Female HS Student Temporarily Banned from Weightlifting Class Loses Case

In January 2006, her senior year at Anderson County High School in Tennessee, Ambrea Phillips enrolled in the weightlifing and conditioning class regularly offered by her school. After a couple of days, she was notified that she would not be allowed to participate in the class because Principle Bob McCracken feared that in a class of large, strong guys, she might be at risk for sexual assault. To fill the then-unscheduled period, Phillips was assigned to work as an office assistant in the guidance office. Three school days later, however, McCracken let Phillips back into weightlifting class after the state attorney reminded him about Title IX.

Phillips sued the school board for damages for the emotional and physical distress that she suffered as a result of her temporary suspension. But on December 19, following a hearing, a magistrate judge in the federal district court for the Eastern District of Tennessee granted the School Board's motion for summary judgment. 2006 WL 3759893. Essentially, Phillips's case fell short for failing to allege that the defendant school board knew about and was indifferent to McCracken's decision to exclude Phillips from the class, and thus cannot be liable for his actions.

Had the decision to exclude Phillips from weightlifting been the school board's rather than the principal's, however, it would have constituted sex discrimination within the scope of Title IX:

While Dr. McCracken's concerns may have been well-intentioned, there does not appear on the record to be any objectively reasonable basis for his concerns. There is no evidence in the record of prior student-on-student sexual harassment or sexual assaults during the weightlifting and conditioning class, nor is there any evidence of any misconduct or inappropriate activity on the part of this particular teacher. Accordingly, while there may have been a possibility of a sexual assault occurring, it cannot be said that this possibility was any more likely in this class than in any other class where both male and female students are present. Accordingly, the Court finds that the plaintiff's removal from the weightlifting and conditioning class was unwarranted and discriminatory.

If I had been the judge, I would have also emphasized that the appropriate remedy for school harassment is to punish, remove, or supervise the (potential) perpetetrators, not the (potential) victim. And I would have pointed out the patriarchal paradox in McCracken's rationale: The strength disparity that makes men physically capable of assaulting and raping women is ensured when men have access to weighlifting and women are excluded. If McCracken's concern for Phillips as a potential rape victim justified anyone's exclusion from the class, it certain was not Phillips's.

Florida High School Athletic Association Considers Competitive Cheerleading Championship

According to this article at TCPalm.com (Treasure Coast, Florida), the Florida High School Athletic Association is considering adding a competitive championship in cheerleading. If it did so, schools could possibly count its cheerleaders as athletes for the purposes of Title IX, making it easier to attain proportionality compliance.

One cheerleader quoted in the article argues that cheerleading is a sport because it "takes endurance" and that its participants "try hard, practice, and perform." Fortunately, OCR's criteria is a little different -- otherwise, schools could argue that activities like drama club, chorus, and marching band count as sports. Not that those activities are of lesser or greater importance than athletics -- just that they are different enough in nature such that the number of girls participating in them should not factor into the determination of whether the school is providing girls with an equitable number of athletic opportuntities.

Rather, as we've noted before, the questions OCR asks are aimed at drawing a line between sideline cheerleading, which exists to support and promote other sports, and competitive cheerleading, which is independent of, and is treated comparably to, other sports. Specifically, OCR lists the following factors it considers on a case-by-case basis:

• whether selection for the team is based upon objective factors related primarily to athletic ability;
• whether the activity is limited to a defined season;
• whether the team prepares for and engages in competition in the same way as other teams in the athletic program with respect to coaching, recruitment, budget, try-outs and eligibility, and length and number of practice sessions and competitive opportunities;
• whether the activity is administered by the athletic department; and,
• whether the primary purpose of the activity is athletic competition and not the support or promotion of other athletes....
• whether organizations knowledgeable about the activity agree that it should be recognized as an athletic sport;
• whether the activity is recognized as part of the interscholastic or intercollegiate athletic program by the athletic conference to which the institution belongs and by organized state and national interscholastic or intercollegiate athletic associations;
• whether state, national, and conference championships exist for the activity;
• whether a state, national, or conference rule book or manual has been adopted for the activity;
• whether there is state, national, or conference regulation of competition officials along with standardized criteria upon which the competition may be judged; and,
• whether participants in the activity/sport are eligible to receive scholarships and athletic awards (e.g., varsity awards).

Getting the facts right

This is my somewhat belated follow-up to this post about the UA water polo team and the misrepresentation of Title IX in the media.

In a follow-up to his initial reporting of University of Arizona administrators deciding to add water polo to their list of varsity sports for women, Arizona Star columnist Greg Hansen wrote another column criticizing the decision. This one too was riddled with inaccuracies and something that was supposed to resemble support for Title IX but begins by Hansen noting that the decision to add water polo is an example of "Title IX run amok."
Why? Because high schools in Arizona don't have water polo. But lots of high schools in CA do and CA isn't that far away. Plus Hansen fails to research whether there are water polo club teams in the state. He also fails to acknowledge that adding water polo at UA could actually create more opportunities for high school girls. His earlier article complained that water polo could not be revenue-generating. Know what generates a lot of revenue (and publicity)? The only summer water polo camp in the state which is what UA will establish if they are savvy enough to see the opportunity here.

Hansen does get some things right, though: water polo was added to account for "football-bloated male participation numbers." But then he attempts to make an economic argument:

"No women's sport comes close to football's numbers in participation and, more importantly, in revenue. Indeed, football pays for women's sports on almost every college campus in America, yet, because of Title IX ratios, men's sports are inherently penalized because football is so big."

It takes a smidge of research (which Hansen--or his editors--apparently did not have the time to do) to find out that football programs on most college campuses DO NOT PAY for women's sports. 78% of them cannot even pay for themselves!

And unfortunately the people who commented on the article also took up the "but football pays for everything; without football where would athletic departments be?" type arguments. I don't know, maybe we should ask Boston University who cut their football team years ago. Hasn't seemed to affect their perennially strong men's hockey team or the school's reputation as an excellent educational institution.

It is certainly possible that UA is one of the schools with a football program that actually makes more money than it spends. On the one hand, the university reports football revenue outpaces expenses by $6 million. But on the other hand, expense figures such as these could exclude capital costs including the bond debt on the football stadium. (It is also worth pointing out that while UA may, coincidentally spend $6 million on women's sports, it is not exactly a convincing argument from an equity standpoint to say that "football pays for women's sports" given that the $6 million spent on women's sports amounts to less than 16% of all athletic department spending overall. Nor it is an accurate one, given that women's teams themselves offset $2 million in costs with the revenue they bring in from ticket sales and camps.)

But what is truly disappointing about the article is the praise Hansen seems to heap on Title IX because, for example, it has sent Arizona softball players across the country to coveted coaching positions or made college soccer more mainstream. He even says "Thank you, Title IX" which rings a little hollow when just paragraphs before he instructed us "Title IX activists" to "accept that it works, has worked, and stop digging for more."

I cannot bear to end on such a sour note so in an attempt to make some lemonade I have to say that the blatant inaccuracies and false praise for Title IX only make this activist want to dig all the harder.

WHB Posts Coaches' Opinions on Male Practice Players

If you're looking for more about the NCAA Committee on Women's Athletics proposal to limit male practice players (which we blogged about here), Women's Hoops Blog has been posting the opinions of women's basketball coaches -- see here (Notre Dame), here (Hartford, Pitt, Baylor), and see also here (opinion of former practice player) and here (linking to Nancy Lieberman's column at ESPN.com).

I particularly appreciated the comments of LSU's assistant coach, who pointed out (among other things) that the male practice players themselves develop a strong appreciation for women's sports. They attend their "teammates'" games, they promote the team to their peers, they follow college and professional women's basketball, and some have even made a career choice to coach women.

While I recognize that last item is controversial -- after all, the more men who coach women, the fewer women get to coach period, at least until that door of cross-gender coaching opens both ways -- I am still willing to put "effect on male players" down as a positive aspect of using male practice players. Heck, if this former practice player's opinion is any indication ("Julie Rousseau, the current coach [at Pepperdine], was probably one of the most influential women in my life...."), maybe male practice players are the very thing that will ultimately foster a cultural acceptance of women coaching men?

6th Circuit Denies Rehearing in Michigan Sports Season Case

The full 6th Circuit (i.e., "en banc") recently denied the Michigan High School Athletic Association's motion to rehear a three-judge panel's decision that scheduling girls sports "off season" violates Title IX and the Equal Protection Clause. We blogged about the earlier panel decision here.

This means MHSAA's next and last resort is to appeal to the Supreme Court, which according to this article, it is likely to do next month.

