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.

International Women's Sports Center

On Tuesday evening, plans were unveiled for the construction of the Billie Jean King International Women's Sports Center, part of the National Sports Museum that's planned for lower Manhattan. The museum and the International Women's Sports Center are slated to open in the spring of 2008.

The Center, which is a collaboration between the National Sports Museum and the Women's Sports Foundation, will be the first museum in the world dedicated to exploring and celebrating the history of women and sports. The museum will feature programs on female athletes breaking barriers of discrimination and on the benefits of getting involved in sports generally, and will also display memorabilia of famous female athletes. It almost goes without saying (on this blog, at least) that such a large-scale effort to document, display and celebrate the history of women and sports simply would not have happened without the enactment and enforcement of Title IX.

Honoring Ernestine Bayer

On Sunday, a memorial flotilla in New Hampshire honored rowing pioneer Ernestine Bayer who died last month.

Bayer, who later became the first woman inducted to the rowing hall of fame, started organizing competitive rowing teams for women in the 1930s. Title IX, passed in 1972, deserves much of the credit for the popularity of women's rowing on college campuses. But Bayer--who had to get her husband's permission to row--was inspiring women to break out of their socially prescribed role by participating in sport, long before the quest for proportionality compliance motivated colleges to add women's rowing teams as a way to offset men's football.

Teams from MIT, BU, Northeastern, and Radcliffe prepare to dedicate boats in Bayer's honor at the Head of the Charles this weekend. This is fitting, as we who honor Title IX for creating opportunities for women to row, play, run, swim, skate should continually be reminded that Title IX is only the most recent history of a much longer struggle to open sports to women.

(photo of the memorial flotilla from Foster's Daily Democrat.)

The Legal Status of Male Field Hockey Players

Inspired by Sudha's post yesterday, I did a little research into the legal status of male field hockey players.

Here in Massachusetts, boys who want to play on existing girls teams have a state constitutional right to do so. In 1979, the Supreme Judicial Court struck down MIAA's former policy that forbid boys from playing on girls' teams but allowed girls to play on a boys' team if there was no girls team in that sport. Under the state equal protection clause, a blanket exclusion of boys is unconstitutional.

But Massachusetts, along with a few other state and local jurisdictions, provides more protection for male field hockey players than what Title IX requires. Title IX allows exclusion on the basis of sex in all contact sports. In noncontact sports, exclusion is allowed only if a counterpart team is offered for the underrepresented sex. So, if field hockey is a contact sport, excluding boys is permissible under the statute, but determining whether a sport is contact sport can be a tricky threshold question. Title IX regulations define contact sports as "boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact." 34 CFR 106.41(b). The Third Circuit once considered whether field hockey involved bodily contact as a major activity and found there was enough factually evidence of contact to reverse the district court's classification of it as a noncontact sport as a matter of law. See, e.g., Williams v. Bethlehem School District.

But the limits Title IX places on a boy's right to play field hockey doesn't turn on its classification as a contact sport so much as it does on whether he is a member of an underrepresented sex. This is because courts have not read "underrepresented" to mean "underrepresented in this particular sport" but rather "underrepresented in athletic opportunities overall." In the Williams case described above, the court decided that even though male athletes at the plaintiff's school were underrepresented in field hockey, they dominated the athletic opportunities overall. Thus, the school could exclude boys from the field hockey team (regardless of whether a trial court ultimately determined that field hockey is not a contact sport). Other courts have followed that lead. This law review article by Adam Darowkski has a good summary of the caselaw.

Mixed Gender Sports Teams

There's an interesting editorial by the Eagle-Tribune on sports in Gloucester, Massachusetts, where a high school girl playing field hockey broke her finger after some physical contact with a male player from another team. The male player was the only boy playing in the game, and one of only three boys in the conference who play field hockey. The editorial blames an overly "politically correct" application of Title IX by the Massachusetts Interscholastic Athletic Association (MIAA) for endangering the health and safety of female athletes, and seems to advocate for boys and girls not playing any sports against one another.

