Hofstra Law School Hosts Panel on Title IX

From the law school's web site:

Hofstra Law School will host a panel discussion “Sticky Cultural Norms: The Transformative Potential of Title IX” on April 30 at 12:10 pm at the Law School. The discussion is sponsored by Hofstra Law School’s Institute for the Study of Gender, Law and Policy and is being held in honor of the 35th anniversary of Title IX, the law that bans sex discrimination in federally funded programs.

Presenters include Deborah Brake, University of Pittsburgh School of Law; Erin Buzuvis, Western New England School of Law; and Verna Williams, University of Cincinnati School of Law. A variety of topics will be discussed including: the feminist legacy of this historic law and whether Title IX is an example of successful law reform that has transformed women’s roles in society or whether it merely papered over sexist cultural norms that are resistant to change. The panel will be moderated by Joanna L. Grossman, Hofstra Law School Professor of Law and co-director of the Institute for the Study of Gender, Law and Policy. One CLE credit is available for this event.

Athletic Department Finances Scruitinized by College Paper

The Daily Tarheel has a smart piece about athletic department finances that attempts to dispel the "popular belief" that athletic departments are profitable. The article cites NCAA President Myles Brand's statement in January that 52 percent of all Division I-A programs require subsidies greater than 5 percent every year. It also probes the discrepancy between figures like this and recent financial data filed by universities under the Equity in Athletics Disclosure Act, which for 2004-05 suggest that most (110/120) DI athletics programs broke even or made a profit. NCAA data show a less impressive financial picture, a difference the paper attributes to accounting methods.

The EADA counts direct institutional support, unrestricted funds allocated to an athletic department by a university, as revenue, when in fact it is a subsidy. The EADA data does not include certain administrative costs, such as the cost of renting or owning facilities and some staff - costs that have risen dramatically as the years go by.

The article goes on to probe the arms race of coaches salaries, particularly football and men's basketball and recruiting costs.

The problem with this picture, in my opinion, is not that too many colleges lose money on athletics. It's that they are spending as if they were profitable when in fact they are not. If you believe the mission statements of university athletic departments, they exist for the sake of the student athlete. By that rationale, a team should be under no greater expectation to turn a profit than an English literature class, since both are opportunities that universities provide for the purpose of student education and enrichment. But only in a world where athletic departments don't spend like the pros will the pressure to generate revenue -- or the those mythical profits -- subside.

College Paper Reports on Pay Gap in Coaching

Earlier this week the AAUW released a report on the post-graduation pay gap between men and women. According to the report, women earn 80 percent of what men make just one year after college. 10 years after graduation, women are earning 69 cents on the dollar compared to men's salaries.

Perhaps it was the AAUW report that inspired a sports writer for the student newspaper at Ball State to do a little salary comparison of his own. Using the university's public filings under the Equity in Athletics Disclosure Act, he calculated the average salary of a male head coaches (including those coaching women's teams) at $121,752, compared to the average salary of female coaches, $81,195. Furthermore, assistant coaches of men's team average $63,306 a year, twice as high as the $33,073 that women's team's assistants make. (He doesn't report whether male assistant coaches are included in the average for women's teams assistants, though.)

This is yet another dimension to the gender gap in coaching we've been blogging about lately. Fewer qualified women are likely to apply for coaching positions if they can only expect to earn 50 to 66 cents on the dollar. They're better off in other jobs, where they can at least expect 69 to 80 cents on the dollar!

More booster club/Title IX conflicts

Another issue regarding booster clubs has arisen in regards to gender equity. Recently we reported on the situation in Pennsylvania with a booster club providing a number of perks to the football team. Now it appears charges of gender inequity have arisen in Minnesota over the treatment of girls' and boys' ice hockey.
The Minnesota situation though is a little complicated because it involves a booster club paying for improvements at a rink not owned by the school district. The article sums it up like this:
It involves a nonprofit booster club raising money to improve an arena owned by another nonprofit and a school district that rents ice there for about a third of the practices and home games for a co-op team that calls Bernick's Arena in Sartell its home arena.
The booster club raised money and contracted for the addition of many improvements to the boys' locker rooms creating this situation:
[T]he boys booster club had built additions to Arena East that created a locker room with permanent lockers for the varsity boys, a room for junior varsity boys and a space that had been set up as a lounge accessible only to the boys. The junior varsity and varsity girls changed in a third room that had no lockers and only hooks on the wall and some folding chairs to sit on.
OCR has already answered the complaint saying that the inequitable facilities at Arena East (which is actually only one of the two arenas the girls play at; the other's facilities are not in question) do not rise to the level of a Title IX violation. But the letter to the district did suggest some solutions. Which one(s) the district chooses to take remain up in the air. Whatever they do, however, the district should now know that it cannot wash its hands of booster club activities.

