Saturday, January 24, 2015

OCR to Investigate University of Minnesota Athletics

The Department of Education's Office for Civil Rights will investigate a Title IX complaint directed at the University of Minnesota athletics department, according to an article in the local press yesterday. The complaint alleges that the department does not provide comparable facilities to women's programs, as evidenced by the women's cross-country and track teams' exclusion from a proposed $190 million athletic "village" that will provide facilities for football and men's and women's basketball.  The running sports, which account for almost half of the opportunities offered in women's athletics, will actually be losing their existing track to make way for the new village.  The team, along with its men's team counterpart, may even be relocated to a facility four miles away in St. Paul.

OCR's investigation would presumably focus on the overall treatment of men's and women's athletic programs in comparison to each other. At first blush, it seems problematic that the new facility will benefit a far greater number of male than female athletes and that its construction seems to be disrupting a far greater number of female athletes than male (running sports account for 227 opportunities for women and 145 for men). Depending on the level of quality of the facilities for other women's sports, however, it's theoretically possible for OCR to determine that the programs receive equal treatment in the aggregate.  We shall see what the investigation reveals. 

Friday, January 23, 2015

Court Clarifies Pleading Standard for Title IX Cases Challenging Campus Disciplinary Outcomes

Earlier this month, a federal district court in Ohio considered Miami University's motion to dismiss a lawsuit filed by a male student whom the university had expelled after a disciplinary board found that he had committed sexual assault on another student.  The court found that the student had not sufficiently alleged a Title IX violation in his complaint, though it granted him the opportunity to amend his complaint and try again.  In evaluating the student's first attempt, the court provided an analysis that is useful to understanding the scope of institutional liability under Title IX in cases challenging universities' decisions to discipline students for sexual assault or other misconduct.

The student's argument in this case is that he did not commit sexual assault, but rather, had consensual sex with the female student who later accused him.  He thus charges the university disciplinary board with having reached the wrong conclusion in his case.  Accordingly, the court refers to this claim as an "erroneous outcome" claim, as earlier court decisions have done.  Citing twenty-year-old precedent* the court explained that a complaint alleging an erroneous outcome in violation of Title IX must include allegations of (1) facts sufficient to cast doubt as to the accuracy of the outcome of the disciplinary proceeding and (2) causation, i.e., that the errors were the result of gender bias.  The second requirement is important because it separates conduct that could possibly give rise to liability on other grounds, like negligence or breach of contract, from conduct that constitutes sex discrimination in violation of Title IX.

At the pleading stage, it is not difficult for plaintiffs to satisfy the first requirement, as the student in this case easily did by alleging his version of the facts as they relate to the matter of consent. The second requirement is typically met if the complaint alleges "statements by members of the disciplinary tribunal, statements by pertinent university officials" or "patterns of decision-making that also tend to show the influence of gender." In this case, the complaint included neither type of allegation.  It is not a sufficient "pattern" allegation to point out, as the student in this case did, that “[i]n virtually all cases of campus sexual misconduct,” the accused student is male and the accuser is female.

The court addressed another recent case, also from Ohio, in which a plaintiff like the one here sufficiently pleaded erroneous outcome in violation of Title IX, and thus survived the university's motion to dismiss. In that case, Wells v. Xavier University, the plaintiff alleged that bias stemmed from the fact that Xavier was being investigated by the Office for Civil Rights for failure to adequately protect sexual assault victims, and as a result, was motivated to use him as a scapegoat to improve their image. The court  was satisfied that such an allegation could, if proven serve as evidence of gender bias on Xavier's part.**

In the present case against Miami University case, the plaintiff's complaint did not contain allegations of the "scapegoat" theory that had been present in Wells v. Xavier University, though the court indicated that if the plaintiff amends his complaint along these lines, he may be able to withstand dismissal as well and continue to litigate his Title IX claim.

The court gave the plaintiff a month to re-file an amended complaint. We shall see what happens.
Sahm v. Miami Univ., 2015 WL 93631 (S.D. Ohio Jan. 7, 2015).

*the age is worth noting, in light of common misconception that Title IX's application to sexual assault is something brand new.  The decision the court relied on is Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).  That case also set forth selective enforcement model as an alternative to the erroneous outcome model for framing Title IX challenges to university disciplinary decisions. In selective enforcement cases, the plaintiff does not need to allege his innocence, only that the university engages in a pattern of disciplining only members of one sex and ignoring complaints of similar violations by the other sex.

 ** The parties in Wells v. Xavier University decided to settle rather than go to trial, so it does not serve as an example for how to prove bias, only how to plead it.


Monday, January 19, 2015

College Rec Sports Has New Policy of Transgender Inclusion

The National Intramural-Recreational Sports Association (NIRSA) has announced a new policy of inclusion for transgender athletes, which will take effect this spring. NIRSA governs a series of regional and national "extramural" championships for college students in a variety of men's, women's, and coed sports.

