A Waynesboro, PA high school principal's decision to prohibit a male student from trying out for field hockey is being decried by some as "reverse discrimination." Reverse discrimination? Invoking Title IX, the principal told Mat Levine that (1) his presence would make the sport unsafe for the girls, (2) that parents would be jealous of his playing time, and (3) that it would take away opportunities for girls in violation of Title IX. These reasons are are all evidence of the stereotypes and discrimination that girls still must face. People still assume that girls -- even high school field hockey players -- are so weak and feeble to be threatened by one 10th grade boy. He has never played the sport before, and the article makes it sound like he is new to sports in general. Give the girls some credit -- if he makes the team as a rookie, those girls can surely hold their own. Some may suggest that by virtue of his sex, Mat has size and strength advantage. But no such advantage is suggested in the article. Odds are if Mat was a big, strong guy, he'd have already have a fall sport. Just because boys on average are bigger than girls does not automatically make Mat the biggest and strongest person on the team. Besides, if the concerns really are about size, why aren't there similar restrictions and safety concerns targeting the biggest and strongest girls on the team?
Parents jealous and overprotective of their daughters? Sounds like another manifestation of the same stereotypes discussed above.
The only valid reason to exclude Mat from playing field hockey is number three: to protect athletic opportunities for girls, who have fewer opportunities. Fine. But the solution to this problem, really, is to provide equal opportunities for girls to begin with. The principal should own up to the fact, if it is indeed the case, that the school already discriminates against girls in violation of Title IX, and that is the reason Mat can't play -- not the law. Mat is a victim of sex discrimination in this case. But he is collateral damage in the longstanding and ongoing discrimination against girls.
Wednesday, July 08, 2009
Tuesday, July 07, 2009
FHSAA seeks dismissal
In the "you've got to be kidding me" moment of the week (of course, it's only Tuesday, and things can change quickly in Title IX land--especially when it comes to litigation) the Florida High School Athletic Association has asked a judge to dismiss the lawsuit brought against it by Florida Parents for Athletic Equity for inequitable cuts to game schedules. The rationale: football is a co-ed sport so the cuts will affect boys and girls equitably.
At least three girls in the state of Florida play high school football. So, sure, that's equitable.
Nancy Hogshead-Makar, who is representing FPAE, noted that people have been trying to exempt football from Title IX regulations since Title IX was first passed--and they have been unsuccessful. But this is a new one. After all, most of the fights are to keep girls out of football. In fact much of the work in maintaining male dominance in sport and beyond relies on the absence of girls and women from football.
I could applaud FHSAA for attempting to alter this paradigm but I think this maneuver is more about self-protection than bringing down the patriarchy.
Besides the fact that, as Hogshead-Makar notes, Title IX does not mandate co-ed football teams (because of the contact sport exemption), the theory and the practice are quite different here. We don't even have to talk intended effects here--exempting football will have the actual effect of disproportionately affecting the opportunities girls get for competition.
The judge is set to rule on the motion July 17--two days after FHSAA has scheduled an emergency meeting to discuss the lawsuit and injunction.
At least three girls in the state of Florida play high school football. So, sure, that's equitable.
Nancy Hogshead-Makar, who is representing FPAE, noted that people have been trying to exempt football from Title IX regulations since Title IX was first passed--and they have been unsuccessful. But this is a new one. After all, most of the fights are to keep girls out of football. In fact much of the work in maintaining male dominance in sport and beyond relies on the absence of girls and women from football.
I could applaud FHSAA for attempting to alter this paradigm but I think this maneuver is more about self-protection than bringing down the patriarchy.
Besides the fact that, as Hogshead-Makar notes, Title IX does not mandate co-ed football teams (because of the contact sport exemption), the theory and the practice are quite different here. We don't even have to talk intended effects here--exempting football will have the actual effect of disproportionately affecting the opportunities girls get for competition.
The judge is set to rule on the motion July 17--two days after FHSAA has scheduled an emergency meeting to discuss the lawsuit and injunction.
Sunday, July 05, 2009
A cheerleading PS
A recently released study from University of North Carolina says, not surprisingly, that cheerleading is the most injury-laden women's sport.
So while the status of cheerleading may be somewhat contested these days, the fact that it is dangerous is not.
