Getting rid of the "Lady"

Athletic Business reports that more schools who previously differentiated between their men's and women's athletic teams by using the term Lady are dropping it. Cameron University in Oklahoma and Indiana University South Bend both recently dropped the Lady from their nicknames. This is good news. The dropping of the term indicates that administrators understand how the differentiation is not innocuous but rather trades on historical constructions of women's athletics as inferior. Also, according to work by sports sociologists who have looked at the bigger picture around naming practices, lack of differentiation seems to indicate a greater commitment to gender equity and a better, more hospitable environment for women in athletic departments.
Of course there are still schools that have held on tight to their "tradition." Tennessee's Pat Summitt said before the 2007 NCAA championship that she does not think, and does not want, Tennessee to drop the Lady from the Lady Vols.
But the award for most ridiculous attempt to differentiate the men from the women goes to Kentucky State with the Thorobreds and the Thorobrettes.

Female Athletes Bring Title IX Suit Against UC Davis

The Sacramento Bee reports that three female athletes--two field hockey players and one who wrestles and plays rugby--have sued UC Davis to challenge its distribution of athletic opportunities and scholarships.

Davis's proportionality score is very close to the generally-accepted "within 5%" benchmark for compliance with prong one: they have a student population that is 55.5% female and they offer 50.25% of athletic opportunities to women. Also, Davis reports that 50.47% of its athletic scholarships go female athletes, which complies with the requirement that percentage of scholarship dollars for women must be within 1% of the percentage of female athletes. It appears that attorneys are arguing that a ~5% disparity in participation opportunities does not amount to substantial compliance. All three athletes play on club teams that want to compete as varsity. So they must be claiming that in light of the proportionality disparity, the university's failure to elevate them to varsity violates all three compliance prongs.

The article also notes that the wrestler-plaintiff already has a pending lawsuit against UC Davis challenging the athletic director's decision to dismiss three female wrestlers from the team. You may recall that earlier this year, UC Davis settled a lawsuit by the wrestling coach, who claimed he was fired in retaliation for objecting to the AD's decision. It was reported then that the female wrestlers complained unsuccessfully to OCR, which found that they did not follow proper procedures in petitioning for a women's wrestling team of their own and that such a team lacked potential participants and prospects for extramural competition.

If this is all that OCR said, I can see why one of the disappointed wrestlers is now bringing a lawsuit. OCR's decision only addresses why UC Davis did not have to create a separate women's wrestling team, not whether it was proper to dismiss female wrestlers from the existing team. As the 4th Circuit held in Mercer v. Duke University, you don't have to let women play contact sports with men, but if you choose to, you can't discriminate against them on the basis of sex.

For a prior post noting the emergence of women's wrestling, see here.

Thanks, KFPA

This morning I had the pleasure of talking with KPFA 94.1 Morning Show host Andrea Lewis and Coach Lindy Vivas about Title IX and discrimination in college athletics. KPFA is a Pacifica affiliate broadcasting in Berkeley and Fresno. An archive of the show is here.

After the show, I received a nice email from a listener who is an advocate for girls' baseball in the Bay Area. His website is here.

Senator Proposes "California Title IX"

At the conclusion of this week's hearings into gender (in)equity in the California State University system -- motivated by the multi-million dollar jury verdict against Fresno State -- Senator Dean Florez has made a number of recommendations for reform that he calls "California Title IX."

One recommendation is for CSU to tie job performance of University presidents and top administrators -- and consequently, eligibility for raises and promotions -- to campus compliance with three Title IX goals that were outlined in a consent decree that ended an earlier lawsuit against the university system. Those three goals are: (1) to attain a percentage of female student athletes that is within 5 percentage points of the percent of women in the student body; (2) to ensure that the percentage of the athletic budget for women's athletics is within 10 percentage points the percent of women in the student body; and (3) to ensure that the percent of athletic scholarships for women is within 5 percentage points of the percent of women in the student body.

Incidentally, Fresno State actually already complies with the first goal, but if this proposal went into effect, they would have to increase scholarship dollars and operating expenses for the women's athletics. The campus is 58% female and women receive only 46% of athletic scholarship dollars and 31% of the operating expenses.