The policy allows encourages transgender athletes to self-identify as male or female for purposes of participation:
NIRSA recognizes and celebrates the transgender student population among their tournament participants. Through the guiding policies of the NIRSA Championship Series tournaments, NIRSA empowers students to participate in intramural sports and sport club divisions based on their expressed gender identity.
The policy does not require the participant to undergo hormone treatments, sex reassignment surgery, or any kind of legal process in order to participate consistently with one's gender.  In this way, the policy distinguishes itself from the NCAA's policy for its championships in women's sports, which requires transgender female athletes to undergo hormone treatment for a year prior to competing. With an increasing number of high school athletic associations adopting or considering NCAA-type policies, NIRSA's policy serves as an example that more inclusive policies are possible and more appropriate for sport organizations that are striving to maximize athletic participation.  On its website, NIRSA acknowledges that the new policy will not "noticeably impact the experience of the majority of tournament participant organizers and participants." Yet, it underscores the value of its efforts "if these changes make participation more inviting and inclusive for even one more individual."  

Another thing I like about this policy is that it imposes no additional burdens on transgender athletes, in contrast to some high school athletic association policies that allow gender-identity based participation only after a committee of sorts has investigated and affirmed the student's gender.  NIRSA's policy simply requires that the campus official who signs off on the team's roster should include transgender athletes as participants on a single-sex team, or denote their sex for purposes of a coed sport that specifies a particular ratio of men:women, based on that player's good faith representation of their gender identity. The policy specifically instructs the campus official not to designate the player according to the sex listed on the player's school records if that designation is in conflict with the player's affirmed gender identity. And it provides a work-around for any player who is not comfortable discussing their gender identity with that particular campus official.

The policy also affirms that "for many, coming to know one’s gender identity is not something that happens in an instant; it is a complex process that can occur over an extended period of time." This language appropriately preempts any requirement that a player consistently identify as a single gender over the course of their time in college.  The policy is also sensitive to issues of confidentiality ("Under no circumstances should a student-athlete’s identity as a transgender person be disclosed without the student’s express permission"). 

Along with announcing a new policy for participation, NIRSA has updated its code of conduct, which already prohibits "verbal or non-verbal profanity, disrespectful language, and obscene gestures or behavior" to also ban "bullying" and "homophobic and transphobic expressions of any kind." And, it  includes a set clear and straightforward "best practices" for facilities:
Transgender student-athletes should be able to use the locker room, shower, and toilet facilities in accordance with the student’s gender identity. Every locker room should have some private, enclosed changing areas, showers, and toilets for use by any athlete who desires them. When requested by a transgender student-athlete, schools should provide private, separate changing, showering, and toilet facilities for the student’s use,but transgender students should not be required to use separate facilities.
The policy stops short of requiring such facilities as a condition for hosting a NIRSA-governed competition, but it does require host institutions who do not meet this standard to "work with NIRSA to make comparable accommodations."  Ideally, this language will encourage institutions that are not already thinking about incorporating principals of universal design into their facilities and locker rooms to begin to do so.

Sunday, January 18, 2015

Minnesota-Duluth digs hole deeper

When I give my sport management students scenarios about sport organizations and their responses to or creation of various controversial situations, I do so for several reasons. One is to present examples of non-compliance with laws or policies and ask them to think critically about what went wrong, why, and how. Another is to demonstrate lack of leadership and the consequences of ignorance and/or ego. I ask them (as an example) "do you want to be the athletic director under whose watch multimillion settlements had to be made with victims of retaliation/abuse/discrimination?" Hopefully they get it.

Of course the real test is what they do when they gets jobs in athletics. This is a test that University of Minnesota Duluth Athletic Director Josh Berlo is failing. Last month, as we noted, he announced that women's ice hockey coach, Shannon Miller, would not have her contract renewed because, as the highest paid coach in women's ice hockey (at just over $200,000) the cash-strapped university could not afford her anymore. After considerable outcry--which is ongoing--the chancellor issued a vague statement suggesting that there are other issues:
"The decision to not renew Coach Miller's contract was difficult, but was made thoughtfully after a full review of a number of factors. It's the right decision for the program and I support it. While the decision is sound, we did not communicate it publicly as clearly as I would have liked. We could have communicated this in a less narrow way, and more clearly explained our desire to see the program go in a new direction."

I have already noted how the money rationale was not so much "narrow" as discriminatory. But I am curious about the always-vague but at least equally applied "new direction." The team has won 12 of their 13 games this season. Miller has produced over 20 Olympians and was the national team coach for Canada in the first Olympics that offered women's ice hockey. What direction is UMD looking to take their program? Down? 

I have, as I am wont to do, buried the lead. The latest news out of UMD is that a second female coach has been told her contract will not be renewed. Softball coach Jen Banford, who is also very successful and has been at the university for a decade, will no longer be the softball coach.

There seems to be confusion over Banford's dismissal, though. Berlo told ESPNW that the coach would remain the softball coach; it was her position as Director of Operations for women's hockey (i.e., part of Miller's staff) that was being terminated. But a copy of the letter Banford received (which can be found via the above link to Kate Fagan's ESPNW article) very explicitly states that it is both positions. Banford herself confirmed this with Human Resources.

