Thursday, November 30, 2006

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.

Wednesday, November 29, 2006

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.

Tuesday, November 28, 2006

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

Monday, November 27, 2006

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.

Sunday, November 26, 2006

"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.)

Saturday, November 25, 2006

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.

Wednesday, November 22, 2006

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?

Tuesday, November 21, 2006

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).

"Live" Title IX Discussion

Well it was live a few weeks ago. But the transcript of the discussion of Title IX sponsored by The Chronicle of Higher Education and featuring Dr. Mary Jo Kane of the University of Minnesota and Tucker Center For Research on Girls and Women in Sport can be found here.
The forum is moderated and guests ask questions which the featured discussant then answers. Most of the questions were related, sometimes tangentially, to the JMU cuts and most of her answers involved a discussion of football. So in that sense there was not necessarily a lot of new information or suggestions presented. (I think most Title IX proponents are on board regarding cutting the size of football squads.)
But she, via the question-askers, made some good points. First, Kane called repeatedly for greater transparency in athletic department budgets, especially at public institutions. Some of these numbers are available but not broken down in the way I think Kane is advocating. For example, if a football team goes to a bowl game the money the department gets for that is put in the "revenue" column. But where it ends up in the various expense columns is not always readily apparent. Is it going to fly the coach on a private plane to recruit the new quarterback or is it going to paying for a professional (versus student) trainer for the gymnastic team's away meets? If people are still arguing that football supports other programs--which as we know occurs in a very small percentage of institutions--it would actually help to see what this alleged support looks like.
Also, Kane did an excellent job explaining the problematic aspects of the interest prong of Title IX including offering the "be careful what you wish for" warning. She notes that interest surveys might not necessarily just add sports but also take away some. For example, a survey could indicate an "interest" (and she writes about the vague definition of interest) in soccer--in a school without a team--but little for gymnastics which already exists. Does a school cut a team to add another?
I was a little disappointed that she ended the discussion with what I see as nationalist rhetoric that aims to appease anti-Title IXers: "I urge us to come together to ensure equitable opportunities for females without eliminating men's sports. If we do that, it's a win-win for basic American values."
American values seems just as vague to me as "interest" and also relies on historical constructions of cultural values that Kane herself deconstructs to make some of her points.
[But what is more irksome to me, and slightly off-topic here, is that moderator at the end thanked "Mary Jo" for her participation. I looked up other forums and all but one of the male guests were referred to by their full names. Kane is PhD-holding tenured professor in the Kinesiology Department at Minnesota in addition to her work as director of the Tucker Center and she holds adjunct appointments in American Studies and Feminist Studies. I think she earned the right to be referred to as her full name at the very least, and her title would be nice too.]
Overall I think, especially in the wake of the JMU situation, such a forum with a well-known sport scholar making very clear points addressing the basic questions most who do not study Title IX have is an essential tool in the fight to keep Title IX a formidable regulation.

Monday, November 20, 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."

Friday, November 17, 2006

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.

Thursday, November 16, 2006

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!

Tuesday, November 14, 2006

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.

Mascots, Equity and the NCAA: The Case of William and Mary


This post is long overdue and for that I apologize but I believe it is still interesting.
The NCAA ruled over a month ago that the College of William and Mary could keep their nickname, Tribe, but had to abandon their logo which is two feathers. [The picture is a mat for wiping one's feet on which is only slightly better than the UFlorida seat cushions upon which one can plunk his derriere on Chief Osceola's face for ultimate comfort during football games.]
I found the NCAA decision to be quite fair. They took a pretty liberal stance on the use of Tribe as a nickname which school officials defend as "reflect[ing] our community's sense of shared commitment and common purpose." [from President Gene R. Nichol's October 10 letter to the WM community] I am not an expert in Native American history in the state of Virginia and specifically with W&M but I am guessing "community" was not always an inclusive term. And "common purpose"? Both the commonness and the purpose are worthy of some scrutiny from an historical perspective.
But the NCAA chose to review its present-day connotation and deemed it not hostile. Not so the two feathers.
This aspect of the decision did not go over well with the W&M powers-that-be. [I could make a pun here about ruffled feathers but because the story is so old, it's been done and I don't want to appear hackneyed.]
Nichol's letter is a two-page diatribe about why the NCAA is wrong about the two feathers being "hostile and abusive" (NCAA's words) and also why the school, despite its strong convictions that the feathers do no harm, will not appeal pursue legal action (the only option left to them because they already appealed the NCAA's initial decision against the feathers).
The letter is a fairly self-righteous take on the school's and athletic department's policies and a condemnation of those of the NCAA. [I am not going to reprint the letter in its entirety but I am happy to send a copy to anyone who is interested.]
But here are some excerpts:
I am compelled to say, at the outset, how powerfully ironic it is for The College of William & Mary to face sanction for athletic transgression at the hands of the NCAA. [...] It is galling that a university with such a consistent and compelling record of doing things the right way is threatened with punishment by an organization whose house, simply put, is not in order.

I am one of the first to criticize the NCAA's leadership, policies, and procedures. But here we have the proverbial pot calling the kettle black scenario. W&M is not as pure and holy as the letter (which mostly cites high academic standards and graduation rates) lets on. Remember those are two feathers on their logo--not a halo.
So how "compelling" is W&M's record--perhaps in regard to Title IX? Erin did some research and found that as of the 2004-05 season W&M had was within 6% of substantial proportionality. This is pretty good.
But the numbers show that before they achieved this mark, W&M added 100 opportunities for their male athletes (in the late 1990s). This was impossible to sustain and their current proportionality is a result of cutting almost all of those spots throughout the past few years.
I find this, to use Nichol's word, "ironic" given that letter takes a (again, self-righteous) martyr-like tone when Nichol states that he has chosen not to pursue legal action because of the cost to the entire university.
It seems that sustaining the Tribe athletic "community" financially was not as successful, especially if you were one of the 100 male athletes who became victim to the university's faulty economic model.
But because Title IX is not just about participation opportunities I will throw a few more of W&M's numbers (as of 2004-05) out there for your consideration:
Female (team--they could be either male or female) head coaches receive, on average, approximately $24,000 less than male (team) head coaches. Women's teams received only 38 percent of the total coaching budget. They also received about 38 percent of the recruiting budget.
I am happy that W&M stresses academic excellence among its student-athletes, in spite of lax NCAA standards. But high graduation rates do not provide freedom from sanctions when an institution uses offensive (and often historically inaccurate) cultural appropriations of Native American imagery.

Saturday, November 11, 2006

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."

Thursday, November 09, 2006

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."

Wednesday, November 08, 2006

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.

Tuesday, November 07, 2006

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.

Friday, November 03, 2006

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.

Wednesday, November 01, 2006

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.