Some Law Reviews Will Publish Anything

Such as a student Note about how Title IX is hurting men's swimming. Does the Note even contain the word football? It does not.

See 17 Marquette Sports Law Rev. 679 (2007).

Trial Coverage Continues

On Thursday, Lindy Vivas's attorney finished making his case that Fresno State's decision not to renew Vivas's contract as head volleyball coach was discriminatory.

The last witness of the day was former AD Scott Johnson, who had been accused by an earlier witness, former basketball coach Stacy Johnson-Klein, of having"a plan to get rid of lesbians in the athletic department," preferring to hire "female coaches who were straight and attractive," and instructing other athletic department officials to "make Vivas's life miserable."

Johnson's testimony did not appear to go well according to the press. The Bee reported that when former AD Scott Johnson was being cross examined by Frenso State's own lawyer, Dawn Theodora, he was unable to correctly answer her question about how many volleyball players are in the match at one time. "Seven or eight" he said, which forced Theodora to ask, "you mean six?" Said the paper, "Johnson's incorrect answer appeared to validate Vivas' claim that he was indifferent to volleyball and not the expert witness that Theodora portrayed him as."

The Bee also ran an opinion piece by Professor Kathryn Forbes of the Women's Studies Department at Fresno State, which gives cultural context to the events underlying the trial. Why are men like Johnson apparently so resistant to women in sport? Forbes speculates that sport's historical significance as a site of masculinizing boys and men explains it:

The cherished values of sport -- competition, strength and aggressiveness -- are core components of our society's construction of masculinity. In sport, men are allowed to perform and experience this masculinity in an unfettered fashion while in wider society the movement for gender equity has curtailed unearned privileges many men historically have enjoyed. Scholar David Whitson argues that sport acts as a "male preserve" and serves as an "important site in the construction of male solidarity." Undoubtedly, Title IX threatens this solidarity by challenging the definitions of masculinity.

So, like much discrimination against women in sport, Fresno State's attempts to purge women from its coaching ranks, to pit them against each other, and to bait them with accusations of lesbianism, are all defensive tactics by men attempting to preserve the hegemonic masculinity of sport.

Fresno State's defense starts Monday. For earlier coverage of the Vivas trial, use the Fresno label below.

Former Nun Revives Discrimination Suit by Invoking Title IX

Earlier this year, Lynette Petruska lost her Title VII employment discrimination lawsuit against Gannon University, her former employer, when the Supreme Court declined to consider her appeal of a 3rd Circuit's ruling that a doctrine called the "ministerial exception" protected the University's right to make hiring decisions based on gender.

She is now trying again by raising claims under Title IX instead.

Petruska, a former nun, was demoted from her position as chaplain and forced to resign from the University "because of her gender and because she helped expose accusations of a cover-up over a priest who allegedly had an affair."

The First Amendment's Free Exercise clause protects individuals' and churches' freedom to practice religion. Courts have held that this clause protects churches in their capacity as employers. Courts will not examine a religious institution's motives when it comes to "selection of clergy–in other words, its choice as to who will perform particular spiritual function" (quoting the Third Circuit decision). Because constitutional rights trump statutory ones, this creates a "ministerial exception" to Title VII. In other words, as the Third Circuit concluded, even if Gannon University's decision to fire Petruska would have otherwise violated Title VII, because Gannon is the church and Petruska was a clergy (a chaplain), Petruska's statutory rights are not protected.

Unfortunately, I don't think that Petruska's new approach of suing Gannon under Title IX will make any difference to the outcome of her case. Courts generally construe Title IX's protection for employees as coextensive with the protection they receive under Title VII. Also, there is nothing in the Third Circuit's decision that suggests that its rationale was specific to Title VII and inapplicable to other statutory rights that might come into conflict with the Free Exercise Clause. ("The ministerial exception, as we conceive of it, operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual function." (emphasis added))

Big Ten Network: Event Equality by 3rd year

Eric Crawford of the Courier-Journal writes about the Big Ten Network starting in August. Of course, it will be a premium channel for which viewers will have to pay extra money. The channel will air men's football and men's basketball games which are not aired on ESPN or ABC as well as women's sports and men's non-revenue sports. The Big Ten Network also promises to have an equal number of women's and men's sports by the 3rd year. The major cable providers (Comcast, MediaCom) are apparently apprehensive to pick up the station. According to Crawford, "Comcast president David Cohen questioned whether it is worth the hefty fee for what he considers a 'niche' network carrying second-rate games. In a memo on the subject, he said, 'Indiana [men's, word and emphasis added] basketball fans don't want to watch Iowa play volleyball.'"

