Tuesday, April 22, 2014

Sexual Harassment Roundup

Here are summaries of several recent judicial decisions applying Title IX to sexual assault and sexual harassment:

The Eighth Circuit Court of Appeals affirmed a lower court's decision (which we blogged about here) to dismiss Title IX claims against St. Louis University on summary judgment. The plaintiff, a female student-athlete, alleged that the university responded with deliberate indifference after she reported to campus officials that she had been sexually assaulted at an off-campus party.  But the court determined that the university's response was adequate.  An athletics administrator set up a meeting with the student as soon as she learned about the assault.  The administrator offered her support and instructed her on how to file a complaint, though the student declined to do so.  Later, the student's father reported the assault to the campus police, who immediately commenced an investigation as well as cooperated in separate investigation by St. Louis police.  The court rejected the plaintiff's argument that the administrator should have involved the Title IX Coordinator, as OCR requires, by affirming that the "deliberate indifference" standard that applies to civil lawsuits for money damages is not the same as the regulatory standard of compliance that applies to administrative actions. The court also agreed with the district court that Title IX did not apply to this off-campus party because that situation was outside of the university's control. Yet given that the rapist turned out the be a student, and the ramifications of the rape followed the victim back to campus, I think the university's jurisdiction was clear. Roe v. St. Louis University, 2014 WL 1181097 (Mar. 25, 2014).

A federal district court in Pennsylvania dismissed Title IX claims against East Stroudsburg University alleging that officials there could have protected male students who worked in the university's development office from sexual harassment by their supervisor, Issac Sanders.  The student plaintiffs alleged that university officials were on notice of sexual improprieties committed by Sanders prior to the first student's filing of an official complaint against him in 2007. However, despite the plaintiffs' allegation that Sanders had a reputation for inappropriate sexual relationships with the male student-workers, the plaintiffs could not point to anything specific and credible known by university officials that should have triggered an earlier response.  Moreover, the court agreed with the university that officials responded appropriately after they received the first official complaint against Sanders.  Though the court dismissed the plaintiffs' Title IX claims against the university, it did allow separate claims against Sanders on other grounds to move forward.  Bernard v. East Stroudsburg University, 2014 WL 1454913 (E.D. Pa. Apr. 14, 2014).   

A federal district court in Pennsylvania denied a school district's motion to dismiss the Title IX claim of a female high school student arising from her sexual assault by a male Junior Reserve Officer Training Corps (JROTC) instructor.  The court agreed that she sufficiently alleged the school district to have had actual knowledge that the instructor posed a substantial danger to students because the school district had received five complaints in the past from students alleging that he had subjected them to sexual harassment and sexual misconduct.  Additionally the plaintiff adequately alleged that officials' failure to discipline, train, or monitor the instructor amounted to deliberate indifference.   Doe v. Boyertown Area Sch. Dist., 2014 WL 1281125 (E.D. Pa. Mar. 28, 2014).

A female middle school student's claim that the Breathitt County Board of Education is liable under Title IX for the sexual advances of her male teacher survived the board's motion for summary judgment.  The federal district court in Kentucky determined the plaintiff presented sufficient evidence that school officials had actual knowledge that the teacher posed a substantial risk of sexual harassment to female students, including that they knew he had exchanged many text messages of a personal nature with other female students.  The court also believed a jury could find that the school board's decision to rehire him amounted to deliberate indifference.  Thorpe v. Breathitt County Bd. of Educ., 2014 WL 1101035 (E.D. Ky. Mar. 21, 2014). 

Monday, April 21, 2014

Recent cases of convenient equality

With the state of amateurism in college sports under threat (i.e., the lawsuits by current and former college athletes seeking various kinds of compensation for their efforts), policymakers and keepers are somewhat panicked about what this could cost.
The NCAA, of course, has been putting considerable efforts into countering claims that student athletes are anything but students.
Earlier this month, Republican Senators Lamar Alexander and Richard Burr helped them out by invoking a gender equality discourse to claim that it would be impossible to pay student athletes like they were employees--a fear that has been amplified with the National Labor Relations Board ruling that the football players (scholarship only) at Northwestern University do meet the definition of employees and thus could unionize.
"What is going to happen to the smaller schools? What is going to happen to the minor sports? What is going to happen to the Title IX women's sports if, for some reason, a union forces universities to have a much more expensive athletic program for a few sports?" Alexander said on the Senate floor.
First of all, there are  no "Title IX women's sports"--that's not a thing.  
Second, once again we have the ever-so-unhelpful football/basketball versus everyone else binary with Title IX as the perceived divider. Except this time Title IX is being invoked in a positive way by people who are not women's sports advocates or feminists. How long will the Title IX love last? Until the next attempt to weaken the law and make it more amenable to schools that would like to funnel more resources into major sports and not have to balance this with the needs of female student athletes?