Federal District Court Rules on Motion to Limit Damages

Peer harassment cases are the worst. See, e.g., the Minnesota federal district court's recent order in AMJ v. Royalton Public Schools, 2006 WL 3626979, which opens this way:

Plaintiff contends that students at Royalton public schools subjected her to almost six years of racial, sexual, sexual orientation, and gender harassment; discrimination; violence; and retaliation. In particular, she claims that the students almost daily made derogatory statements and left notes in her locker, calling her names such as "dyke," "prairie nigger," and "fat fucking whore liar." According to Plaintiff, students also laughed at her Native American culture and traditions. She avers that students physically attacked her as well: smashing her face into the ground, tripping her, grabbing her hair, smearing gravel on her face and in her mouth, spitting on her, and shoving her into lockers and walls. The alleged harassment, discrimination, and violence was so severe that Plaintiff's parents removed her from school for several extended periods. Plaintiff's physician recently ordered her not to attend school because of the adverse effects on her mental health.

Some of the behavior and comments occurred in the presence of school staff, who did not take any action. Plaintiff claims she reported the language and behavior to school administrators dozens of times, but Defendants took no corrective or preventative action. To the contrary, Plaintiff maintains that Defendants blamed her, accused her of lying, taunted her parents, and retaliated against her.

If these allegations prove true, the defendants could be in store for a massive damages award. So they filed a motion to limit damages to $1 million, the maximum damages amount for which they were insured.

The court denied the school district's motion to cap compensatory damages for federal constitutional and statutory claims (Equal Protection Clause, Title IX, and Title VI) at $1 million. The court also decided that Title IX and Title VI do not authorize punitive damages against the school district. But the court has agreed that punitive damages may be awarded against the individual defendants, regardless whether they were acting in their official or their individual capacities when discriminating against the Plaintiff.

Bonnette Column Takes On Title IX Backlash

Reading Valerie Bonnette's recent column at insidehighered.com, I get the sense that she's more than a little bit tired of people blaming Title IX's proportionality prong for debilitating men's sports.

Bonnette, a former OCR official and currently a Title IX consultant, points out that 73% of collegiate athletic departments comply with Title IX by some means other than proportionality-- which generally means prong three, satisfying women students' interests and abilities in athletics. Now that OCR has watered down prong three compliance by allowing schools to relying on responses to an interest survey, we are left with echo chamber enforcement that in Bonnette's words, allows "institution officials to decide for themselves that they comply." Yet groups like IWF and CSC continue to insist that Title IX is forcing schools to eliminate men's teams.

(Of course, this isn't the first time in history that Title IX has been rendered toothless, yet neverthless blamed for reeking havoc on men's sports. As we've recently had the opportunity to recall, most cuts to nonrevenue men's sports like wrestling happened during a period in the statute's history when there was absolutely zero enforcement.)

Schools that forgo the interest survey route (which some would call an end-run) and instead strive for proportionality are making their own choice to commit to the type of equity proportionality requires. In my opinion, and Bonnette's too, this is the right choice, but it's no mere opinion that it is a choice. Schools who make that choice and then invoke the "Title IX made me do it" rhetoric as cover are misleading the anti-Title IX reformers and they're not doing Title IX any favors either.

The Benefits of Benefactors

ESPN.com reports that Bucknell's wrestling team is having a terrific year considering their roster is made up entirely of freshmen. Why? Because Bucknell only this year brought back wrestling to varsity status after making it a club sport in 2002 because of the need to make their athletic opportunities more proportional.
One rarely hears of a sport being brought back (without legal intervention). In fact I have never heard of it. So what happened? Was there a significant drop in the number of women in the undergraduate population? Did the athletic department add too many women's opportunities and have to compensate by bringing back wrestling?
Nope--an alum of the school and the wrestling team came through with some big dollars (around 5 million) and created an endowment to reinstate and keep wrestling at Bucknell alive. (It's quite an incentive to encourage academic excellence among student-athletes too. This guy isn't a professional athlete--he's a businessman. I guess we don't know how much he "earned" himself versus how much was inherited.)
Though ESPN did a decent job describing Title IX mandates, they too fell into the habit of making wrestling some kind of Title IX martyr. This was enforced by a quote from a Bucknell wrestler:
"Just from what I've seen and what I know, wrestling seems to be the biggest target when it comes to Title IX," said Bucknell 197-pounder Eric Lapotsky.
If you're a wrestler what you see and what you know if probably pretty biased toward a Title-IX-hurts-wrestling viewpoint. But, as Ebuz reported here in her review of Andrew Zimbalist's book, wrestling numbers actually dropped off in the 80s and early 90s when Title IX was rarely, if at all, enforced.
What remains a little unclear is how all the numbers work out. Re-instating the wrestling team, even if the money is there, does not solve the problem of opportunities--measured in actual spots on teams--not dollars.
The article makes the donor appear to be so magnanimous as to designate part of his donation to women's sports. But my guess is that when the author writes that "[p]art of the gift established a component of the women's rowing team..." that what that really means is that the money went to increasing the number of women on the crew team by, hmm...maybe ten (the number of men on the wrestling team). Increasing the number of spots on an existing team is much cheaper than establishing a new team that needs coaches, trainers, equipment, recruiting dollars, etc.
The whole thing is an interesting "solution" but of course not widely applicable unless all schools in Title IX trouble have wealthy donors willing to endow a threatened men's team and give money to the women's athletic program.

Cincinnati Rowing Litigation Update

The rowing team may have been cut, but its lawsuit against University of Cincinnati moves along in federal court. On Monday the district court judge decided that the case could proceed as a class action lawsuit, concluing that "a class defined as 'all current and future members of the University of Cincinnati women's rowing team' would satisfy the prerequisites of Federal Rule of Civil Procedure 23 for certification of a class."

Civ Pro fans can find the opinion at 2006 WL 3591958.

(Thanks for the citation to Geoff at Sports Law Blog.)

NCAA Committee Limits Use of Male Practice Players

The NCAA regulates its member-institutions in, among other things, the use of male practice players by women's teams. Yesterday, the NCAA's Committee on Women's Athletics proposed stricter limits on the use of male practice players. According to this article,

The proposal being considered does not eliminate the practice, but limits it to the traditional season and in only one practice per week. The proposal also would limit the number of male practice players in team sports to no more than half of the number required to field a starting women's team (for example, only two male practice players would be permitted in a sport with five starting players).

This policy would apply to Division III schools only; as the committee is still working on proposals for Division I and II.

The CWA objects to the use of male practice players "because the message to female student-athletes seems to be 'you are not good enough to make our starters better, so we need to use men instead.'" This, the committee suggests, is a gender equity concern that violates the spirit of Title IX.

I am pleased that the NCAA is concerned about the ways in which collegiate sports inferiorize female athletes by "sending messages" to women they they are not as good or their sports are not as important as men's. I totally agree that issues like this fit within spirit of Title IX should be important to schools and the NCAA. (I'd love to see them take on the tiresome practice of male athletes and coaches insulting other male athletes by telling them they play like girls.)

But I see both sides of the male practice players issue. I get the point that this practice could indeed stigmatize the non-starting players. But couldn't a ban on male practice players also be interpreted as stigmatizing women athletes as a whole, by suggesting that a rigid separation of men's and women's sports is required for women's sake? Perhaps the use of male practice players is a step toward a more egalitarian future of integrated sporting practices?

Clarion U Cuts Three Teams

Clarion University in Pennsylvania recently announced plans to cut its men's cross country and indoor and outdoor track teams. The resulting distribution of athletic opportunities does not put the school in compliance with the proportionality prong, but it does close the gap somewhat: Clarion's percentage of female students is 61%. Prior to the cuts, only 41% of athletic opportunities went to women. By my math (using numbers from this article), cutting three teams (60 opportunities*) brings the percentage of athletic opportuntities for women up to 48%-- still 13 percentage points away from proportionality.

Of course, people are blaming the cuts on Title IX. This is unfortunate, but not surprising when articles like this one call the proportionality option a "mandated Title IX requirement." How many times does OCR have to "clarify" that a school can choose compliance with either of three prongs?

Clarion, by the way, is a Division II school. 90 of the 222 (now 152) opportunities it provides for male athletes go to football players.

*60 opportunities were cut, but the number of actual athletes affected was 25, as many of them competed in more than one sport.

U of Cincinnati Rowing Cut Independent of Lawsuit

Last week the University of Cincinnati announced that it would be cutting women's rowing team and replacing it with women's lacrosse.