Banford believes she is being retaliated against for her support of Miller and the women's ice hockey program. She too has retained lawyers. The he said/she said is playing out in the media--not in the athletic department offices. Berlo said this is a paperwork issue and that he plans to retain Banford as the softball coach and is merely restructuring her position. Banford told ESPNW: "Josh has not spoken with me in six weeks. To me, it's obvious why he's saying he's in the process of writing a renewal, but if he wanted to give me a renewal, he would have given me that on Dec. 11."

I could never have devised a scenario like this for my students. Two female coaches' contracts not renewed within weeks of one another and with specious rationales for the dismissals; it just would not have been believable. But here we are.

Monday, January 12, 2015

Lawsuit filed against University of Oregon

The University of Oregon Ducks will take the field shortly in the first College Football Playoff National Championship. This event has likely overshadowed last week's news that a student has filed a Title IX lawsuit against the university and the basketball coach, Dana Altman. The woman alleges she was raped by three basketball players multiple times in one night in early March 2014.

All three were dismissed from the team and barred from the university for a period of 4-10 years. But the disciplinary action did not occur until May 2014--after post-season play had concluded. At the time, the dismissal of these players inspired protest on behalf of the student-athletes citing sex discrimination. But the only Title IX complaint filed with OCR was about the university's failure to respond to the report and to the lack of notification to the campus community about an accused sexual perpetrator on campus.

Yes, one of the accused Brandon Austin, was a transfer from Providence College where he never played after being dismissed from the team as a first year after accusations of his participation in a gang rape there. We wrote about this last summer here and here. Oregon continues to maintain that it did not know why Austin transferred from PC. I continue to maintain that this seems highly implausible. Whether there is evidence to prove this will be revealed during a trial--if it gets to a trial.

The importance of this aspect of the lawsuit though should not be underplayed. Austin is now at a junior college in Florida. Administrators there know of his past. So the question that may be addressed in this lawsuit is: what does a university have to know? when? and how must they handle similar situations? Will a court find that Oregon--if they knew of Austin's prior indiscretions--exhibited deliberate indifference that lead to the rape of the plaintiff?

It is well past the time that some of these questions be answered. Misbehaving student-athletes have been passed around from school to school for far too long. Someone has to be held responsible when they re-offend.

Regarding the timeliness of the school's disciplinary action, to a cynical outsider this might look like the university was trying to keep the student-athletes in good standing until the end of the semester thus not damaging the overall academic standing of the team in terms of progress towards graduation and overall GPA--markers the NCAA uses to determine post-season eligibility.

This case has not received nearly the amount of attention of FSU, perhaps because Oregon did some things right (despite the increase in awareness the bar remains very low). Or maybe the lack of coverage is because this is the basketball team and not the football team. Some of lawyers on the FSU case are also handling this one, and I expect as it goes forward and all the pieces are revealed, it will get more attention.


Montana HS assocation debating transgender policy

In Montana, we have shades of Minnesota.

The controversy last fall over the transgender policy in Minnesota has moved westward. The Montana High School Association has written a policy to address the participation of transgender student athletes in sports.

The association will vote later this month on the policy. A difference between the Montana and Minnesota situations is the voting. In Minnesota a board of 20 voted on the policy. In Montana all the member schools--179 of them--will vote. Passage of the proposal, which is considered a change in policy, requires a 2/3 majority.

This is my first concern. That's a lot of people in a fairly conservative state, and the conservative religious groups--as they did in Minnesota--have mobilized. The rhetoric and misinterpretations are similar. There are the "privacy concerns"--again, not those of transgender children, but of cisgender children. There are the outrageous statements based on complete ignorance, arguably willful, regarding transgender lives; including this one from a recent podcast by the Montana Family Foundation: “Will your high school be forced to put boys and girls together in a hotel room overnight? What about sharing a locker room? And what about putting a 6-foot-5, 220-pound guy on the girls’ basketball team? They may have to if the Montana High School Association gets its way.”

This does not sound like the libertarianism that Montana conservatism trends towards. 


The policy does not address locker rooms or accommodations. What it does say is that transgender students seeking to compete on a team consistent with their gender identity must "apply for eligibility" which will be determined by a panel consisting of "medical experts," members of MHSA, and a student advocate (unclear exactly who gets to fill this position). This group makes a recommendation to the association's executive board which makes the final decision.

Concerns about the policy itself:
There is nothing in the policy that sets clear guidelines on locker rooms or shared hotel rooms during travel. So, as in Minnesota, we have a lot that can go wrong in terms of outing transgender children as well as ostracizing and isolating them from teammates. 

Also, the policy does not have guidelines that state what this committee will be looking at. What are the criteria? I fear this is more of the "case-by-case basis" trend that I discussed in the New Jersey bathroom case. This means that in addition to a committee sitting in judgement about a child's gender identity, there is nothing guiding that decision, meaning that children who come to the committee are putting themselves at risk of rejection on terms they have not been made aware of. Perhaps this will change if the policy does indeed get passed; but right now everything seems too vague for comfort.