NYT Examines Chatman Effect on Women Coaches

Local papers aren't the only ones covering the gender gap in women's coaching (see here and here). In this article last Thursday, the New York Times covered the resignation of coach Pokey Chatman over charges sexual misconduct, and LSU's subsequent hiring of a male coach for the women's basketball team, as an opportunity to examine how homophobia affects female coaches.

[S]ome coaches, administrators and academics say they fear that the accusations against Chatman will inflame homophobia; reinforce stereotypes of lesbians as sexual predators; lead to more so-called negative recruiting, or attempts to steer players away from coaches suspected of being gay; increase skepticism toward the hiring of single women as head coaches; and scare the parents of potential recruits.

Dr. Linda Carpenter suggests that this trend "gives fodder to people looking for a reason to carve out an area where women need not apply." It also plays into a double standard, according to an athletic department official at NC State, who commented that "there have been more issues with male coaches and male staff than female coaches and staff."

Best Gender Equality Quote from a High School Student...

It's not like the stereotype where the king has to be a jock and he's there with the cheerleaders anymore. We live in a generation now where dudes are chicks and chicks are dudes.

-Leanne Reyes, student, Fresno High School, on why she supports transgender classmate Cinthia Covarrubias for prom king.

In 2000, California amended its antidiscrimination law include protection for gender identity and expression. High school officials cited compliance with the law for their decision to let Covarrubias's nomination onto the ballot.

EIA Threatens to Sue Ohio U

Equity in Athletics, the organization suing the Department of Education and James Madison University, has now set its sights on Ohio University. Like JMU, Ohio recently cut a number of athletic teams--both men's and women's. Last month, EIA tried to use the threat of litigation to get JMU to postpone its cuts, and now it is taking the same approach with Ohio U.

While I don't support Ohio's decision to cut athletic teams, I think Ohio's cuts are legally defensible and I think EIA will have a hard time prevailing. First, unlike JMU, which has tried to use Title IX as a shield to deflect the heat it should be facing for cutting 10 teams, Ohio expressly admitted that the cuts were about saving money. Thus, it is even clearer in this case that even a successful challenge to Title IX would not reinstate the teams.

Second, EIA takes the position that the cuts violate Title IX and the Constitution because they don't take into account the relative interests of the student body. The relative interest test is legally and conceptually flawed. It (a) erroneously assumes that cuts disproportionately affect "interested" men, given that women also report high levels of interest in athletics (see, e.g.), and that women's teams are also being cut; and (b) ignores that currently existing disparities in opportunities will be reflected in any purported measure of interest. For these reasons, every federal appellate court that has considered the relative interest test has rejected it.

Football Booster Club Causes Title IX Problems for NJ High School

Last month we noted that the OCR was looking into whether the football team at Phillipsburg (N.J.) High School receives special treatment in violation of Title IX. In response, the school district hired its own lawyers to conduct an investigation. Though the district considered keeping the law firm's report under wraps, it later decided to make the findings public, which it did on Wednesday. According to the local press, the law firm's report "revealed that female athletes feel like second-class citizens in comparison to high school football players." A major factor that contributed to the inequitable treatment was fundraising (and spending) by the football boosters. Private funding outfitted football player in apparel and shoes and sponsored game-day meals, treatment that no female athletes received. (Additional details on the law firm report are here.)

OCR's position on booster clubs is clear: Attributing inequities to booster-raised funds does not absolve schools of providing equal treatment to student athletes regardless of gender. As the agency explained after confronting the issue in a similar case more than 10 years ago:

The private funds that are used to support District athletics programs, although neutral in principle, are likely to be subject to the same historical patterns that Title IX was enacted to address. If all benefits are not considered in examining interscholastic athletics, the purpose and effect of Title IX requirements could be routinely undermined by the provision of unequal benefits through private financial assistance.

Consistently, OCR does not allow colleges to use ticket revenue to justify inequitable funding for certain sports. The theory is the same: Title IX puts the obligation on the school to provide a nondiscriminatory environment for its students. At the end of the day, student athletes are students. Private dollars can support private sports if they want to, but if they put them towards the schools, schools have to ensure that they aren't used to promote inequality. Schools don't get to tell their female students, "Too bad. You don't get equal treatment from us because society values boys' sports more." (It is beyond Title IX's scope to ensure equal treatment among men's sports. But schools can, and I argue should, voluntarily apply the same principle to ensure that boys' football does not receive equal treatment over others boys sports.)