Next, last week, Judge Claudia Wilken, a US District judge, made a significant ruling in the now five-year long case initially brought by former UCLA basketball player Ed O'Bannon (now a class-action lawsuit) in which the plaintiffs are seeking an end to the NCAA's rule that student athletes cannot make money off of their likeness, image, and name. Judge Wilken ruled on the summary judgment requests of both the NCAA and the plaintiffs (she granted it to neither, the trial should begin in early June) but said that the NCAA could not present as an argument that paying athletes (which the NCAA argues is part of the end of amateurism that would come with athletes who make money from their status) would harm women's sports.
It was a win for the plaintiffs. And it's a little bit of equality karma.
From the Courthouse News Service:
 The NCAA could support women's sports and less prominent men's sports in other, less restrictive ways, Wilken said.
     "For instance, the NCAA could mandate that Division I schools and conferences redirect a greater portion of the licensing revenue generated by football and basketball to these other sports," Wilken wrote.
     "The NCAA has not explained why it could not adopt more stringent revenue-sharing rules," the judge wrote, granting the athletes summary judgment on that issue. "The challenged restraint is not justified by the NCAA's claimed desire to support women's sports or less prominent men's sports."


Both of these examples illustrate an unfortunate trend that occurs outside of sports all the time: when it serves the needs of various institutions, fairness and equality for women gets invoked. When fairness and equality are less convenient, less beneficial, more costly the latter is emphasized over the former. The discourse remains inconsistent as do the actions of the fair-weather (which only seems to come when there's something afoul in men's sports) advocates.

Saturday, April 19, 2014

Nine Public Universities in Pennsylvania Named in Title IX Complaints

The Pennsylvania-based Women's Law Project has filed complaints with the Department of Education's Office for Civil Rights charging nine of the state's public universities with violating Title IX for offering disproportionately low number of athletic opportunities to female students.

The complaints target the state universities at Bloomsburg, Cheyney, Clarion, Indiana, Kutztown, Lock Haven, Mansfield, Millerville and Shippensburg.  Title IX requires that colleges and universities provide an equitable number of athletic opportunities to male and female students, which they can demonstrate in one of three ways, one of which is a proportionality test.  The WLP's complaints allege, however, that the percentage of athletic opportunities available to women is lower than the percentage of students who are female, with gaps averaging from 7 to almost 15 percent. Collectively, the system would have to offer 900 more athletic opportunities in order to provide female students the same opportunities for athletic participation.

The second way to demonstrate compliance is to show a "history and continuing practice" of expanding opportunities for the underrepresented sex, i.e., women.  Yet, the complaints show that these schools have not added opportunities for women in recent years.  At Millersville, the percentage of opportunities to women increased, but this was only because the school eliminated some opportunities for men. This does not qualify as expanding opportunities for women.

The third way to demonstrate compliance is to show that the athletic opportunities available to the underrepresented sex are sufficient to satisfy their interests and abilities.  To this end, the complaints present allegations that vary by school, but include one or more of the following: club teams that have not been elevated to varsity status, the absence of teams for women in sports that are sponsored by the league to which the school belongs, the lack of any process for evaluating women's interests in other sports that are not offered, or a disproportionately low budget for recruiting for women's sports.

It is now up to the OCR whether to open investigation at any or all of these nine schools.  

Complaint to DoJ challenges OCR's handling of athletics complaints

The Title IX Blog has received a copy of a complaint filed with the Department of Justice alleging Title IX violations in the athletic programs at ten California colleges and universities. This complaint is interesting to us because in addition to challenging programmatic inequities at those schools, it calls into question the method by which the Office for Civil Rights' San Francisco office is handling Title IX complaints alleging violations of the three-part test.

According to the DoJ complaint, OCR-San Francisco received complaints in January of this year alleging that 121 California colleges and universities violated Title IX in the distribution of athletic opportunities to male and female students.  The complaint used publicly-available information to adequately allege the institutions' noncompliance with part one and part two of the three-part test.  Specifically, the complaints alleged that athletic opportunities were not distributed proportionately to the gender breakdown of the student body (part one) and that athletic opportunities had not increased for women in a sufficiently recent period of time (part two). Yet, OCR determined that the complainant had not sufficiently alleged that the colleges and universities had failed to satisfy the interests and abilities of the underrepresented sex, in violation of part three of the test.  The agency said it would dismiss the complaints unless the complainant provided more detailed information demonstrating unmet interest.