This decision prompted speculation that rowing was in the crosshairs because of its pending lawsuit against the University, prompting the AD to declare that the decision "was made independent of the lawsuit," done after a lot of thought and "research and with the best interests of this department and this university."

The pending lawsuit, filed last year by members of the rowing team, seeks equity in facilities and support for women's sports in the form of a boathouse and adequate practice space, additional equipment and coaching staff, and equal opportunity for scholarships.

Gender stereotyping and educational choices

The Washington Post's Shankar Vedantam wrote an interesting piece yesterday highlighting how even subtle questions or comments can greatly affect students' educational choices and even test performance.

The basic gist of the research conducted by psychologists at York University in Toronto and Tufts University in Boston was that even seemingly innocuous questions -- like whether students had a preference for co-ed dorms -- that just reminded women college students of their gender led to a significant difference in whether those students expressed a preference for the arts or math subjects. The women tended to respond in a gender-stereotypical way, with more saying that they preferred art. When a different set of women were asked about their preference over telephone service, which presumably has no gender connotations at all, more tended to express an interest in math.

The researchers also found that when women were subliminally exposed to words like "lipstick" or "skirt", they tended to indicate a preference for art. When women were subliminally exposed to "suit" or "cigar", they tended to indicate a preference for math. This research builds on other studies that have shown that when girls are explicitly reminded of their gender, they tend to do worse on math and science tests.

The article in the Washington Post goes on to point out that various other stereotypes are often at work in the classroom: when Asian girls are reminded that they are Asian, they tend to do better at math tests; when they are reminded that they are girls, they tend to do worse. Similarly, when white students are reminded that Asian students tend to score well on math tests, the white students tend to do worse on those tests. Other research has also pointed out how subtle and seemingly benign indicators can have a strong effect on students: when an American flag was placed in a classroom, white students tended to do better on exams, whereas the scores of racial minorities were unaffected.

Bottom line of the new research: reminders of gender roles or gender stereotypes, even in an innocuous way, affect the educational choices and test scores of women and men.

Media misunderstandings and Title IX

I have written about the issue of Title IX's misrepresentation in the media previously--though briefly--here. But I bring it up again now because of a recent little blip in a paper in Arizona about the addition of a women's water polo team at the University of Arizona.
Despite the fairly simple premise of Title IX that calls for equitable treatment of the underrepresented sex in publicly-funded educational institutions, the statute itself, as this blog has hopefully demonstrated, is quite complex.
The complexity that has arisen due to various and changing legal interpretations is further compounded by the multiple components that constitute compliance--and I am speaking only in its application to athletics here--with the law.
Unfortunately many who report on or speak to Title IX issues in the media lack an understanding of this complexity. (Note that I am not citing all journalists. Welch Suggs, when he covered Title IX issues for The Chronicle of Higher Education, did an excellent job covering the mulitfaceted issues the law engendered.)
This lack of understanding around equity, sport, and Title IX is exhibited by Greg Hansen in the above mentioned blip that appears in a sports opinion column in the Arizona Daily Star. UA is adding women's water polo to its roster of intercollegiate sports. I haven't scrutinized UA's numbers regarding opportunity levels but I going to assume that Hansen is right that the university is adding water polo to try to achieve compliance.
But there are a few things wrong with Hansen's assessment of the situation. In comparing how (non)compliant UA is with other Pac-10 teams Hansen lists the number of male athletes and the number of female athletes at the schools. But such numbers are meaningless if we don't know the breakdown of male and female students in the entire undergraduate population. Because Title IX is not about strict equality of numbers but about equity which, if an intitution is trying to achieve proportionality, is about making athletic opportunity numbers more in line with the percentage of male and female undergraduates. If UA has more female undergrads than male, as is the situation in many colleges and universities, even equal numbers of male and female athletes will not result in compliance.
Hansen also seems to cite Title IX as the reason why budget-strapped UA (who isn't budget-strapped these days though??) is adding water polo (whose popularity is pretty much centered in the Pac-10) rather than a revenue-generating sport. Basically he implies that women's water polo will be a drain on the budget and it's all because of "the federal government's gender equity laws."
But a quick look at UA's list of varsity sports shows that all the (potential) revenue-generating sports for women (and men too!) already exist. Women's (Div. I) basketball is pretty much the only sport that can automatically be placed in the revenue-generating column. Depending on the school and the region other sports such as women's volleyball and gymnastics have the potential to be revenue generating. Both of these are already offered by UA, though I don't know if they do indeed generate revenue.
Hansen does not see that sports--especially women's sports--are not inherently revenue generating. Revenue-generating sports are created. Our default is to believe they are created by fan interest which is also believed to be innate when it is, in fact, taught.
Take for example University of Iowa's volleyball team. Though the popularity of women's volleyball is growing it is not necessarily a revenue-generating sport. But Athletic Department administrators at UI want it to become one. So they are making it into one through a variety of methods including hiring an established coach, throwing more money into recruiting and promoting the heck out of it through ticket promotions (your football ticket gets you into that night's v-ball match) and lots of publicity.
UA could turn women's water polo into a revenue-generating sport if it made the effort. But that requires either a bigger budget or shifting money away from men's sports to do so.

UC Davis Settles Retaliation Suit with Wrestling Coach

According to this article in the Davis Enterprise, U.C. Davis has settled with a former wrestling coach Michael Burch, whose Title IX claims against the university "alleged that his dismissal in May 2001 was a result of his outspoken support for two women who had been cut from the team." The underlying dispute is also the subject of litigation, as four women cut from the U.C. Davis wrestling team in 2001 continue to press Title IX claims against the university.

The article notes that Burch's case "had attracted a great deal of outside attention, especially for the rare sight of a wrestling coach who supports Title IX."

Johns Hopkins University Strives for Gender Parity

Insidehighered.com recently reported on John Hopkins University's 2006 Report of the Committee on the Status of University Women, in which JHU outlines its plans to "achieve a 50% representation of women in senior faculty and leadership positions and gender equity with respect to every measure of career satisfaction and advancement" by the year 2020. Presently women constitute 36% of faculty members, 18% of full profesors and 15% of department heads. JHU says parity in leadership is more realistic first step because "leadership turns over much more frequently than faculty."

Via Feminist Majority Foundation/Feminist Daily News Wire.

See also AAUW's recent report on underrepresentation of female faculty, which we blogged about here.

Court Upholds State Athletic Association's Exclusion of Boys from Girls Gymnastics Competition

A state appellate court in Wisconsin upheld yesterday a policy of the Wisconsin Interscholastic Athletic Association that excludes boys from girls' gymnastics competitions.

The plaintiff was Keith Bukowski, at student at Stevens Point Area High School. He challenged the WIAA policy under the Equal Protection Clause of the 14th Amendment, Title IX, and state law grounds, and lost on all claims. I haven't seen the briefs, but based on what the court says about the plaintiff's argument, it looks like Bukowksi didn't have the world's best attorney.

The court dismissed the Equal Protection claim on the grounds that the WIAA is not a state actor. The Supreme Court has held that Tennessee's state interscholastic athletic association to be a state actor, and the 6th Circuit found similarly about Michigan's. So arguing that the WIAA is as well is not a crazy new idea. From the Tennessee and Michigan cases, we know that courts are looking for evidence of a tight relationship between the association and the public schools it represents. It will consider things like whether the asscociation is primarily made up of public schools, whether its funds come from the schools (such as dues or ticket revenue from state tournaments), and whether the state treats the association's employees like state employees. But in this case, "The only evidence Bukowski points to as purportedly establishing that the WIAA is a state actor is an affidavit by the superintendent of the Stevens Point School District, in which the superintendent averred that SPASH receives federal funding. " All the lawyer would have to do is find the WIAA bylaws (which are available on line) and s/he could have at least proven that federal funds go from SPASH to WIAA in the form of dues and (potentially) fines. The lawyer could have also easily proven that the WIAA's board of control is made up primarily of representatives from public schools. On the other hand, it doesn't appear that WIAA employees are treated like state employees (they have their own pension plan). But this isn't necessarily a required element of state action, so this doesn't excuse the attorney for not presenting a stronger case.

The court also dinged Bukowski's Equal Protection argument on the alternative grounds that his attorney argued the wrong legal standard when s/he suggested that the WIAA policy did not survive "strict scrutiny." Now the Supreme Court's Equal Protection caselaw is not a model of clarity, but any first year law student can tell you that "intermediate scrutiny" is the correct standard for EP gender discrimination claims.