Overall, the idea of event equality is great. But I wonder why it will take them 3 years to achieve this goal? Why can't they have event equality in the first year? And then, will event equality mean that the day and times sports are being aired are equal? For example, during men's football and women's soccer season, will we see both sports aired during the prime times? Hopefully, the network will survive 3 years and ultimately achieve their goal, perhaps even allowing for event equality on the major broadcast networks. I also hope that there are good producers and people in charge of the Big Ten Network that will work to create change for both women's and men's sport on the institutional and social level.

JMU & Rutgers on ESPN's Outside the Lines

Outside the Lines (OTL) on Sunday aired a story about the decisions of JMU and Rutgers to cut sports. Previous posts have discussed the situation at JMU. I haven't watched the piece but an article in the Daily News Record highlights the OTL episode. Jeff Bourne, Athletic Director at JMU, was interviewed for the piece and defended the decision to cut 10 sports (7 men's and 3 women's sports) stating the school was not in compliance with Title IX. I won't delve into this as a previous post has already done that. Myles Brand, President of the NCAA was also interviewed and apparently kindly reminded the audience that "Title IX is a 'scapegoat' for schools that want to focus on revenue sports." It will be interesting to see if any hackles get raised on either side of this issue because of this OTL report.

North Carolina HS teacher and coach marries his 16-year old student-athlete

A 40-year old, male high school cross country/ track coach married one of his 16-year old, female student athletes in North Carolina. The local ABC affiliate has articles and video, as does ABCNews. There are so many things wrong with this - differences in age, maturity, educational status, power. The relationship started innocently enough by the coach giving the girl rides home when she was a freshmen in high school. After the parents realized a relationship was happening, they sought and received little assistance from school officials and even police. The girl asked her parents to sign the consent form to allow her to marry and the parents eventually gave in. Obviously, we don't and never will know the whole story, but the coach's actions are inexcusable. Teachers and coaches should be supportive, adult mentors in the lives of the children and young adults they interact with. It is completely inappropriate, immoral, and unethical for adult mentors to take advantage of youth. Stories like these, which happen too often, are disturbing.

35th Anniversary Round-up

Lots of news stories over the weekend to commemorate the 35th Anniversary of Title IX. Here are some links to peruse.

• Mechelle Voepel
• John Diaz
  
• Salt Lake Tribune
  
• Newsweek
• Kansas City Star
• LA Times
• Honolulu Advertiser
  

Happy Anniversary, Title IX!

Today marks the 35th anniversary of Title IX. It's hard to believe how much progress has been made since its passage, and how much is yet to be done. Happy Anniversary, Title IX -- here's hoping for many, many more years of paving the way for true gender equity in education.

Sports Illustrated highlights Title IX advocates

SI.com has put together a photo gallery of "The Most Influential People in Title IX History." There are thirteen people, not ranked in any particular order, though Billie Jean King is shown first. A few odd things about the compilation:

1. They refer to Nancy Lieberman as Nancy Lieberman-Cline, which is odd considering she divorced Tom Cline and returned to her maiden name, at least she had when we saw her at Harvard in April.

2. Dominique Dawes is on the list. She served as Women's Sports Foundation president for a couple of years. But she has made public her opinion that female athletes can pose in whatever form they choose in whatever media they choose, a position I find problematic and damaging to the work for gender equity in sports.

3. Bernice Sandler, who started the movement to get a federal law banning sex discrimination in education is not one of the people SI.com includes in their list. Major oversight in my opinion.

But the list does represent a fairly diverse group in terms of relation to the law (academics, activists, lawyers, politicians, and athletes) and racial diversity, with three women of color.

PA proposes mandatory reporting

The Pennsylvania state legislature has introduced a bill that would require secondary schools (both middle and high schools) in that state to report their athletic department expenditures and rosters. Not too long ago the state asked nicely for this data but few school districts replied.

The reporting is similar to that done by colleges and universities. As we wrote about some time ago, two different congresswomen (Senator Snowe and Representative Slaughter) proposed two similar federal bills that would require secondary schools to report such data.

The PA bill is, obviously, a state initiative and one that the state would fund to the extent that it is offering to foot the $250,000 bill for the software required for reporting. Several other states, California, Georgia, Florida, and Washington, already have such legislation.