Setting the record straight at Bowling Green

I came across this editorial in the Bowling Green State student paper the other day. It contains almost all of the myths about Title IX compliance. {Example: "the precedents that have become attached to [Title IX] tend to favor women's sports over men's sports, which could lead to a case of inadvertent reverse discrimination."} But it was written by student columnist so I was trying to negotiate the proper tone to take--something between conciliatory and condemning. Luckily someone else did my work for me. BGSU's AAUW representative wrote a rebuttal editorial in a calm but firm tone. And she employed a delicious pie metaphor at the end--something I never would have come up with myself.

More on the Lack of Women Coaches

In her recent post about the lack of women coaches in women's sports at TCU, Kris shed some additional light on this issue by pointing out some factors that went unexplored in the article -- namely, the gender imbalance of the athletic administration and heteronormative spin in the department's publicity. I'd like to add that the reporter could have also included a more critical analysis of the "gender blind" approach to hiring that was offered as an explanation by TCU and on the issue more generally.

Because, as this recent article in the Salt Lake City Tribune helps confirm, that so called "gender blind" approach is applied with far greater frequency when the coaching position at issue is for a girls' or women's team. The Tribune article points out that less than 2% of Utah's 1600+ boys high school varsity head coaches are women. Boys interviewed for the article admitted to skepticism about having a female coach ("She coaches the girls' team. We need someone different"). One AD interviewed for the Tribune story said his hiring decision drew fire from those "asking, among other things, how he could defile America's passtime" by hiring a woman to coach the boys' baseball team.

Stereotypes and sexism among the players and their parents are harmful because they give rise to seemingly gender-neutral rationale for turning down or not encouraging female applicants for coaching position of boys teams -- a rationale along the lines of: We're not turning her down because she's a woman, but because we want to avoid a controversy, or because we think this coach would 'lack player rapport' or 'fail to command player respect.'

To be sure, not everyone feels this way and some people interviewed in the article support female coaches of boys teams--some in response to a positive experience with a female coach. Others suggest that things are changing, albeit slowly, for the better. But kudos to the Tribune for contextualizing these sentiments with statistics from the Women's Sports Foundation. In addition to pointing out that the number of women coaching women's teams is declining (at the college level, from 90% in 1972 to 42.4% today; and in Utah high school girls basketball teams, only 30%), the article points out that less than 18% of all head coaches (men's and women's teams combined) are women. It's hard to accept that figure reflects genuine gender neutrality in hiring.

Is it that difficult to have a good softball field?

Apparently it is. We come across so many stories of inferior softball fields here at the Title IX Blog. One would think schools would wise up and improve conditions before complaints and lawsuits are filed.
The latest softball-related lawsuit is on its way to being settled in Galveston, Texas. Parents of Ball High softball players charged Fourteenth Amendment and Title IX violations--the former charges have been dropped (as have the lawsuits citing individual school administrators) but the exact conditions of the Title IX settlement have not been released. But the school board has acknowledged disparity does exist. And part of the settlement is being enacted: a new softball facility that the high school will not have to share with the community and other institutions is being built and will include a press box, locker rooms, concession stand, bleachers with a 400-person capacity, lighting, and a paved parking lot.
I don't know the going rate of new softball fields and the necessary accessories, but I would think rather than spending $1.74 million all at once (as the Galveston Independent School District is being required to do) a commitment to remedy the situation by making improvements over time might have appeased most players and parents and been less of an economic hardship.

Congrats, University of Nevada

The University of Nevada's intercollegiate athletic department got the highest score on the Gender Equity Scorecard for the second year in a row (article here). The Gender Equity Scorecard is a measure of an athletic department's compliance with Title IX regulations. The University of Nevada ranked first in the nation among 113 NCAA Division I-A schools from 11 conferences included in the study. The report graded schools in five criteria using data from the 2004-05 academic year, including participation, scholarships, coaching salaries, recruitment budget and operating expenses.

The University of Nevada has steadily increased the opportunities for women to play sports over recent years, now sponsoring 12 women’s varsity sports with more than 280 female student-athletes. One of the factors that made it possible for Nevada to do this? Participating in successful legislative lobbying for gender equity funding and private fundraising to accomplish those goals. Way to go, Wolf Pack!