Moreover, the Title IX arguments here were excedingly weak:

Title IX argument on appeal consists solely of quoting the language of Title IX and then stating that "Title IX has been interpreted to provide that policies prohibiting boys from participation in girls' sport is a permissible means of attempting to insure equality of opportunity for girls in interscholastic sports and of redressing past discrimination." That is the entirety of his Title IX argument; Bukowski provides no further explanation of how Title IX applies to his circumstances and provides no relevant legal authority in the form of Title IX cases.

Bukowski's lawyer would have had a chance if s/he'd bother to read the caselaw. Because gymnastics is non-contact sport, Title IX regulations say that members of the "historically undereppresented sex" must have an opportunity to compete, whether by getting their own team or being allowed to join the existing team. There are courts that have construed "underrepresented" to mean underrepresented in the school's athletic program overall, generally, rather than underrepresented in a particular sport. So there is no guaranteed victory for Bukowski on the merits of his Title IX claim. But it is shocking that his attorney did not even try.

The attorney didn't even bother to attempt to show that WIAA receives federal funds, without which, Title IX can't possibly apply. A federal district court in Michigan held that Title IX governed a state athletic association because the assocaition received dues from federally-funded public schools. Its bylaws prove that WIAA receives dues from federally-funded schools. So this is an argument that Bukowski's lawyer could have and should have made.

And I don't know anything about Wisconsin statutory or constitutional law, but I do know this one- sentence argument is not going to prevail: "For all of these reasons, the actions of the WIAA also violate the Wisconsin Constitution and WI Stat. 118.13."

Last, I can't figure out why Bukowski's lawyer didn't sue the school. SPASH is clearly a federal-funding recipient subject to Title IX. The attorney could have argued that SPASH must either opt out of the WIAA and let Bukowksi on the gymnastics team or forego its federal funds. If this argument against SPASH prevailed, then it could likely be levied against all WIAA public school members, until eventually WIAA risks losing them all as members. I bet they'd change the policy before that happened.

Birmingham Board of Education Finally Settles with Coach Jackson

The Birmingham Board of Education has finally settled with Coach Roderick Jackson, the victorious plaintiff in the Supreme Court's important 2005 decision clarifying that Title IX protects whistleblowers who face retaliation for challenging sex discrimination. For background on his case, see prior posts here and here. After the Supreme Court decision, the case returned to district court so that Jackson could prove that the retaliatory discrimination he alleged did in fact occur. But instead, the parties have opted to settle:

Under the settlement reached Tuesday night with the Birmingham Board of Education, Jackson will receive $50,000, his lawyers will receive $340,000, and the board will take all necessary steps to provide female athletes with facilities comparable to those used by male athletes. Jackson had complained in part that his players had to practice in a gym built in 1908 rather than a new one used by boys.

The settlement also assures that Jackson will remain the girls’ basketball coach at Jackson-Olin High School. He had been rehired as interim coach by the Birmingham system earlier.

From AP via New York Times.

A press release from the National Women's Law Center, which represented Jackson on his Supreme Court appeal, also points out that that the settlement requires the Board to appoint Title IX Coordinators for the each school in the system, adopt a Title IX compliance policy and grievance procedure, and conduct compliance training and reviews. Having met Coach Jackson and heard him discuss his motivations for pursuing his case, I believe he is probably at least as happy about these provisions as ones that compensate him personally.

Seventh Circuit Weighs in on Preemption

Sometimes a defendant's conduct may violate both a civil rights statute and the Equal Protection Clause of the U.S. Constitution. When this happens, the doctrine of preemption determines whether the availability of remedies for the statutory violation forecloses a remedy for constitutional violation. The theory behind this doctrine is that modern civil rights statutes like Title IX all came along well after Congress passed the statute that provides a private right of action for constitutional violations -- 42 U.S.C. section 1983 -- so Congress may have intended the remedies contained in modern statutes to supplant the preexisting remedies available via 1983. It seems like a technical distinction, but it could make a big difference to this John Doe plaintiff in Illinois.

John Doe alleged that he was sexually molested by Brady Smith, the Dean of Students at his middle school in Champaign. Because of Smith's apparent pattern of sexually seducing numerous boys, all of whom where black, Doe brought suit under Title VI of the Civil Rights Act (prohibiting race discrimination in public accommodations) as well as Title IX , against the school district, school officials, and Brady himself. He also used Section 1983 to sue the same defendants for violating his constitutional rights under the Equal Protection Clause.

The district court granted the defendants' motion for summary judgment on the constitutional claims. The judge reasoned that the comprehensive set of remedies available under Title IX and Title VI proves that Congress intended to foreclose all constitutional claims based on the same conduct. Doe's statutory claims did, however, go to trial, but a jury did find sufficient facts to impose liability on any of the defendants under either statute.

But on appeal, the Seventh Circuit clarified an important distinction among the various defendants. The judges reasoned that as to the school district and the school officials, Title IX provides a comprehensive remedy and thus preempts the 1983/constitutional claims against them. Title IX (along with Title VI) seeks to prevent federal funds from supporting schools with discriminatory policies and practices. As such, the available statutory remedies -- potential withdrawal of federal funds plus the opportunity to seek damages against the school district -- should sufficiently protect plaintiffs whose constitutional rights are simultaneously violated when a school district or its personnel "officially" engage in a discriminatory policy or practice.

But the heart of Doe's allegations against Smith, on the other hand, did not charge him with officially engaging in a discriminatory practice or policy, it was his individual conduct that is at the heart of Doe's claims against him. For this reason, the Seventh Circuit decided that the 1983/constitutional claims against Smith himself were not preempted by Title IX. The remedies available under Title IX aim to correct and prevent official discriminatory policies and practices, but 1983 remains the appropriate available remedy for constitutional violations committed by individual defendants.

One last, law-geeky point. To be liable for a constitutional violation under 1983, a defendant must be a "state actor" acting "under color of state law." In other words, "official." Does this requirement put plaintiffs in a catch-22? In other words, to satisfy the state action/color of state law requirement, must plaintiffs allege that the defendant's conduct was official (and thus preempted) as opposed to individual? The Seventh Circuit says no, at least not in Smith's case. Smith was clearly relying on his official capacity to gain access to Doe and other victims, where he then acted unofficially in molesting them. Doe is now free to prove that the acts of molestation amounted to discrimination on the basis of sex and/or race. If Doe succeeds, a jury will have to find Smith individually liable for violating Doe's constitutional rights.

Relying on Jackson, Court Finds Retaliation Actionable Under State Law

Jackson v. Birmingham Board of Education continues to send ripples through discrimination law beyond the Title IX context. Relying in part on that decision, a California appellate court recently construed a state employment discrimination statute to protect plaintiffs from retaliation for opposing discrimination by the employer:

Looking to analogous federal statutory construction, in its analysis of retaliation under Title IX of the 1972 Education Amendments 20 U.S.C.S. § 1681 et seq), the United States Supreme Court announced that "retaliation is discrimination 'on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination." (Jackson v. Birmingham Bd. of Educ. (2005) 544 U.S. 167, 174, 125 S.Ct. 1497, 161 L.Ed.2d 361.) The court concluded that "when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional 'discrimination' 'on the basis of sex,' in violation of Title IX. The Court reasoned that it was error to conclude that Title IX does not prohibit retaliation because the "'statute makes no mention of retaliation'" ignores the import of its repeated holdings "construing 'discrimination' under Title IX broadly." In accordance with these views and the fundamental public policy of eliminating discrimination in the workplace under the [California Fair Employment and Housing Act], we conclude that retaliation is a form of discrimination actionable under section 12940, subdivision (k).

The plaintiff in this case, Eric Taylor can now bring his case against the Los Angeles Department of Water and Power. Taylor alleges that he lost his job as a Department engineer after he challenged the Department's decision to terminate another employee on the basis of his race.
2006 WL 3350725

Study on Closing the Gender Gap

The World Economic Forum just released the results of its 2006 study on countries and the progress made by various countries in closing the gender gap in several areas: educational achievement, political empowerment, health and survival, and economic participation and opportunity. Out of 115 countries compared, the U.S. (ranked 22 overall) did very well in the area of health and survival, and in the area of economic participation and opportunity (ranking 1 and 3, respectively). Unfortunately, the U.S. did not fare quite so well in closing the gender gap in political empowerment (ranked 66) or educational achievement (ranked 65). More evidence that Title IX (among other forces) may have helped girls and women close the gender gap in education to some extent, but there's still work to be done.