This is not to say that because cheerleading is dangerous, it should not be given status as a sport. After all how would we defend football and ice hockey? One might even argue that because cheerleading has not been a sport, it has produced more injuries. The cheerleading governing system is a little different than, for example, the NCAA. It is possible that a more authoritative governing body could reduce injuries by regulating things like throws, tosses, etc. or mandating certain safety measures.
So I mention it here not as a condemnation of making cheerleading a sport, but rather a reminder to those who seek to elevate it varsity status at their respective institutions. Cheerleading requires the same attention as other sports. And based on the injury rates, it is going to require a lot of access to medical personnel; trainers and doctors who travel with the team to competitions, etc. In other words, you cannot just add it and think it is going to take care of itself or be a team you can pay minimal attention to. Because if you elevated it to help with some Title IX inequities in the participation numbers, you're just creating more by not providing equitable treatment.
So while the status of cheerleading may be somewhat contested these days, the fact that it is dangerous is not.
This is not to say that because cheerleading is dangerous, it should not be given status as a sport. After all how would we defend football and ice hockey? One might even argue that because cheerleading has not been a sport, it has produced more injuries. The cheerleading governing system is a little different than, for example, the NCAA. It is possible that a more authoritative governing body could reduce injuries by regulating things like throws, tosses, etc. or mandating certain safety measures.
So I mention it here not as a condemnation of making cheerleading a sport, but rather a reminder to those who seek to elevate it varsity status at their respective institutions. Cheerleading requires the same attention as other sports. And based on the injury rates, it is going to require a lot of access to medical personnel; trainers and doctors who travel with the team to competitions, etc. In other words, you cannot just add it and think it is going to take care of itself or be a team you can pay minimal attention to. Because if you elevated it to help with some Title IX inequities in the participation numbers, you're just creating more by not providing equitable treatment.
Saturday, July 04, 2009
Darien Board of Ed is Cautious About Accepting Gift
A foundation has offered to donate $50,000 to support athletics at Darien (Connecticut) High School, but the Board of Education is exercising caution about whether to accept the funds, which are earmarked for the support of football ($25,000), girls' swimming ($12,500) and girls' lacrosse ($12,500). The Board wants to make sure it can use the funds without creating new disparities between boys' and girls' sports, or exacerbating those that have been the subject of recent Office for Civil Rights investigation and agreement.
The Board is right to exercise caution, as Title IX does not contain any exceptions for discrimination supported by donations or other private funding. A school could not, for example, use a gift to provide luxury accommodations for the football team where no girls team receives similar treatment. It would also be problematic if spending the gift equally on girls' and boys' sports brought the quality of the best-supported girls' teams from fair to good and the quality of the best-supported boys' team from good to great. Thus, it concerns me a little that in its outline of how it would spend the money, the school district proposes purchasing basic amenities for girls' teams (like offset of the pool rental for the swim team and bus travel for lacrosse) and what might be considered luxury items for the football team ("computer equipment, professional development for coaches, buses and lifting platforms.") However, this is not necessarily unlawful, as long as the school district can ensure that girls' and boys' programs in the aggregate have comparable equipment, facilities, supplies, and other resources. It may be that the district money that would have gone to pool rental, say, can be used to ensure that girls teams have whatever technological support, professionally trained coaches, and other equipment they might require.
All in all, the fact that the donor supported both girls and boys sports makes it easier for Darien to accept and use the gift. However, it certainly would have been better and fairer had the gift been unrestricted for athletics. That way, the district could have used as much as it needed to offset existing disparities first.
The Board is right to exercise caution, as Title IX does not contain any exceptions for discrimination supported by donations or other private funding. A school could not, for example, use a gift to provide luxury accommodations for the football team where no girls team receives similar treatment. It would also be problematic if spending the gift equally on girls' and boys' sports brought the quality of the best-supported girls' teams from fair to good and the quality of the best-supported boys' team from good to great. Thus, it concerns me a little that in its outline of how it would spend the money, the school district proposes purchasing basic amenities for girls' teams (like offset of the pool rental for the swim team and bus travel for lacrosse) and what might be considered luxury items for the football team ("computer equipment, professional development for coaches, buses and lifting platforms.") However, this is not necessarily unlawful, as long as the school district can ensure that girls' and boys' programs in the aggregate have comparable equipment, facilities, supplies, and other resources. It may be that the district money that would have gone to pool rental, say, can be used to ensure that girls teams have whatever technological support, professionally trained coaches, and other equipment they might require.
