Thursday, May 09, 2019

No Summary Judgment in Lock Haven University Athletics Case

A federal court in Pennsylvania denied parties' motions for summary judgment in a case challenging gender-based inequities in athletic opportunities at Lock Haven University. The university had announced plans to terminate its women's swim team and demote field hockey to Division II.

The evidence in the case allowed the court to rule as a matter of law that Lock Haven did not satisfy either of the first two parts of the three-part test for effective accommodation. Though "only" 3.36 percentage points separated the percent of athletic opportunities for female students (52.18%) and the percent of female students in the student body (55.54%) , the court acknowledged this translates to 36 athletic opportunities, a number not too small to support a new varsity team. Nor did evidence show a history of continuing practice for adding opportunities in women's sports, since Lock Haven both added and ended women's teams in the past and also denied requests from club teams for elevation to varsity status.

But the court could not decide as a matter of law, without the benefit of trial, whether Lock Haven satisfied part three. It has not yet in fact terminated the swim team, so it has not created the situation that would automatically render it out of compliance with the satisfied interests test. That left the court to consider conflicting evidence: on the one hand repeated requests from the women's club rugby team requesting elevation to varsity status, and on the other hand, survey data suggesting female students' interests in additional athletic opportunities is low. So the court withheld summary judgment on this issue and deferred it to trial.  It also saved for trial the question of whether demoting the field hockey team to Division II would violate Title IX, since it hasn't happened yet and Lock Haven claims to have withdrawn that idea from consideration. The plaintiffs' equal treatment claims also raised too many issues of disputed fact to warrant summary judgment for either side.

Last, the court addressed whether this case could proceed as a class action purporting to represent "all present, prospective, and future University female students who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of intercollegiate athletics at Lock Haven University." Class certification is helpful to plaintiffs especially in Title IX cases because it keeps the case from becoming moot when the current student-plaintiffs graduate.  Here, the court rejected class certification of such a broad class, noting that the named plaintiffs, who are members of the swim, field hockey, and club rugby team, are differently situated from each other and from other present and future students with respect to the remedies they would favor. But the court permitted the plaintiffs to request certification of three subclasses, each purporting to represent the present and future potential members of each team. 

Theoretically, then, the next step in this case is for the plaintiffs to repropose their class certification request, and for the court to schedule trial. I admit, though, I'd be highly surprised to see an actual trial in this case. I think a decision to drop swimming would be impossible to defend unless the university first closes the proportionality gap, and it should be clear that it can't elevate a men's team (wrestling) to Division I and offer no similar benefit to any women's team. Moreover, Lock Haven also argues that it is close to complying with proportionality. Given all this, I'd bet the parties would be more likely to settle than to engage in an expensive and time-consuming trial. 

Robb v. Lock Haven Univ. of Pennsylvania, No. 4:17-CV-00964, 2019 WL 2005636 (M.D. Pa. May 7, 2019).

Friday, April 26, 2019

OCR Is Still Enforcing Title IX, and Noncompliance Still Abounds

Investigating the Department of Education's Office for Civil Rights Title IX enforcement records, journalist Tyler Kingkade discovered that the agency has a resolved at least 70 cases and found many problems with the sexual misconduct policies and practices of school districts, colleges and universities. In higher education, examples of violations included things like unjustifiable delay and other impairment of the complainants' rights, but even more alarming problems were discovered in the agency's investigations into institutions at the K-12 level. Kingkade found that six school districts didn't even investigate sexual misconduct at all.  One major metropolitan school district, in District of Columbia, simply files incident reports with local law enforcement. Elsewhere in the country are examples of school districts whose Title IX coordinators haven't worked on any sexual misconduct issues in the last 11 years, and another whose principal only calls the Title IX coordinator for complaints about equity in sports.  Kingkade reports several examples of egregious sexual misconduct -- some perpetrated by teachers, others by students -- that school districts knew about but failed to investigate or provide help to the victims.