"Fat Studies"

Because of its overlap with both women's studies and sport studies, this article in Sunday's New York Times about emerging academic treatment of culture and obesity ("fat studies") might, I thought, be of interest to our readers. (Professor Margaret Carlisle Duncan, whose sport scholarship we've discussed before, is mentioned in the article as a proponent of fat studies.)

Dress Codes for Medical Students

The New York Times ran an interesting opinion piece last week (forgive the lateness of this entry, but it was Thanksgiving!) about the need for more conservative or formal dress codes for medical students. The author, Dr. Erin Marcus, is an assistant professor at the University of Miami's medical school. She noted numerous examples of students dressing in a way that, in her view, undermined their ability to do their job and to be taken seriously by patients, colleagues, professors, board examiners, malpractice lawyers, the general population, etc. (you name the demographic, it was there).

Fair enough -- I can imagine that it's sometimes difficult to get patients (not to mention the other constituencies included in Marcus's article) to take medical students and relatively inexperienced residents seriously. The problem? Marcus's main issue seems to be with women students -- with the exception of one brief aside about a male doctor showing up unshaven one day, the remainder of the article zeroes in on women medical students, and their hair, shoes, cleavage, skirt length, and midriffs.

The problem with this categorization from a Title IX perspective is something that Marcus herself raises: "research has also found that physician clothing can influence scores on board certification oral exams, in which a senior doctor assesses a younger doctor’s medical knowledge." If the perception by senior doctors that younger doctors are less qualified because of the way they dress, and the main detriment is suffered by women medical students and doctors, there's a real problem with disparate treatment and gender stereotyping that needs to be addressed.

Marcus was clearly trying to be helpful to medical students in telling them that wearing more formal or conservative clothes might be beneficial to them in the long run in terms of getting jobs, making patients comfortable around them and passing exams. No doubt there's a lot of value to her observations. The problem is when the message is being sent pretty much only to women.

Title IX? Fuggedaboudit!

Last week a federal judge refused to enjoin Rotolo Middle School's (Batavia, Illinois) student performance of "Fuggedaboudit: A Little Mobster Comedy." The plaintiff, a parent, argued that the play perpetuated negative stereotypes about Italian Americans and thus was harmful to her son, a Rotolo student. (Slip opinion available at 2006 WL 3343776.)

What does this have to do with Title IX? Apparently, absolutely nothing at all:

Plaintiff also summarily invokes in the complaint various statutes that have no application to the allegations. 42 U.S.C. § 1981 deals with discrimination in the making of contracts, which is not involved here. Title IX of the Civil Rights Act prohibits gender discrimination, but the thrust of plaintiff's complaint is racial or national origin discrimination. Plaintiff also invokes "40 U.S.C. § 2000," a statute that does not exist. Plaintiff may have meant to refer to 42 U.S.C. § 2000e," but that statute is inapplicable because it deals with employment discrimination.

Speaking of statutes that don't exist (she said smugly) .... Title IX of the Civil Rights Act?

HS Soccer Coach's Relationship With Student-Athlete No Violation of Title IX

This recent Sixth Circuit decision's description of the sexual antics of a 29-year old male coach of a girl's high school soccer team in Michigan should convince anyone that we need laws to protect student-athletes from predatory coaches.

Unfortunately, these facts were not enough to render the school liable for sexual harassment under Title IX or its counterpart in Michigan state law. The plaintiff herself was not the object of the coach's desire, but rather, the teammate and captain of the girl with whom the coach was having a relationship. While the coach did threaten to retaliate against the plaintiff if she ever reported his conduct, the court deemed this threat was not of a sexual nature and thus did not constitute quid pro quo harassment.

The bigger problem for the plaintiff was that the school was never expressly made aware that the coach was having an inappropriate relationship with one of his players. The court rejected the plaintiff's suggestion that it was obvious to anyone paying any attention that inappropriate conduct was going on. What is unfortunate about these facts is that the plaintiff's bargained-for silence not only failed to constitute sexual harassment, it also immunized the school.

Update: decision is officially reported as: Henderson v. Walled Lake Consolidated Schools, 469 F.3d 479 (6th Cir. 2006).

Title IX Analogy Fails Paralympic Plaintiffs

Elite Paralympic athletes sued the U.S. Olympic Committee, charging it with discrimination in the distribution of services and benefits as compared to Olympic athletes -- for example, the monetary award for Paralympic medalists are 1/10 the award to Olympic medalists -- as well as marketing of the Paralympic trademark relative to the Olympic trademark. They argued that the discriminatory treatment by the USOC violated the Americans with Disabilities Act and the Rehabilitation Act of 1973, notwithstanding the fact that the USOC receives its authority from a separate congressional statute, the Amateur Sports Act.

Last week, a federal district judge in Colorado granted the USOC's motion to dismiss the case. Shepherd v. U.S. Olympic Committee, 2006 WL 3333677 (D. Colo., Nov. 16, 2006).

The plaintiffs had urged the court to enjoin the USOC to adopt an "equitable" or "proportionate" remedial standard "along the lines of that available under Title IX and its implementing regulations." Under Title IX's regulations, it is not exclusion of women from men's sports teams that violate the prohibition on sex discrimination; it is the inferior quality and quantity of participation opportunities in men's and women's athletic programs. Paralympic athletes relied on this regulatory interpretation of Title IX to suggest that the USOC permissibly operates separate programs for Olympic and Paralympic athletes, yet must ensure equitable and proportionate treatment of each program. They also pointed out that analogizing to Title IX makes sense in this context as both Title IX and the Rehabilitation Act are statutory siblings in a way (both of those antidiscrimination statutes were modeled after Title VI of the Civil Rights Act of 1964, which prohibits race discrimination in public accommodations).

But the federal district judge said that while she "appreciate[d] the analogy and agree[d] Title IX's regulatory remedial scheme works well with Plaintiffs' theory of relief in this case," she would not permit the plaintiffs to "graft a remedial scheme promulgated under a statute banning sex discrimination onto statutes prohibiting disability discrimination, and then infuse both into the statute establishing the federally chartered corporation that oversees the country's amateur athletic system and has exclusive jurisdiction over matters pertaining to international Olympic, Paralympic and Pan-American competition." But even though Tiitle IX could not influence the judicial remedy in this case, the judge did suggest that it might influence an appropriate political remedy instead, by serving as "as a paradigm for appropriate congressional and agency action."

Gender-Neutral Bathrooms and Title IX

Today I read (here) that the University of Georgia has joined the growing list of colleges and universities and other public places to designate one or more "gender-neutral" restrooms. The impetus for UGA's decision was a desire to accommodate transgender and transexual students, for whom gender-specific bathrooms can be uncomfortable, hostile spaces. Gender-specific bathrooms also present an unsatisfactory, limited set of options for those who don't identify with either label on the door.

Does Title IX have anything to do with the increasing accommodation of these students? I think the answer is yes, though not directly.

First, while Title IX has been the impetus for "potty parity" in education buildings (for example, ensuring that there are sufficient women's restrooms in college buildings) I could find no evidence that plaintiffs have argued that a lack of access to gender-neutral bathrooms in federally-funded schools violates Title IX. This is probably because the courts are unsure when and whether to treat discrimination against transgender plaintiffs as sex discriminaton under federal civil rights laws. For example, several courts have rejected transgender employees' sex discrimination claims under Title VII, with the notable exception of the 6th Circuit's decision in Smith v. City of Salem. (See generally this helpful summary published by the American Constitution Society). A transgender plaintiff seeking to challenge the lack of effective access to restrooms as a violation of antidiscrimination law would have better luck under state and local laws, which in some jurisdictions prohibit discrimination on the basis of gender identity as well as sex.

Title IX does, however, require colleges and universities to take reasonable steps to protect students from sexual harassment at the hands of teachers and peers. Administrators might reasonably anticipate that a biological female student identifying or presenting as male, or biological male student identifying or presenting as female, is at a high risk of harassment in either gender-specific bathroom, depending on the circumstances. At least one court has held that Title IX protected a transgender (MTF) plaintiff against direct sexual harassment by a professor, see Miles v. NYU, 979 F. Supp. 248 (SDNY 1997). Thus, risk averse colleges and universities might decide to designate a gender-neutral bathroom as a way to preempt or curb existing harassment in order to avoid liability. (For more on Title IX and transgender plaintiffs, see Leena D. Phadke's comment in the Kansas Law Review.)

Another possible connection between Title IX and gender-neutral bathrooms takes into acount the advantage of gender-neutral bathrooms to a different potential constituency. Parents, especially fathers, might wish to avoid gender-specific bathrooms when taking care of their opposite-sex children. Title IX and other antidiscrimination laws have helped generate awareness about the harm to women done by institutional presumptions that only women are responsible for child care.