The Eagle-Tribune's editorial raises a valid concern in terms of making sure all boys and girls playing high school sports are adequately protected. However, I think there are a couple of interesting things to consider here before rushing to judgment. First, the MIAA's policy on mixed-gender sports teams (see page 37 of the handbook) doesn't mention Title IX, but mentions, I think fairly, that girls and boys ought to have the same opportunities to play sports that they are interested in. Second, the MIAA requires all mixed-gender teams to notify opposing teams 72 hours in advance that they are a mixed-gender team. Opposing teams have the right to opt out of playing against a mixed-gender team if they think that there's a legitimate safety issue involved (and the MIAA guidelines spell out what those safety issues might be). It seems like the MIAA has done a pretty commendable job in trying to balance the competiting interests of expanding opportunities for high school students to play sports while also protecting the physical well-being of the athletes.

Beyond that, I also wonder what the Eagle-Tribune editorialist thinks of girls and boys playing sports together at all. When I was in high school (admittedly, more than a few years ago), our physical education classes were mixed, and we played all manner of sports, both contact and non-contact, together. Any student who felt unsafe playing a contact sport was not compelled to play (there were always alternate non-contact activities available, such as weightlifting or jogging).

Admittedly it's no fun breaking a finger while playing sports, no matter who your opponent is. But that doesn't mean a knee-jerk reaction against boys and girls playing sports together is the appropriate reaction.

Lessons from Prince George's County (or: What I Learned at My First Webinar)

Yesterday I attended (virtually) NWLC’s webinar on the Prince George's County Title IX case. I think this is an important case study in Title IX compliance because it shows that it doesn’t necessarily take a lawsuit to get a school district to agree to full Title IX compliance. This is a remarkable contrast to, say, the recalcitrant school board in Birmingham, Alabama, which continues to litigate with Coach Jackson rather than make peace with Title IX.'

But in Prince George’s County, Maryland, a story that started off similarly to Coach Jackson’s took a drastically different path to resolution. Community activists, including a local softball umpire named Jack Mowatt, noticed disparities in the playing conditions for male and female athletes. For example, the boys at Bowie High School played baseball on a field that looked like this:


While the girls at Bowie High School played on one that looked like this:

It wasn't just the fields' appearances that caused alarm. The girls' fields had safety problems that the boys' fields didn't have. One had low baseline fences that didn't offer the bench any protection from foul balls. Another had a dropoff just steps from the left field line, making it impossible to safely attempt catches in foul territory. Mowatt was so concerned told the county he would no longer serve as umpire under these conditions.

Title IX requires a program-to-program, rather than sport-to-sport comparison. So the disparities in softball and baseball fields did not alone create a Title IX violation. But when NWLC and community activists looked into the programs county wide, they found disparities in participation rates, scheduling, equipment, and funding.

Fortunately, a demand letter from NWLC followed by negotiations lead to a county-wide agreement in August 2006. The county school district not only agreed to full compliance with the Title IX regulations, it even agreed to a few things beyond what the regs require, such as publically self-auditing their compliance going forward and proportionate funding for boys' and girls' programs.

In the end, the school district was so on-board that it announced the agreement in a joint press conference with NWLC. The board president herself called it a prototype for other districts. I hope what really turns out to be the prototype for other districts is the cooperative approach among all concerned that lead to an effective and efficient resolution of compliance problems.

(photo credits to Jack Mowatt, posted with his permission)

Web-based Seminar = "Webinar"

Tomorrow (Thursday) at 1 pm, the tech-savvy folks at the National Women's Law Center are hosting a free webinar on the Prince George's County Title IX case that they favorably settled last month.

Couldn't find a weblink, but according to the press release FMF kindly circulated my way, the webinar will feature "Jack Mowatt, the Prince George’s County softball umpire who inspired this action, and Neena Chaudhry, one of the lead NWLC attorneys in this case."

For participation instructions, "email your contact information to mhermann@nwlc.org."