Another of Senator Florez's proposals would create a new Gender Equity Office that would be responsible for compliance and would report directly to the CSU Trustees. Currently, each institution's general counsel doubles as the Title IX compliance officer. Because the university counsel answers to the president, this change would ensure that the person responsible for compliance could go above the president's head and prevent the president from stonewalling investigations or other compliance-seeking measures.

This change would also help the general counsel avoid what is sometimes a conflicting interest between enforcement and compliance. When compliance is measured internally, the institution will often factor in whether a particular compliance measure is cost effective. If the risk of getting penalized for noncompliance is low and the cost of the compliance measure is high, the general counsel may exploit the "gray areas" of a legal requirement, as a university counsel explained in a recent column in the Chronicle. Therefore, external enforcement is a necessary supplement (or substitute) for internal compliance.

But does Florez's proposal do enough to externalize gender equity enforcement? The Gender Equity Office may be external to each university, but still operates internally within university system and answers to the Trustees, who are also concerned about compliance costs, and as such, might be as just as likely as presidents and general counsels to invoke lenient interpretations of regulatory requirements. I wonder if the policymakers in Sacramento have considered implementing enforcement at the state level?

California Senate Begins Title IX Hearings

Yesterday Sacramento lawmakers began holding hearings on gender equity in college athletics. Inspired by the Lindy Vivas verdict and other pending suits against Fresno State, Senator Dean Florez called for the formation of a Senate Select Committee on Gender Discrimination and Title IX. Yesterday, the committee heard testimony from Vivas, Fresno State President John Welty, and the CSU Chancellor Charles Reed. Judging by the testimony included in this segment on KSFN, Reed seemed uncooperative and off topic as he complained that the jury award was excessive and reiterated his vows to appeal. Perhaps this is what prompted Senator Florez to later express concern about the institutional leadership at Fresno State, to which President Welty responded that gender equity was a difficult issue and that Fresno State was working to "get the job done."

In statement on his website, Senator Florez acknowledged the recent UC Berkeley settlement and says he plans to schedule additional hearings to address whether there is a pattern of gender discrimination at California schools. Perhaps those hearings will be more productive than this one appeared to be.

Women's Sports Foundation Website Gems

The Women's Sports Foundation's website is great, and this month they added a couple of new features that make it even better. One is called "Ask the Expert," which lets users search a database for answers to questions about women in sports as well as and submit questions to the organization's experts. The database includes answers to FAQs on a number of Title IX issues from booster club compliance to filing lawsuits to the statute's effect on men's programs.

The other is Women's Sports Statistics, an up-to-date file of relevant statistics about all kinds of topics. For instance, maybe you've always wanted to know:

• that the average attendance at a Women’s Professional Football League regular-season game ranges from 1,000 to 4,500.

• that only 34 Sports Illustrated covers published in the last ten years have featured women, and this figure includes the 10 annual swimsuit issue covers.
  

• that at last count there were only three African-American female athletic directors and only 165 black female head coaches at non-HBCUs (historically black colleges and universities).

• that women made up 30% of the 3800 athletes competing at the Paralympic Games in 2004, while the US Olympic team was 42% female.

• that in 2002, women controlled 80% of all sports apparel dollars.
  

Hope this gives a sense of the great variety of information Women's Sports Statistics has compiled in one helpful place.

Former Berkeley Athletic Department Official Settles Gender Discrimination Case

On Friday the Chronicle of Higher Ed reported:

The University of California system will pay more than $3.5-million to settle a sex-discrimination lawsuit with a former coach and athletics official on its Berkeley campus who sued after she was laid off, in 2004.

The official, Karen Moe Humphreys, who won an Olympic gold medal as a swimmer, coached women’s swimming at Cal from 1978 to 1992. She was an assistant athletics director when the university laid her off, which she said was in retaliation for her whistle-blowing about a hostile work environment for women in the athletics department.