For ten of the 121 institutions named in the initial complaint -- Point Loma College, Southwestern College, Pasadena College, CSU-Bakersfield, Oxnard College, El Camino College, Moor Park College, UC-Santa Barbara, UC-Berkeley, and Pepperdine University --  the complainant provided responsive information in the form of media accounts from 2004 to 2012 detailing those institutions' decisions to eliminate viable intercollegiate women's teams.  Yet despite the fact that eliminated teams have been held to demonstrate unmet interest, the OCR rejected this evidence as well, this time, on grounds of timeliness.  After unsuccessfully seeking the OCR's reconsideration of this decision, the complainant has taken the unusual step of bringing the matter to another agency with Title IX enforcement authority, the Department of Justice.

I've earlier criticized the OCR for its quick dismissal of so-called mass complaints.  I understand that it may be technically infeasible for the agency to open 121 investigations simultaneously, but requiring detailed information about the presence of unmet interest puts too high a burden on the complainant.  Compliance with part three requires schools to actively and continuously evaluate the level of interest among the underrepresented sex.  Any school that is relying on part three as its method of compliance should be able to quickly and easily respond to request from OCR to show the information they are relying on in making that evaluation.  That is why I've argued the proper response to a mass complaint should be for the agency to request that information from institutions named in the complaint, and then proceed accordingly based on the information received.   

Given my view that the OCR already goes too far in dismissing mass complaints that don't provide specific evidence of noncompliance with part three, I am even more outraged by the agency's unwillingness to consider complaints against a narrower range of institutions, as it was presented in this case, which have demonstrably created unmet interest by eliminating women's teams sometime in the last ten years.  No, that doesn't conclusively prove that unmet interest presently exists but it certainly creates a realistic basis for that highly likely possibility. In my opinion, OCR should have certainly opened investigation of those ten institutions, even if it was unwilling to respond to the original complaint of 121.  I hope that DoJ opens an investigation against the California Ten, and in so doing, demonstrates to OCR-San Francisco the proper handling of Title IX complaints. 

Friday, April 18, 2014

FSU--the internal and external

This week's theme: mishandled investigations into sexual assault and the investigations that uncover these mishandlings.
The findings that University of Missouri did not appropriately deal with an allegation of sexual assault from earlier this week have been followed by an in-depth piece by Walt Bogdanich at the New York Times about the way in which police in Tallahassee, Florida basically botched the investigation of Jameis Winston who was accused by a (now former) student of sexual assault. (MSNBC's Last Word also ran a story with a helpful timeline of the events.)
These are two different realms, for Title IX purposes at least. The Mizzou report detailed the failures of that institution. The NYT detailed the failures of the police. The latter does not have Title IX implications.
It does, however, shed some light on the power of football culture and the way it affects the campus climate. Bagdanich's piece only briefly touched on the response by Florida State. But an article in today's USA Today, notes the failures of the university to initiate an investigation into the alleged sexual assault, which should have been triggered when a campus police officer responded to the 911 call made on behalf of the woman who alleges Winston raped her in December 2012. Some of the missteps of the Tallahassee police lead Winston to quickly hire a lawyer which has lead to him being pretty tight-lipped about the events of that night. But that does not mean, as both Erin and I told Rachel Axon of USA Today, that the university can simply drop an investigation because Winston is refusing to cooperate. Not pursuing a judicial case against Winston both compounds the fact that the school did not initiate an investigation in a timely manner, contributes to their liability and, I would argue, contributes to a hostile campus climate.
First, we have not seen evidence--even in  the wake of a complaint filed with OCR--that FSU is even attempting to make things better. Schools do respond differently when news arrives that a complaint has been filed about their handling of sexual assault cases. But many have at least made efforts to prove to their own community and the public that they are moving towards making things better, whether by forming internal committees to assess policies, holding public forums, hiring experts, conducting reviews, etc.
But FSU does not seem to be holding either itself or Winston accountable or least trying to assess accountability.
The issue of "cooperation" is moot here. No student who was, for example, brought before a campus judicial board on charges of violating the school's alcohol policy would be allowed to not cooperate with an investigation. He would be punished--perhaps even expelled.
Second, by failing to thoroughly investigate this incident, FSU has set itself up for further problems. What if Winston re-offends? He is a walking liability. I might even go so far as to suggest that if any other football player commits a similar act, one could claim that the university's failure to reprimand football players created a culture in which sexual assault was allowed to continue.
This touches on my last point: campus climate. The NYT found that FSU has reported only 14 sexual assaults on campus in three years (2010-2012 data). I find this almost impossible to believe. What is happening at FSU? There could be some Clery Act violations occurring. At the high end of the chart (of large, public, 4-year institutions) in the NYT piece is Berkeley with 83 reported assaults. Notably, Cal has been accused of Clery Act violations.
And/or the climate at FSU could be one in which reporting sexual assaults is discouraged by peers (look at all the hatred directed at Winston's accuser), by residential life staff, counselors, administrators, deans--any place along the institutional hierarchy. My hope is that the OCR investigation will reveal some of these things.
Meanwhile, the lack of transparency on the part of the university has been troubling. Now that the police investigation into the mishandling of the case has been exposed, I think that the university can no longer hide its own mistakes in dealing (or not) with this case. Right now it appears that they are taking a defensive stance and waiting for OCR to expose them.

