letics to show competitive success. From 2013 to 2016,
`corporate services firm Ernst & Young worked with
`male and female corporate leaders to study the effects
`of participation and success on the careers of women
`athletes. See Ernst & Young, How can winning on the
`playing field prepare you for success in the board-
`room? March 2020.7 They report an “undeniable cor-
`relation between athletic and business success.” In
`their survey, 94% of women executives had some back-
`ground in sports, and over half had participated at
`university levels. 80% of women Fortune 500 execu-
`tives had played competitive sports. 74% of all execu-
`tives believed playing sports helped a woman progress
`faster. Id. The records of achievement are predictably,
`undeniably linked to corporate success.
`
`
`Available at https://eric.ed.gov/?id=EJ1098405, last ac-
`6
`cessed Aug, 9, 2024.
`
`https://www.ey.com/en_bg/women-fast-for-
`at
`7 Available
`ward/how-can-winning-on-the-playing-field-prepare-you-for-suc-
`cess-in-the-boardroom, last accessed Aug. 9, 2024.
`
`
`
`
`
`
`
`
`
`
`8
`
`III. PETITIONERS’ POSITION ENSURES THAT MEN
`AND WOMEN’S SPORTS ARE TREATED EQUALLY
`WITH RESPECT TO PARTICIPATION AND
`ACCOMPLISHMENT.
`
`Title IX is not a law to ensure that women can
`participate in athletics, as beneficial as participation
`in athletics can be. Title IX prohibits discrimination
`on the basis of sex in school activities, and its enabling
`regulations require equal athletic opportunity for fair
`competition and public recognition. See 34 C.F.R.
`§ 106.41(c)(1), (10).
`
`A pair of seemingly contradictory aphorisms de-
`scribes a long, philosophical debate about the meaning
`of athletic competition. Pierre de Coubertin, founder
`of the modern Olympic Games, once said “the most im-
`portant thing in the Olympic Games is not to win but
`to take part, just as the most important thing in life is
`not the triumph but the struggle.” On the other hand,
`Vince Lombardi is popularly credited with saying,
`“Winning isn’t everything; it’s the only thing.” But
`these maxims are not contradictory; they capture two
`different ideas. There is something universal about
`the benefits of striving and personal improvement
`that comes from ‘taking part.’ But it is also true that
`winning and success inspires humanity, too, and that
`benefits careers. See Chang v. Univ. of Rhode Island,
`606 F. Supp. 1161, 1256 (D.R.I. 1985)(“…there is an
`objective evaluation scheme in the coaching domain:
`the won-lost record.”) True, there is something univer-
`sally pleasant about watching (or playing) basketball
`
`
`
`
`
`
`
`
`9
`
`or football, but there is another feeling altogether to
`win an NCAA Championship, an Olympic gold medal,
`or the Super Bowl (where the winner takes home the
`Lombardi Trophy). And in no small irony, even when
`trying to say winning isn’t everything, Coubertin re-
`sorted to giving top honors to “the struggle,” not ‘mere’
`participation.
`
`This Court does not have to decide whether par-
`ticipation or victory is the higher aspiration; it need
`not pick between Coubertin and Lombardi. But it
`should enforce the text of Title IX and its regulations,
`which require women to have opportunities for both
`participation and victory, as compared to men.
`
`Title IX’s focus on bona fide equal opportunity
`includes athletic participation and competitive recog-
`nition. See West Virginia’s Petition in 24-43, at 6
`(“Women have been pushed out of podium spots,
`championship bids, and other chances at fair competi-
`tion.”); accord, Hecox Petition in 24-38 at 3 (“Countless
`female student-athletes – including Olympic Swim-
`mers at the NCAA championships, high school sprint-
`ers in Connecticut, and Ivy League swimmers – have
`been shoved aside by male athletes benefiting from ob-
`vious physiological advantages.”)
`
`So “nondiscrimination” in this area is not satis-
`fied merely by letting everyone participate. And non-
`discrimination is not satisfied merely by teams labeled
`“men’s” and “women’s.” Having identified a legitimate
`government interest in sex-differentiated athletics, Ti-
`tle IX is not satisfied when women are denied fair com-
`petition, recognition, and public acclaim. Once a
`
`
`
`
`
`
`
`
`10
`
`government decides to offer sex-differentiated athlet-
`ics, the offerings to each sex must allow that sex an
`opportunity to participate in competitions that accom-
`modate their “interests and abilities,” in a way that
`lets them earn victories and be publicly recognized for
`their achievements. See 34 C.F.R. § 106.41(c)(1), (10).