Diana Nyad on Title IX: 'Get FB out of there'

Diana Nyad, a great swimmer in the 1970s, was on NPR's Marketplace today discussing Title IX as the 35th Anniversary nears. She briefly discussed two of the main issues regarding Title IX: proportionality and men's football. What is surprising to me, is her opinion about Title IX and men's football. She stated:

It goes right back into football. So it has been suggested by legislatures and all kinds of other advocacy people on both sides of this issue — since way back, since Title IX first came into being in the early 70s — that football just be taken out of the Title IX equation.....If we got football out of there, let them take care of themselves, I think then we would probably have the most fair situation I can personally think of.

Yes, Nyad is stating that by taking football out of the Title IX equation (there would then be men's sport, women's sport, and football) the result will be a relatively fair situation in sport. Hmmm, seems to me a fair situation would be to, 'gasp', eliminate the excesses that exist within the majority of football teams. This would include, to only name a few, the roster size, coaching salary, and facilities. But, given the political and societal power of football, making these types of changes will continue to be challenging.

Senator Patty Murray (D-Wa.) Introduces Resolution Honoring Title IX

As a follow-up to the last post regarding House Resolution 406, Senator Patty Murray (D-Wa.) has sponsored a similar resolution in the Senate, celebrating the momentous progress toward gender equity in education over the last 35 years, and noting that there is still much work to be done.

House of Representatives Passes Resolution Honoring Title IX

Congresswoman Mazie Hirono (D-Haw.) introduced a resolution to honor Title IX and to acknowledge the need to continue working toward gender equity in education.

The official title of H.Res. 406 is: "Celebrating the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, and recognizing the need to continue pursuing the goal of educational opportunities for women and girls."

Here is the text of H.R. 406, which was adopted on Monday, June 18:

RESOLUTION
Celebrating the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, and recognizing the need to continue pursuing the goal of educational opportunities for women and girls.

Whereas 35 years ago, on June 23, 1972, the Education Amendments of 1972 containing title IX was signed into law by the President;

Whereas Representatives Patsy T. Mink and Edith Green led the successful fight in Congress to pass this legislation;

Whereas title IX prohibits discrimination on the basis of sex in the administration of any education program receiving Federal financial assistance;

Whereas remarkable gains have been made to ensure equal opportunity for women and girls under the inspiration and mandate of title IX;

Whereas title IX serves as the nondiscrimination principle in education;

Whereas title IX has moved this Nation closer to the fulfillment of access and opportunities for women and girls in all aspects of life;

Whereas title IX has increased educational opportunities for women and girls, resulting in improved graduation rates, increased access to professional schools and nontraditional fields of study, and improved employment opportunities;

Whereas title IX has increased opportunities for women and girls in sports, leading to greater access to competitive sports, and building strong values such as teamwork, leadership, discipline, work ethic, self-sacrifice, pride in accomplishment, and strength of character;

Whereas on October 29, 2002, title IX was named the `Patsy Takemoto Mink Equal Opportunity in Education Act' in recognition of Representative Mink's heroic, visionary, and tireless leadership in developing and winning passage of title IX; and

Whereas 35 years of progress under title IX is widely acknowledged, but because women continue to earn less for work than men with the same educational background; sexual harassment remains pervasive in schools and on college campuses; women and girls face substantial barriers in pursuing high-wage fields such as science, technology, engineering, and math; and women and girls' sports teams do not receive an equal share of resources, including fewer recruiting and scholarship dollars at the college level; and athletic participation opportunities still lag behind those provided for men, there is still much work to be done if the promise of title IX is to be fulfilled: Now, therefore, be it

Resolved, That the House of Representatives celebrates--

(1) the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, in increasing opportunities for women and girls in all facets of education; and

(2) the magnificent accomplishments of women and girls in sports.

And here is the speech given by Rep. Hirono in support of the resolution:

Ms. HIRONO. Madam Speaker, I rise today to introduce a resolution celebrating the 35th anniversary of Title IX of the Education Act Amendments of 1972. Thirty-five years ago, a college applicant could be denied admission simply because she was a woman.

Title IX of the Education Amendments of 1972 changed that. Led by the late Representatives Patsy T. Mink and Edith Green, Congress established a principle we often take for granted today--the prohibition of sex discrimination in any federally funded educational program. The results are astounding.

In 1972, only 9 percent of JDs were earned by women. Today women earn almost half of all law degrees. In fact, I am one of the many women able to go to law school because of Title IX. The story is similar for MDs and PhDs.

There are also, of course, the athletic opportunities. Here too, the change from 1972 to 2007 is astounding. Today, college athletic opportunities abound for young women. And the recent surge in women's professional sports teams could not have happened without the dramatic increase in women playing college sports.