University of Oklahoma Investigates Accusations of Sexual Assault by Football Player

The University of Oklahoma is taking its turn in the Title IX spotlight as news comes to light about a student's allegations that she was sexually assaulted by OU linebacker Frank Shannon in January. The local police had received a report of the alleged assault when it happened, and made a decision "weeks ago" not to criminally prosecute Shannon.  But the University has reportedly conducted its own investigation, as it is required by law to do. According to the investigation report, prepared by the university's Sexual Misconduct Office, the student alleges that Shannon, whom she knew, offered her a ride home after a party, but took her to his apartment instead.  She says that once they were inside his bedroom, he pulled her pants down and tried to force her to have sex. Shannon denies the allegations and says that she laid on top of him, kissed him, and removed her own clothes, but then they had an argument and she left while he was in the bathroom.

University officials have not commented specifically on its next steps.  But the Oklahoman newspaper reports that the typical process is for the university's student conduct office to provide copies of the report to the accused student and the complainant (no word on how the newspaper also got to see a copy). The student conduct office meets with the accused student and recommends sanctions.  Those recommendations can be appealed to a disciplinary panel, whose decisions can also be appealed. 

It is also reported that Shannon did not practice with the team on Thursday or participate in last weekend's spring game.

Thursday, April 17, 2014

Shortcomings Revealed in Mizzou's Response to Sexual Assault

Officials at the University of Missouri have acknowledged that they "did not follow proper Title IX guidelines" in handling information about the possible 2010 sexual assault of Sasha Menu Corey, a student-athlete who later committed suicide.  Earlier this year, an ESPN report about her story raised the possibility that the University had reason to believe Menu Corey had been sexually assaulted and should have investigated the matter while she was alive, or, at the latest, when news reports about her suicide raised the possibility that sexual assault had played a role in her deteriorating mental health.  In response, the University hired an outside law firm to investigate and evaluate its own response. 

The law firm's investigation, which recently concluded, affirms that the posthumous news reports mentioning sexual assault should have triggered an institutional response, but the absence of sufficient Title IX policies prevented that from happening.  At the same time, however, the investigation did not reveal that the university had sufficient information about the alleged sexual assault to have responded while Menu Corey was alive. The only university officials that the investigators could conclusively determine that she told about the assault were health care providers who have a duty to protect patient confidentiality and, as a result, do not have the same duty as other university employees to report such information.  The outside investigators could not confirm that Menu Corey had told an athletics department official named Meghan Anderson, as has been suggested by an entry inn Menu Corey's diary. Anderson denies that Menu Corey told her about a sexual assault, and the investigators' report suggests the circumstances of the phone call between Menu Corey and Anderson could have resulted in a miscommunication on that point, given that Anderson spoke to Menu Corey on her cell phone call while in a noisy restaurant. 

For its part, the University has vowed to improve its Title IX policies and improve its response to sexual assault. It has also reportedly apologized to Menu Corey's parents.