All in all, the fact that the donor supported both girls and boys sports makes it easier for Darien to accept and use the gift. However, it certainly would have been better and fairer had the gift been unrestricted for athletics. That way, the district could have used as much as it needed to offset existing disparities first.
Friday, July 03, 2009
Eighth Circuit to Women Prisoners: Take Parenting and "Health Lifestyles," Not Accounting
[Guest post authored by my colleague, Giovanna Shay]
On July 2nd, the Eighth Circuit issued an opinion rejecting a challenge to women's prison programming under Title IX and Equal Protection, the latest in a series of such cases from that region. Yesterday's opinion, Roubideaux v. North Dakota Department of Corrections and Rehabilitation, 2009 WL 1885431 (8th Cir. 2009), joined suits brought by prisoners in women's facilities in Nebraska, Missouri, and Iowa. In Roubideaux, as in the other cases, the women prisoners lost.
Until 1998, North Dakota women prisoners were housed at facilities with male inmates. At the time that they filed suit, they were facing transfer to other institutions, including county jails, where they feared that programming and educational opportunities would be inferior. They filed suit under Title IX and §1983.
The district court granted summary judgment for the defendants. In its factual findings, it determined that all prisoners could take computer classes, work force training classes, and college classes. Prisoners at the female facility could take a welding class and "classes in basic parenting, social skills, speech, and healthy lifestyles." By contrast, prisoners at the men's facility could take a food service vocational program, an auto technical program, welding and carpentry classes, accounting, restaurant management, and heating and air conditioning courses. It also rejected women prisoners' claims that there were "gender-based inequalities" in the prison industries program (in which the women's facility offered a "cut and sew operation" and a "lock/key industry"), concluding that the "prison industries" program was not an "educational" program within the meaning of Title IX.
The Eighth Circuit affirmed the district court's ruling rejecting the women prisoners' claims. It concurred that the prison industries program was not an "educational" program within the meaning of Title IX. Although there is an opportunity for on-the-job training in "prison industries," the Court reasoned, it is primarily a work program, paying inmate wages, and so not covered by Title IX. The Eighth Circuit also rejected Title IX claims regarding the unequal provision of other vocational educational programming, citing its earlier decision in the Nebraska case, Klinger v. Dept. of Correction, 107 F.3d 609 (8th Cir. 1997). "Title IX requires a comparison of the educational opportunities available to female and to male prisoners within a state's entire system of federally funded correctional institutions," it wrote, "taking into account the objective differences between the male and female prison populations and such penological and security considerations as are necessary to accommodate in this unique context."
In gender-segregated prisons, the Court reasoned, "significant differences" between prison populations may exist, "such as unequal population sizes and length of stay." Title IX requires that programs in male and female prisons be compared to ensure that the prisoners in the women's facilities are receiving "equal educational opportunities consistent with those differences." The Eighth Circuit affirmed the district court's conclusion the differences in programming available to prisoners at the male and female facilities resulted from "the location of the inmates," not gender-based inequality. The Court of Appeals also rejected the Equal Protection challenge, concluding that there was "no inference of discrimination" because the population in the female institutions was smaller than that in the male institutions, and the transfer of the female inmates to county facilities was "substantially relate[d] to the important governmental objective of providing adequate segregated housing for women inmates." In light of the different numbers of prisoners in the male and female facilities, the Court concluded, citing its Klinger opinion, 31 F.3d 727, 733 (8th Cir. 1994), comparing their programs was like comparing "apples to oranges."
On July 2nd, the Eighth Circuit issued an opinion rejecting a challenge to women's prison programming under Title IX and Equal Protection, the latest in a series of such cases from that region. Yesterday's opinion, Roubideaux v. North Dakota Department of Corrections and Rehabilitation, 2009 WL 1885431 (8th Cir. 2009), joined suits brought by prisoners in women's facilities in Nebraska, Missouri, and Iowa. In Roubideaux, as in the other cases, the women prisoners lost.