These successes--both academic and athletic--are worth celebrating, as are the women who came before us here on the House floor as leaders of the Title IX movement. In 2002, after Representative Patsy T. Mink passed away, Chairman MILLER introduced a bill that named Title IX the ``Patsy Takemoto Mink Equal Opportunity in Education Act.'' I have a picture of Patsy hanging in my office. She is an inspiration to me. And I know that if she were here today she would remind us that our work is not finished.

There are many problems still to be addressed. Women continue to face substantial barriers, especially in high wage fields such as science, technology, engineering and math. Sexual harassment remains pervasive in schools and on college campuses. Women and girls' sports teams still do not receive an equal share of resources.

Title IX is as necessary today as it was in 1972.

I am pleased to have over 100 original cosponsors on this bill, including Speaker PELOSI. I urge the rest of my colleagues to join me in celebrating Title IX's successes and in recognizing the work still to be done in our march toward equal educational opportunities.

***

Many thanks to Rep. Hirono for so eloquently stating why Title IX continues to be so important today.

NWLC "Barriers to Fair Play" report

Yesterday, Marcia Greenberger, Co-President of the National Women's Law Center (NWLC), presented findings from the NWLC report entitled, Barriers to Fair Play, before a subcommittee of the House Committee on Education and Labor. Using the Freedom of Information Act, the NWLC acquired records of Title IX complaints from the Office of Civil Rights (OCR). Major findings included:

• Discrimination of female athletes remains widespread
  
• Because of fears of retaliation, few coaches file complaints
• When complaints were made on behalf of female athletes, athletic departments often made changes
• For all sports, the gap between softball and baseball teams was most pronounced
• OCR is not enforcing Title IX at a sufficient level

Evaluating Title IX, gives an overview of the findings and Greenberger's presentation.

The NWLC has made available a Title IX 35th Anniversary Press Packet containing numerous resources.

Programming Note

Welcome to our guest, Professor Jennifer Waldron from UNI. Jen will be contributing to the blog while some of us are traveling this month.

CSTV programming to mark 35th Anniversary of Title IX

For those of you with super-deluxe cable or satellite, CSTV has proclaimed the week of June 25th " as The Women's Movement on CSTV." That is, the station will help celebrate the 35th Anniversary of Title IX by airing special programming. This includes two installments of the One2One Series featuring interviews with Kay Yow (the head basketball coach at North Carolina State who is battling breast cancer) and Nawal El Moutawakel (the first African and Muslim Olympic gold-medal winner). Although I am unable to verify it on the ESPN.com website, I have read on a couple of different websites that ESPN will be airing a Title IX 35th Anniversary Special on June 23 at 5 pm ET.

On the one hand, it is nice that the Anniversary of Title IX is receiving television programming to commemorate it. On the other hand, it is difficult to find information about when and where this programming is being aired. And, more importantly, the programming is not accessible to everyone. Title IX has opened up opportunities for many of us. Unfortunately, mainstream television continues to be hesitant in providing similar opportunities.

Fired Coach to Sue South Carolina State

A couple months ago we blogged about South Carolina State University's decision to fire its head men's basketball coach, Jamal Brown. The University's explanation was vague, suggesting only that he had done something to jeopardize the school's compliance with Title IX. We thought it was probably a sexual harassment situation, a theory which was later confirmed when the press reported that the coach was under investigation for a relationship with a female student trainer.

But according to the local paper in Columbia yesterday, the investigation never lead to any formal charges against Brown, who was not reinstated. He plans to sue the University this week for violating the terms of his employment contract. The issue in dispute seems to be whether Brown's refusal to submit to the University's request that he take a polygraph test was proper grounds for his dismissal. Brown argues it was not proper for the University to ask him to take a polygraph in the absence of formal charges against him. Thus, he says, he was within his right to refuse to take the test.

The University claims that they did not require pending charges against Brown, because they weren't investigating his culpability, but the University's own compliance with Title IX. To be sure, schools can be liable under Title IX when their employees and even their students sexually harass another student -- see, e.g., the UNC case. Thus, the University's position is that Brown's refusal to take the polygraph test was conduct that obstructed a Title IX investigation, an offense for which Brown could legally be fired.

The way this case is being reported, it sounds like the University is using a semantic distinction between investigating Brown and investigating its own Title IX compliance to justify why it fired a coach who was never charged with misconduct.

