Ballet School Admissions
maule at LAW.VILLANOVA.EDU
Sat Mar 24 08:20:10 PST 2001
The museums of the world and the art schools of the world together, not acting in concert, but merely applying their respective definitions of art, do not hang and will not hang anything I've created, painted, drawn, or otherwise shaped under the denomination of "art" nor do they want to give me the opportunity to polish, hone, or otherwise develop my "artistic" skills (except for the so-called "art schools" willing to take my money, literally, for money, just as there are "ballet" schools who will take anyone with money as a student, but we're not talking about them).
Same thing as for music schools and orchestras.
Even if I had some artistic or musical talent that could be considered more than pedestrian, if my "style" or "sound" wasn't appealing, I get nowhere.
Beyond the arts, the same can be said of getting published in a newspaper or journal.
The institutions probably aren't acting in concert, but they have the effect of being "gatekeepers" to those various arts. Aside from copyright and patent protection designed to protect the product of art (and not government regulation of artists), the Constitution was not drafted with any sort of "government knows more about art than do artists and performers" provision.
It remains that way, as it should.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
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)
>>> 7barksda at JMLS.EDU 03/23/01 12:55PM >>>
The argument isn't the extreme one that every artist's artistic work
must be ethnically diverse.
The problem really arises not with individual expression but with
institutions which have disproportionate power over access to artistic
expression. In this circumstance, there is a countervailing interest of
artists in not being foreclosed from being able to create art because of
their race (or perhaps , height, weight etc.) For example - this ballet
school was described as "prestigious." Suppose that you have to get into
one the few "feeder" ballet schools, of which this is one, if you want to
have any chance at a professional ballet career. (given the small number of
outlets for professional ballet dancing), If these schools refuse to admit
dancers of color (or dancers of a particular height or whatever) , then
their decision restricts from an artistic career. This was the case with
black ballet dancers until the 1960s and 1970s. They were closed out of
careers until the founding of black ballet troupes like Dance Theatre of
Harlem, and Alvin Ailey company. And still, they fewer career outlets that
Similarly, with the Rockettes. They were a cultural icon in the
City of New York and nationwide. Accordingly, their institutional decision
to exclude black dancers, locked dancers of color out of a central part of
the cultural life of the city and the nation.
I'm not saying that the too tall dancer necesarily should win here.
However, I don't you can so easily dismiss the countervailing interests of
artists here to access to artistic expression.
> From: James Maule[SMTP:maule at LAW.VILLANOVA.EDU]
> Reply To: Discussion list for con law professors
> Sent: Friday, March 23, 2001 8:43 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Ballet School Admissions
> Aside from the state action question, which obviously implicates the
> discussion, the notion that artistic freedome should or can be curtailed
> by the imposition of some theoretically-based notion of paradisical
> society is inherently inconsistent with the notion of art.
> 1. A renowned artist's paintings never depict persons of color. Artist
> never hires models who are persons of color. Person of color who is
> skilled at being a model sues.
> 2. A renowned artist's paintings depict only persons of color. Artist
> never hires models who are not persons of color. Person not of color who
> is skilled at being a model sues.
> 3. Famous author writes plays whose characters are never persons of color.
> Great actor and great actress who are persons of color don't get cast.
> They sue.
> 4. Famous author writes plays whose characters are always persons of
> color. Great actor and great actress who are not persons of color don't
> get cast. They sue.
> 5. Irish jug band does not hire gifted musician of color. Musician sues.
> 6. Rap group does not hire musician not of color. Musician sues.
> 7. Artist specializing in sculptures a la Rubens does not hire thin model.
> Model sues.
> 8. Artist specializing in sculptures of thin people does not hire
> Ruben-esque model. Model sues.
> The list could go on forever, from either perspective. Isn't there some
> notion that everyone finds their niche? That you don't need 5,000,000
> people to find you attractive, just one? That you don't need for every
> ballet company, or ballet school, or artist, or band, or whomever, to find
> you of use, only one (even if it is not convenient, or your first choice)?
> Or is government now so expert at art and ballet (having done such a
> slam-bang job with crime reduction, traffic safety, drug use reduction,
> and energy management) that we should all submit to the will of the
> self-appointed guardians of all that is right according to the Bible of
> Social Engineering?
> It will be interesting to see who screams the loudest when parents begin
> genetically engineering their children to fit one of the aforementioned
> models, musicians, actors, dancers, etc. And it will be even more
> interesting to watch the litigation when the child says, "But, mom, *I*
> wanted to be a tall basketball player and not a short actor."
> Some years ago a student who was unhappy with his grades (across the
> board) told more than a few of my colleagues, "Just because I think
> differently than you do doesn't mean I deserve anything less than the A
> you'd get on your own exam." It will be interesting to see what happens
> when San Francisco and its associated similar local governments pass
> ordinances barring discrimination on the basis of differences in a
> person's biochemical and electromagnetic brain characteristics.
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> President, TaxJEM Inc (computer assisted tax law instruction)
> Publisher, JEMBook Publishing Co. (www.jembook.com)
> Maule Family Archivist & Genealogist (www.maulefamily.com)
> >>> 7barksda at JMLS.EDU 03/22/01 10:49PM >>>
> Actually, I'm not sure this ballet school admissions issue is that clear
> cut. For example, what if the school's argument is not - "you're too large
> to be a ballerina because you're clumsy, or the guy ballet dancers cannot
> lift you" but "even though you are a much better dancer than the other
> ballerinas (re grace, style etc.) you throw off our symmetrical line
> the aesthetic appeal of our dance because you are 3 inches taller, or your
> legs are 2 inces shorter than the others. (or you're apple shaped,
> of pear shaped , or whatever) Here, height and weight is not relevant to
> her physical ability to dance, only to the school's aesthetic vision
> regarding their finished product. I don't think its so clear that the
> artistic vision necessarily has to prevail. For example, similar
> were made against Af/Amer dancers re body shape and even color, itself
> (you'll throw off our aesthetic symmetry because your body type is
> different, or your skin color is too dark and mar the symmetry of our
> of all white dancers (The Rockettes, for example, made this argument to
> justify their racial exclusivity) Question - would an artistic vision
> argument justify employment discrimination against black dancers who want
> to be Rockettes?
> > ----------
> > From: James Maule[SMTP:maule at LAW.VILLANOVA.EDU]
> > Reply To: Discussion list for con law professors
> > Sent: Wednesday, March 21, 2001 12:42 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Ballet School Admissions
> > 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
> > except when surrounded by taller people. Now, if on the other hand, I
> > 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
> > lift, oh well, you get the picture. If the ballet school were saying,
> > don't like the shape of your nose" then perhaps (arguably) there would
> > 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
> > (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
> > 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). This !
> > 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
> > because they did not like the shape of her ear lobes (something too
> > to matter in creating a conformed corps), it would be different. The
> > 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
> > the rest of the company).
> > We don't know exactly how the school responded to the application. A
> > 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
> > her? I predict she and her litigious mother would be suing on the basis
> > 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
> > cases, but others in which height and weight have no relevance but are
> > basis for discriminatory decisions. Bad drafting = bad cases, once
> > 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
> > > 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
> > > 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)
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