These findings are important to highlight for a couple of reasons. First, they remind us that we shouldn't leave school districts out of the public and political scrutiny that colleges and universities already receive on these issues. Second, it's proof that Title IX continues to be necessary to challenge the lack of attention that school and university administrators give to sexual misconduct cases. This disconnect was noted in the article by former OCR Director Catherine Lhamon, who said, "The department is still documenting very serious sexual violence and unbelievable harm to students today in school, [but] its policy arm is telling schools to stop looking for that...The need is exponentially higher, and OCR is turning in the other direction."  If the agency follows through on its proposed regulations focused campus hearing due process and narrowing the scope of misconduct that falls under Title IX, it will be hard to reconcile those changes with the pattern of problems that its own enforcement efforts continue to reveal.

Wednesday, April 17, 2019

Morehouse Opens Admission to Transgender Men, but Will Expel Students Who Transition to Female

I was pleased to read that all-male HBCU Morehouse College has opened its admission to transgender men. But the policy also requires all students admitted to Morehouse to identify as male for the duration of their education there, saying that any student who transitions from male to female "will not be eligible to matriculate." This part of the policy is cruel and unlawful. Like the military ban, it will force people to suppress or hide their gender identities, since coming out risks rejection from the community and having to start over in another setting. It is unlawful because despite the Department of Education's backpedaling on this view, federal courts are continuing to view Title IX to prohibit discrimination against transgender students. Assuming that Title IX applies in this manner, it would be unlawful for any school that receives federal funds to expel a student because they are transgender.

Morehouse and other single-sex colleges are not exempt from this application of Title IX.  Private undergraduate institutions are exempt from Title IX in their admissions policy, which is how we have single-sex private colleges in the first place. But expulsion decisions are not admissions decisions and are not covered by the exemption for admissions.

Unfortunately, Morehouse isn't the only single-sex institution with policies that threaten expulsion to students who come to terms with their gender identity after they have enrolled. In 2011, I made this same argument about a women's college in Virginia when it adopted a policy to expel any student who transitions to male while they are enrolled. Hollins College continues to defend this policy on the grounds that Title IX does not cover transgender students. Since 2011, however, federal courts such as the Seventh Circuit as well as district courts in Florida, Ohio, Pennsylvania and others have ruled that it does, calling into question the legality of Hollins' policy, as well as now Morehouse's.

However, in contrast to Morehouse, its sister school Spelman has a transgender-inclusive admissions policy that states, "If a woman is admitted and transitions to male while a student at Spelman, the College will permit that student to continue to matriculate at and graduate from Spelman."

Tuesday, April 16, 2019

Sixth Circuit Calls Off EMU's Reinstatement of Softball

The Sixth Circuit Court of Appeals has reportedly granted a stay that pauses a district court's order that Eastern Michigan University reinstate its women's softball team. As we blogged about last fall, the district court granted a preliminary injunction that would prevent the university from terminating softball along with the women's tennis team because the cuts would leave EMU in violation of all three prongs of  Title IX's test for compliance in the number of athletic activities available to each sex. Then in February EMU went back to the district court with a plan to add lacrosse instead, which the court rejected, ordering the university to hire a softball coach by April 1 and start planning for competition next season. Though the university reinstated tennis, it petitioned the appellate court to stay the district court's order.  

The Sixth Circuit Court of Appeals granted the requested stay, reasoning that Title IX requires equity in the availability of athletic opportunities overall, but does not require a university to support particular teams. Either proportionality or the absence of unmet interest among women (as the underrepresented sex) could satisfy the law's equity requirement, so the EMU could theoretically demonstrate Title IX compliance by adding or expanding women's opportunities in sports other than softball.

While I agree that Title IX doesn't require EMU to carry any particular sport, I have two concerns about using that rationale to undermine the court's injunction against cutting softball. First, will substituting softball with lacrosse bring the university into proportionality compliance? Because the fact that softball players are challenging the university's decision to terminate their team is evidence of unmet interest, so prong three is off the table.