Wall Street Journal Article Tells a Different Story than the Headline

If you only read the headline in this Sunday's Wall Street Journal -- "Wanted: Female Players: Thirty-five years after Title IX, colleges struggle to fill women's teams" -- you'd think that there are no qualified and interested female athletes out there.

But then you read the article, and you realize that, in fact, there are. The point of the article, viewed separately from the headline, seems to be that parents of female athletes wishing to pursue scholarship opportunities for their daughters have to spend thousands of dollars to hire agents to bring them to the attention of coaches in their sport. This trend would seem to underscore the point made by women sports advocates, who suggest (as the WSJ acknowledges) "that the real problem [why there are fewer female college athletes than male] is paltry recruiting budgets and coaches who don't make enough effort to find athletes."

Why the disconnect? Does WSJ believe that to get a mainstream audience to read an article about women's sports, it must be framed with a headline that calls Title IX into doubt?

"Ugly Women in Athletics Day"

This is the kind of thing female athletes must endure at Fresno State, according to softball coach Margie Wright, who testified at the Lindy Vivas trial yesterday. The website for KSEE news summarized it this way:

Wright described an incident when some Fresno State staff hosted a small party for "Ugly Women in Athletics Day." A poster on the wall had stick figures with athlete's faces on them. Some of the softball players ripped the poster down, but then had to apologize and take the poster back.

As I understand it (from someone who was at the trial yesterday) the judge did not allow Wright to testify about specific homophobic remarks the male baseball coach and players made about the softball team, presuming that such remarks would not have affected Vivas since she coached a different sport. The Fresno Bee seems to make much of the fact that Vivas herself "never directly overheard gay slurs." But just because discrimination is subtle does not mean it's not there. I think Wright's excluded testimony would have helped flesh out a more complete picture of homophobia and misogyny operating within the department, lending additional context to Vivas's claims of bias against her. Given all the evidence, I think an astute jury can figure out the difference between subtle discrimination and no discrimination at all.

Demanding to know at FGCU

This editorial from Florida calls upon Florida Gulf Coast University administrators to name the nature of the Title IX complaint. We also get some FGCU history including the fact that the athletic program was started by Merrily Dean Baker, a pioneer in women's sports and one of the few women to head a Big Ten athletics department, ten years ago when the state university opened. Her intent was to make it equitable from the start. And now, as FGCU is readying itself to join the NCAA, they have to contend with equity complaints that they will not discuss.
But that does not mean some are not trying to get FGCU to be a little more forthright. The Naples Daily News still has pursued getting a copy of the complaint under public information laws. They also tracked down the athletic director who is on vacation in South Carolina bu he wouldn't give a comment either. The university is adamant about getting through the investigation before any information is released.

Happy with what you've got?

Complaints about inequitable scheduling of practices and/or games are nothing new. Schools have made adjustments, sometimes willingly, sometimes not, to give girls' teams equitable access to prime practice and game times. Such was the case down in Maryland in Anne Arundel County where, about six years ago, they started rotating the schedules of girls' and boys' soccer, lacrosse, and basketball to provide one primetime (7pm) game start per week for everyone.

But now the county is thinking about going back to previous scheduling pattern: girls at 5 p.m., boys at 7 p.m. because of numerous complaints. And, according to the article, most of the complaints are coming from girls' basketball coaches. Why? Because when the girls' team gets the primetime slot they have to contend with a mass exodus of audience members who leave after the boys' game.

"If anyone has come to our gym to see a Tuesday basketball doubleheader, then you've seen 400 people leave before the beginning of the girls' game," said Broadneck athletic director Ken Kazmarek, a former boys basketball coach at the school who helped institute the current scheduling system. "It's absolutely embarrassing for the girls. I think they would prefer playing in front of a packed house during the third and fourth quarter instead of having an empty gym for the entire game."

The phrase "best of intentions" has been thrown around and we certainly see that; but what message does it send if the county reverts back to its prior scheduling? Did they, after instituting the changes work hard to promote the girls' teams? Is the mass exodus a reaction to the changes; a message from audience members that they liked the status quo and don't want change pushed upon them?

It looks near certain that the scheduling changes will go through with the new/old schedule back in the fall. But I don't think the "we tried it; we didn't like it" excuse necessarily protects the county from future Title IX complaints. And I don't think it sends a good message to anyone about gender equity.