Friday, January 09, 2015

FSU responds to lawsuit

Florida State President John Thrasher responded to the news that the university was facing a Title IX lawsuit as a result of its handling of the sexual assault allegations against Jameis Winston (who has announced--as expected, though apparently the party line is that he only decided earlier this week--that he will enter the NFL draft this year). So a bad news/good news week for Thrasher, though I am sure which adjective goes with which announcement might be different in public versus behind closed doors.

I would suspect everyone involved with the entity that is Jameis Winston is probably a little relieved not to have to work so hard to keep him out of trouble and eligible for the next two years. Public statements are expressing sadness though.

Thrasher's public statements regarding the lawsuit suggest he is not worried--just disappointed:
Florida State University is disappointed to learn of this lawsuit. The university has not yet been served and will need time to review the complaint fully before we respond in detail."

That is when he should have stopped speaking about this issue. But he went on to say that the university did everything the victim asked for and that she was not cooperative regarding the investigation into the events of that night in December 2012.

His version of the handling of the allegations stands in stark contrast to the outline of events in the complaint filed Wednesday. He also said that he looked forward to clearing FSU's name regarding "selective news leaks and distorted coverage." He's probably not in a great position to talk about leaks given that the accused received police reports from a university employee before that information arrived at the DA's office. Also, the timeline of events that has been reported in the news and by the accused is one that FSU has confirmed.

Thrasher is also touting the university's Victim Advocate Program and implying that they work they did for the victim somehow absolves the university of its duty to investigate the allegations in a timely manner. The VAP did indeed seem to do an excellent job in this case, but it is not a mandatory reporter. The investigation should have happened regardless of whether the victim used VAP's services or not and it should have been triggered by the reporting of the crime to the university police on the night of the incident. It should have been done whether the victim was going to pursue a disciplinary hearing or not.

Thrasher is claiming that she stymied the investigation because of refusal to be interviewed. This directly contradicts the facts presented in the filing. Again, he probably should have waited to review the complaint. There are emails chronicling these requests and events! 

I am not sure how to read Thrasher's response. Hubris? Ignorance? Privilege? It seems to be an ill-advised (is anyone advising him?) response given the evidence against the school and the situation it finds itself in.

Thursday, January 08, 2015

Winston's victim files Title IX lawsuit against FSU

The woman who accused Florida State football player Jameis Winston of sexual assault has filed a lawsuit against the school for Title IX violations. This is not surprising news, and we would not be surprised to see additional legal action against various entities.

But dealing with the complaint at hand: this lawsuit does not (directly) involve Winston but rather how the school dealt with the reported allegations against him. The plaintiff is claiming deliberate indifference (i.e., the university knew of the situation and took no action) and a hostile educational environment.

FSU is already under investigation by OCR and those findings have yet to be issued. The goals of the lawsuit and OCR's investigation are not identical. OCR is not necessarily looking to nor needs to prove that the university acted with deliberate indifference. They will look at FSU's policies and procedures for their suitability and to see if the university acted in accordance with Title IX in investigating claims of sexual assault and harassment. They are not limited to looking only at the case involving Winston. It is possible that OCR's report could be helpful to the plaintiff's lawsuit, but I know of no timeline for the OCR investigation.

So the issue now is whether the plaintiff can prove both of her counts.  Deliberate indifference could be the more difficult if the court perceives that the school did something to address the issue. And FSU did do something--eventually. There was an investigation--albeit quite late--certianly outside the 6-month window in which an investigation is supposed to occur after someone at the university is notified. (FSU police knew the night of the incident in December 2012.) This shifts the consideration to "when" and "how" should be factored into a finding of deliberate indifference. The entanglements between members of the athletics department (one of whom gave Winston's lawyers the police reports about the assault before they even arrived at the prosecutor's office) and the Tallahassee Police could work in the plaintiff's favor. There was clearly a delay in the investigation for reasons that appear to be because Winston is a star athlete. Will this be read as deliberate indifference?

Also, the actions of university officials suggest attempts to suppress the victim's claims against Winston. (These actions contributed to the delay as well.) From the filing: 
Despite being on notice that two women had reported being raped by Winston, on November 12, 2013, FSU Dean of Students Jeanine Ward-Roof (“Ward-Roof”), who supervised Code of Conduct proceedings at FSU, emailed Chief Perry [FSU chief of police] and others at FSU stating that no disciplinary proceedings against Winston were going to take place.

This initial decision suggests the desire to suppress any information about the assault and lead to delay even further the Title IX-mandated investigation. To me, this reads "we know; we're not doing anything about it."

The delay and suppression hypothesis is reaffirmed by the following, also from yesterday's filing:
Despite FSU Police being on notice within an hour of the rape on December 7, 2012 and the FSU Athletics Department’s awareness of the rape in January 2013, the incident was never reported by either of those departments to FSU’s Title IX Coordinator.