Second, even if lacrosse-for-softball does bring the university into proportionality compliance, the timing of this is all wrong. Without softball, the university is out of compliance *right now* because of unmet interest. That's why the district court enjoined the cuts. If the university wanted to replace softball with lacrosse, it should have added lacrosse first to attain proportionality, then cut softball. If district courts can't effectively prevent unlawful cuts from happening before they happen, then Title IX loses whatever teeth it has to keep universities accountable for equity in athletics. EMU seems to be getting away with noncompliance here, so what's to stop other universities from taking the same "cut now, comply later" approach? 

Tuesday, April 09, 2019

Parents May Continue to Litigate Title IX Challenge to High School's Transgender Inclusive Locker Room Policy

A district court in Illinois issued a ruling yesterday on a school district's motion to dismiss the various claims in a lawsuit filed by parents challenging its policy of permitting transgender students to use facilities that correspond to their gender identities.  The parents claim that their daughters have been upset and humiliated by having to share girls' locker rooms with other female students who have male anatomy. One parent alleges that the school denied her request to allow her daughter to access a private changing facility, and another that the school failed to investigate or remediate a situation where her daughter was exposed to another student's penis.

The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.

This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature --  noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive.  It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.

Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).

Tuesday, April 02, 2019

Plaintiffs Win Dress Code Challenge with Equal Protection Argument

An Equal Protection challenge to a public charter school's gendered dress code recently survived summary judgment. But the court dismissed the plaintiff's Title IX claim. As we noted in an earlier post about this case, the plaintiffs are a group of parents suing Charter Day School on behalf of their female children to challenge the school's dress code policy that prohibits girls from wearing pants. The school's uniform policy is part of its mission as a "traditional values charter school." Boys can wear pants or shorts while girls are restricted to skirts.

The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs.  Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.

Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a stricter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.")  Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.

The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case. 

Friday, February 15, 2019

UMD Liable for Front Pay in Retaliation Case

Last year when a jury ruled in favor of Shannon Miller in her lawsuit against University of Minnesota-Duluth, it awarded her nearly $3.75 million in compensation for past damages after it concluded that the university terminated her with unlawful retaliatory and discriminatory motives in violation of Title IX and Title VII.

Left unresolved at the time was how the university should remedy her present and future injury of present and future remedy, which Miller argued should be addressed by an order requiring the university to reinstate her to her former position. In the alternative, she argued for a a front pay award of $3 million.  A federal court judge ruled on her motion this week. He determined that reinstatement was not an appropriate remedy due to the position having already been filled. The current coach is now in her fourth season and most of the current players have been recruited by her. Accordingly, it would be unduly disruptive to reinstate Miller to her former position. Instead, the court agreed to a monetary alternative in the form of front pay.

Front pay is an award of damages that in unlawful termination cases that requires the factfinder to determine what the plaintiff would earn from the date of the verdict going forward if they had not been fired (back pay, in contrast, compensates the plaintiff through the date of the verdict). It then takes into account what the plaintiff is earning in whatever new job they may have, and if that is less, awards the plaintiff the difference. The court did not agree with Miller's speculation that she would have worked at UMD for 12-15 more years from the date of verdict; pointing out that 30-year tenure for any Division I head coach is rare. But nor did the court accept UMD's position that Miller was fully compensated by the back pay award Miller had already been awarded. Instead, the judge found sufficient evidence that Miller would have worked at UMD for another five years from when she was terminated. Her front pay award was therefore calculated at her UMD salary from the date of the verdict through June 2020. Then it was offset by the $30,000 Miller earns annually as the head coach of the Calgary Inferno professional women's hockey team. The total, $461,278, brings UMD's total liability to around $4.2 million.

One thing that I found noteworthy about this opinion is the particular role that Title IX played, relative to Title VII, in driving the damages award in this case. The judge's opinion on front pay noted that the plaintiff was not entitled to damages or reinstatement on her Title VII claim, even though the jury found that sex discrimination had been a motivating factor in her termination, because the jury had found evidence that UMD would have fired Miller anyway. Under Title VII, a so-called "mixed motive" finding like this limits the plaintiff to only declaratory relief and attorneys' fees. Title IX, however, is not governed by the mixed-motive provision of Title VII, so damages are allowed even when university defendants demonstrate that a non-discriminatory or non-retaliatory reason would have led them to make the same adverse employment action.