Until 1998, North Dakota women prisoners were housed at facilities with male inmates. At the time that they filed suit, they were facing transfer to other institutions, including county jails, where they feared that programming and educational opportunities would be inferior. They filed suit under Title IX and §1983.
The district court granted summary judgment for the defendants. In its factual findings, it determined that all prisoners could take computer classes, work force training classes, and college classes. Prisoners at the female facility could take a welding class and "classes in basic parenting, social skills, speech, and healthy lifestyles." By contrast, prisoners at the men's facility could take a food service vocational program, an auto technical program, welding and carpentry classes, accounting, restaurant management, and heating and air conditioning courses. It also rejected women prisoners' claims that there were "gender-based inequalities" in the prison industries program (in which the women's facility offered a "cut and sew operation" and a "lock/key industry"), concluding that the "prison industries" program was not an "educational" program within the meaning of Title IX.
The Eighth Circuit affirmed the district court's ruling rejecting the women prisoners' claims. It concurred that the prison industries program was not an "educational" program within the meaning of Title IX. Although there is an opportunity for on-the-job training in "prison industries," the Court reasoned, it is primarily a work program, paying inmate wages, and so not covered by Title IX. The Eighth Circuit also rejected Title IX claims regarding the unequal provision of other vocational educational programming, citing its earlier decision in the Nebraska case, Klinger v. Dept. of Correction, 107 F.3d 609 (8th Cir. 1997). "Title IX requires a comparison of the educational opportunities available to female and to male prisoners within a state's entire system of federally funded correctional institutions," it wrote, "taking into account the objective differences between the male and female prison populations and such penological and security considerations as are necessary to accommodate in this unique context."
In gender-segregated prisons, the Court reasoned, "significant differences" between prison populations may exist, "such as unequal population sizes and length of stay." Title IX requires that programs in male and female prisons be compared to ensure that the prisoners in the women's facilities are receiving "equal educational opportunities consistent with those differences." The Eighth Circuit affirmed the district court's conclusion the differences in programming available to prisoners at the male and female facilities resulted from "the location of the inmates," not gender-based inequality. The Court of Appeals also rejected the Equal Protection challenge, concluding that there was "no inference of discrimination" because the population in the female institutions was smaller than that in the male institutions, and the transfer of the female inmates to county facilities was "substantially relate[d] to the important governmental objective of providing adequate segregated housing for women inmates." In light of the different numbers of prisoners in the male and female facilities, the Court concluded, citing its Klinger opinion, 31 F.3d 727, 733 (8th Cir. 1994), comparing their programs was like comparing "apples to oranges."
Thursday, July 02, 2009
UAA Investigation Reveals Locker Room Disparity
The University of Alaska-Anchorage has announced plans to renovate athletic facilities to create two additional locker rooms that would provide more space to female athletes. An internal investigation into concerns the athletic department's gender equity revealed that due to the men's basketball and hockey teams currently each have their own locker rooms and individual lockers for each player, which contributes to an overall disparity in which 57% of male athletes have individual lockers compared to 13% of female athletes and in which male athletes averaged 11 square feet of locker room space compared to seven square feet per woman.
UAA agreed to conduct the investigation after an anonymous individual filed a complaint with Office for Civil Rights; OCR has accepted UAA's report and plan of action, obviating the need for further investigation on this issue. UAA is still in the process of investigating and reporting on the other disparities raised in the complaint, which related to the quality of coaching and access to medical training.
I was disappointed that the article about the locker room findings does not quote UAA's athletic director. As you may recall from our prior post about this complaint, he was shocked (shocked!) at the suggestion that the university discriminated against female athletes. He said, "This complaint is mind-boggling to me. To tell the truth, I can't wait for them [OCR] to come up here....The idea that we are disadvantaging our women athletes is absolutely ridiculous." Is his mind still boggled, or is he getting his head around the fact that discrimination in fact occurs?
UAA agreed to conduct the investigation after an anonymous individual filed a complaint with Office for Civil Rights; OCR has accepted UAA's report and plan of action, obviating the need for further investigation on this issue. UAA is still in the process of investigating and reporting on the other disparities raised in the complaint, which related to the quality of coaching and access to medical training.