On Zimbalist's The Bottom Line

Andrew Zimbalist is my favorite economist, and not just because he's one of Northampton's own. I ordered his new book, The Bottom Line: Observations on Sport and Business, from publisher Temple University Press. To my delight, it arrived in yesterday's mail, and thus is my Title IX topic of the day.

The Bottom Line is a collection of essays that Zimbalist has published in various publications like Sports Business Journal and the New York Times since 1998. So the book is a handy resource because it gathers these pieces all in one place. (But if you are looking for deeper treatment of economic issues in sport, and something not written for a generalist, newspaper-reading audience, you might try one of his other books.)

The collected essays address a wide range of topics on the economics of sport including stadium finance, antitrust and labor issues, the media and steroid regulation. But it's his essays on college sports and gender equity (Part V) that are of particular interest to me. In these essays Zimbalist makes a very clear, economic argument that Title IX is not victimizing men's sports (as per, e.g., yesterday's column on SI.com). First, he quantifies the steady increase in the number of male college athletes in the Title IX era. (p. 248) Second, he points out that while certain men's sports like wrestling and gymnastics have lost participants, most of this dropoff occurred between 1982 and 1992, the years when there was little or no enforcement of Title IX. (p. 266) Third, and throughout various essays, he makes a compelling case that economics is what drives athletic cuts, not gender equity. Helpfully, he itemizes expenditures of the major men's sports, like coaches' salaries, scholarships, travel, that could be redirected to other sports as an alternative to cuts. (p. 248-49, 267-68) And as a corollary to this point, he gives plenty of evidence to dispel the myth that football is a moneymaker and thus warrants special treatment under Title IX. (p. 230-32, 247-48).

So here's my bottom line. Zimbalist gathers the up the numbers and conveys them clearly, providing a much-needed balance to the public perception of the economic effects of Title IX.

Title IX and Football

Talking about football and Title IX in the same breath is certain to elicit strong responses. In a more ideal world (or at least one with larger budgets), the best way to comply with the proportionality prong of Title IX is to balance out football by creating more opportunities for women's sports and leaving men's sports untouched. Because of budget realities, however, increasing women's sports opportunities is generally not feasible without cutting men's sports opportunities, resulting in what happened at James Madison University recently, where, under the school's new plan, 12 women's sports and six men's sports exist at the varsity level (with football accounting for many of the participation slots of male athletes).

Some commentators believe that the solution to Title IX compliance problems lies with football: by either exempting football from a school's Title IX calculus or by reducing the number of players on a football team in order to help achieve compliance with the proportionality prong.

There are problems with both of these approaches. First, when Congress took up discussion of Title IX in 1972, the question of football was specifically raised and debated. The conclusion of that debate was that the exclusion of football from the Title IX calculus would gut the legislation's goal of mandating that schools apportion resources equitably among men and women. Amendments to Title IX to exclude football were proposed four times in the 1970s, each time failing.

Second, although it's true that college football teams field many more players than professional football teams, there are valid reasons for this: professional rosters don't include those players on an injured reserve list, whereas college rosters account for all players; and because college players are younger and are still developing physically, there is a belief that additional players are necessary to compensate for those lost to injury during a season.

Of course, there are valid arguments for cutting football programs altogether, or for reducing the number of scholarships available for football, then using the savings to fund additional sports opportunities for women (although schools that attempt this later course of action sometimes encounter problems from alumni and donors who don't want to see the football team "hurt by Title IX"). Whatever a school's view is on the subject, it's clear that the landscape of football and Title IX is one that's difficult to navigate.

Race, Gender and Basketball

This morning I ran across two sources that examine the intersection of race and gender in college basketball programs of the Title IX era. Together they highlight two dissonant facts. Women's sports remain segregated; and Black women are not attaining positions of leadership even in the sport they dominate.