Decision: Miller v. Bd. of Regents of the Univ. of Minnesota, 2019 WL 586674 (D. Minn. Feb. 13, 2019).

Wednesday, January 30, 2019

Comment Deadline Is Today

Today is the last day to comment on the OCR's proposed Title IX regulations. I submitted my comment just now, and I was the 96,841st person to do so. Wow!

If you were waiting for the last minute like I was, here is the link to the docket, which includes the proposed regulations, the comments received, and the form for submitting your own. 
If you are curious about my comment, here it is:

As a law professor, I teach, research, and write about Title IX. In that capacity I have had the opportunity to sign on to some of the comments that are already submitted to this record, but I write separately to comment specifically on the proposed revision to 106.12(b), which provides an exemption for religious institutions. The proposed regulation not only permits educational institutions to decide for themselves whether they must comply with Title IX, but to do so in obscurity. 

I acknowledge that religious institutions have First Amendment rights not to be compelled by the government into compromising their religious tenets. This is why Title VII, for example, exempts religious institutions from the prohibition on religious discrimination, and why courts have interpreted workplace discrimination statutes to contain an exception for religious institutions when it comes to the employment of those they consider ministers. 

But in contrast to laws that impose mandatory requirements on employers—laws like Title VII, and the ACA—Title IX doesn’t compel institutions of any kind, religious or otherwise, to do anything. As Spending Clause legislation, Title IX proposes a voluntarily exchange of federal funding for an educational institution’s promise not to discriminate. Thus its intrusion on religious freedom is minimal, as religious institutions are as free in a world with Title IX as they would be in a world without it, to do whatever they want as a matter of faith. It’s only when they agree to accept the financial support of the government that they undertake an obligation not to discriminate on the basis of sex. 

With this in mind, Title IX’s exemption for religious institutions is already more protective of religious freedom than the Constitution requires. It generously permits religious institutions to accept federal funding even without fully complying with its nondiscrimination mandate. To receive this special treatment, the existing regulation simply requires that these institutions register their exemption in advance. 

The proposed regulation extends this special treatment for religious institutions to the detriment of third-parties, prospective students and employees. At least the current approach allows students and employees to use public religious exemption records to determine prior to matriculating or accepting employment to determine whether their institution has opted out of Title IX. In fact, given that Title IX permits the government to provide financial support to religious institutions whose practices would otherwise violate the law, the only way for prospective students and employees of such institutions to protect themselves from discrimination is to arm themselves with information and use it to make decisions about where to enroll or accept employment. The proposed regulation would eliminate even this modicum of protection that such transparency allows. 

On the other hand, from the standpoint of a religious institution, the burden of complying with the existing religious-exemption regulation is minimal. If an aspect of Title IX truly conflicts with an institution’s religious tenet, it is not difficult for the institution to articulate this conflict in advance. The existing religious-exemption regulation does not require institutions to defend their religious tenets and it protects institutional autonomy to define the nature of the conflict between those tenets and Title IX. Nor does it require religious institutions to advertise or otherwise publicize the scope of their Title IX exemption. Requiring them to put it on the public record in advance is the very least the law can do to protect the rights of students and employees in the face of special treatment that allows religious institutions to discriminate with federal funds. The current religious-exemption regulation should not be modified in the manner OCR has proposed.      

Friday, January 25, 2019

Gender Disparity in Coaches' Chartered Flights at University of Iowa and Iowa State

Some good investigative reporting in Iowa led to this recent article about the gender imbalance in athletic department travel at University of Iowa and Iowa State. Both institutions benefit from wealthy donors who offer up their private planes for coaches to take on recruiting visits, to meetings, and for other work travel.  Yet these donations overwhelmingly favor the coaches of men's teams -- of UI's 54 donated charter flights in the last year, only 1 was to the coach of a woman's team. And it's not like the institutions use other funds to close this gap, paying for (non-donated) charter flights for men's teams coaches more often than charter flights for their coaches of women's team's.