Update from Fresno Trial

The Bee covered Fresno State attorney's opening statement in the trial between the university and former volleyball coach Lindy Vivas, who alleges that she was fired in retaliation for her support of Title IX and because the department thinks she's gay. Two themes made its way into the report. One is Fresno State's argument that if it had wanted to fire Vivas for unlawful reasons, it would have done so sooner rather than let her serve in her position for 14 years. I'm not sure how persuasive that argument will be to the jury. For one thing, while Vivas may have been a coach for 14 years, only in her last two years did she serve under the athletic director (Scott Johnson) who decided not to renew her contract. Moreover, for much of Vivas's tenure Fresno State was under OCR's scrutiny following a 1994 investigation that found the university out of compliance with Title IX. This would have given the university good reason to quell any desire it might have had to terminate female personnel for unlawful reasons. (OCR finally approved Fresno State's corrective action plan in 2001. Vivas was fired in 2004.)

The second aspect of Fresno State's defense that the paper commented on was its attorney's argument that Stacy Johnson-Klein, one of two other female coaches suing the university for discrimination and a scheduled witness in Vivas's trial, is Vivas's former "enemy" and "rival" within the department. Said the attorney, "There are strange and predictable alliances in this trial...The old saying that the enemy of my enemy is my friend has never been more true." Jeez, is this a trial or the Jerry Springer show? Why have a trial if you can have a cat fight?

Hush-hush complaints in Florida

Florida Gulf Coast University is investigating an "ethics complaint" that allegedly came from outside the university and cites inequitable treatment of men's and women's teams. But that's all the information we are getting from FGCU where administrators will not say where the complaint(s) came from or what, specifically, they cite as inequitable. FGCU has not met the proportionality standard but appears to be working to increase the opportunities for female student-athletes by adding women's soccer and swimming.

This article attempts to run through the potential violations FGCU could be facing such as practice schedules, coach salaries, and scholarship allotment. But the only thing the reporter, supported by Women's Sports Foundation CEO Donna Lopiano, could come up with as perhaps problematic was the scheduling of basketball doubleheaders where the women's team was always relegated to the "warm-up act" position and then men's team got the primetime slot. The FGCU president has said that no one in the athletic department will be allowed to comment while the investigation is underway.

Law Review Note Addresses the Michigan Seasons Case

The Vanderbilt Journal of Entertainment and Technology Law's current issue (9 Vand. J. Ent. & Tech. L. 861) includes a Note by Jane Heffernan called Changing Seasons, Changing Times: The Validity of Nontraditional Sports Seasons Under Title IX and the Equal Protection Clause. Heffernan writes:

The combination of holdings over almost ten years of litigation in the Communities for Equity v. MHSAA cases has led to an excessively high standard of scrutiny that is applied broadly to virtually any decision made between male and female athletic programs. By holding the MHSAA liable under both Title IX and Section 1983, the court treated the scheduling decisions as facial gender classifications, which require intermediate scrutiny by the court, thus creating a presumption of discrimination and shifting the burden to the defendant athletic association to prove a substantial governmental interest. As one of the first major in-depth cases involving Title IX and Equal Protection compliance in interscholastic athletic programs, this case and the approach taken by the Sixth Circuit in Communities for Equity will most likely have major implications regarding the decisions made nationally, not just for interscholastic athletics, but also quite possibly reaching into the classrooms themselves.

Heffernan fears that Communities for Equity hamstrings schools by requiring them to treat their girls' and boys' programs exactly the same:

Once the decision to have separate teams for males and females is made, there must be some flexibility within the Equal Protection Clause analysis for decisions to be made with regard to the teams without those decisions being further classified as gender-based. Under the Sixth Circuit's approach, any decision made in which the gender-based teams do not mirror each other will necessarily treat girls and boys differently and thus become subject to potential equal protection claims.

I don't think that Communities for Equity applies to "virtually any decision" or goes so far as to require teams to "mirror each other." Different conditions are fine, as long as the difference isn't discriminatory. The fact that MHSAA scheduled separate seasons for girls and boys in six sports did not violate Title IX or the Equal Protection Clause. It could have easily defended a decision to, say, schedule one sex's basketball season in fall and the other one in winter, even under intermediate scrutiny, on the rationale that doing so would better ensure sufficient access to facilities, coaching, equipment, whatever. What the court said MHSAA could not defend was the fact that in all six of its decisions to separate the seasons for boys and girls, girls got stuck with the less advantageous season. To me, that's not "excessive" scrutiny, that's appropriate scrutiny.