First, a graduate thesis by Chanel Lattimer (abstract posted at BWSF) examines the overrepresentation of Black women in basketball and track as compared to other sports. Historically, basketball and track have been dominated by Black women due in large part to the cultural and socioeconomic factors that made these sports attractive to Black women athletes while steering white women athletes towards alternatives, namely, the companionate and comparatively "tidy" country club sports like golf and tennis. Lattimer found that while Title IX has exponentially increased women's access to athletic opportunities, their participation today continues to mirror these historical patterns.

Second, I read this August 2006 article from the Minnesota Spokesman Recorder (via NAGWS) that examines the racial disparity in coaching. Despite Black women's overrepresentation as basketball players, they are grossly underrepresented in head coaching positions, holding only 7% of women's basketball head coaching positions at NCAA member institutions. The article quotes Rutgers's Vivian Stringer (formerly of Iowa, and one of my favorite coaches in the game) as being "angered" by the situation many aspiring Black women coaches face: the "triple jeopardy" of competing against white men, black men, and white women for the sport's top jobs.

Scholars and activists have long focused on the Title IX-related phenomenon that men are increasingly competing (and being hired) for head coach positions of women's teams. There is also much attention paid to the racial disparity of coaching positions in high-profile men's sports like football. These race and gender imbalances intersect in the context of women's basketball and establish that sport as an area for more attention, research, and activism.

Editorial: Reform Football

An editorialist at the Richmond Times-Dispatch suggests that Division I-AA programs should downsize football for the sake of nonrevenue men's sports.

NYT on JMU

The New York Times offered this coverage of JMU's decision to eliminate 10 athletic teams last Friday.

Among the quotes from the article, JMU's compliance consultant Lamar Daniel backpedaled from his earlier statement that the cuts were not about Title IX, but entirely "a business decision." He told the Times: "I went too far and maybe overstated my case. I can’t say what was in their minds." This after JMU officials insisted the decision was only about compliance and pointed out that the cuts resulted in only about half a million dollars in savings out of a 21 million dollar budget. (The Times did point out, as we did here, that it's hard to reconcile the "it was only about compliance" argument with the fact that JMU made more cuts than necessary to satisfy the proportionality prong, and that they weren't being sued or threatened with a suit for noncompliance with either of the other two prongs).

Related to the compliance versus business debate, Professor Ellen Staurowsky of Ithaca College offered some historical context:

If James Madison had been incrementally responding to women’s sports opportunities over the years, they wouldn’t be in the situation they found themselves in....It is decades of inertia by decision makers that leads to Title IX compliance problems. So now this generation has to deal with massive cuts.

She also contextualized JMU's decision as part of the "national trend" of athletic department streamlining:

We are seeing what others would term a corporate restructuring on the Division I level....It puts the focus on the sports that will most likely bring distinction and potentially bring fewer headaches. So they do away with so-called lesser sports.

Last, the article also noted that one of the disappointed athletes was a swimmer who had transferred to JMU this year after UNH canceled its men's varsity program. No matter who or what you blame for the cuts, the thought of this guy having to go through that agony for a second time really underscores how tragic the situation is for the athletes involved.

Jackson's Court of Justice

Roderick Jackson is no stranger to the court. But the one he was used to in Birmingham had no heat, crummy rims, and a sloped floor that forced his players to dribble downhill. His fight for better conditions for his team took him to another Court -- one hundred of miles away, adorned with friezes and robes, one where he found himself seated in the gallery next to Walter Dellinger's wife.