I talked to the reporter for this story and shared some thoughts about the Title IX concerns raised by this disparity. I explained that the fact that the flights are donated does not absolve the university of the gender disparity that results from the donations. Because they benefit a university program, the donated flights are considered by law to be donations to the university. Though the donations themselves might be earmarked for a certain team or coach, the university is still responsible for the equal treatment of its men's and women's programs. If it uses donated money (or, as in this case, donated flights) to benefit only teams of one sex, it has to find other money to balance to provide the equivalent benefit to teams of the other sex.

There are two aspects of Title IX that may be implicated by this imbalance. First, one of the aspects of Title IX's requirement for equal treatment of men's and women's teams is the quality of the coaching they receive. A coach who takes charter flights does not have to spend time driving between Iowa City and the airports in either Cedar Rapids or Moline, factoring in extra time for the security line, waiting out layovers, enduring delays or any of the other time consuming aspects of commercial travel. This leaves the coach with more time and energy for coaching duties: he is more likely to make it back for practice, he can fit in more recruiting stops into a season, he can partake of more professional development opportunities. In short, that team gets more of their coach and thus, a higher-quality coach. A university that eases the path for men's coaches, but leaves up those obstacles for women's coaches, is treating its male athletes better than its female ones.

Second, the disparity is sex discrimination in the terms and conditions of coaches' employment. Because only men coach men's teams, men disproportionately benefit from the perk of taking charter flights. The challenges of commercial travel can create personal inconveniences as well as professional ones, and male coaches alone are spared from that grief. As a result, they may have an easier time making time for family or a personal life. Maybe, if women's coaches were paid more in base salary than men's coaches, there would be an argument that this disparity in chartered travel does not amount employment discrimination, but of course we know that is not case.

As the article notes, University of Iowa is currently under an OCR investigation into the athletic department's compliance with Title IX. Recruiting appears to be an area the agency is looking into, but no findings have yet been made.

Sunday, January 13, 2019

FSU does not care

It took me some time to come up with the (somewhat simple) title for this post. I tried to distill what was so furiously frustrating about the fact the Florida State University has hired Kendal Briles as the football team's offensive coordinator.

First, Kendal Briles was an assistant coach at Baylor during the time of the sexual assault crisis/scandal/epidemic. It was his father, Art Briles, who has been held most responsible (at least within the program) for the cover ups and culture; but son, Kendal, also had a role as one of the team's primary recruiters. One story that has emerged from the collection of evidence that has been part of the many, many lawsuits Baylor is still faced with, involves K Briles asking a recruit if he likes white women and noting their widespread availability at BU and their desire for football players.

This is culture shaping. In a very racist and misogynist and violent moment, Briles tells this prospective player that he can access whomever he likes at Baylor. He is offering up the female undergraduates of Baylor to players. This makes me recall women's basketball coach Kim Mulkey's ill-advised and barely apologized for comments to the crowd about how it is safe to send their daughters to Baylor. I don't know if Baylor is any less safe than other campuses. I do not know how to measure this--and I don't especially care about comparisons at this moment. Briles was part of making that campus more dangerous.

Now he has a job at another school which has denied culpability in the culture of sexual violence. And so...two, Florida Sate University thinks it has moved past the Winston era. They have a new head coach (completely unrelated to the way the program and school protected the former Heisman-winning quarterback who continues to make news for engaging in harassment and assault). Admittedly, they probably have moved past that; perhaps they were never really mired in it at all. The media supported the school and the program (watch the segment in the Hunting Ground about Winston and listen to ESPN's Stephen A. Smith sarcastically mock then-anonymous victim Erica Kinsman's motives and unconditionally support, along with colleague Skip Bayless, Winston). It was, after all, only one victim (not true it turns out), and one perpetrator--who left to go pro thus making him the NFL's problem. And (deep cynicism alert), everyone knows how the NFL deals with domestic and sexual assault and violence.