Monday, April 14, 2014

Testosterone Discrimination in Women's Sports

An op-ed in last week's New York Times by Katrina Karkazis and Rebecca Jordan-Young provides an early glimpse of what could be the next wave of sex discrimination in women's sports: testosterone discrimination.  As the scholars explain, the International Olympic Committee and other international sport governing bodies implemented new rules that require female athletes whose bodies naturally produce high levels of testosterone to undergo hormonal and surgical "therapy" in order to compete. According to a new study, this new policy has already subjected four female athletes -- all from developing countries, it seems relevant to note --  to invasive examinations and surgery (including "partially removing their clitorises") that even the performing doctors deemed had "no medical reason."  Only after they had undergone these procedures were the athletes allowed to return to competition, a year later.

Karkazis and Jordan-Young point out that there are many naturally-occurring conditions that can lead to high testosterone, and refute the perception that screening is necessary to ensure fairness in women's competition. They cite to research findings in which testosterone levels failed to predict athletic performance, as well as those of "significant overlap" between testosterone levels of men and women.  (16.5% of elite male athletes studied had testosterone in the so-called "female" range; while 14% of female athletes had testosterone levels above that range.)  If testosterone is like other bodily characteristics that vary within the population, even within each sex, and is not a predictor of athletic performance, then the IOC's policy indeed appears "untenable" -- as Karkazis and Jordan-Young call it -- and also discriminatory.

At the moment (fortunately), these issues do not directly impact Title IX.  We know of no schools that are testing (cisgender) female athletes for naturally occurring testosterone and subjecting them to heinous treatment as a condition for participation.  But many U.S. organizations -- including some that govern athletics in the scholastic context --  look up to the IOC and see its policies as a model to be emulated without critical evaluating the policy or its application to a markedly different population of athletes.  For example, one state high school athletic association currently (and two in the past) uses the IOC's policy governing transgender participation, even though its requirement of surgery and two years of hormone treatment is virtually certain to exclude all transgender athletes of high school age.  Women's sports advocates must be vigilant to ensure the IOC's testosterone policy does not similarly creep into schools.

See also: Women's Sports Foundation's position paper on intersex athletes. 

Sunday, April 06, 2014

More staff to OCR?

We hope so!
Democratic Senators Kirsten Gillibrand and Claire McCaskill have sent a letter, signed by a handful of other Democratic senators, requesting an increase in staffing at the Office of Civil Rights, specifically to investigate complaints about sexual assault on college campuses. They are asking for additions to the 12-person staff that currently is responsible for investigating Clery Act complaints. This increase in staffing would seem more than appropriate given the recent expansion of the Clery Act to require colleges and universities to report additional crimes.
Also, as many of us know, OCR seems desperately understaffed. This impedes their ability to investigate both Title IX and Clery Act complaints about sexual assault (which continues to constitute a minority of the annual complaints but is growing at an exponential pace).
The Senators are requesting $2 million to cover the costs of hiring and training 13 employees who would be tasked with investigating complaints regarding sexual assault.
Gillibrand and McCaskill have chosen an opportune time to make the request given the growing profile of these cases, their numbers, and the likelihood that they will continue to grow. Still, I would expect that granting their request is guaranteed.

Saturday, April 05, 2014

Oregon university denying transgender student housing

In a decision that looks like it will not stand based on both state and federal discrimination laws, George Fox University has said it will not provide housing to "Jayce M.", a transgender man who would like to live with his male friends in on-campus in his junior year.
The Christian school does not currently have a policy addressing gender, but this situation has inspired them to write one that will say that students will be housed based on their biological sex.
And though the school has met with Jayce, his mother, and other advocates for his cause, school administrators have not changed their position about on-campus housing.
Additionally, in order to receive special permission to live off-campus (presumably all undergraduates are required to live on-campus with special exemptions offered), the school is requiring documentation that Jayce legally change his name, his driver's license, his birth certificate, and tell all his potential roommates and their parents that he is transgender.
The school eventually backed off of the birth certificate issue (Jayce was born in Tennessee which does not allow changes to birth certificates for transgender people,) and the obligation to tell roommates and their parents (privacy rights).
Because none of these options are viable, fair, or legal, Jayce and his lawyer have initiated a Title IX lawsuit against the school. The university's stance also appears to violate Oregon's anti-discrimination statutes. Neither the latter nor Title IX provide exemptions for religiously affiliated schools when it comes to issues of housing.