Let's talk about climate

Not the weather (though it is snowing here in MA on April 15 so climate change is on my mind!!) but the climate in athletic departments that can make it more or less welcoming for female coaches.
The student newspaper at Texas Christian University recently reported on the lack of female head coaches in intercollegiate athletics, using Carpenter and Acosta's data and their own school as an example. There are ten women's sports at TCU--seven are (head) coached by men.
The writer was fairly thorough getting comments from coaches on the differences between coaching men and women; a sport psychologist on the needs of male and female athletes; and female athletes on whether they prefer male and female head coaches. Two of the most common threads in the gender and coaching discourse are present: 1) the most qualified coach should get the job regardless of sex; 2) there are differences in how male and female head coaches relate to male and female athletes in terms of motivation and dealing with personal issues.
There are two conspicuous absences in this discussion, though. The first is the data from Carpenter and Acosta that notes that greater numbers of female coaches are found in departments where there is a female athletic director and/or another high-ranking department administrator.
Second, there is no discussion of the L-word: lesbians. I saw TCU play in the first round of the NCAA tournament this year and I thought, "a Fort Worth, Texas, Christian institution; not a place lesbians probably flock to." And never mind if you are a lesbian or not or whether you are out of not; any single woman applying for a coaching job at TCU must raise a red flag among administrators. Profiles of the three women's head coaches include the fact that the golf coach is a mother to two young children and her husband manages the local country club; the rifle coach is married--her husband's name in mentioned; and the date of the volleyball coach's wedding is published as part of her bio.
What the combination of the lack of females in the department (of the six associate ADs, only two are women) and the stress on married females says is "lesbians or lesbian-looking types need not apply."
Both of these absences speak to the climate athletic departments set for gender equity and it seems at TCU--and many other schools throughout the country--there's a rather chilly climate.

"It signals that we are a destination university for LGBT students, faculty and staff"

So sayeth Emory University, which added gender identity and expression to its antidiscrimination policy this week.

New fields at Gavilan College

Gavilan College, a community college in California with 6,100 athletes, recently settled its Title IX complaint by agreeing to remedy the inequitable facilities at the college. The complaint, brought in 2005 by an unnamed party, was under investigation for 2 years by OCR. The result: new scoreboard for the softball field, a new fence, and eventually a new location farther away from the women's soccer field which itself is being reseeded, better maintained, and has a new irrigation system.

Michigan Case About More than Seasons

The local press in Michigan reminds us that Communities for Equity was about more than just moving girls basketball to winter. The 6th Circuit decision rendered final by the Supreme Court's recent denial of cert confirmed the applicability of both Title IX' and the Equal Protection Clause to the Michigan High School Athletic Association. This mean MHSAA must provide "competition-worthy venues for both genders" including equal sites for basketball and softball -- equal media coverage too.

Ball State Could Add Sports After Survey

When I saw this headline I thought we were going to have our Model Survey test case. But it appears that Ball State plans to survey student interest in sports to figure out which women's sports to add, rather than as conclusive evidence of prong three compliance.

Interestingly, though, Ball State's proportionality is pretty good. I calculate just a 2 point difference in the percentage of female students (51%) and the percentage of female athletes (49%).

Slippery Rock Settlement

Slippery Rock University has settled a lawsuit brought by female athletes challenging the university's decision to cut its women's swimming and women's water polo, among other teams, as part of an overall plan to reduce athletic department expenditures.

In July, a federal district court judge granted the athletes' request for a preliminary injunction against cutting the two teams. The reasoned that SRU's cuts did not result in substantial proportionality, the first alternative compliance prong, and that SRU neither satisfy the second prong, history and continuing practice of program expansion for women's varsity teams. Thus, it was left with prong three--accommodating the interests and abilities of female athletes--as its only option. Cutting two viable women's teams clearly violated this prong, and on this ground awarded a preliminary injunction to the plaintiffs.

This week, a magistrate judge approved a settlement of the case. Plaintiffs' counsel at the Women's Law Project provide this summary of its terms, among them: SRU has agreed to invest $300,000 in its women’s athletic program by making improvements to sports facilities and to equalize access to uniforms, travel, equipment, publicity, trainers. It also agreed to "retain women’s swimming and water polo as varsity teams for one full academic year after SRU has achieved compliance with the proportionality requirement of Title IX within two percentage points." And it agreed to increase funding for women's athletics every year it is not within two percentage points of proportionality.

For the July order see: Choike v. Slippery Rock University, 2006 WL 2060576 (W.D. Pa. July 21, 2006).

UPDATE: The magistrate's order is available at 2007 WL 184778 (W.D. Pa. Jan. 22, 2007) and the federal district court judge's final approval of the settlement is at 2007 WL 2317323 (W.D. Pa. Aug. 8, 2007).