I was disappointed that the article about the locker room findings does not quote UAA's athletic director. As you may recall from our prior post about this complaint, he was shocked (shocked!) at the suggestion that the university discriminated against female athletes. He said, "This complaint is mind-boggling to me. To tell the truth, I can't wait for them [OCR] to come up here....The idea that we are disadvantaging our women athletes is absolutely ridiculous." Is his mind still boggled, or is he getting his head around the fact that discrimination in fact occurs?
Tuesday, June 30, 2009
Cheerleading to ease Title IX controversy?
That's the thought of a writer in New York who believes that the growth of competitive cheerleading and its acceptance as a sport by some schools could help ease all the Title IX controversy over "quotas."
Would that it were so (or that we would want it to be so).
From what I have heard and read on blogs, in personal correspondence, and in the media, the competitive cheerleading issue has engendered more controversy--nearly every day, in fact, in recent weeks. (For more of a "history" on the emergence of competitive cheerleading click on the cheerleading tag.)
Last month was the Quinnipiac case in which the university cut women's volleyball and elevated cheerleading to varsity status. The volleyball team won an injunction preventing QU from cutting it until the lawsuit charging non-compliance with Title IX was complete. (Mediation is currently underway in that case.) But the discussion around competitive cheerleading in that case seemed to die when the volleyball team won their injunction.
Currently we have Florida Parents for Athletic Equity filing an injunction and lawsuit against the Florida High School Athletic Association over cuts to all athletic competitions except football and cheerleading. But the cheerleading issue has not received a lot of the coverage. We do know that there are far more male football players than female cheerleaders which makes the cuts inequitable, of course. But Nancy Hogshead-Makar, one of the lawyers for FPAE, has concern over cheerleading as a competitive, varsity sport. My guess is that those competitive cheerleaders are, in most cases, also sideline cheerleaders. And that is a big no-no if you want to count your cheerleaders as student-athletes.
A recent article in Inside Higher Ed has done a better job than most in addressing the cheerleading controversy and includes information about both QU and Florida as well as comments from Hogshead-Makar.
I predict (may be eating my words on this one) that the cheerleading issue is going to have to be decided soon. The case-by-case basis that OCR has allowed for is a little too abstract. It also places the burden on female students who have been denied a sporting opportunity (for example when a women's club sport is not elevated) to sue their school when it decides to take the cheap way out and elevate cheerleading. This, in effect, is pitting these athletes against the cheerleaders--an issue that was raised in the QU case by the cheerleading coach. It's an unfortunate situation, at best.
Also I see a difference between being treated like a sport and actually being a sport. And this is contentious territory. Competitive cheerleading is being counted as a sport for Title IX purposes when the team is treated like other varsity teams in terms of access to coaching, competition, facilities, etc. But is it really a sport just because it involves athletic elements? What definition of sport do we employ? If, as many claim, cheerleaders are largely former gymnasts, why don't we just have more gymnastics teams? It's hard to believe gymnastics is a dying sport if there are so many cheerleaders with gymnastic skills and experience.
I have some doubts though that when (if?) the final decision is made it will be based on defining a sport. It probably seems easier to base it on how the participants are treated. If this turns out to be the case, I encourage marching bands everywhere to apply for varsity status. There are plenty of athletic elements there: the actual marching, the need for good lung capacity, and lots of push-ups! Because if we take cheerleaders away from the sidelines can the marching band be that far behind?
Would that it were so (or that we would want it to be so).
From what I have heard and read on blogs, in personal correspondence, and in the media, the competitive cheerleading issue has engendered more controversy--nearly every day, in fact, in recent weeks. (For more of a "history" on the emergence of competitive cheerleading click on the cheerleading tag.)
Last month was the Quinnipiac case in which the university cut women's volleyball and elevated cheerleading to varsity status. The volleyball team won an injunction preventing QU from cutting it until the lawsuit charging non-compliance with Title IX was complete. (Mediation is currently underway in that case.) But the discussion around competitive cheerleading in that case seemed to die when the volleyball team won their injunction.