There is an entire section of the complaint that details how FSU athletics department personnel in concert with the Tallahassee Police, worked to conceal the allegations and prevent an investigation. This section implicates football coach "Jimbo" Fisher in the cover-up, as well as other administrators and FSU's chief of police as noted in this passage:
Chief Perry also told Jeanine Ward-Roof, the FSU Dean of Students who supervised the Title IX Coordinator, the SRR Office and the Victim Advocate Program, what was going on. Ward-Roof informed Chief Perry in an email at 1:16 p.m. on November 12, 2013 about the second student accusing Winston of sexual assault and assured Chief Perry that an SRR Code of Conduct proceeding against Winston for raping Plaintiff would not move forward.
Thus, as of November 12, 2013, the FSU Administration had shut down any
investigation into either of the reports of sexual assault against Winston.


The above is just about the count of deliberate indifference. The second count is about the hostile educational environment created by FSU's indifference and non-compliance with its own policies and the law. The plaintiff was forced to leave school because of the trauma she suffered not just at the time of the rape but in the wake of revelations about her identity.
For Plaintiff, FSU became a sexually hostile environment where her rapist roamed free and could turn up at any moment, where she became the target of death threats and vilification campaigns, and where her rapist could act with such impunity that he posted a video of himself boasting of rape and stood shouting obscene sexual acts.FSU was deliberately indifferent to Plaintiff’s known sexual harassment and the sexually hostile education environment in which she suffered as a result of its failure to institute any accommodations for Plaintiff’s safety, including, but not limited to:
(i) excluding her assailant from campus; (ii) providing an escort for Plaintiff around campus;
(iii) requiring that her assailant not come within a certain distance of her; or (iv) excluding
her assailant from her residence hall and classrooms.

As a result of FSU’s deliberate indifference, Plaintiff was forced to leave
campus and lost her educational opportunities at the university.


She is suing for damages on both counts; amounts will be determined at trial.

In discussing the filing, Erin noted that the plaintiff may be able to show that the university did not follow its own policy about achieving consent. (The student conduct hearing transcript noted that Winston felt consent was given by the victim's moaning. Moaning does not fall under acceptable consent according to FSU's own definition.) This is not a Title IX issue and not included in the current filing, but Erin feels it could be added later as a breach of contract claim. 

So some questions:
How will FSU respond?
Will there actually be a trial? Will FSU settle?

They might think things are going their way given that they seem to have gotten Winston through his time at FSU earning a national championship in the process. But a trial is going to put a lot of administrators both within and outside the athletics department into the proverbial hot seat. And though I would love for a very public demonstration of the extent to which football controls the functioning of the university, I do not think FSU would like that too much. 

And finally, will Jameis Winston (who is not on trial here) ever have to answer more than three questions about the night in question?




Wednesday, January 07, 2015

NCAA Allows Grants for Families' Travel to Football Championship

Yesterday the NCAA announced plans to offer financial assistance to families of athletes who will travel to the men's and women's basketball Final Four and championship game in April, as well as the national football championship next week.  For the basketball tournament, the NCAA itself will pay up to $3000 in travel, hotel, and meal expenses for family members of the athletes who participate in the semifinal games, and $4000 for families who stay on to watch their athlete compete in the final. The NCAA has given permission for the College Football Playoff to provide $3000 to the families of athletes competing in the championship game.  (Such benefits would otherwise not be permitted by NCAA's rules against player compensation, and thus required a waiver.)

It is easy to surmise the NCAA's benevolent motivations here.  College athletics is under fire for the ways in which it arguably exploits the labor of college athletes, whose efforts generate millions of dollars for the NCAA and its members. Programs like this one answer that charge in ways that appear consistent with the principle of amateurism, which prohibits compensation for labor. Separately, however, the NCAA's family travel grants program raises some Title IX issues that are important to consider.

The NCAA's family travel grants program, while discriminatory, is not subject to Title IX.

The NCAA is providing grants to families of both its male and female athletes, so from its standpoint, it is not engaging in sex discrimination where basketball is concerned.  However, in permitting football players to receive this benefit and not extending a similar waiver to other female sport, the NCAA has arguably engaged in discrimination on the basis of sex. However, this discrimination does not have much legal significance. The Supreme Court has concluded that the NCAA is not itself subject to Title IX because it does not receive federal funds. (Technically, that decision was decided on rather narrow grounds that leaves some room for reexamination. But I'm setting that rather complex issue aside for now to focus on more glaring Title IX problems.)

But, member institutions who receive family travel grants from the NCAA/CFP must account for them under Title IX.

On the other hand, the NCAA's members do receive federal funds and are subject to Title IX. An institution that receives family travel grants on behalf of its players and their families would have to ensure that these benefits do not produce disparities on the basis of sex in violation of Title IX. The fact that the grants would come from the NCAA or from College Football Playoff (or technically, CFP Administration LLC) and not the institutions themselves does not absolve the university of ensuring Title IX compliance.  OCR has already made clear that benefits to the athletes "attained through the use of private funds" are considered in combination with all benefits, services or opportunities that are subject to Title IX.  This standard was set forth in a letter explaining the Title IX obligations with respect to booster-club funded benefits, and there is no reason to think that benefits funded by other private benefactors, whether it be the NCAA or CFP Administration LLC, would be treated any differently.