According to the terms of the settlement, the university will pay Ms. Humphreys $3.5-million in lawyers’ fees and other litigation costs, and also reimburse her full back pay and benefits. She will be reinstated as a university employee in an unspecified post until January 2008, when she will retire, according to a joint statement released by Ms. Humphreys and Berkeley.

Here's additional (similar) coverage from the Daily Californian and Sports Illustrated.

Wow, that's two big payouts in one month from the taxpayers of California on account of gender discrimination (or alleged discrimination, in Humphrey's case) in the public higher education system.

Stop Counting "Ponytails"?

In a column at Insidehighered.com, reporter/author/scholar Welch Suggs says he is fed up with the cyclical debate about proportionality and wishes we could stop "counting ponytails" and start assessing outcomes. He suggests that we study whether athletes receive the benefits of participation in athletic programs, and use that assessment to root out inequality:

We need to figure out what makes teams successful at providing positive and meaningful experiences for young women—as well as for young men....Where we find differing outcomes for male and female athletes, we will find Title IX issues, and these issues are likely to go beyond head counts of athletes. We would find inferior coaches for women’s teams. We would find disparities in equipment budgets, practice schedules, and facilities. In short, we would find the many everyday instances of discrimination that are overlooked in favor of debating ponytails.

Suggs is right that many other compliance factors get overlooked in the handwringing about numbers. But I must object to Suggs's deployment of "ponytail" as a metonym for women and girls. Not only is it underinclusive of women and girls who do not wear ponytails, it is overinclusive of the men and boys who do.

But we all know what Suggs meant, so what's the harm? The cultural discourse on sport is constantly affirming gender stereotypes and pressuring athletes to conform. Society feels better about female athletes who are hyper-feminine, so ponytails, glitter, short, sexy uniforms, public discourse about husbands, boyfriends, and children, all become requisites for their participation. These requisites can exclude women who don't want to trade in stereotyped notions of femininity and be burdensome and distracting for those who are willing to. In contrast, male athletes are expected to be hypermasculine. Like gay male athletes, male athletes with ponytails produce uncomfortable amounts of collective cognitive dissonance, enough to ensure that there is only room in sport for one version of masculinity. Trading on the assumption that all female athletes have ponytails and no male athletes do just affirms the harmful gender stereotypes that both exclude nonconformists from participation and pressure participants to conform.

In a Suggsian universe, where we comprehensively assessed the quality of athlete experience, one thing I'd measure is whether the athletes felt free to be themselves. Free to be short haired butch dyke or any other kind of woman one wants to be; free to be a long-haired hippie guy or any other kind of man. It's not in the regs, but to me it's just as important an indicator of equality as budgets, equipment, facilities, and even the headcount.