In sum, I note that neither the state of Georgia, the city of Athens, nor the University appear to prohibit discrimination on the basis of gender identity. This seems to suggest that to the exent UGA's bathroom decision was influenced by any applicable antidiscrimination law, Title IX indirect relationship to gender-neutral bathrooms is the only possibility.

Challenge to School's "Opposite Sex Day" Survives Motion to Dismiss

The federal district court's decision in Stanley v. Carrier-Mills Stonefront School District No. 2 is over a month old, but it just appeared on Westlaw today (see 2006 WL 2710672).

In case you're just tuning into this case as we are, Lora Stanley is the parent or legal guardian of nine students in the Carrier-Mills Stonefront school district in southern Illinois. She sued the school district to protest "Opposite Sex Day" -- a day on which the school encouraged students to show their "spirit" by dressing like the opposite sex. Her objection is based on a religious belief founded upon Deuteronomy 22:5 -- "A woman must not wear men's clothing, nor a man wear women's clothing, for the LORD your God detests anyone who does this." I think, considering what men wore in Biblical times, a strict interpretation of this provision would actually cut in favor of contemporary cross dressing. I am, however, inclined to endorse Stanley's freedom to interpret the Bible as she wishes. I am also inclined to agree with Stanley that "Opposite Sex Day" day is objectionable, but for entirely different reasons. One concern is that this practice further marginalizes queer or transgender students by trivializing what they might be going through. Compare a "let's all show our school spirit by wearing turbans day." I doubt the school district would endorse that. Another concern is that "[teenage] boys [wearing] short skirts and large breasts [and] grop[ing] themselves as part of the day's activities" (from the Complaint) is potentially demeaning to women (and, in my opinion, in a way that queer drag is not).

So Stanley sued the school district alleging among other claims that the school's promotion of cross dressing fosters peer-on-peer sexual harassment for which the school district is liable under Davis v. Monroe County Board of Education. Specifically, she claims Opposite Sex Day fostered "a sexually hostile learning environment." The school district moved to dismiss, but the federal district court denied the motion. The judge determined that the facts Stanley alleged could, if proven, satisfy the legal standard: (1) knowledge of and deliberate indifference to sexually hostile environment on the part of school officials, and (2) harassment severe enough to have a concrete, negative effect on the students' education. The judge did acknowledge the Supreme Court's skepticism, expressed in Davis, about whether a single instance of sexual harassment could satisfy the standard, but explained: "at least in terms of the catalyst, this is not an issue because the District was on notice after Opposite Sex Day 2003 [the year before]. In terms of the prevalence of the harassing conduct, the Court is without sufficient facts to make a decision. To make a proper determination of the severity of harassing conduct, the Court needs the details of when, where and how often it occurred.... Without this information, the Court cannot say that plaintiffs cannot state a claim as a matter of law."

So I guess we'll all have to stay tuned to find out what happens to Opposite Sex Day under Title IX!

Does Abstinence-Only Education Violate Title IX?

A new study in the Archives of Pediatric Adolescent Medicine reveals that a majority of Americans favor comprehensive sex education over abstinence-only curricula:

Approximately 82% of respondents indicated support for programs that teach students about both abstinence and other methods of preventing pregnancy and sexually transmitted diseases. Similarly, 68.5% supported teaching how to properly use condoms. Abstinence-only education programs, in contrast, received the lowest levels of support (36%) and the highest level of opposition (about 50%) across the 3 program options. Self-identified conservative, liberal, and moderate respondents all supported abstinence-plus programs, although the extent of support varied significantly.

Perhaps this trend in public opinion will cause Congress to rethink its appropriations for abstinence-only education. Under federal legislation, states and schools are eligible for certain grants on condition that they agree to teach a government-approved abstinence-based curricula, as well as refrain from teaching anything inconsistent with abstinence (thus, abstinence only). See 42 U.S.C. 710, 42 U.S.C. 300z, Pub. L. No. 106-246. In the meantime, I will continue to wonder whether abstinence-only education is on a collision course with Title IX.

As a majority of Americans apparently now realize, abstinence-only education is unrealistic--and thus, ineffective--prevention of unwanted pregnancy, a condition that disproportionately impacts female students. Moreover, as the independent Sexuality Information and Education Council reported as recently as last month, popular abstinence-only curricula--with such clever titles as WAIT (Why Am I Tempted?)--rely on harmful gender stereotypes about men and women (such as "men are like microwaves and women are like crock pots") that "overtly reinforces a societal double-standard that suggests that men want casual sex from any and all women and that women do not desire sex" which "places all responsibility for refusing sexual activity on the shoulders of young women." (See also, Why kNOw, warning that "The young girl learning to understand her changing body often has no idea the effect it has on surrounding males. Signals she doesn't even know she is sending can cause big problems.”)

So abstinence-only education programs discriminate against female students in two ways: by increasing their risk of unwanted pregnancy and by subjecting all students to harmful gender stereotypes that impose a double standard requiring girls to bear the brunt of virtue. Since all of this is going on in federally funded schools, why doesn't it violate Title IX? Or does it? I think one possible reason that it does not is a very unsatisfactory application of statutory construction. Congress can't pass a statute that violates another statute. A court will most likely interpret the latter statute, to the extent it is inconsistent with the former, as an amendment or exception to the earlier statute. So even if abstinence-only education did in fact constitute sex discrimination that would violate Title IX, by authorizing it in a later federal statute, Congress may have implicitly carved out it as an exception to Title IX.

On the other hand, there is a way that a court could read both statutes as capable of coexisting, rather than the latter as an amendment to the former. Maybe Congress meant for federal funding recipients to choose which conditional funding to accept. A school can take the general funds conditioned on Title IX compliance, in which case, they are ineligible for the abstinence-conditioned funds. Conversely, if they take abstinence-conditioned funds, they are ineligible for the general money conditioned on Title IX compliance. One or the other, but not both.

There may be additional arguments for or against a Title IX application to abstinence-only education. This is by no means an exhaustive analysis, only a first, question-raising step.

Cheerleader Equity

Using cheerleading to promote and publicize boys' teams but not girls' violates Title IX.

OCR has recently concluded that the practice of the Southern Tier Athletic Conference, which includes 20 school districts in New York state, of having cheerleaders at boys' football and basketball games but not at girls' games will no longer be permitted From now on, cheerleaders will be required to perform at an equal number of girls' and boys' games.

AP is reporting that after reaching agreement with the STAC, OCR sent an advisory letter to all of the school districts in New York state to "encourage equality in all promotion and publicity, not just cheerleading."

WHB Raises Questions About Football and Profit

Women's Hoops Blog has some good commentary on the JMU cuts (see under Nov. 7). I think Ted's conclusion is persuasive; he writes: "The bottom line is this: In a world of limited resources, Title IX sometimes does force schools to cut men's teams. That sucks. It doesn't happen as much as the anti-Title IX folks say it does, but it happens. We Title IX supporters need to be honest about that fact. Maybe this is simply the price of equality. But maybe we should also try to find ways to spread the cost."

Along the way to this conclusion, Ted points out that achieving proportionality by cutting football can deprive schools of the profits from football. He graciously links here (thanks, Ted!) for the counterargument that football is not as profitable as it's given credit for. I'll take that as invitation to add to some numbers to back up my claim. According to Professor Nancy Hogshead-Makar (quoted from here)

Among NCAA football programs in all competitive divisions, 78% spend more money than they raise, including donations by a school’s boosters. Among the most competitive programs in Division I-A (DIA) 36% of football programs are running deficits averaging over $1 million annually. 81% of DIAA football programs are running deficits averaging $630,000 per year.

Also, when I talk about the limitations of the "football is profitable" argument, I always like to stress that it's not law professors who think this: actual economists say so. Economists are much more believable than law professors on such matters. I kid, of course, at my own (and Ted's) expense. But in case you actually are more persuaded by economists than law professors, here is one such economist.

Speaker Pelosi Supports Title IX

On Tuesday, Democrats regained a majority in the U.S. House of Representatives, ensuring that Nancy Pelosi will be the first woman Speaker of the House when power changes hands in January. Pelosi is a strong advocate for Title IX, as evidenced most recently by her public opposition to OCR's 2005 Clarification that weakend Title IX protection by allowing univerities to rely exclusively on the results of interest surveys to demonstrate compliance.