En Banc Court Sends Dorrance Case to Trial

The University of North Carolina's dynastic women's soccer team has won 19 national titles in 26 years. It is practically the feeder team to the US national team and the(now defunct) WUSA, having produced some of the most recognizable names in women's soccer, including Mia Hamm and Kristine Lilly. Since the program's inception in 1979, head coach Anson Dorrance has been at the helm.

Melissa Jennings played for Dorrance as a backup goalkeeper from 1996 to 1998. She subsequently brought suit against both Dorrance and UNC, alleging that Dorrance committed, and UNC was indifferent to, sexual harassment in violation of Title IX. According to her complaint, Dorrance repeatedly questioned players, including Jennings, about their sex lives and often implied that his players were promiscuous. He regularly commented on players' bodies in a sexual way, he referred to one player by a male name because he believed her to be a lesbian, and he even confessed to his players that he had sexual fantasies about them. Once, at a one-on-one meeting in a hotel room, Dorrance asked Jennings, "who are you fucking?"

Uncomfortable in the highly sexualized atmosphere, Jennings complained about Dorrance to university officials while she was still a freshman player on the team. The complaint got as far as a university lawyer, who told her to "work it out" with Dorrance. After she was cut from the team as a sophomore, she complained about Dorrance again. This time, the Athletic Director issued a "brief, mild" letter of reprimand to Dorrance and letter of apology to Jennings's father. It was at this point that Jennings brought her case in federal court. She did not feel comfortable enough at UNC to continue her education there, and spent her senior year as a visiting student at another institution.

In 2004, a federal district court dismissed Jennings's claims on summary judgment. Jennings appealed and lost again when a divided three-judge panel of the 4th Circuit affirmed the district court. But in a rather rare move, the 4th Circuit decided to meet en banc -- all ten judges together -- to reconsider the panel's decision. Earlier this week, the en banc 4th Circuit reversed the panel decision and remanded the case to the district court for a trial.

The court held that Jennings's version of facts, if proven true at trial, would support a legal conclusion that Dorrance and UNC (and also the lawyer who told her to "work it out") would be liable under Title IX for sexual harassment. Dorrance's "degrading and humiliating conduct" was "sufficiently severe and pervasive to create a sexually hostile environment." In reaching this conclusion, the court was careful to distinguish the "informal, sometimes jocular, college sports team atmosphere" that fosters the kind of closeness and casualness that might result in a male coach using a sexual slang in front of female players. "Title IX is not a civility code...meant to punish [a] coach for off-color language that is not aimed to degrade or intimidate. What happened n this case, if Jennings's version of the facts is believed, is that Dorrance took advantage of the informal team setting to cross the line and engage in real sexual harassment that created a hostile or abusive environment."

The decision is: Jennings v. University of North Carolina, 2007 WL 1040592 (4th Cir. Apr. 9, 2007) (en banc).
News accounts are here (Greensboro News-Record), here (Daily Tarheel) and here (ESPN).

Making the connection (almost)

Writers at The Baltimore Sun try to make the connection between Imus's comments and Title IX. Unfortunately they don't even mention Title IX until halfway through the article. They frame the issue in the following way: even though Title IX has lead to great opportunities for women in athletics, female athletes still face considerable challenges that the law cannot overcome. The main challenges, they report, are the lack of media attention and the perception that good female athletes are masculine.
All this is true but I think the writers have missed a true connection between the incident and Title IX: that the stereotypes and cultural biases (which Imus put on full display this past week)that have made it difficult for current athletes also affect the implementation of Title IX. The article cites a source who notes that opportunities are not equitable even 35 years later. It's undeniable that our cultural constructions of gender and race and sexuality have limited just how effective Title IX can be.

Imus' comments on the Rutgers basketball team

I'll admit to being somewhat reluctant to address radio personality Don Imus' racist and sexist commentary related to the Rutgers women's basketball team and their performance in the Final Four. In disparaging the Rutgers team because of their race and sex, Imus continued an unfortunate tradition among some radio and television personalities of denigrating women athletes and combining that denigration with racial hostility as well. My initial reaction to Imus' comments was, "This again? Haven't we been hearing this kind of stuff for too long?" It's emblematic of the gender and racial stereotyping that is all too common in society generally, but in this case, it's particularly disheartening because Imus was picking on young women who were accomplishing a great deal as student-athletes.

Unfortunately this type of commentary is all too common. It's not just limited to women athletes, but targets all women, and particularly women of color, who are apparently not worthy of a measure of dignity from Imus.