Family travel grants should be considered a factor in the equal treatment analysis

In terms of equal treatment, it is clearly a benefit of participation for athletes to have their family members at the championship game, just as it is a benefit of participation to have access to coaching, dining, travel, equipment, uniforms, etc. If the family travel grants favored athletes of one sex, it would violate Title IX's requirement to provide equal treatment in the aggregate to men's and women's programs, just as any other lopsided distribution of a laundry-list item would.

In the basketball context, a university that receives this benefit on behalf of athletes of one sex but not the other would be able to defend the lopsided distribution by pointing out that the basketball team of the other sex had equal opportunity to access this benefit, if it too had made it to the Final Four. But in the football context, such a defense is unavailable. Institutions that accept family travel grants on behalf of football players actually have no way of providing a commensurate benefit to the members of another women's team who makes it to their championship game, since the NCAA did not provide any other waivers that would permit such awards. A Title IX violations in this regard seems inevitable.
 
Family travel grants could also be considered athletic financial aid

There is also a strong argument that the grants would be considered athletic financial assistance, which according to OCR "includes any financial-assistance expenditure through the institution’s athletics program and any other aid connected to a student’s athletic participation or ability."  The benefit is clearly connected to the athlete's participation. It is also probably not significant that grant is to the athlete's family rather than the athlete him or herself.  In general, the government treats the student as an extension of his or her family when it comes to financial aid for education.  It is hard to imagine the Department of Education drawing a distinction between financial aid awarded directly to a student and a grant awarded to a student's family.    

Assuming that the family travel grounds count as athletic financial aid, Title IX would require the institution to factor in the total amount awarded in family travel grants to the overall total of athletic financial aid that must be distributed proportionately to the athletes of each sex. For example, the University of Oregon football team has 115 players on the roster. If each of their families receives $3000, that's a total of $345,000 more in athletic financial aid for men that the institution would have to match in athletic financial aid for women in proportion to their percentage of the total student athlete population. Interestingly, I think this obligation to provide matching funds for the opposite would apply in the basketball context, as well, regardless of whether it's the women's or men's team who receives the benefit.

Hmmm...

I wonder if the NCAA was thinking about Title IX when it made this decision?

Monday, January 05, 2015

What counts as activism? What's the message?

With the protests that spread in the wake of the grand jury decisions in Ferguson and New York and the spate of police shootings of unarmed black youth, I have felt the need to write about the activism, especially the actions of athletes in lending their voices and actions to these protests, and the support of team owners, coaches, and administrators in supporting these athletes against those who would try to silence them by suggesting they should stick to sports and/or are being disrespectful. These responses, by both fans and organizations like police associations, display the power athletes have in contributing to the public discourse. (It is not as if other individual protesters are being targeted by police associations.)

We have written a little about the campus activism around sexual assault and Title IX, but there has not been an obvious presence or concerted effort by student-athletes to join these campaigns. This is not a condemnation, just an observation.

In the wake of the decision not to punish Florida State University football player Jameis Winston for sexual assault (or anything else that he has done), there has been a lot of writing about the mishandling of every stage of the process--including the student conduct hearing--but no protests.

What happened after FSU lost the Rose Bowl to the University of Oregon on January 1 was not a protest either. The Oregon players who chanted "no means no" were not taking a stand against sexual assault--they were rubbing salt into the wound of the loser. It was similar to the taunts aimed at Cam Newton ("Scam Newton") and the playing of "Take the Money and Run" during the 2010 Iron Bowl held at Alabama. The similarity in both cases is that both Newton and Winston were found not responsible by various (and multiple) authorities. So the taunts were basically meaningless. Newton certainly shrugged them off and went off to the NFL, and it appears Winston will do the same.

What adds to the "this is not activism" verdict on Oregon's actions is that their chants occurred while they were doing the tomahawk chop--a highly offensive, racially insensitive action (no matter what "arrangements" financial or otherwise have been made with the Seminole Nation of Florida).

Football players and other student-athletes should step up and make a statement about campus sexual assault--and while they are at it perhaps misuse of Native American symbols and names. But this was not a statement. It was poor sportspersonship--even if perhaps Winston deserved it. It was not a stand against sexual assault or violence against women.  In fact it was a belittling of the issue because it was a device used to hurt Winston and the FSU community, not to support sexual assault victims or the campaigns against campus violence.The players will allegedly be punished. I suspect it will not be a meaningful punishment (like volunteering at a domestic violence shelter) and certainly will not disadvantage the Ducks when they play for the championship next week. In other words, it will likely be meaningless (and yet still more punishment than Winston ever received).

Monday, December 29, 2014

Another bathroom case: New Jersey edition

A transgender student in New Jersey won a several month battle with his school district to use the boys' bathrooms. Unlike the situation in Virginia, the school board did not pass a formal policy stating that bathroom use was dependent on sex at birth. But Rubin Smyers and his advocates and allies, spent months negotiating this resolution which, as he noted, gave him permission for something he had permission for (legally) all along.

Smyers was told initially that he would have to use a single stall unisex bathroom (no word on how many of those were on campus). This "solution" was presented using the "civil and privacy rights" of cisgender students discourse that circulates around these situations.

The school board did not pass a policy that barred transgender students from using bathrooms in accordance with their gender identity. In hearing the complaint Smyers brought. however, and in making the ruling, it did enact another problematic discourse that may be on the rise: the "case-by-case" policy.