In a letter to President Bush, co-signed by 140 fellow members of Congress, Pelosi wrote in part:

We strongly believe that use of a survey alone, let alone an e-mail survey, cannot accurately determine student athletic interest or ability. By allowing schools to rely exclusively on a survey, the Clarification creates a major loophole and lowers the standard for Title IX compliance, jeopardizing the number of athletic opportunities available to women and girls in schools across the country. While the Department’s previous policies allowed the use of surveys in determining compliance, schools also had to look at other factors, such as input from coaches and administrators and interest in the surrounding schools and community sports leagues, which together provide a more comprehensive and accurate reflection of student interest. Under the new Clarification, the Department will allow schools to simply interpret a lack of response to the survey as evidence of lack of interest.

This harmful change, issued without public notice or opportunity for public comment, appears to be the latest in a series of deliberate attempts by your Administration to weaken Title IX.

Now that Pelosi has more than just the power to write a letter, I wonder what will happen to the survey policy and other "deliberate attempts" (like the single-sex education policy) by the Bush Administration "to weaken Title IX."

Women Professors Underrepresented on Faculties and Earn Less than Men

Earlier this week, the American Association of University Professors released its report on gender equity in college and university faculties.

AAUP found that women hold 24% of fulltime, tenure-track professor positions in the United States even though (thanks in large part to Title IX) they earn more than half of all graduate and professional degrees. On the other hand, women are overrepresented in non-tenure track faculty positions, which offer less compensation and job security. Institutions that are closest to parity are those that grant associate degrees while institutions that are farthest from it are universities that award doctoral degrees.

None of this is bad news is particularly surpising to anyone who spends time in or around a college or university campus. But I had no idea that salary disparity was this bad:

In 2005-06, across all ranks and all institutions, the average salary for women faculty was 81 percent of the amount earned by men. This comparison has remained virtually unchanged since the AAUP began collecting separate salary data for women and men faculty in the late 1970s

Even comparing only full time professors to other full time professors, women still earn 88 cents on the dollar. AAUP suggests these disparities are influence by the salary disparity between doctoral degree universities, which pay higher salaries, are less likely to hire women than community colleges, which pay considerably less. Women are also underrepresented among senior faculty, who are compensated more. It continues:

Although it is not appropriate to attribute this remaining differential to discrimination on the basis of this evidence alone, the statistical analyses clearly leave a series of questions unanswered: Why is the proportion of women faculty holding doctorates smaller than the proportion among men? Why are women less likely to obtain full-time tenure-track positions? Why are they less likely to be employed in research universities? Why do women faculty generally spend more of their time on student advising and committee service than do men? Why do positions in the disciplines in which women faculty are concentrated generally pay less? Why are women less likely than men to earn tenure and promotion to full professor?
Why do they earn less on average at every rank than their male counterparts?

These are all good questions that need probing before post-feminists declare that the glass ceiling in education has been shattered.

NYC Debates Change in Approach to Transgender Rights

The New York Times has an interesting article today about a proposal to alter the city's regulation of birth certificates. Under the proposal being considered by the city’s Board of Health, people born in the city would be able to change the documented sex on their birth certificates by providing affidavits from a doctor and a mental health professional that explain why their patients should be considered members of the opposite sex, and affirming that the proposed gender identity change is permanent. Under the proposed change, whether an individual has had surgery or used medication as part of changing gender identities would be irrelevant -- the primary criterion would be what gender an individual self-identifies as.

The article raises questions as to what would happen if the proposal is adopted (which is predicted to be likely): for example, would people who were born as women, but who changed their gender identity, be eligible to play sports on men's teams? The Times doesn't answer this question (although it seems like the answer would be "yes"), but it certainly raises some interesting issues as to gender constructs and Title IX's allowance for single-sex contact sports. After all, where Title IX would not mandate that a boy be able to play field hockey (a contact sport) on an all-girls' team, even if there's no boys' team to play on, under the proposed rule, a person born as a boy, but who self-identifies as a girl, would likely be able to play on the girls' team.

CSC Sponsors Rally of JMU Students

Insidehighered.com has this coverage of James Madison University students' anti-Title IX rally in Washington yesterday. Buried and unexplained in the report is a brief mention that the students' rally was "sponsored" by the College Sports Council and the Independent Women's Forum. (USA Today described the students rallying under the "auspices" of the CSC, "an advocacy group for men's sports.")

These two organizations have been opposed to Title IX long before JMU cut ten of its athletic teams (we've discussed CSC's anti-Title IX litigation here). This makes me question what it means for an organization to "sponsor" or provide "auspice" to a student rally. Students at JMU are understandably outraged by the loss of their teams. They are vulnerable and looking for something to blame. I happen to think that the blame cast on Title IX is misplaced, but that aside, and more importantly, I hope that these students are not being manipulated by the anti-Title IX agenda.

Evaluating Incumbents on Education and Civil Rights

With Election Day fast approaching, I'd like to point out a great resource of possible interest to the Title IX community. The American Association of University Women meticulously compiles congressional voting records on a broad range of legislation on broad range of topics, but with particular focus on education and civil rights.

Commandant Not Individually Liable for Peer Harassment

Here's another decision from Massachusetts involving Title IX's application to peer harassment. The plaintiffs in this case were two female cadets at the Massachusetts Maritime Academy. They sued the Academy's commandant, Rick Gurnon, seeking damages to remedy his deliberate indifference to their reports that they had been sexually assaulted by two male cadets in 1996. Commandant Gurnon responded with a motion for summary judgment, arguing that had qualified immunity from individual liability. The superior court denied his motion, and Gurnon appealed.

Yesterday, the Massachusetts Court of Appeals ruled in Gurnon's favor. When plaintiffs are seeking to hold individuals liable for civil rights violations (rather than the school itself), the right at issue must have been clearly established at the time of the defendant's unlawful conduct. Otherwise, the defendant is entitled to a qualified immunity defense. The plaintiffs here actually convinced the court that the evidence presented could have satisfied the fact finder that Gurnon was deliberately indifferent in violation of Title IX as construed by the Supreme Court in Davis v. Monroe County Board of Education. But Gurnon was entitled to qualified immunity, said the Court of Appeals, because in 1996 when the events of this case occurred, the right secured in Davis was not yet clearly established by the courts.

Playing High School Football

Okay, this isn't strictly Title IX-related, but here's a New York Times article related to Holley Mangold, a high school student in Centerville, Ohio who plays on her school's varsity football team. She's not a kicker (as you might expect since there's occasionally a news item about a female kicker on a high school or college team), but an offensive lineman. Holley is the younger sister of Nick Mangold, who plays center for the New York Jets, and plays at the same high school her brother used to attend.

The reason that Holley's presence on the otherwise all-boys' team isn't Title IX-related is because Title IX has a specific carve-out for contact sports -- under Title IX, there is no right for girls and boys to play contact sports together, nor is a school obligated to create a separate opportunity for a student from an underrepresented gender to play a particular contact sport. Nevertheless, it's good to see opportunities like Holley's arise; the article highlights how she overcame the reluctance of her coach to allow her to play, and how much she and her teammates enjoy the sport.

What People are Saying about Single-Sex Education

Here is a partial roundup of the range opinions the media are reporting in the wake of the the Department of Education's recent regulatory change allowing single-sex education in public schools.

NOW President Kim Gandy, quoted in Ms. Magazine: "[Single-sex education] doesn’t prepare boys and girls for the real world, where they will have to interact with and work alongside each other."

Washington Post Editorial: "Local school districts that want to experiment with single-sex instruction should be encouraged to adopt a meticulous research protocol to demonstrate what works or doesn't work. Then a serious discussion can begin."

Rosalind Barnett & Caryl Rivers, Op-Ed in the Boston Globe: "Though children can learn in different types of classrooms, data show that once allowances are made for the social class of parents and kids, pupil-teacher ratios, and the quality of teachers, there is little difference between the performance of boys or girls in single-sex or co-ed classrooms."

Gail Rothman: Op-Ed in the Atlanta Journal-Constitution "For girls, the effects of single-gender educational environments include multiple benefits not reflected in test scores. These include increased career aspirations, enhanced leadership opportunities and a higher percentage of girls pursuing math and science study."

Milestone

While the United States celebrates reaching the 300,000,000 population milestone, we here at Title IX Blog have been closing on in our own humble milestone, the 1000th visit. We just want to take that opportunity to welcome and thank both our regular readers and those who stumble upon us while searching for information about Title IX. If folks in either camp would like to share any feedback or suggestions for how we continue to serve the Title IX-interested community as a resource, please feel free to comment.