Former Coach's Discrimination Trial Begins in Fresno

Yesterday attorneys for ex-volleyball coach Lindy Vivas made opening statements in the trial against her former employer, California State University at Fresno. Vivas alleges that the university refused to renew her contract in 2004 because of her "outspoken advocacy for gender equity in university sports and for her 'perceived sexual orientation.'" The university defends that its decision was performance-related, arguing that Vivas had "failed to take the Bulldogs to the next level by winning an NCAA Tournament." Vivas's 11 year record was 263-167, and in the last three years her team was 59-27.

Vivas's is only one of three lawsuits by former female athletic department employees filed against Fresno State in recent years. Diane Milutinovich sued after she was transferred out of the department, and ultimately fired altogether, for also insisting that the school implement changes consistent with the OCR Title IX compliance order. Her lawsuit is scheduled for trial in September. In addition, former basketball coach Stacy Johnson-Klein has also sued the school, alleging that she was fired for complaining about sexual harassment. Like Vivas's, Johnson-Klein's lawsuit also alleges that female coaches were scrutinized for indicia of homosexuality. Outsports.com, which has compiled a helpful timeline of these events, summarizes it this way:

According to The Bee, Johnson-Klein says she was told that "lesbian coaches were not to be hired at California State University-Fresno." On numerous occasions, she saw or heard her supervisors and athletic department staffers refer to lesbians as "the other team," adding that "you need to be on the home team and not the other team." According to the article, Johnson-Klein said she was told to choose sides and "was instructed not to harbor or foster any type of relationship with any women athletes who were considered lesbians or complained of Title IX violations," the lawsuit alleges. The lawsuit also states that supervisors repeatedly referred to certain women coaches as "lesbians, dykes and atheists," according to the newspaper.

Outsports also notes, "With the firing of both Vivas and Johnson-Klein, Fresno State is left with only three female head coaches in an athletic department that competes in 16 Division I sports. Six of the nine women's sports on campus have male head coaches."

UNC Charlotte starts crunching numbers

The first phase of UNC Charlotte's decision-making process which will determine whether to add a football team, is complete. The University received the estimated costs associated with bringing football to the school. (The link to the news story also includes a brief news clip that does not offer much more than the print story though there is an interview with a student about what football could bring to campus.)

I have to commend the university for exhibiting a great deal of candor thus far. The numbers are out there and they show a doubling of the athletic department's 2005-2006 expense budget if football were to be added in 2012. They have been forthright with students that some of the money will have to come from them. (The problem with this scenario though is that only 20 percent of students polled last year said they would pay an up-to $400 athletic fee for the addition and they were polling students who will not be around in 2012 to benefit.)

The estimates also include $1.6 million to add women's sports that would provide opportunities to about 100 female student-athletes. Field hockey, lacrosse, and swimming are the early contenders. Note that that figure is a small percentage of the $8.9 million increase in the department budget. One of the senior associate athletic directors felt that the increase would be made up by the revenues. But over half the expected revenues are budgeted to come from student fees--not ticket or merchandise sales.

Also not included in the $8.9 million is the biggest cost of all: the $75 million for a stadium and an additional $33 million for other fields and facilities. Although the numbers were there in the estimates and the article reported on them, the fact that they seem to be separated out is problematic. While money for capital costs often comes from a variety of sources, including donations, they will factor into the department budget when you think ahead to upkeep or to the possibility of paying off the bonds that could be used to help build the facilities.

I don't think UNC Charlotte would put it this way, but the start-up costs involved with bringing football to the school will be $116.9 million.

New Numbers Show Men's Sports Gaining Overall

The Women's Sports Foundation released a new study on participation levels in men's and women's sports. The data show that women's and men's participation levels have increased in the last 10 years, but men still outnumber women among college athletes, about 60/40. The data also illustrate that most of the gains for women's sports came in the late 90s rather than more recent years, suggesting that gender equity efforts are stalled.

The study, authored by Dr. John Cheslock of the University of Arizona's Center for the Study of Higher Education, acknowledges that a few men’s sports like wrestling and men's tennis have suffered substantial declines. But the overall number of male athletes has increased in that same time period, due to substantial gains in other sports like football, baseball, and lacrosse.

These figures should help dispel the myth that Title IX hurts men. Contrary to the image perpetuated by Title IX opponents that Title IX forces schools to redistribute limited opportunities away from men to give to women, the numbers show that schools have been adding opportunities more than they have been taking away, and that the beneficiaries of such additions continue to be men. As for the claims of particular downsized men's sports, they are on the losing side of a preference shift within men's sports, which is an unfortunate position, but one that has nothing to do with Title IX. According to the New York Times, Billie Jean King, WSF's founder, explained it to the press this way:

People ask, "What happened to my wrestling or tennis teams?" Well, things have shifted. We keep reading that men’s sports teams are being taken away. The fact is, women remain the underrepresented sex in athletics.