Oregon and cheerleading

We were pretty sure that when the story broke about Oregon cutting men's wrestling that the attendant issues would gettsome press as well. It seems like people fairly quickly forgot about the wrestlers and moved on to discussing the merits of adding competitive cheerleading.
Where the previous column I wrote about the other day states that Oregon is in compliance, some of the new press on the issue show that it is not and that it is currently trying to meet prong 2, history and practice of expansion of opportunities for the underrepresented sex. As I mentioned the other day, Oregon has, in the past decade, cut women's sports, so I am not sure how they think they are expanding opportunities when it looks like opportunities for men have grown more than those for women.
Regardless of what is really happening, competitive cheer is being presented by the athletic administration as an indication of expanding opportunities and as a logical and cutting edge, "thinking outside the box" decision. Renee Baumgartner, an associate AD and senior women's administrator, has been the athletic department spokesperson on this issue and the one proclaiming it as forward thinking.
I see two big issues here, even outside of the debate over whether cheerleading is a sport, which I shall save for another time.
The first is that Oregon clearly intends cheerleading to count toward its Title IX compliance just like Maryland did when it brought cheerleading up to varsity status in 2003. Baumgartner is being somewhat misleading when she uses the phrase "emerging sport" and "NCAA sport" in the same sentence. The NCAA has used the term "emerging sport" to indicate sports that count toward minimum sport requirements and financial aid but do not have a national championship. Cheerleading is not on the list.
This means Oregon will have communications (if they haven't already) with the Office of Civil Rights which generally does not consider cheerleading to be a sport but rather an extracurricular activity. They do leave open the possibility of cheerleading achieving varsity status on a case-by-case basis. Oregon will make its case for competitive cheer by providing evidence that it meets the requirements to be a sport. Maryland did the same thing several years ago. The response from OCR to Maryland can be found here. Note that there is no bottom line. OCR does not come out and say "yes, you may count cheerleading toward your Title IX compliance." It evaluates each criteria and says things "it is likely that your institution meets such and such requirement." In other words, it is not a get out of jail free card. Someone could potentially bring a lawsuit or complaint and succeed in proving that cheerleading at a particular institution is not a sport and/or should not count toward Title IX.
Second, where Baumgartner calls the addition of cheerleading "thinking outside the box" I see it as possibly not thinking things through. I suspect universities see it as a quick fix that requires little cash. I hope they have read the studies that show the high rate of catastrophic injuries that occur in cheerleading--no matter its varsity status. A responsible institution would send a team doctor or full-time trainer to each competition. But these people are spread thin already. And, in violation of Title IX, I have heard stories of women's teams repeatedly getting student trainers rather than full-time professionals--even at high-risk events like gymnastics meets. Outside of catastrophic injuries, cheerleaders sustain other injuries. Elevating them to varsity status requires providing them with equal access to treatments and therapies afforded other sports--like football.
In other words, there are issues outside of how much it costs to outfit 35 women and send them to 10 competitions a year. I hope that Oregon, and any other institution considering this move, are thinking inside the box too--all those boxes they should be checking off to prove they are providing equal treatment to all their sports teams.

Government Releases New Numbers on College Sports Participation

The Government Accountability Office periodically publishes a statistical profile of collegiate athletics participants and teams. The latest report, released last week, shows increasing number of participants and teams of both sexes. Women's sports are growing faster than men's, but men still have the majority of opportunities. The abstract is here; the report is here. Here's a nutshell:

• The numbers of both men's and women's intercollegiate sports teams increased from 1991-1992 to 2004-2005.

• Women's teams showed greater gains (44%) than men's teams (15%) during that time.
  

• The numbers of both male and female athletic participants increased from 1991-1992 to 2004-2005.

• Female participants showed larger rates of increase (63%) than male (21%).
  

• Men's participation levels were greater than women's throughout this time period, both in absolute terms and relative to their respective enrollments. (Compare 217,000 male athletes to 153,000 female athletes)
  

• In the following sports, the number of men's teams rose >5% during the period of study: golf, cross country, ice hockey, lacrosse, indoor and outdoor track.
  

• In one men's sport, wrestling, the number of teams decreased by >5%. In other sports, the changes were mixed so the trend could not be reported either way.
  

• Most women's sports saw the number of teams grow by >5%. Only basketball and gymnastics saw a growth rate <5%.

Oregon cuts wrestling, raises other issues

This one column in the Seattle PI by Ted Miller could provide us blog fodder for a week. Miller articulates his displeasure over University of Oregon cutting men's wrestling but in the process raises a myriad of issues of interest. I bullet-point them below and hope more coverage will be afforded to each so we can follow up.

• Wrestling is being cut and baseball, which the university cut two decades ago, is being reinstated. Miller notes that it is not because of Title IX because the university is in compliance already. But (and this but needs several of its own bullets) according to data at The Chronicle of Education they are not meeting proportionality: they are off by 14.6. They can't be following prong 2 because the university has cut women's teams: they had 9 in 2002, 7 in 2004, but added 1 a few years ago. They have cut men's teams but the year in which they did so, 2001, they made their proportionality stats worse. Men's opportunities have actually risen despite having fewer teams. Someone in Eugene is not paying attention. How they were able to cut women's teams in 2001 without already being in compliance is baffling. If Oregon is citing compliance with prong three we would really like to know how they're doing it.


• As I said, Miller does not blame Title IX for this particular situation but he does put the demise of wrestling and Title IX together noting that since 1972 there have been 448 wrestling programs cut. The suggestion is there for the reader to easily find.