Last night Coach Roderick Jackson, the litigant in Jackson v. Birmingham Board of Education, addressed a Western New England College audience of a couple hundred students, faculty, administrators, and members of the Springfield community. We learned about the conditions his players on the girls basketball team faced: they practiced in a cold, old gym with sloped floors. They made their own travel arrangements to the game; their (winning) junior varsity program was eliminated. In contrast, the boys team played in a new facility with comfort and amenities. School buses transported them to all away games. Their (losing) junior varsity team was spared. Jackson pointed out these inequities to school officials in his chain of command, but was told things like "they're just girls" and "don't make trouble." He persisted, believing that not 't fight against the discrimination that he saw was tantamount to participating in it. Eventually his efforts to secure equal treatment for his team got him fired from his coaching position. With the help of a pro bono lawyer, Jackson sued the school board, but when he lost, the lawyer could not help him file an appeal. So Jackson--a teacher, not a lawyer--wrote his appellate brief himself in less than 2 weeks (he learned about the brief deadline when a clerk called to tell him it was 14 days away). The Eleventh Circuit was impressed enough with his arguments to grant a hearing, but in the end it too denied his claims. But Jackson didn't quit, and eventually his case got a boost when the National Women's Law Center and superlawyer Walter Dellinger offered to appeal his case to the Supreme Court. At last, Coach got a "W" last March when the Supreme Court ruled 5-4 that retaliation was actionable under Title IX. The case was remanded and is still pending in the lower courts (no, believe it or not, the school board hasn't conceded).

What was most impressive to me about Jackson's story was the certainty with which he took every step. It didn't occur to him not to raise the issue and fight the school board. Then he loses his coaching job, loses in district court, loses his lawyer. So the man writes his own brief -- as it was the obvious the thing to do, as if accepting the status quo was not even an option. Giving up on a task, which, frankly, intimidates trained lawyers, never seemed to cross his mind. He called that brief as a hail mary pass. But it saved the case by keeping it alive and preserving the possibility for a Supreme Court appeal.

Here is the Coach, along with the panelists who gave context to Coach's story by talking about the history of Title IX and the legal significance of the Court's decision, as well as our college president who honored Coach Jackson with the President's Medallion. From left to right: Professor Curt Hamakawa, WNEC School of Business; Assistant AD Cindy Costanza of WNEC; Professor Erin Buzuvis, WNEC School of Law; Coach Roderick Jackson from Birmingham; President Anthony Caprio of WNEC; Dr. Carol Barr, University of Massachusetts.

CosmoGirl Profiles Harris

Women's Hoops Blog is reporting that the October 17th issue of CosmoGirl features an article about Jennifer Harris, the former Penn State player with a Title IX lawsuit pending against Coach Rene Portland.

I'm curious what the magazine has to say about the case, particularly how it addresses the issues of gender, race, and sexual orientation that are at play. Anyone who's read it is invited to post!

Mark Your Calendars

As far as this Title IX blogger is concerned, this is the coolest conference imaginable:

Women Rock: Celebrating 35 Years of Sport and Title IX
March 28-31
Wolstein Center, Cleveland State College

(That's right, Cleveland. Host city to the Final Four April 1 & 3).

Keynote speakers include:

• Birch Bayh, Partner, Venable, LLP; U.S. Senator (D-IL, 1963-1981); leading civil rights advocate
• Martha Burk, Recent Past Chair, National Council of Women’s Organizations
• Marcia Greenberger, Co-President, National Women’s Law Center
• Billie Jean King, Founder and Honorary Chair, Women’s Sports Foundation
• Bernice Sandler, Senior Scholar at the Women’s Research and Education Institute in Washington, D.C.
  

The invited speakers list is also most impressive. Stay tuned to the website for the presenters and their topics.

See you in Cleveland!

New Links to Title IX Resources

Check out our Links column -- we've added two new links: one to the National Women's Law Center, which addresses many issues related to women and the law (go to their Athletics, Education or Sexual Harassment sections for more specific discussion of Title IX-related issues), and one to Title IX, a site devoted to education about and discussion of Title IX and its mission generally, and not just from a legal perspective.

Patsy Takemoto Mink, "Mother of Title IX"

A relatively little-known fact is that Title IX's official name is the Patsy Takemoto Mink Equal Opportunity in Education Act.

Who was Patsy Takemoto Mink? The current issue of the American Bar Association's Perspectives Magazine has this profile.