What is the rationale for this policy? Make the rules, set the precedent--in accordance with the law. Case-by-case policies discourage transgender students from coming forward and being able to enact their rights. This could potentially lead to more dangerous situations if cisgender students feel a transgender student is in the "wrong" bathroom. Stop requiring every transgender student to deal with the anxiety, ostracism, harassment, and retaliation that comes from having to ask permission--from a group of adults sitting at a big table--to go to the bathroom.

Saturday, December 27, 2014

ACLU steps in on Virginia bathroom case

As was predicted in a previous post (somewhat in between the lines admittedly), the born-in-the-sex bathroom policy established by the Gloucester County School District in Virginia is being challenged. The policy, which was passed a few weeks ago, stats that children in the district must use bathrooms in accordance to their birth sex. Transgender students with "genuine" gender identity issues will use separate facilities.

The ACLU has filed a complaint stating that the district's new policy (created in reaction to out transgender student Gavin Grimms's use of the boys' bathroom this school year, for which he was given permssion by the school principal) is a Title IX violation.

After the school board approved the policy, Grimms was forced to use the unisex bathroom located in the nurse's office. In addition to isolating him (as noted in the article), it also requires him to--I would imagine--go out of his way to use the bathroom; an inconvenience not experienced by other students.

This does not appear to be a formal legal challenge at this point, though I imagine the ACLU is prepared to go that route if the school board digs its heels in and ignores precedent regarding this issues.

Friday, December 26, 2014

Winston cleared by conduct board

I have spent the last several days going through the various accounts of Florida State University student-athlete Jameis Winston's student conduct hearing. And the more I read, the more my initial response of "disappointed but not surprised" has changed. Because I truly am surprised that former Florida Supreme Court Justice Major Harding really felt that there was not enough evidence to confirm the Winston had violated FSU's student code of conduct.

A note about the media coverage of this case and its outcome: several reporters have written something to the effect of "FSU is investigating Winston despite the fact that the prosecutor chose not to file charges against him last year because of lack of evidence." What happened with the potential criminal case (the highly problematic one), has no bearing on this investigation. Winston is being charged with violations of FSU's student code of conduct. The school's investigation is mandatory (and almost 2 years late). There is no "despite."

After two days of hearings earlier this month, which included multiple witnesses who were questioned by the complainant (victim) and respondent (Winston) respectively, Harding announced in a letter to Winston that he did not find that the information presented met the preponderance of evidence standard required in student conduct hearings. Harding was approved by both sides to oversee the hearing, in part because he had no ties to FSU. Other panel members, however,  were FSU employees.

Both sides had witnesses; both had advisers all of whom were lawyers. Advisers are only allowed to confer and offer advice. All questions to witnesses were asked by the respondent, the complainant or members of the panel. Both the victim and the accused offered opening statements. Winston, somewhat curiously, had his entered into the record seemingly as an attempt to make it appear to be evidence, which it is not. As has been noted already in this 2-year long case, Winston has continually refused to answer questions about the events of that night in early December 2012. This hearing was not very different. He did not, as was his right, take questions about his statement which gave his version of the events of that night. His two witnesses, the roommates and teammates who have already had their own student conduct hearings, also were called and they too--as was their right--refused to answer questions. These are the two men who could have corroborated Winston's version of the events of that night which differ greatly from those of victim and do not hold up to various accounts offered by other witnesses including law enforcement, friends of the complainant, and health professionals.

As a reminder of some of the details: the victim did not know the name of and could not identify Winston, who maintains that the sexual encounter was consensual despite never--as the student conduct code requires--receiving verbal or physical consent. She only recognized him when they, coincidentally, had a class together, even after hearing his name she did not know who he was (i.e., the quarterback for FSU). She sought help immediately after Winston brought her home (she lied to him about where she lived and he dropped her off nearby), from her friends, police (both campus and local), family, and medical professionals (she went to the hospital, had a rape kit performed and asked for a victim's advocate). This was not a case of trying to bilk a celebrity or feeling bad after a consensual sexual encounter and "crying rape." (These narratives are actually quite rare.)  

Often in cases of sexual assault--at least in the criminal system--the victim's credibility is questioned. There were questions swirling about alcohol consumption and willingness to get into the cab with the three (implying that she was seeking multiple sexual encounters??), which the victim addressed during the hearing. But Harding was apparently not convinced that the victim did not want to go home with the men. He writes in his ruling that she did not seek help from people outside of the bar where they all were. This presumes a couple of things. One, that she was able to or felt safe enough to protest. Two, that even if she did want to go wherever they were going that such an action was tantamount to consent to sexual relations with any of them. It is not, which is why the fact that even Winston's statement did not include the victim saying yes makes me question what evidence Harding was looking at when making what amounted to a non-decision.

Harding's rationale also questions her motives and credibility in a way that Winston's was never questioned. Winston's credibility was very difficult to question--because he wouldn't answer questions--though his past behaviors are well known (stealing, making disparaging comments about women in a public place, writing and posting a pro-rape song). It is clear that none of these actions were a factor for Harding and also point to a problem that might hurt FSU: they were never the subject of student conduct code investigations. 