I can only hope that Imus' comments and the outrage that they provoked don't take away from the accomplishments of the players and of their coach, C. Vivian Stringer, and the fabulous showing of the Rutgers team this season.

Education Sector Blog Criticizes Title IX Backlash

Education Sector is an independent, nonprofit think tank that analyzes education policy. The organization's blog, The Quick and the Ed, posted recently to criticize the Title IX backlash from organizations like CSC, IWF, and Equity in Athletics. Their point is familiar to readers of this blog but they put it so nicely, so here's an excerpt:

But scapegoating Title IX and letting the universities off the hook is inaccurate and certainly isn't going to help male or female "student athletes". The real problem? Faced with hard decisions about how to invest equitably in men's and women's athletics, institutions are simply not willing to touch the glory sports: football and men's basketball. ...No one's trying to cut men in favor of women (male collegiate athletes still outnumber female athletes)- they're cutting what doesn't matter to them in exchange for what does.

Harvard Conference

The Harvard Journal of Law and Gender is hosting a conference called "Changing Cultural Norms? Title IX and Legal Activism" this Friday afternoon, April 13, from 2 pm to 5:30. Here's a description from the journal's website:

In the 35 years since Title IX was passed, it has been used in a variety of situations to increase gender equity in educational environments. We will examine how effective Title IX has been as a legal reform effort to change social and gender norms and what we can learn from these lessons as we look to future feminist legislative agendas. The conference is divided into two panels, the first focusing on Title IX’s uses in combating sexual harassment and sexual assault at schools, and the second focusing on Title IX’s effects on athletics programs and gender equity in sports. The conference is free and open to all, no registration required.

The esteemed panelists are listed here.

(Via Sports Law Blog. Thanks for the shout-out, Michael!)

JMU = Defendant

Following up on earlier post here to note that, indeed, Equity in Athletics has added James Madison University as a defendant in its lawsuit challenging the school's decision to cut ten sports teams. EIA had given JMU an ultimatum: postpone the cuts or defend a lawsuit. I think JMU was wise to choose the latter, as it does not seem likely that EIA's lawsuit will restore the cut teams and a postponement would raise false hopes and keep the student athletes in limbo.

Arguments on the Wage Gap

One statistic that we've all heard is that women earn approximately 77 cents on the dollar compared to what men in comparable jobs earn. In a Washington Post opinions piece earlier this week, Carrie Lukas writes that much of the wage gap is due to the fact that men choose jobs that are harder, involve more travel, are "dirtier" and involve more personal sacrifice. As opposed to women self-selecting into jobs that allow for more time with family or are more "personally fulfilling." This different set of choices as to jobs explains, according to Lukas, almost all of the 23% difference in wages.

Lukas is not reinventing the wheel with this argument, but it bears some discussion as to whether (a) it's actually true that women and men who hold the exact same job get paid, trained, promoted, supported and retained in the same ways, and (b) whether the process of job selection is one based purely on the idea of personal fulfillment, or whether job selection is heavily influenced by disparate treatment (like the factors in (a)), and by stereotypes of what type of work women are interested in. My view is that stereotyping and disparate treatment play a significant role in the wage gap, and that the wage gap serves as another illustration of why Title IX and other equity measures are still necessary to combat stereotypes and offer the same options to men and women to pursue careers that are personally, and professionally, fulfilling.

HHS Official Resigns Over "Fatherhood" Initiative

Remember that "responsible fatherhood" initiative we blogged about recently? NOW and Legal Momentum filed a complaint with HHS that the program violated Title IX because it funded job training programs for men and not women.

An interesting development in that case: The HHS official in charge of "responsible fatherhood," Wade Horn, has resigned. The HHS complaint had accused Horn of cronyism, for funneling $5 million into a fatherhood program previously run by Horn.

Ohio University Named in OCR Complaint

According to the Athens News, someone has filed a complaint with OCR alleging that Ohio University's decision to cut men's swimming and diving earlier this year violates Title IX. You may recall from our earlier posts on this issue that Ohio U cut four sports in January, including men's indoor and outdoor track and women's lacrosse along with the men's swimming and diving team.

I seriously doubt that OCR will launch a formal investigation into this claim. It is well-settled that while the agency deems cutting men's sports a disfavored practice, it does not violate Title IX to do so unless men were the underrepresented sex to start with -- which was not the case at Ohio. Moreover, the university claimed that money was the reason for the cuts. This rings true, since the university cut more participation opportunities than was required to achieve proportionality, and because the university did not try to satisfy the prong three, which it likely could have done without adding or cutting anything if it had administered OCR's model survey.