(Article link via AAUW. Photo from GreatWomen.org)

Science, Engineering, Man, Woman

Another follow-up to the posts (September 18 and 28) on the report by the National Academy of Sciences that women pursuing academic careers in the engineering and science fields suffer discrimination in hiring, support and promotion (the report recommends that the federal government step up enforcement of regulations such as Title IX to help address the problem).

In the last post on this subject, we addressed New York Times' columnist John Tierney's claim (Sept. 26, 2006) that the innate differences between the genders in terms of ability and desire to pursue careers in science and engineering are responsible for any disparity in hiring and promotion in academia.

Further argument that Tierney's "innate abilities" argument (echoing the views of former Harvard president Larry Summers) does not compute comes from Travis Butterworth and Dr. Rebecca Goldin on Stats.org, analyzing the statistics behind assessments of abilities in the math and science fields.

Their article crunches the numbers and explains how, among other things, SAT scores should not be a proxy for innate ability to think at the highest levels of mathematics or science. It also asks pointed questions for those who assume that innate difference, not discrimination, is the driving force behind academia's gender gap in science and engineering. For example, Butterworth and Goldin note that the numbers of women succeeding in those fields has been steadily increasing over time -- if only innate differences were at work, what explains that change? Additionally, studies in other countries, such as Japan and Iceland, show different results in the levels of achievement between boys and girls on standardized tests (in Japan, there's no gender disparity, and in Iceland, girls score higher than boys). Looking at those findings, the "innate ability" argument, without at least some component of considering external factors such as discrimination and how the tests are structured, becomes less and less credible.

Blame Title IX?

On Friday James Madison University became the latest Division I school to impose major cuts to its athletic department when it eliminated ten teams consisting of a combined 144 athletes. Seven of these teams were men's teams totaling 102 athletes (archery, indoor & outdoor track, cross country, gymnastics, wrestling, and swimming) and three were women's (archery, fencing, and gymnastics) totaling 42 athletes.

The move brings JMU into compliance with the proportionality prong of Title IX's athletics regulations. But this is different from saying that teams were eliminated for Title IX reasons as headlines like this one suggest. Nothing in Title IX calls for the elimination of teams. To comply with prong one, a school must maintain a percentage of women student athletes that is roughly proportionate to its percentage of women students. Before Friday, JMU had 61% women students and 51% women student athletes. To illustrate the disparity, this means that 4.57% of JMU's men could play a varsity sport (294 athletes out of 6422 male students) and 3.02% of JMU's women could play a varsity sport (306 athletes out of 10,124 female students). After the cuts, the percentage of women student athletes is 61%, the same as its female student population.

But schools don't cut teams because of Title IX. Schools cut teams because they can't afford to support all the ones they have. When cuts are made, Title IX protects the underrepresented sex by ensuring that they only lose teams if the end result is proportionality (as we've explained before). This just protects the side that started with less from losing more.

So why did JMU cut 10 teams? Because it felt a moral imperative to achieve proportionality? (Probably not, though this commentator argues that would have been reason enough). Most likely, it had to make cuts because it could no longer afford to have the seventh-highest number of teams of all the schools in NCAA Division I. What else could explain the urgency* of the decision, not to mention the overkill**?

*JMU's existing distribution of athletic opportunities, though disproportionate, seemed to comply with prong three (satisfying the interests and abilities of the female student body)--at least, no one, to my knowledge anyway, argued that it wasn't.

**By my calculation, and based on roster numbers found on the JMU athletic department website, the school could have eliminated a minimum of 117 varsity athlete positions to achieve proportionality, as compared to the 144 slots it actually cut. The difference is the size of at least two eliminated teams combined.

Last it bears noting that no cuts were made to the largest team on campus. The JMU football team has 90 players, which is reasonable by college standards but is almost double the size of your average NFL team. (And to head off the football-is-revenue argument, here is the link to the Chronicle's gender equity data for JMU, which show that both men's and women's sports earn enough revenue to cover their operating expenses, but when you add in the expense of coaches' salaries, scholarships, and recruiting costs, every team is subsidized. )