Friday, April 04, 2014

More exposed in FSU/Jameis Winston case

In December, I expressed some curiosity/skepticism about the timing of the results of the police and DA investigation into the sexual assault allegations against Florida State quarterback Jameis Winston. Though they did come out before the national championship and did not seem to negatively affect Winston, who also won the Heisman Trophy, the results were in his favor. At that point it seemed the criminal investigation was over. There was not, we were told, enough evidence to prove that the sexual encounter between Winston and the accuser was not consensual.
There was no surprise in February when news came of a Title IX case against the university because of its handling of the allegation by a now former FSU student (she left the university) that Winston raped her in December 2012. We had predicted that in December (2013) as well.
And now it is of little surprise that the investigating didn't seem to be as over as we thought it was. Deadspin has broken the news that the university, pursued an investigation into code of conduct violations in relation to the incident in January of this year. Administrators interviewed Winston and two of his teammates.
The findings? That the two teammates who had witnessed the sexual act had violated the code of conduct. There were no findings against Winston who refused to cooperate--on advice of his lawyers--with the team of university officials undertaking the investigation. The team took the tactic of educating Winston about consent and other issues such as alcohol impairment. Code of conduct violations could still be brought against Winston if further information comes to light.
Here is what the investigation and the exposure of its findings suggest:
That FSU felt external pressure to conduct an investigation and, more importantly, to come up with some wrongdoing. So Winston's teammates have become the scapegoats. This is not to say that what they did was right or not in violation of the code of conduct. [Both have been found to engage in "conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person" and "acts that invade the privacy of another person." One of the two men also was charged with "recording images without consent" when he filmed Winston and the accuser having sex after being denied the opportunity to participate. The video and the phone have both allegedly been trashed.]
But, at this point, the findings are minor in contrast to the allegations and again largely serve to illustrate the fact that FSU did conduct an investigation.
But if the investigation was an attempt at protecting the university from the pending Title IX lawsuit, it is a failed attempt. Doing an investigation does not mean they complied with Title IX. Again, we have to look at timing. A January 2014 investigation into an event that occurred in the fall of 2012 falls outside the mandated 60-day timeline. FSU is no longer receiving the benefit of my doubt about the timing of investigations and the release of information and more questions than ever have been raised.
Two troubling things remain, in my mind. One, what is FSU going to do about the tight-lipped, lawyered-up Winston? Doesn't failure to comply with a school investigation violate the code of conduct? Again, we see a battle between campus judicial procedures and the legal system. Might some of this been avoided if FSU had complied with Title IX and done this investigation in the legally mandated 60-day time frame?
Finally, the two players with code of conduct violations. Though they are not the center of attention in this case, their fates are of interest and speak to the culture of football and the climate at FSU. Right now they are still listed as members of the team and as students at the university even though it is well within the rights of the university to issue interim sanctions while the men wait for their university hearing on the charges from which punishments ranging from "letter of reprimand" to expulsion could be issued.
So where are these men? Who are they being allowed to interact with? Are they still practicing with the team?
Are they (will they) being kept on because they good? Are they being kept on to ensure--if expulsion occurs--they leave the university in good academic standing at the end of the semester so as not to lower the team's Academic Progress Rate (a measure that can determine post-season play)? If expelled, will another school gladly take them in, history and all? 
If FSU was hoping for an end, this is not it.

Thursday, April 03, 2014

Texas School District Resolves Title IX Complaint

Last spring we blogged about a Title IX complaint filed by a coach against the Longview (Texas) Independent School District, alleging inequitable athletic opportunities for girls at Longview High School. We recently learned that the school district has entered into a voluntary agreement (.pdf) with the Department of Education's Office for Civil Rights resolving the issues raised in the complaint. 

As a result of the agreement, OCR will not need to complete its investigation or make any formal findings with respect to Longview's compliance with Title IX.  However, it appears from the information they already gathered that OCR would have likely found some violations. For instance, as the OCR noted in its letter to the complainant (.pdf), the district offered over twice as many athletic opportunities to boys than to girls, had not added a new sport for girls in at least twenty years, and had no process or procedure for gauging whether the opportunities that were available for girls were satisfying the interests and abilities of the underrepresented sex.  As a result, OCR probably would have found that Longview did not comply with Title IX's three-part test for measuring equity in the number of athletic opportunities for each sex.  Appropriately, the district has agreed to address this problem by assessing whether its female students have an interest in new sports that are not currently offered, or in having more teams in sports that are already offered, and to add new opportunities accordingly.

OCR's investigation had also already revealed some disparities in the quality of athletic facilities available to students of each sex.  In particular, the OCR noted disparities between baseball and softball facilities, which were the only ones used exclusively by students of one sex. Unlike the softball field, the baseball field has bathrooms, a press box, a sound system, and a concession stand.  The baseball field also has fancier dugouts and batting cages than those at the softball field. Notably, the school district has agreed to remedy these disparities by March 1, 2015

The district has also agreed to assess the assignment and compensation of coaches and the availability of equipment and supplies to ensure that any disparities between girls' and boys' teams are not the result of discrimination. 