Since the decision to cut teams was about money, there's not much OCR can do. OCR has no jurisdiction to tell any school how much money they have to spend on sports. All OCR can do is ensure that the opportunities the school decides to offer are distributed fairly to male and female athletes.

Title IX Implied Right of Action Extends to Suits Against OCR

Hockey dads in Minnesota complained to the Department of Education's Office for Civil Rights that the Minnesota state interscholastic athletic association discriminated against female hockey players by holding the girls' state tournament in a facility inferior to the boys'. When OCR ignored their complaints, their daughters sued OCR. The hockey players complained that by not ordering the athletic association to equalize the tournament facilities, the agency allowed federal funds--those awarded to the athletic association's member schools--to be used to discriminate on the basis of sex, in violation of Title IX.

OCR moved to dismiss the hockey players' claim, arguing that the private right of action under Title IX, acknowledged by the Supreme Court in Cannon v. University of Chicago, only gives individuals a right to sue educational institutions, not a right to sue OCR.

In Cannon, the Court noted that a private lawsuit directly against the the discriminating funding recipients is a less disruptive means of obtaining relief than than a private suit against the agency to compel the agency to enforcement. OCR argued that this statement is evidence that the Court did not intend to extend the the private right of action to include suits against OCR.

But the federal district court judge in Minnesota disagreed and denied the motion to dismiss. He reasoned that the Cannon Court's apparent concern about suits to compel OCR to terminate the federal funding of a school (or association of schools) that violates Title IX does not apply to suits in which the agency itself is accused of violating Title IX.

While I am all in favor of construing rights of action broadly, I'm not sure I find this reasoning persuasive. How is it less disruptive to the agency to be sued directly for a Title IX violation than to be sued to compel enforcement of someone else's Title IX violation? This seems especially unlikely, given the presumption (rebuttable though it may be) that an agency's decision not to take enforcement action is not reviewable by the courts?

The decision is: Cobb v. U.S. Dep't of Educ. Office for Civil Rights, 2007 WL 951688 (D. Minn. Mar. 28, 2007).

Thanks, Al Morganti

Morganti is a sports reporter from New Jersey who gets it.
...when is enough money enough money? It seems no matter how much money a college football program generates, most of the money goes right back into -- you got it -- college football. Otherwise, how can you explain all of these schools with great football programs making the tough decision to cut some other sports. You can blame it all on Title IX if you like, but you can also make a far better intellectual argument that Title IX is the single most important sports story of the past and future generation, because it really did bring about some equality.
The article is not really about Title IX--outside this mention--but about making football better by eliminating the bowl game system and going to a tournament similar to that in basketball.
I don't know if that would really save money or make things better for athletic departments as a whole, because I am not Andrew Zimbalist, but it certainly would demystify the football post-season process.

Waiting for JMU's Response to EIA's Ultimatum

Will JMU postpone the cuts, or will Equity in Athletics add them as a defendant? EIA gave them until Monday (yesterday) to decide, but there's been no word yet.

EIA seems to acknowledged that the remedy they are seeking will not redress their alleged injury, in a comment reported by InsideHigherEd.com:

“What we believe and what people I believe smarter than me believe is that institutions have taken this vehicle called Title IX and have taken liberties and interpretations of it to craft reasons to terminate programs,” Licata said in a Friday interview, acknowledging that even if the group wins the suit, JMU would still be at liberty to offer — and not offer — sports at will. “JMU has said, ‘Hey, we don’t want to do this; we have to do it.’ So if we take that reason out of it, if we’re successful with this, then we’ll find out what their true intentions are.”

In light of comments like this one, I'm rethinking my earlier assessment of EIA's standing to sue the Department of Ed. This seems like a classic lack of redressability, a la Allen v. Wright or Warth v. Seldin. In both of those cases, the Court held that even though the plaintiffs alleged a cognizable injury, they lacked standing because that injury stemmed from a third party, and thus was not necessarily redressable by the relief the court could order from the government defendants. Extending that principle here, it would seem that the loss of opportunity to compete in sports is a cognizable injury, but by EIA's own admission, it stems from a JMU, not the government. Thus, since throwing out the three-prong test (the relief EIA requests) is not necessarily going to redress that injury, EIA should not have standing.

Chronicle Reports on Title IX Conference

By way of addendum to Kris's roundup of coverage of the Title IX Conference in Cleveland, here's a link to an article in yesterday's Chronicle of Higher Education (account/password requried).

The article reports conferencees' opinions on a number of current events related to Title IX, including the U.S. Commission on Civil Rights upcoming hearing on the interest survey policy, the JMU lawsuit, and the CSC's recent report* on the decline in participation opportunities in men's sports.