The victim's lawyer, Baine Kerr, who was present at the hearing as an adviser, said to the press that he and his team do not believe Florida State intends to hold Winston accountable. Given what I have read, I have to agree with him.

There is a 5-day period (which will be in January given the semester break) in which an appeal can be filed, but Kerr has not said whether they will do so.  Kerr and his team are also working on a civil lawsuit, and there remains the OCR investigation into FSU's handling of sexual assault cases. In other words, it's not over--for anyone.

Thursday, December 18, 2014

What should we take from Miller's firing?

This post will start cynical  (it has not been a great week for discrimination against women in sports) but I will try to end on an up(ish) note.

So we can now add to the list of things that will get female coaches fired/dismissed/forced into retirement: having too high of a salary. This joins such explanations (which range in legitimacy--I'm not commenting on whether or not they are true, just that they have been offered in some suspect dismissals): having a family, not having a family, pulling a player's shirt, banning white bread, reporting gender inequity, yelling at players, being too feminine, not being feminine enough, too successful, not successful enough. 

University of Minnesota Duluth women's hockey head coach Shannon Miller, who coached her team to five NCAA championships, was told this week that her contract is not being renewed (she will finish out the season) because her salary--the highest of any head women's hockey coach at $215,000--is too high for the financially distressed UMD to sustain. Most of those reasons above are never applied to  male coaches (yes, Tim Rice at Rutgers--who was caught on videotape--is an exception and lack of success is often a reason male coaches get bought out of their contracts)--but certainly "we're paying you too much, so we have to let you go"  is something male coaches do not hear when they are sat down in the athletic director's office to be fired.

This incident cannot be looked at in isolation. Don't forget the story from just a few weeks ago out of Iowa and the apparent pattern of female coaches being fired, not renewed, or entering into early retirement.

Yes, UMD is a different school, this is a different rationale, but it is part of the pattern. We may not know exactly what the pattern is and, unfortunately, I suspect the number of smoking guns that exist to explain things are rare--because I don't believe there is one thing that makes an athletic department fire female coaches. It's about the power of male administrators, beliefs about female leadership, the value of women's sports, the value of female coaches, and so much more.

Though this story broke two days ago, I feel we are a little bit behind given the extensive news coverage. But--and here is the potential upside--doubts are being raised and questions are being asked. Dr. Nicole LaVoi of University of Minnesota has been speaking to the media and also posted on her blog, One Sport Voice, some revealing data about coaching, salaries, and discrimination. 

UMD made a mistake not just in firing Miller but in providing a weak justification, which only serves to make people question the actual justification. They also made a mistake in doing it so close to the revelations about what is happening at Iowa. And they underestimated a general public that dislikes overt discrimination. It may be difficult to see and understand structures and systems of discrimination, but it is not hard to see that firing a female coach under the guise of being paid too much when there are other, less successful male coaches who are paid more...well that's gender discrimination.

Wednesday, December 17, 2014

Dept of Ed weighs in on records release

We wrote in July about writer Jonathan Krakauer's attempts to get the records related to the hearings and disciplinary actions against a University of Montana quarterback. He was initally granted access but the decision was appealed and the Department of Education is filing an amicus brief  with the Montana Supreme Court for the purpose of "clarify[ing] that disciplinary records constitute protected 'education records' under" FERPA. The department claims it is not taking a side in the case, though it certainly seems like they are saying, with this filing, that Krakauer should not get access to these records, which is one of the two sides.

Several legal experts have weighed in on the case with no clear indication about how the law should be interpreted. Does the fact the the student's name is widely known matter? What about his status as a student athlete? How does public interest and protection weigh against the privacy of this student?

The legal wranglings, which are not my area of expertise, are actually manifesting the sociocultural concerns (more my speed) over how schools are handling sexual assault--specifically assaults committed by student athletes--and the balance between transparency and privacy.

We know that athletic departments have often tried to keep the punishment of crimes by student athletes "in-house." The NCAA addressed this issue over the summer by clarifying that investigations and punishment of sexual assault needs to be handled by the appropriate university officials usng university policies and procedures just as they would for non student athletes. But looking around (perhaps looking a little south--toward Florida maybe?), some might wonder how much influence this edict has had.

Also, given that the discourse from the Department of Education and the Obama administration has centered around transparency--in how cases are reported, handled, and investigated, how discipline is enacted, how communication among all the parties occurs--some see this amicus brief as pulling the shade down a little.

How or whether these concerns will play out in the appeal remains unknown. Here is what I know: a high-profile student athlete was found guilty of sexual assault and expelled. That punishment was appealed to the state commissioner of higher education (i.e., to a pretty high level) who reduced the punishment to a suspension that allowed the player back on campus in time for football season. Eyebrows are rightly being raised. In the end, the court may decide that FERPA does not allow for these records to be released, but that does not mean that an explanation should not be provided. I think that the story will come out regardless, the question is whether it will be supported by official documentation or the testimony of anonymous insiders familiar with the case.