• And even though everyone is claiming Oregon is in compliance, Miller says the university is adding competitive cheerleading "to maintain the appearance of gender equity." (See bullet 1 to find that the appearance is more of an illusion.) As far as we know, Maryland is the only DI school to institute cheerleading in an attempt to gain compliance. OCR generally frowns on this, but it has yet to be formally challenged.


• Using women to save men: Miller suggests that wrestling did not have to be cut, that creativity was lacking in the athletic department at Oregon. For example, they could have added women's wrestling and given some of the 5,000 high school wrestlers the opportunity to wrestle in college. He notes that other schools are doing this and wholeheartedly supports the idea. I do too, but the way Miller puts it makes these women into puppets of what appears to be an inept athletic department.


• This brings me to my last bullet about the current AD at Oregon Pat Kilkenny, whom Miller blames for this decision. Kilkenny, according to Miller, does not have an undergraduate degree, no previous experience in athletic administration, and is basically there to keep Nike founder Phil Knight happy. I have no illusions about college athletics as somehow removed from corporate America--but this is ridiculous.

Hooray for Editors Like This One

If you want to read a great takedown, check out this editorial response to a reader from who complained that his local newspaper, the Bristol (Virginia) Herald-Courier, was providing too much coverage of women's softball. Apparently the guy did not like the "giant color photos" and "two page articles" about college softball, a sport that "bore[s] [him to] tears" and that he compares to little league and the level of athleticism of 12-year-old boys.

Opinion editor Andrea Hopkins responds,

Who knows what prompted Lowry to show his true misogynistic colors to the world? Perhaps it scored him some points among his buddies as they gather to watch baseball or football from their recliners and relive the glory days of their youth.

Female athletes do not need his assent; our numbers are strong and growing.

She then goes on to detail the rise in women's participation in athletics in the Title IX era, recognizing that it's still an unlevel playing field. She continues,

Yet, Lowry’s ilk would dismiss the whole concept of women in sports. Worse, he’d banish them from the sports section – leaving a younger generation of girls without appropriate role models of health and physical activity. Thank God, he isn’t in charge.

It would be tempting to dismiss his letter as the writings of one cranky local resident, but there’s a growing movement to undo the very laws that helped women get a foot in the gym door.

She then goes on to decry the efforts of Title IX "reformers" who seem to capitalize on the popular mythology that Title IX is hurting men's sports. Hopkins addresses this argument head on, pointing out that men's sport overall are doing just fine, and that those particular sports that have seen a decline in numbers are victims to our cultural preferences for football over other sports.

Good job, Andrea Hopkins. It's too bad more people who write for newspapers don't have this kind of grasp on truth and fairness.

Feel good story

This is a cute story about a group of women in Kansas who started playing soccer a few years ago. They call themselves B4 Title IX.

Pregnancy Discrimination Addressed in the Journal of Law & Education

The Journal of Law and Education's "Chalk Talk" feature in its current issue addresses Title IX's prohibition on discrimination against pregnant students. Author Brittany Ducker writes in "Overcoming the Hurdles: Title IX and Equal Education Attainment for Pregnant and Parenting Students" (citation: 36 J. L. & Educ. 445 (2007)) writes that while pregnant students are no longer outright expelled, they still face discrimination and intolerance that may be actionable under Title IX. In some cases, pregnant or parenting students are excluded from extracurricular programs -- an issue we've blogged about before in the context of athletics. Another form of discrimination Ducker addresses may occur when schools steer pregnant or parenting students into stand-alone alternative schools (by locating the day care services there) which can sometimes offer a less challenging academic curriculum. The author also addresses discriminatory attendance policies that treat absences due to pregnancy differently from other absences due to other medical conditions. Ducker argues that schools seeking to avoid Title IX liability should carefully avoid all of these practices.

Fields Explains Title IX's Application to Club and Intramural Sports

Professor Sarah Fields of Ohio State -- author of Female Gladiators, a book we greatly admire and highly recommend -- has a new article in the Journal of College and University Law titled "Intramural and Club Sports: The Impact of Title IX." (citation: 33 J. College & U. L. 521 (2007)).