On the last issue, the both Judith Sweet, a former AD and senior official at the NCAA , and professor/AD emerita Dr. Christine Grant (the reporter erroneously calls her Ms. Grant)** object to the CSC's report for underreporting the increase in opportunties in certain men's sports, which have outpaced declines in other men's sports.

*I'd link, but their website does not appear to be working.

**On further review, it appears to be the Chronicle's policy to forgo the use of the title "Dr." altogether. The paper instead refers to doctorate-holding professors of both sexes as Ms. and Mr. accordingly. I retract and regret my suggestion that this was an error or a dis.

Breaking News: Cert. Denied in Communities for Equity

The Supreme Court announced today that it would not review the 6th Circuit's decision that held Michigan High School Athletic Association in violation of Title IX and the Equal Protection Clause for scheduling a number of girls' sports out of season. According to the Detroit Free Press,

That means that in the next school year, six sports — including girls basketball and volleyball — will switch seasons. Those switches will affect about 70,000 athletes. Michigan high schools must now juggle practice times and scheduling, specifically during basketball season, which starts in December. Schools with limited facilities will feel the crunch the most.

Just to put that last point into perspective: Michigan's separate seasons for girls and boys basketball is unique. Schools in every other state manage to find a way to run girls' and boys' basketball together in the winter. Some might even argue that it's more efficient to have them in the same season, because schools can consolidate travel costs by scheduling double-headers. And it's also worth noting that up to now in Michigan, girls volleyball was a winter sport, so many schools are probably used to having a boys and girls team use the same gym in the winter.

It's also important to keep in mind that the case was not about logistics -- it was about discrimination. The issue was not whether MHSAA could schedule certain sports out of season for reasons relating to facilities or coaching or any other issue of convenience. The issue was, rather, whether it violated Title IX and Equal Protection that all six of the sports that MHSAA did schedule out of sync with the rest of country were girls' sports. The 6th Circuit said it does, and now we know that that decision will stand.

See earlier posts about Communities for Equity here, here, and here.

Conference in the news

Below is a list of the press I have seen regarding this past weekend's Girls and Women Rock Conference in Cleveland. I have added comments about some of the coverage. Please add links/stories you have found and any thoughts you may have.

Many of the stories started with something to the effect of "There's a Title IX conference in Cleveland this weekend" and went on to discuss some women's sport issue. This one from USA Today took this approach mentioning the conference and then discussing the recently released results from the College Sports Council that say, when we consider the growth in the number of NCAA schools men's opportunities have decreased while women's have increased. There are good rebuttals of this "research" including this statement from Jocelyn Samuels of the National Women's Law Center: "Looking at the number of teams and how they have changed is legally irrelevant," Samuels says. "What Title IX demands is equality as measured by individual participation. And men continue to have more opportunities than women." The Washington Post article about the CSC study is not as balanced focusing on the numbers the CSC study came up with, statements from CSC members but only one person who rebutted the CSC claims.

Carrie Lukas of the National Review penned this annoying column last week. She called the conference a "femi-palooza." That was my first hint that this was not going to be a positive article.
Evidence of men’s greater interest in watching and playing sports abounds.[...] Such common sense will be heresy, however, at the Cleveland conference. Many members of the organizations sponsoring the conference recoil from any suggestion that innate differences between the sexes contribute to disparate outcomes, whether on a basketball court or in the workplace. “Discrimination” is the only acceptable explanation when men out-participate or out-perform women, while women’s triumphs ironically are ignored.
When did discrimination become a word that needs quotation marks? Lukas goes on to call us "gender-obsessed handwringers," bemoans the lack of equality we allegedly perpetuate, and then tells us Title IX needs reforming before more men's teams become extinct.
There is a link a the article site through which you can email Lukas. Use it as you see fit.

The Plain Dealer has this coverage of the Billie Jean King luncheon.

Also from The Plain Dealer, this article is about the lack of women coaching intercollegiate athletics but mentions work presented at the conference especially the study done by Cindra Kamphoff of UNC-Greensboro.

Prince George's County Softball Update

You'll recall that last August, the National Women's Law Center negotiated with Prince George's County, Maryland, an agreement to improve athletic facilities for girls' softball.

This recent article from a local paper reports on the progress the county has made toward renovating the dozen fields covered by the agreement. The field at Largo High School has been completely refurbished to include several of the missing safety features that prompted the agreement including dugouts, a warning track and an outfield fence. There is, however, more work to be done to improve the remaining fields, which "still reflect years, even decades of neglect."