Ballet School Admissions

[James Maule]

It has been some time since an under 5'10" player has done much of anything in the NBA, and there is a good reason. Short players rarely accomplish what needs to be accomplished. In theory, teams let the player demonstrate what the player can do and determine whether the player can do what needs to be done. But it doesn't work that way. There is no way to know what a player could do in a game but to put the player in the game. Yet that is impractical: (1) there aren't enough games to audition all the players, and (2) games count. Games that don't count aren't the best tests... switching analogies, think of all the players who do well in spring training and crash during the season, or who do poorly during spring training and do well during the season. Experienced coaches and managers apply a combination of intuition, understanding of the game, experience with players in the past, and an assortment of conscious and subconscious evaluations. Thus, unless the "short" player does something really phenomenal (such as to exhibit overwhelming speed that might offset the height disadvantage), that player is shown the door long before the "big" player, even to the point that some "big" players hang around as "projects"... something I've not seen happen with short players. No question there is a benefit of the doubt based on height, and it is a benefit with a significant impact.

Likewise, a ballet company or a ballet school imposes a set of requirements related to its product. Dancing skill is a substantial part of that set of requirements, but it is not the only one. The degree to which the dancer "fits in" (visually and otherwise) is also an element. It doesn't take long to show the door to the dancer with two left feet, and it takes even less time to show the door to the dancer who doesn't fit within the ballet company's or the ballet school's intended product. Maybe a dancer with phenomenal world-class dancing skill gets a break even though she's off by an inch or two, but there are probably as many as those types of dancers as there are 5'2" speedy guards playing in the NBA. We don't know from the facts of the situation whether the dancer in question is world-class, but the impression I get from this and other things I've read on the situation is that the dancer is at best, good or even very good, but not with world-class, national, or star potential (and thus lacking enough to offset the deficiencies in the other requirements).

If the test for discrimination determination is whether someone with ability is denied opportunity for reasons other than ability, then the issue is the definition of ability. It is easy to think of ability as what someone does or can do, rather than what someone is. Yet ability must include what someone is if the situation requires a person with certain characteristics. A producer making a movie about basketball players can dictate that all actors playing the role of players be at least 6'4"... that has nothing to do with what one can do or does but with what one is (setting aside notions that one can grab a few inches in height by refraining from taking up smoking at age four.....)

So if the ballet company or ballet school wants its dancers to be of a certain height in order to portray an artistic product, it's no different from the artists, musicians, and others to whom I referred in the other posting. Again, it is unclear whether the language of the San Francisco ordinance takes these things into account. It would not be surprising to find out that the lawsuit in question isn't within the scope of the ordinance.

> >>> Paul-Finkelman at UTULSA.EDU 03/22/01 11:32AM >>>
> Jim's analogy doesn't work,  In fact the NBA will play you *if* you are
> good enough at well under 6'; there have been players in recent years at
> under 5'10; the point is that you have to be good enough to make the team.
> I would urge Jim to just keep practicing his jump shot.
>
> --
> Paul Finkelman
> Chapman Distinguished Professor
> University of Tulsa College of Law
> 3120 East Fourth Place
> Tulsa, OK  74104
>
> 918-631-3706
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>
> E-mail:  paul-finkelman at utulsa.edu
>
>
>
> James Maule wrote:
>
> > Hmm.. The NBA doesn't like my height or weight. Can I sue? Pleeeaaase?
> Let's say I am a great shooter, except that when I'm being covered by
> someone 6 foot 3 my percentage goes down. Let's say I'm a great rebounder,
> except when surrounded by taller people. Now, if on the other hand, I was
> 6' 8", quick, and a wickedly good rebounder, I probably *would* have a
> cause of action if the NBA excluded me because I had acne (although as a
> practical matter I doubt the NBA would care). If height didn't matter,
> there wouldn't be all those teams worried about "matching up" at guard.
> The days of the achieving 5'9" guard .... and don't believe Iverson is
> 5"9"....
> >
> > The ballet situation really isn't about "look" as much as it is about
> height and weight (and to that extent the complaint is probably in tune
> with the ordinance). But what if the school admits her, and then has to
> deal with the lawsuit by the male dancer who throws out his back trying to
> lift, oh well, you get the picture. If the ballet school were saying, "we
> don't like the shape of your nose" then perhaps (arguably) there would be
> a cause of action (though I have doubts, because I think the First
> Amendment does indeed apply, unless, of course, institutions (such as
> schools) are held not to be persons or artists with First Amendment rights
> (and again, is it the school or its personnel being sued?)). In many
> instances, a ballet company (and the school) needs a corps in which no one
> person stands out, so there is a need for some degree of conformity in
> terms of "look", essentially in terms of height and body shape (more a
> matter of weight distribution than weight per se). Thi!
> !
> s !
> > person is not the first person who left ballet or failed to progress
> because of stature problems. Again, if the school refused to admit her her
> because they did not like the shape of her ear lobes (something too small
> to matter in creating a conformed corps), it would be different. The point
> is no matter how "good" she is, if she doesn't "fit in" she isn't
> qualified. (I'm sure her mother's response is that her daughter need not
> fit in because her daughter is destined to be a prima ballerina
> (surprise), but even they need to be "conformed" to their partners and to
> the rest of the company).
> >
> > We don't know exactly how the school responded to the application. A
> mere rejection? Apparently not, because there seems to be some basis for
> the complaint (one assumes) that suggests the school made some reference
> to height and or weight. If the school merely said, "You don't have the
> 'look'" of a ballerina, then perhaps the complaint sees this as a veiled
> justification based on height or weight. Had the school explained its
> concerns (weight as a safety issue), then it would have played directly
> into another of SF's troublesome ordinances.
> >
> > What if the school admits her, tolerates lack of conformed corps in its
> student productions, and then she finds no ballet company is interested in
> her? I predict she and her litigious mother would be suing on the basis of
> false advertising, misrepresentation, etc etc. Seems the school gets
> burned no matter what it does or how it handles it.
> >
> > Apparently there's no BFOQ in the SF ordinance The irony is that the
> drafters of the ordinance probably *weren't* contemplating these sorts of
> cases, but others in which height and weight have no relevance but are the
> basis for discriminatory decisions. Bad drafting = bad cases, once again.
> >
> > The law of humans has its limits. It's one thing to test them. It's
> another to ignore them.
> >
> > > >>> Deliotb at AOL.COM 03/20/01 06:16PM >>>
> > > Does a ballet school have a First Amendment artistic freedom right to
> > > "discriminate" on the basis of height and weight?
> > >
> > >  Story:  A young woman named Fredrika Keefer has trained most of her
> nine
> > > years to realize her dream of becoming a ballerina.  But her dream
> might
> > > not
> > > come true. A prestigious ballet school in San Francisco has rejected
> her,
> > > allegedly because her body type doesn't fit their idea of what a
> ballerina
> > > should look like.  Now Fredrika's mother has filed a complaint, using
> a
> > > new
> > > San Francisco law that prohibits discrimination based on height and
> > > weight.
> > >
> > > David Bernstein
> >
> > Jim Maule
> > Professor of Law, Villanova University School of Law
> > Villanova PA 19085
> > maule at law.villanova.edu
> > http://vls.law.vill.edu/prof/maule
> > President, TaxJEM Inc (computer assisted tax law instruction)
> (www.taxjem.com)
> > Publisher, JEMBook Publishing Co. (www.jembook.com)
> > Maule Family Archivist & Genealogist (www.maulefamily.com)

Jim Maule
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
http://vls.law.vill.edu/prof/maule
President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)