Fields points out that most Title IX lawsuits regarding athletics address disparities in intercollegiate sports, notwithstanding that 5.5 million people participate in intramural and club teams compared to about 487,000 who compete at the intercollegiate level.

Though Title IX clearly governs club and intramural sports (as the law covers all university programs), it is not always clear whether a university is in compliance. Intramurals don't necessarily have a set number of participation opportunities, and many coed teams do not cap the number of participants of either sex. But if an intramural program reserves particular slots for men and women, the proportion of these slots should mirror the gender breakdown of the student body or else schools must ensure that they are satisfying the interests and abilities of the underrepresented sex. When it comes to club teams, which are student-initiated, Fields suggests that universities with gender-neutral policies for approving and recognizing clubs are likely in compliance.

Schools also must ensure that they do not discriminate on the basis of sex in the support they offer to intramural and club sports, particularly, access to equipment, facilities, and supplies. It would be unlawful, for instance, to provide men's clubs/intramurals better or more frequent practice or game times (or vice versa), or to require male participants to furnish their own equipment but supply comparable equipment to female participants (or vice versa).

Fields concludes,

Colleges and universities should be aware of potential Title IX violations when it comes to intramural and club sports. Institutions need to be aware of the requirements to provide equal access and equal opportunity in terms of funding and facilities to intramural and club sports. Institutions should be responsive to their students' interests and abilities and be sure that they are providing adequate intramural leagues with comparable scheduling and equipment provision.

USA Today Finds Disparity between NCAA and EADA Numbers

Under a federal statute called the Equity in Athletics Disclosure Act, colleges and universities must report to the government the number of male and female athletes participating in each sport they offer. Separately, the NCAA also requires that information as a condition for membership. Both the government and the NCAA are asking for the same information, but as USA Today reports today, institutions frequently report different numbers to each.

Sometimes schools count don't count athletes who have already been counted as participants in other varsity sports, even though both the government and the NCAA want to know the total number of participation opportunities rather than the number of individuals taking part. One compliance officer admitted to accidentally counting practice players for one source and not the other. Another source of error occurs in tallying up the gender breakdown of the general student body, the denominator in a proportionality calculation. Depending on who in the university is doing the counting, different definitions of "full time undergraduate" might be used.

The paper also quoted the president of the College Sports Council that these disparities support its position that Title IX hurts men's sports, a claim that contravenes data derived from government sources. But the USA Today researchers who looked at both government and NCAA data for all public Division I schools say that when there are disparities (which was the case for 53 of 96 schools), about half the time the NCAA data paints a better compliance picture, and half the time, the government data does. Based on this, I don't think that using one source or other can generate a political advantage.

Resolution (??) at FGCU

The investigation into Title IX violations in the Florida Gulf Coast University athletic department has ended with no finding, "technically," of wrongdoing. Apparently though the independent auditor made recommendations to the department of things it can do to better. But it is all very vague, and I have found no specifics regarding these recommendations.
The news I found interesting regarding the investigation was that the previously anonymous complaints were in fact filed by former AD Merrily Dean Baker who started the department and laid out a plan to make it equitable from the start. Baker wrote a memo that outlines complaints from female coaches and student-athletes. I am not sure when this information was revealed and by whom but her involvement has become a focus of this story.
The memo, which sparked the investigation, has created a lot of controversy, with athletic director Carl McAloose calling most of the allegations either exaggerated or baseless. Others in the department acknowledge there are issues but wish they had been discussed and investigated internally rather than in such a public way that, some suggest, may damage the school's reputation.
Basically Baker is being painted as overzealous, sticking her nose into business that isn't hers anymore, and generally making trouble where there is none. What I think: her notable career and her pioneering efforts in women's athletics and her continued advocacy on behalf of women's sports make her an easy target and the object of scorn by people who probably think things like, "you have women's sports; they have equitable opportunities; we give them a budget; what more do you want from us?" And of course people like Baker can look at a situation in athletic departments and know equity and Title IX compliance is more than just number of male and female athletes. It's hiring decisions, travel budgets, access to services, and on and on.
I think there are probably problems in that department; maybe ones that will get ignored now that the investigation is over. And certainly I see McAloose's reaction to the memo (as revealed in the Q&A linked above) as indicative of the tenor of the department; I do not think anyone will be stepping forward any time soon to issue any kind of complaint about equitable treatment.
McAloose is the one who comes off looking bad. When asked how practice times for basketball are divided he said the reporter would have to ask someone else because he didn't know. You're the athletic director at a school that has just been investigated for Title IX violations and you don't know how access to prime practice times are awarded. That is a problem. The Q&A is littered with other "I don't know," "I don't remember," and "I don't care" type responses.