Another interesting feature of WSF's new study is that you can look up individual institutions to see how the WSF grades them on gender equity in athletics. Western New England College, this blogger's institution, received a B+. My alma mater, University of New Hampshire, got an A-.

Messner & Solomon on Men's Interests in the Title IX Discourse

Dr. Michael Messner, a sociology professor at USC, and Nancy Solomon, the former senior staff attorney of the California Women's Law Center, analyze Title IX discourse in the current issue of the Journal of Sport and Social Issues (v. 31, n. 2, pp. 162-78, May 2007). Specifically, they examine the testimony in support of men's athletics at one of the public hearings sponsored by the Commission on Opportunity in Athletics in 2002. Messner and Solomon observe that advocates for men's athletics generally praised Title IX and characterized their objections as relating only to its "unintended consequences" for minor men's sports. The arguments raised within this theme (e.g., that Title IX hurts walk-ons, that men are naturally more interested in sports, that Title IX harms minority athletes) exemplify how male athletes in "marginalized" sports articulate their objections to Title IX in a way that supports the interest of the powerful men's sports (football and basketball) -- despite the fact that those sports are demonstrably more threatening to other men's sports than Title IX. Though it is not rational for marginalized male athletes to take positions that support the interests of football and basketball, the authors suggest that they do so because men are generally seeking to secure the gender order, which is threatened by not only by Title IX but by the entire "liberal state."

Syracuse adding and subtracting

Last week Syracuse University announced it was adding women's ice hockey and cutting men's and women's swimming and diving. The primary reason it seems is the substandard condition of the natatorium which would cost $35 million to rebuild. But SU administrators also acknowledge that the addition and the cuts will result in greater opportunities for female student athletes and will, in the 2008-2009 season when the hockey program begins, bring SU to substantial proportionality. Currently the university cites compliance with prong two, history and practice of expansion. And though the university added three sports between 1996 and 2000, a seven-year gap starts to look suspicious and weaken claims about commitment to expansion of opportunities.
It is unfortunate that the swimming program is being cut. It has a long history at the university and is much beloved by anyone who was ever involved. The loss will bring down to ten the number of teams in the 16-school Big East conference that sponsor intercollegiate swimming and diving.
Swimming has taken a lot of hits recently. University of New Hampshire, Rutgers, and JMU all cut their programs. And there has been a lot of talk about the loss of intercollegiate programs in the swimming community. SwimmingWorldMagazine.com frequently reports on the cuts and the efforts to save programs and has started a forum for discussing the Syracuse decision. So far, no Title IX backlash.

Professor Gill on Black Women in College Sports

The current issue of Diverse Issues in Higher Education includes a column by Dr. Emmett Gill, a professor in Rutgers's School of Social Work, on the lack of racial diversity in women's college athletics. Professor Gill acknowledges that Black female athletes are well represented in basketball and track, but suggests that this creates a false illusion that all of women's sports are racially mixed. In truth, the sports that have benefited the most from Title IX (he names soccer, lacrosse, and rowing) are overwhelmingly white.

Analogizing to the Title IX concept of proportionality, Gill compares the percentage of college students who are Black women, 12%, to the percentage of student athletes who are, 5%. This is a significant disparity about which we Title IX advocates must be concerned. Taking the analogy even further he suggests that Black women's participaton would have to increase by 347 in soccer, 434 in swimming, and 429 in rowing to be proportionally represented in those sports. (This is, to be sure, a loose analogy, as Title IX does not measure proportionality within particular sports.)

Gill criticizes Title IX advocates for talking about racial diversity in sport without taking commensurate action. He argues that more must be done to break down barriers of race and class at early, developmental levels of sport. Without disagreeing with Professor Gill, I'd like to point out one positive example about which I'm familiar: The Women's Sports Foundation sponsored a program in Boston that sought to provide access to sports for girls from communities without traditional access to sport, including communities of color, immigrant communities, and urban lower class families. Programs in sports like volleyball, rowing, ice hockey, gymnastics and tennis were among those funded. Compared to the level of investment that Professor Gill is arguing for (he points out that it would cost $14 million to develop 5700 soccer players from 5th to 12th grade) this $200,000 project in Boston is small potatoes. But hopefully it is the beginning of a trend toward the racial integration of all girls' and women's sports.