Currently we have Florida Parents for Athletic Equity filing an injunction and lawsuit against the Florida High School Athletic Association over cuts to all athletic competitions except football and cheerleading. But the cheerleading issue has not received a lot of the coverage. We do know that there are far more male football players than female cheerleaders which makes the cuts inequitable, of course. But Nancy Hogshead-Makar, one of the lawyers for FPAE, has concern over cheerleading as a competitive, varsity sport. My guess is that those competitive cheerleaders are, in most cases, also sideline cheerleaders. And that is a big no-no if you want to count your cheerleaders as student-athletes.
A recent article in Inside Higher Ed has done a better job than most in addressing the cheerleading controversy and includes information about both QU and Florida as well as comments from Hogshead-Makar.
I predict (may be eating my words on this one) that the cheerleading issue is going to have to be decided soon. The case-by-case basis that OCR has allowed for is a little too abstract. It also places the burden on female students who have been denied a sporting opportunity (for example when a women's club sport is not elevated) to sue their school when it decides to take the cheap way out and elevate cheerleading. This, in effect, is pitting these athletes against the cheerleaders--an issue that was raised in the QU case by the cheerleading coach. It's an unfortunate situation, at best.
Also I see a difference between being treated like a sport and actually being a sport. And this is contentious territory. Competitive cheerleading is being counted as a sport for Title IX purposes when the team is treated like other varsity teams in terms of access to coaching, competition, facilities, etc. But is it really a sport just because it involves athletic elements? What definition of sport do we employ? If, as many claim, cheerleaders are largely former gymnasts, why don't we just have more gymnastics teams? It's hard to believe gymnastics is a dying sport if there are so many cheerleaders with gymnastic skills and experience.
I have some doubts though that when (if?) the final decision is made it will be based on defining a sport. It probably seems easier to base it on how the participants are treated. If this turns out to be the case, I encourage marching bands everywhere to apply for varsity status. There are plenty of athletic elements there: the actual marching, the need for good lung capacity, and lots of push-ups! Because if we take cheerleaders away from the sidelines can the marching band be that far behind?
Monday, June 29, 2009
Title IX Doesn't Cover Coach's Discrimination Against Female Football Player, Court Rules
Ivyanne Elborough played football on the freshman team at Evansville High School in Wisconsin. She was the only female member of the team. Her coach, Ron Grovesteen, apparently did not like having a girl on the team. He regularly failed to unlock the girls' locker room, so Elborough had to find someone with a key to let her in so she could get her equipment. This made her late to practice, an infraction Grovesteen punished with pushups. Grovesteen also supplied the boys' locker room with snacks, and posted a copy of the practice schedule there. Elborough, of course, was not permitted in the boys locker room. Elborough also alleges, that Grovesteen told Elborough she had to get her hair cut like a boy, though Grovesteen denies this.
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Friday, June 26, 2009
Court Reconsiders Severity of Single-Incident Harassment
Rarely do courts grants motions to reconsider prior rulings, but a federal judge in New York did so this week in the context of a peer harassment case. CG was a special needs student at a public junior high school in New York City. During computer class, she was assaulted by two male students, one who grabbed her breasts from behind and another pulled her pants down and touched her buttocks. The teacher, Mr. Raskin, was present in the classroom, but was ostensibly helping students at the front of the room during this incident, which took place at the back of the classroom. CG called out for help, but did not call to Mr. Raskin in particular. Eventually her friend pushed through the crowd of students who had gathered around and pulled the boys off of her. CG's friend reported the incident and the boys were suspended and then transferred out of school.
CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.
Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.
Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 2009).
CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.
Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.
Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 2009).
Thursday, June 25, 2009
Re-shuffling the program in West Virginia
The athletic department at Salem International University in Salem, WV has had some problems with ineligible players and institutional control. So while they are on NCAA and conference probation (including no post-season eligibility), administrators are doing some reorganization. The university, which has stated that is currently in good standing with Title IX, will drop four sports: men's and women's golf, women's volleyball, and men's tennis. The athletic director has said these four squads are mostly made up of athletes from other sports--sports that said athletes consider to be their primary ones. In other words, the dropped sports have had to do some heavy recruiting from within the athletic department and not very successfully. And though winning isn't everything, it does not seem that many of the sports--dropped or saved--have had a lot of success. So the university is also using this time to beef up the program. Forthcoming is a discussion of bringing back football. The SIU considered it in 2003 but decided to focus on restructuring academics, but now it is back on the table with a potential on-campus stadium that would also serve soccer and softball--both of which currently use off-campus facilities. Costs to start up and maintain a football program will be central to discussions as well as how to increase the participation opportunities to female students.