Verdict Is In: $5.85 Million for Lindy Vivas

The verdict is in: Fresno State is liable to former volleyball coach Lindy Vivas to the tune of $5.85 million -- that's $1.75 mllion more than the $4.1 million she was suing for! The award takes into account back pay ($2.625m), future lost wages ($1.8m), and past and future "noneconomic losses" like emotional distress ($1.425 m). Her lawyer says its likely the largest ever granted to a coach suing for retaliation under Title IX.

ESPN has coverage here, Fresno Bee's is here. The Bee reports that Fresno State plans an appeal.

(For earlier posts on the trial, use the "Fresno" link below.)

7/11 update: here is a link to the jury verdict form and more, later coverage from the Bee.

Law Review Case Note Analyzes Jackson v. Birmingham

The current issue of the Wyoming Law Review includes a case note called "No Hitting Back: Schools Have to Play by the Rules," which analyzes Jackson v. Birmingham, the 2005 Supreme Court decision holding that a victim of retaliation has a private right of action under Title IX.

The author, Elisa Butler, concludes:

While the Court's reasoning was convincing in some respects, there were three major-but never articulated-arguments that could have significantly bolstered the opinion. First, the Court should have rebutted the dissent's contention that, because Title VII specifically calls for protection against retaliation and Title IX does not, this means that retaliation is not covered under Title IX. This argument was erroneous and the majority could have pounced on it. Second, the majority neglected to make any arguments based on Title IX regulations. There is a specific regulation that prohibits retaliation that, if used, would have made for a more complete opinion. Finally, the Court overlooked the four-part Cort test that it had previously used to determine when to imply rights of action. Given the major ramifications of this decision, a more thorough and convincing analysis was appropriate.

For more see 7 Wyo. Law Rev. 577 (2007).

Our Lady of Victory

In the 1970s, Immaculata College was the juggernaut of women's basketball as three-peat national champions in 1972, '73, and '74. Now they are making a movie about the coach, Cathy Rush, who helped the team find success on a shoestring budget and lacking critical infrastructure like a gym. ESPN.com reports that Rush is excited about the movie and describes "Our Lady of Victory" as "part Hoosiers, part Sister Act, and part A League of Their Own."

Most folks have probably not heard of Immaculata. The "Mighty Macs" don't register as a b-ball powerhouse of the likes of Huskies and the Lady Vols. Immaculata's success was confined to the pre-Title IX era. The AIAW, the governing body of women's sports, initially banned member schools from awarding scholarships to female athletes, as a prophylactic against the commercialization of women's sports. But once Title IX required schools to offer proportionate scholarship dollars to male and female athletes, the scholarship ban was held illegal by the courts. Small schools like Immaculata couldn't afford to recruit the top players and no longer dominated the game.

But back to the movie: as an "Angel" fan, I was pleased to read that David Boreanaz has a role in the movie, as coach Rush's husband Ed. My only casting question is who, if anyone, plays young Rene Portland?

President Bush Backs Title IX?

Womenstake.org examines the President's recent statement on Title IX ("I'm a big backer of Title IX" he told the media) in light of his administration's actual record of dismantling its enforcement policies.

Law Review Note on Contact Sports Exception

The current issue of the Fordham Intellectual Property, Media and Entertainment Law Journal includes a note by law student Blake Furman called "Gender Equality in High School Sports: Why There Is a Contact Sports Exception, Eliminating It and a Proposal for the Future." (citation: 17 Fordham Intell. Prop. Media & Ent. L.J. 1169 (2007)).