It does not matter to the administration, to the fans, to the program, that FSU has hired a coach who helped perpetuate the climate of sexual violence at his former institution. And that is a problem--a dangerous one. Unchecked football cultures--like the ones that exist at Baylor and FSU--make campuses unsafe places.

Tuesday, January 08, 2019

Dr. Bernice Sandler, 1928-2019

Dr. Bernice Sandler passed away this week at the age of 90. She went by Bunny, but was even more well-known as the Godmother of Title IX.

Her obituary in the Washington Post described how she came to make advocacy for gender equality in education her life's work:
In 1969, her newly earned doctorate in hand, Bernice Sandler was hoping to land one of seven open teaching positions in her department at the University of Maryland. When she learned she had been considered for none of them, she asked a male colleague about the oversight. “Let’s face it,” was his reply. “You come on too strong for a woman.”
When she applied for another academic position, the hiring researcher remarked that he didn’t hire women because they too often stayed home with sick children. Later, an employment agency reviewed her résumé and dismissed her as “just a housewife who went back to school.”
Dr. Sandler had run head first into a problem that had only recently been given a name: sex discrimination. Knowing she was not alone, she embarked on a campaign that would change the culture on college campuses — and eventually the law with the passage in 1972 of Title IX, the landmark legislation that banned sex discrimination in federally funded educational institutions.
Sandler's efforts did not end with Title IX's passage. She continued to research and challenge sexist practices in higher education, including sexual harassment and the "chilly" campus climate. She was also a strong supporter of Title IX's application to athletics. 

RIP Dr. Sandler.  

Thursday, December 13, 2018

'Tis the season... which people start complaining about how they aren’t allowed to/are shamed for/tired of hearing about listening to Baby, It’s Cold Outside. 

I get it. I listened to that song growing up too. It’s catchy. It’s part of the canon. It’s part of the culture.

It is, in fact, a creation of that culture. And maybe it hits that nostalgic note for some in which men were men and women were women and the relations between the sexes were seen as simpler. And wouldn’t it just be great to get back to that… Romance, desire, lust even. Enjoyable things for many.
We are still there/here. Because one, things are (and were) never simple. But two, we still are immersed in a culture of sexual coercion and assault. We breathe that culture. We keep it alive. Brett Kavanaugh does not just happen. Brock Turner does not just happen. Sexual traffickers do not just happen (nor do life sentences for their victims who kill their captors). Fraternity presidents who rape women get plea deals and no jail time do not just happen. This is not Bad Apple Syndrome. This is rape culture.

Yes, I am making a connection between Baby, It’s Cold Outside and horrendous acts of violence. Is there a direct line? No. But we don’t live in a society of direct lines. We live in a matrix of power relations and interconnections.

This is sometimes an abstract concept and not everyone gets it (or wants to). Power is complicated. We are all implicated in it. Here is something a little more concrete. Every semester I assign Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. Male athletes—both intercollegiate and recreational—were more likely to engage in sexually coercive behaviors than non-athletes. It was not because of the mere fact that they are athletes—it is because they had high scores on measurements of rape myth acceptance and traditional gender role attitudes. Those things are reinforced in many sports cultures, but they are not only in sports cultures. When rape myth acceptance and traditional gender roles attitudes were controlled for there was no difference between athletes and non-athletes in terms of engagement in sexual coercion. 

In other words: 1. Culture matters and, 2. We learn these things in our social institutions. Entertainment (and sports, and law, and education, and religion) is a social institution through which cultural norms are transferred. Movies do that. Books. Television. And songs.

So listen to the song—or don’t. Listen to the She and Him version in which the “roles are reversed” and call that equality (it’s not #becausepatriarchy). But we cannot dismiss the critique just because it tempers our enjoyment. Our cultural products matter. Our continued use of them matters.