Wednesday, June 24, 2009
Under pressure, FHSAA calls emergency meeting
Realizing what many before them have not, the Florida High School Athletic Association has decided that doling out legal fees might run counter to efforts to save money--exactly what their plan to reduce the number of athletic contests was supposed to do. After failed talks between FHSAA and the Florida Parents for Athletic Equity and the latter's subsequent filing of a lawsuit and injunction to prevent the inequitable cutting of contests, FHSAA has decided to try to deal with the matter. The board will meet July 15 to discuss the situation. They should be hoping the judge grants the injunction that would prevent the cuts from being enacted this fall. That would at least buy them some time to come up with an equitable solution and work with FPAE--for real this time.
Tuesday, June 23, 2009
White House Celebrates Title IX Anniversary
President Obama will commemorate the 37th anniversary of Title IX today during his press conference from the Rose Garden. Also (in another example of the interface between Title IX and Facebook) the White House is hosting an online discussion this afternoon (2:30 EST) to honor the anniversary. According to the Women's Sports Foundation website, the roundtable discussion will be streamed on the White House website using "an innovative Facebook application that allows users to both watch the live-stream and be part of an online chat about the roundtable simultaneously."
Finally, the White House blog is also celebrating the anniversary by collecting (and presumably posting, at some point later today) photos of women playing sport. UN Ambassador Susan Rice inspired this project with her own post and photo about playing point guard in high school.
Finally, the White House blog is also celebrating the anniversary by collecting (and presumably posting, at some point later today) photos of women playing sport. UN Ambassador Susan Rice inspired this project with her own post and photo about playing point guard in high school.
Training Rules screening in Minneapolis
Training Rules, the documentary about Rene Portland's anti-lesbian policies and the case brought against her and Penn State by former Lion Jennifer Harris, is screening tomorrow evening (Wednesday, June 24) at 7pm at the Walker Art Center. The movie, which will be followed by Football Under Cover, a documentary about Iranian women's soccer, is part of the Walker's Queer Takes film series.
Check out this column about the film.
Check out this column about the film.
Saturday, June 20, 2009
More coverage of Florida case
This site has an interview with Nancy Hogshead-Makar, several student-athletes, and a parent about the lawsuit and injunction Florida Parents for Athletic Equity have filed against the Florida High School Athletic Association which has a policy that will cut athletic contests for all students athletes except football players and cheerleaders. It also mentions the group's Facebook presence which seems to be growing every day.
Then there is this editorial in which the writer sees FHSAA caving. I happen to concur. I don't think it's much of a limb-climbing gesture to say that the chances of this case seeing a courtroom--past preliminary hearings--are pretty small. Unfortunately he calls Hogshead-Makar a pit bull lawyer being followed by pit bull parents carrying the Title IX banner. Not sure how I feel about this. Haven't we heard this pit bull rhetoric recently???
But is also provides some of the economic realities of the situation; as in how much money comes in during football games. Unfortunately FHSAA never really calculated how much the cuts to every other sport would save.
Then there is this editorial in which the writer sees FHSAA caving. I happen to concur. I don't think it's much of a limb-climbing gesture to say that the chances of this case seeing a courtroom--past preliminary hearings--are pretty small. Unfortunately he calls Hogshead-Makar a pit bull lawyer being followed by pit bull parents carrying the Title IX banner. Not sure how I feel about this. Haven't we heard this pit bull rhetoric recently???
But is also provides some of the economic realities of the situation; as in how much money comes in during football games. Unfortunately FHSAA never really calculated how much the cuts to every other sport would save.
Friday, June 19, 2009
Settlement Reached in UC Davis Case
In 2007, three female students who played club sports at the University of California at Davis sued the university to challenge the lack of varsity athletic opportunities for women. They argued that Davis failed to satisfy any of the three alternative prongs for measuring compliance in this regard. The university argued that it complied with the proportionality prong, as women made up 56% of the student body, and received 50% of athletic opportunities. This difference of 6 percentage points is close to the +/- 5 percentage point difference that is commonly -- though unofficially -- recognized as acceptable to constitute substantial proportionality.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
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