All of the school district's obligations under the agreement are subject to OCR's monitoring and oversight.

Tuesday, April 01, 2014

Title IX Complaint Filed Against Beaverton, Oregon School District

The Beaverton (Oregon) School District has been named in an anonymous Title IX complaint challenging gender inequality in the number of athletic opportunities at the district's five high schools.  According to the complaint, none of the schools offer athletic opportunities proportionate to enrollment, nor can show a history of improving opportunities for underrepresented girls, nor are they offering all of the sports sanctioned by state's athletic association (suggesting probable unmet interest). It is now up to the Department of Education's Office for Civil Rights to decide whether these allegations are sufficient to warrant investigation. OCR has been inconsistent about whether to open an investigation based on similarly-structured allegations in other complaints. Sometimes, particularly in the context of "mass complaints" that OCR sometimes receives, it requires a more specific allegation of unmet interest  As I've said before, I believe that standard puts too much burden on complainants, and I hope that OCR declines to use it in the context of a complaint targeting a single school district.

In addition to dealing with the OCR, Beaverton School District also has to respond to parents' advocating for equal treatment of girls' teams. Some mothers of middle school softball players  complained recently to the school board about inferior playing facilities available to girls at Beaverton's Westview High School.  The softball field at Westview lacks electricity, which limits the fundraising potential of the concession stand and makes it difficult to plug in a pitching machine.  Coaches must bring in a generator to run batting practice. Additionally the softball team's batting cages are not enclosed by walls and the field does not have a working scoreboard.  In contrast, the boys' baseball field is wired for electricity, and has fully enclosed batting cages and a new scoreboard.  The mothers have asked the district to move quickly on the matter of electricity, and to put in place a plan for resolving the other issues.

Monday, March 31, 2014

Equality brackets

At the start of this year's March Madness, Mother Jones published a men's bracket that determined winners based on the spending each school does on women's sports as a percentage of men's sports.  They asked the big what-if: does spending more on women's sports lead to tournament success?
American University came out the winner (116%) barely beating out cross-town rival George Washington; and Stanford was the best in the BCS (63%).
I'm not sure if Mother Jones was attempting a correlation here. If so, there was no argument to that effect. But it does raise an interesting question about whether spending on women's sports can also be beneficial to men's teams. We would have to approach this question with a paradigm based in social sciences and cultural studies research over a purely economic model and look at factors such as athletic department unity, the effect of perceived fairness, level of sex segregation across athletics departments, etc.
What I was curious about was why there was not a women's bracket that shows the same figures. This would allow those who enjoy some quantitative with their qualitative to examine the outcomes when the tournament has concluded.

Other imaginary brackets that are produced at this time of the year includes ones that use APR to consider the relationship of academic success with sport success. The APR, Academic Progress Rate, was established by the NCAA in 2004 and is calculated for Division I institutions. The academic progress of scholarship athletes is calculated on a team. That team's APR must meet an NCAA established minimum in order for--in part--the team to compete in post-season play.
The APR was created and is maintained to address issues of athlete education.

Here's the imaginary bracket I would like to see. Actually, scratch that. What I would like to see is a real commitment to gender equity by the NCAA comparable to the one it has made to the education of student athletes. How about post-season play based on Title IX compliance? It seems like such a swing back from where the NCAA is now given that the organization is no longer engaging in accreditation (which included an assessment of gender equity). How would such a system affect the real brackets?

Friday, March 28, 2014

More Thoughts on the Title IX Question in Pay-for-Play

Yesterday I posted about why Title IX's equal treatment mandate would require schools to provide female athletes with the same benefits they award to male players via collective bargaining.  To make my point, I used the example of extended health insurance, because that is the benefit that the football players have stated is the purpose of their efforts to unionize. 

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here's why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes.  A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don't.  That is well-settled, "black letter" Title IX law.  So the revenue argument would not justify providing extended health insurance to players of one sex.  Nor should it justify providing salaried compensation to players of one sex.

Many have pointed out that there is case law holding that it is not a a violation of the Equal Pay Act to use revenue as the basis on which to pay one coach more than another for otherwise similar work.  In particular, folks have pointed to Stanley v. USC, 178 F.3d 1069 (9th Cir. June 2, 1999). In that case, the court rejected a female coach's Equal Pay Act claim after finding that the male coach's capacity for revenue made the jobs dissimilar, such that the plaintiff failed in her burden of showing that she was paid less for substantially similar job.