Title IX On the Air

Title IX fans in the WAMC (Northeast Public Radio) listening area might want to tune in tomorrow at 3 pm as the local program "The Best of Our Knowledge" addresses Title IX and the issue of women in science and engineering.

Dept. of Education and Same-Sex Schools

The New York Times reports today on yesterday's announcement by the U.S. Dept. of Education to give more latitude to school districts interested in establishing same-sex schools. A limited number of such schools have been in operation in New York and other cities, but the new regulations promulgated by the Dept. of Education will undoubtedly encourage other school districts to consider them as a viable option.

There have been some studies showing that single-sex education for boys and girls in elementary and high school lead to better test results, and that the breadth of educational opportunity is wider for students at single-sex schools because of a differing set of peer pressures and expectations.

Still, there are serious Title IX questions that arise from encouraging single-sex education. On the most basic level, under the new regulations, school districts that choose to use single-sex education must make sure that there are "substantially equal" opportunities for the excluded sex available. But what does that mean in practice? If there is an all-girls school that offers language lessons in Mandarin, but a co-ed school in the district doesn't do so because of a lack of funding or the inability to find a qualified Mandarin teacher for the co-ed school, what does "substantially equal" mean? Allowing girls at the co-ed school to travel to the all-girls school for Mandarin classes, but not the boys? Then hiring a tutor for interested male students at the co-ed school? Hiring a tutor for all of the interested students at the co-ed school? Or perhaps ignoring the interest of the students at the co-ed school and encouraging them to take another language class, and viewing that as a "substantially equal" opportunity?

Beyond the logistical and practical difficulties, there is a larger problem of the possible benefits of single-sex education vs. the legal issues raised by segregating classrooms. The racial segregation of schools is an inevitable analogy -- the NYT article quotes Nancy Zirkin, vice-president of the Leadership Conference on Civil Rights as saying "Segregation is totally unacceptable in the context of race....Why in the world in the context of gender would it be acceptable?”

Granted, there are differing legal standards for analyzing laws that are based on gender and those based on race, but there is a strong argument to be made that same-sex schools violate Title IX and the Equal Protection Clause of the Fourteenth Amendent to the Constitution. Title IX provides the opportunity for school districts to use single-sex education for compensatory reasons to remediate past discrimination and will help promote equal educational opportunities and combat gender stereotypes. Instead of working under that framework, the new regulations obliterate that standard, possibly opening up the door for single-sex education that actually promotes gender stereotyping and undermines equal educational opportunities for boys and girls.

Single-Sex Education Regs Issued Today

Today the Department of Education released new Title IX regulations allowing schools to implement single-sex education.

Under this exception a recipient [school that received federal funds] would be permitted to offer a single-sex class or extracurricular activity if (1) the purpose of the class or extracurricular activity is achievement of an important governmental or educational objective, and (2) the single-sex nature of the class or extracurricular activity is substantially related to achievement of that objective.

I'm all for giving schools the freedom to experiment with creative teaching approaches, but I believe the law must put limits on this freedom in order to protect individual students from discrimination. Until today's regulations, Title IX was the limit. Now schools can use the "important educational objective rationale" as the basis for all kinds of sex segregation, including and most especially segregation rooted in stereotypes and generalizations about how girls and boys learn and what their interests are. Even well-meaning decisions to match classroom dynamics to the common belief that "girls learn by thinking and boys learn by doing" can lead to inequitable distribution in resources. I'm trying to imagine what it means to teach differently for "doing" boys and "thinking" girls, and all I can come up with is an image of boys frolicking in a well-stocked, hands-on laboratory directed by innovative teachers, while girls receive dull textbooks and monotone lectures by the likes of Ben Stein.

We've discussed this here already, but another problem is the additional disservice sex segregation does to individual students who don't conform to the generalization at issue. Evidence shows that sex is not nearly the reliable performance indicator that people think it is, which should make it difficult for schools to satisfy the regulation's requirement that segregation be "rationally related" to an educational objective. But I am not optimistic that the rationality standard will protect us. When it comes to discrimination, it is, in some courts' hands, a very weak test.

But what's more, sex segregation tends to mask that nonconformity and steer girls' and boys' interests and abilities to match stereotypes that brought about the decision to segregate in the first place. I recall my own junior high school, which by the time I attended from 1987-1990 had abandoned its formal policy of segregating girls to "home ec" and boys to "shop" in favor of a policy of individual student choice. But it should surprise no one that we girls "chose" to sew and no boys "chose" to join us. The history of formal segregation still influenced what girls and boys respectively perceived to be the correct "choice." Extrapolate this example to other areas of the curriculum, and one fears the a return to formal segregation will only exacerbate the well-documented problem of women's lack of "interest" in the sciences, which many believe is a self-fufilling prophecy that derives from subtle discrimination and stereotyping.

ACLU and NWLC have already gone on the record objecting to the proposed regulation and its final version. We will certainly follow closely any legal developments on this issue.

School 's Response to Bus Harassment Didn't Violate Title IX

From 2000 to 2001, a kindergartener in Hyannis, Mass. was repeatedly harassed by a school bus bully. Every time she wore a skirt or dress to school, an older boy on the bus coerced her into pulling down her underwear and spreading her legs. The kindergartener eventually told her parents about this, and they told the principal. School officials began investigating the incident by interviewing students in order to identify the perpetrator. Later these officials proposes to the parents (the Hunters) the option of sending their daughter to school on a different bus, but the Hunters preferred that the school remove the perpetrator and hire a bus monitor. The school did not agree to this solution. Meanwhile, as the Hunters drove their daughter to school from the moment they learned about the situation, no further bus incidents occurred.

In 2002, the Hunters sued the school district for violating Title IX. Last week, the federal district court in Massachusetts granted the school district' motion for summary judgment. Recent Supreme Court precedent Davis v. Monroe County School Board of Education makes clear that schools may be liable for under Title IX for failing to address student-on-student sexual harassment. For liability to attach, the school must have actual knowledge of the harassment and must respond with deliberate indifference. In the First Circuit, a jurisdiction that includes Massachusetts, a school is deliberately indifferent if it fails to respond at all or fails to take additional steps when it learns that its initial remedial measures have failed. In this case, the school commenced a response as soon as it learned of the harassment. The parties will never know what the school would have done if this response proved inadequate, as the Hunters pulled their daughter off the bus: "A school system ought not shoulder liability based on speculation as to what might or might not have occurred had [the victim] returned to the school bus."

Unfortunately for the Hunters, the only way they could have won their case is if they had let their daughter ride the bus and more harassment occurred. But the bottom line for the court is that regardless of the reason, the harassment ceased, and with it any way to judge whether the school was deliberately indifferent.

Update: the citation of this case is Hunter v. Barnstable School Comm., 456 F. Supp. 2d 255 (D. Mass. 2006).

USOC Weighs in on JMU Decision

The United States Olympic Committee is concerned that colleges are eliminating opportunities for athletes to participate in sports that directly feed the Olympic team. In this context it first bears noting that Title IX has exponentially increased women's participation in numerous sports that participate in the Olympics, and as a result has directly contributed to the U.S. medal count in sports like ice hockey, softball, volleyball and soccer.

That said, the USOC has reason to be concerned. Most recently, all ten teams cut by James Madison University--men's and women's--were Olympic sports. According to this article in the JMU student newspaper, USOC CEO James Scherr noted his concern in a letter to JMU officials:

It is well documented that the spirit of the Title IX law is to ensure opportunities for participation in sport are proportional and fair for men and women. The intent of the law is not to discontinue sport programs for men or to eliminate Olympic sports from a university’s athletic program....

We have seen universities across the nation inappropriately use Title IX as an excuse to justify the elimination of sport programs, and far too often the programs dropped are Olympic sports. [The USOC] welcomes the opportunity to work with you in identifying viable alternatives to keep these intercollegiate sports alive at James Madison University.

According to the article, the University countered that no "viable alternatives" existed because the athletic budget at JMU was maxed out, preventing them from attaining proportionality by adding new opportunities for women. This is likely true, given the high number of teams JMU carried, which was especially high for a school of its size. But this comment does not address whether the University considered cutting other sports than Olympic sports to be a "viable alternative" and if not, why not. The USOC should follow up on this as it continues to advocate on behalf of the sports it represents. In so doing, it should also continue to avoid the argument that Title IX is unfair to men, and should instead focus a discussion on whether decisions to spare net-expensive, popular sports like football and basketball are unfair to less popular, Olympic sports like swimming, archery, and wrestling.