`
`Your amici note that only women’s competitions
`have been disadvantaged by letting men compete in
`them. The male sex would (on average) benefit from
`participation and the rewards of success in a men’s ac-
`tivity open to women, in a way that women could not
`share if the women’s activity is open to men. The male
`anatomical, hormonal, and neurological structures
`create a difference that will, on average, give the ad-
`vantage to men unless the sports are sex-differenti-
`ated. This was the very basis for Title IX’s allowance
`of sex-differentiated athletics. Failing to offer compe-
`titions that accommodate the interests and abilities of
`the female sex is a differential treatment on the basis
`of sex. It violates Title IX.
`
`Your amici are concerned that the clear signals
`sent by records of athletic participation and success
`will be less reliable. Only Petitioners’ positions ensure
`fair treatment under Title IX, and send the clear sig-
`nals that have allowed high-achieving female athletes
`to have successful careers.
`
`CONCLUSION
`
`Participation in sports, and the records related
`to participation, predict career success. The correla-
`tion between athletic records and career success is not
`
`
`
`
`
`
`
`
`11
`
`guesswork. There are clear, rigorous studies detailing
`the labor market benefits of athletic records to ath-
`letes. Only the position of the petitioners in Little, et
`al., v. Hecox, et al., No. 24-38, and West Virginia, et al.,
`v. B.P.J., No. 24-43, secures this fundamental fairness
`for female athletes. Thus, they respectfully encourage
`the Court to grant the petitions for writ of certiorari to
`the Ninth Circuit and Fourth Circuit, respectively.
`
`Respectfully submitted,
`
`
`
`
`
`August 12, 2024
`
`
`Jonathan R. Whitehead
`LAW OFFICES OF JONATHAN R.
` WHITEHEAD, LLC
`229 SE Douglas St., Suite 210
`Lee’s Summit, Missouri 64063
`(816) 398-8305
`jon@whiteheadlawllc.com
`
`Counsel of Record for
`Amici Curiae
`
`
`
`
`
`
`APPENDIX
`APPENDIX
`
`
`
`
`
`Appx. 1
`
`TABLE OF APPENDICES
`
`
`
` Appendix A – List of Individual Amici ............. Appx 2
`
`
`
`
`
`
`
`
`Appx. 2
`
`Appendix A – List of Individual Amici
`
`List of individual Amici Curiae, including relevant
`experience and company:1
`
`1. Gary Archer
`
`President, CEO
`Let’s Play Sports, Inc.
`
`2. Ken Auer
`
`CEO, Marketing Director and
`Competition Program Manager
`Rock Solid Warrior
`
`3. Reese Boyd
`
`Attorney
`Davis Boyd Law Firm
`
`4. David Brenneman
`
`Executive Director
`Stuarts Draft Retirement Community
`
`5. Brad DeSandro
`
`Patent Attorney
`DeSandro Law Group
`
`
`
`1 Institutions of individual Amici Curiae are listed for identifica-
`tion purposes only. The opinions expressed are those of the indi-
`vidual amici, and not necessarily of their affiliated institutions.
`
`
`
`
`
`
`
`
`Appx. 3
`
`6. Patrick Flaherty
`
`Attorney
`Flaherty Gallardo Law
`
`7. Herb Grey
`
`Attorney
`Grey Law
`
`8. Joe Hurt
`
`President, CEO
`PBP Fabrication
`
`9. Steven Keist
`
`Attorney
`KTO Law Firm
`
`10. David Llewellyn
`
`Civil Rights Attorney
`Llewellyn Law Office
`
`11. Raymond Marcin
`
`Professor Emeritus
`Catholic University of America
`
`12. Gheorghe Rosca
`
`Pastor
`New Hope Christian Ministries
`
`
`
`
`
`
`
`
`
`
`
`Appx. 4
`
`13. Nicole Sdao
`
`Founder and CEO
`Altruize
`
`14. Karen Sloat
`
`Owner, Attorney
`Law Office of Karen J Sloat, APC
`
`15. Stephen Smith
`
`Owner & Attorney
`Steve Smith Law PLLC
`
`16. John Stewart
`
`Attorney at Law
`Law Offices of John Stewart
`
`17. Sam Thevanayagam
`
`President CEO
`Parts Life Inc.
`
`18. Jessica Whittet
`
`Interim Executive Director
`My True ID
`
`19. Jeff Wolfe
`
`Senior Counsel
`Schell Bray Law Firm
`
`
`
`
`
`
`
`
`
`
`Appx. 5
`
`20. Lynne Marie Kohm
`
`Professor and John Brown McCarty
`Professor of Family Law
`Regent University School of Law
`
`
`
`
`
`
`
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