Say what you will about Stanley (many think the court got it wrong, since the capacity for revenue is not in the coach's control, but a function of society's preferences for men's sports).  But regardless, I don't think Stanley settles the question as it relates to student compensation.  I have two reasons:

First, the proper reading of Stanley is a narrow one. The EEOC has, since that case, issued guidance that suggests revenue-generation can only be used as a defense to salary differential between male and female coaches when "the woman is not given the equivalent support to enable her to raise revenue."  I would argue that there are few women's teams that receive equivalent support to men's football.

Second, and by far the more important reason, is that Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches.  Importantly, that equal treatment mandate is the basis for my argument, above, that Title IX requires schools to match whatever benefit it extends to male students to female students as well.  Because no similar mandate applies to coaches, it is simply not relevant that courts have concluded that coaches can be paid dissimilarly on the grounds of revenue.  
 
I therefore think that schools cannot pay athletes of one sex and refuse to pay athletes of another sex -- even if the distinction they are making is the athlete's capacity for revenue. 

Thursday, March 27, 2014

What Effect Will the NLRB Decision Have on Title IX?

Yesterday a regional director of the National Labor Relations Board ruled that Northwestern University football players were "employees" within the meaning of the National Labor Relations Act, and, accordingly, have the right to elect a union to engage in collective bargaining on their behalf.  The decision focused on the ways in which football players are subject to the control of the university, which make them unlike other students at Northwestern and similar to employees in other contexts who are subject to their bosses' control.  The decision also examined the job-like time commitment football players make to their sport, and the nature of football players' scholarships, which, awarded entirely on the basis of "football prowess," operate like compensation -- another hallmark of the employer-employee relationship. 

Northwestern reportedly has plans to appeal the decision, which could be overturned if not by the full board of the NLRB, then by the federal courts (including, potentially, the Supreme Court).  If it is upheld, however, it would mean that football players at Northwestern as well as similar programs at other private institutions would be able to vote for union representation.  And even though a decision under the National Labor Relations Act does not apply directly to public employers, it is possible that state schools, to remain competitive for top players, would essentially match whatever benefits the private school players' unions have successfully bargained for.  The ripple effect from this decision, if it is upheld, is to potentially up-end the NCAA's amateurism paradigm throughout college athletics. 

What is the effect on Title IX from all of this?  I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.  Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women of...health, accident and injury insurance coverage."  Two days ago, it would have clearly violated Title IX for Northwestern to have decided on its own to grant extended health coverage to some of its male athletes but none of its female athletes.  And there is nothing in yesterday's decision that changes that analysis under Title IX.  The fact that male athletes obtained the benefit through collective bargaining is beside the point; it does not absolve the university of having to ensure equal treatment under Title IX.  In similar fashion, universities can't absolve their obligation to provide equal treatment by pointing to other external forces, either, such as a booster club that only gives money to one sex.  The university's obligations under the NLRA apply in addition to its obligations under Title IX; the latter is not supplanted by the former.

This outcome will surely seem weird to many people, and for good reason, I think.  Surely Congress when it passed the NLRA (in 1935) and Title IX (in 1972) never imagined that an educational institution would be subject to both laws simultaneously with respect to its student athletes.  But that's the consequence of having one's cake and eating it too, by which I mean running a profit-seeking business enterprise while receiving federal support and non-profit status.  With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well, meaning, having to collectively bargain with employees, as well as pay minimum wage, workers' compensation, payroll taxes, and the like. If college athletic departments like Northwestern's insist on straddling the line, they will be subject to both laws.  Alternatively, they can choose one paradigm or the other, business or education. In the business paradigm, athletic departments would have no obligation to comply with Title IX, and would be subject only to the demands of the market in determining which athletes to compensate and how much.  But the price of that freedom is no more federal funding, and no tax-exempt status.  Alternatively, in the education paradigm, athletic departments would continue to benefit from federal funding and tax-exempt status.  But the price of this public support is no more running an athletic department as profit-seeking enterprise; athletics would truly have to be an extracurricular activity, not tantamount to a full-time job (an Ivy League, or Division III model of athletics).

If schools choose the latter paradigm, the irony will be that yesterday's decision will not result in any actual players unions being formed.  But the lengths to which college athletics will have to reform itself in order to avoid them is just as game-changing.