As Furnam explains, Title IX's regulations "permit[] academic institutions to exclude women from even trying out for a men's contact sports team solely on the basis of gender and with no regard for the individual female's skill or ability level." Unlike noncontact sports, for which schools must either allow women to try out for the men's team or offer an equivalent separate team, when it comes to contact sports, schools are not obligated to do either. Contact sports include "boxing, wrestling, rugby, ice hockey, football, basketball and other sports the purpose or major activity of which involves bodily contact." 34 C.F.R. § 106.41(b).

Furnam argues that the regulatory rationale for exempting contact sports is outdated and unfair and should be eliminated. He then discusses Professor Glenn George's "50/50" approach -- requiring gender integrated teams with half male and female players -- and argues for its application to high school sports.

More Fresno Links

Lindy Vivas's trial is making national news as this AP article connects the situation at Fresno State to the national trend of declining number of female head coaches: "Advocates for women in sports say Vivas, whose $4.1 million lawsuit could go to a jury as soon as this week, is emblematic of a system that has helped female athletes but failed female coaches."

In local news from the trial, witnesses for the university testified Monday that Vivas inflated her win record by selectively scheduling less competitive opponents. On Tuesday, a former assistant coach Adrian Wiggins disputed the earlier, pro-Vivas testimony of his one-time boss, former head basketball coach Stacy Johnson-Klein. Wiggins told the jury that Johnson-Klein was the one who said derogatory comments about lesbians, not AD Scott Johnson. However, other witnesses did corroborate Vivas's testimony about intra-department references to "being on the other team."

Closing arguments were expected on Tuesday, but because they were not described in any of the recent articles about the trial, I am guessing they got pushed back, perhaps to today.

Law Review Article on Sexual Orientation Discrimination in College Sports

Professor Barbara Osborne of UNC has published "No Drinking, No Drugs, No Lesbians: Sexual Orientation Discrimination in Intercollegiate Athletics" in the current issue of the Marquette Sports Law Review (citation: 17 Marq. Sports L. Rev. 481 (2007)). Professor Osborne uses recent instances of discrimination against gay athletes and those perceived as gay, including former Penn State Coach Rene Portland's exclusion of basketball player Jennifer Harris and Florida coach Karen Johns's discrimination against Andrea Zimbardi, as context to examine the legal recourse available to such players.

Neither the Equal Protection Clause of the Constitution, its state constitution counterparts, nor any federal antidiscrimination laws like Title IX or Title VII expressly cover discrimination on the basis of sexual orientation. But some courts have construed existing protection against sex discrimination to apply when the plaintiff suffered discrimination for her or his failure to conform to gender stereotypes. However, courts have not held that being gay or lesbian per se is a failure to conform to gender stereotype and actionable as sex discrimination. Thus, the gender stereotype theory of sex discrimination is only potentially available so some (perceived) gay plaintiffs -- those who faced discrimination regarding their appearance or behavior, rather than on the solely who they date, are attracted to, and sleep with (or are believed to sleep with).

Osborne also believes that the gender stereotype theory of sex discrimination is particularly incompatible with discrimination claims that arise in the context of athletics, as she explains:

Female athletes are caught in a socio-cultural contradiction--to be an athlete is to be masculine, automatically calling the athlete's femininity into question. When a woman's femininity is challenged, her sexuality is questioned as well. In essence, being a female athlete itself is a failure to conform to accepted gender stereotypes.

Owing to these difficulties and uncertainties arising from the gender stereotype theory, Osborne argues that universities should adopt policies specifically protection against discrimination on the basis of sexual orientation.

Sports Reporters Think Title IX Hurts Men's Sports

A new study by the Center for Sports Journalism helps explain why Title IX receives so much negative attention in the sports pages. Half of the sports reporters surveyed for this study believe that that law hurts men's sports, and another third believe the law should be changed. Not surprisingly, most reporters believe that Title IX is covered fairly by the press.

Thanks to Professor Marie Hardin of the Sports, Media, and Society blog for the link.