Court Won't Enjoin Rowing Cut at Cincinnati

A federal district court in Ohio recently denied the University of Cincinnati women's rowing team's motion to enjoin the university from cutting their team.

To recap, Cincinnati rowers complained to OCR a year ago that the University was not providing women's athletics with equivalent facilities and equipment. Much of this dispute focused on the University's failure to make progress on plans to build a boathouse. Soon thereafter, the University announced that it was cutting women's rowing and adding women's lacrosse.

The rowers filed a lawsuit in federal court, challenging the University's decision as a violation of Title IX and seeking a preliminary injunction. Specifically, they alleged that the cutting a viable women's team was a per se violation of the third compliance prong ("effective accommodation" of female students' "interests and abilities" in varsity athletics). The University argued that it did not need to comply with prong three because it complied with prong one (proportionality) instead.

The rowers had argued that the percentage of female athletes (43%) was not in proportion to the percentage of female students (47%). But as the court pointed out, OCR guidelines instruct that proportionality is determined by comparing the percentage of opportunities for female athletes to the percentage of female students. Because some individual female athletes at Cincinnati compete in more than one sport, the percentage of opportunities for female athletes is higher (49%) than the percentage of female athletes (43%). Comparing the percentage of opportunities for female athletes (49%) to the percentage of female students (47%), Cincinnati clearly satisfies prong one.

Next, the court determined that the rowers' were unlikely to succeed on the merits it their argument that the University's decision to cut their sport was made in retaliation for their initial complaint to OCR about the lack of equipment and facilities. The only direct evidence of retaliation was an email sent by the former athletic director to the University president that evidenced a "retaliatory spirit." However, it was this athletic director's successor who made the decision to cut rowing.

While the rowers' seemingly valid complaint about the lack of boathouse provided the university with a motive to cut the team rather than face a court order to build a boathouse, the court determined that there was substantial evidence to the contrary. Specifically, the university continued to support the rowing team after the complaint was filed, expending money on uniforms and equipment, as well as performing site evaluations for a potential boathouse and even purchasing an option on one potential site. The court reasoned that if the university was willing to do this in the absence of a court order, it does not seem likely that the University cut the team to avoid having these responsibilities imposed by a court order.

Though the rowers have failed to obtain a preliminary injunction, their underlying case is still pending in the district court. The proportionality argument seems unlikely to prevail, but I wonder if the rowers could convince a jury that the University's decision was retaliatory. It is certainly plausible that the former AD's retaliatory email represents the spirit of the athletic department, including the successor AD who made the decision to cut the team. The question is whether the rowers could establish this as a matter of fact.

The decision is: Miller v. University of Cincinnati, 2007 WL 2783674 (S.D. Ohio, Sept. 20, 2007)

New magazine for high school athletes

RISE magazine released yesterday a special issue called GIRL, the focus of which is the high school female athlete. RISE is a publication devoted to local (they have 25 cities around which they create editorial content) and national news about high school sports.

The cover of GIRL features UConn recruit Elena Delle Donne who will be playing her final year of high school basketball at Ursuline Academy in Delaware this year.

The issue also includes interviews with members of US national soccer team (currently starring in the World Cup in China--check out their semifinal game Thursday morning) and what Title IX has meant to them.

The magazine cover has the heading: "First ever magazine for the high school female athlete" and a special "Premiere Issue" sticker on it which implies GIRL will be a recurring publication, but the press for the release of the magazine is referring to it as a special issue. Whether this is a one-time only or a regular publication, it seems to be worth checking out.

Plaintiffs Appeal Decisions in Cut Sports Cases

In two separate cases, plaintiffs challenging university decisions to cut athletic teams have appealed from initial rulings upholding the cuts.

The student who filed the complaint with OCR is challenging Ohio University's decision to cut four teams is filing an administrative appeal. OCR dismissed the complaint earlier this month, finding "insufficient evidence to support a decision of noncompliance." Department of Education procedure allows disappointed complainants to appeal such decisions to the director of OCR and again, if necessary, to the Secretary of Education. However, the complainant's burden is to explain precisely why the initial decision was wrongly decided, such as that it did not rely on all the evidence or that it misapplied the legal standard. Given my earlier assessment that OU's decision was unfortunate but clearly legal, and add to it the complainant's burden on appeal, I'll be very surprised if this appeal changes anything at OU.

In a separate matter, Equity in Athletics is appealing the recent district court decision denying its motion to preliminarily enjoin James Madison University from following through on its decision to cut ten teams last year. While EIA is seeking an expedited hearing from the Fourth Circuit Court of Appeals, JMU has moved to stay all proceedings in the district court, where EIA's motion for a permanent injunction is pending. Here, too, I'll be surprised if the decision is reversed on appeal. The district court's analysis of EIA's likelihood of success on the merits was sound and consistent with existing caselaw. Also, the balancing of the harms was reasonable.

Why Do Female Professors Leave the Biological Sciences?

InsideHigherEd.com recently posted an article called Why Women Leave Academic Medicine which describes the efforts of Phoebe Leboy, president-elect of the Association for Women in Science, to understand and ameliorate the lack of women in higher level academic positions -- dean, department chair, tenured professor -- in the biological sciences.

In contrast to the physical sciences, women earn half of the Ph.D.s awarded in biological sciences, so the problem is not attracting qualified women to the field, it's about keeping them there. Family-unfriendly policies and practices that disproportionately affect women are part of the problem, Leboy says. Another key seems to be research project grants, which are disproportionately awarded to male scientists.

The average male researcher, according to NIH data Leboy cited, has 1.4 basic research project grants, compared to slightly less than 1.3 for women. While men and women earn new NIH grants at roughly the same rate, women get “consistently fewer” competing renewals grants than men do. And for every dollar a male primary investigator receives, women get 80 cents.

Female researchers earn 42 percent of the NIH’s lower-level “career development” awards, which is about the rate one would expect given the rate at which they earn doctorates. But they get 25 percent of regular research grants and less than 20 percent of the bigger “center” and small business innovation research grants that the NIH is increasingly emphasizing. And only 17 percent of NIH-funded research centers at medical schools have women as their primary investigator, Leboy’s research shows.

I think these statistics raise some interesting and important questions about whether grant- awarding organizations and universities themselves can do more to ensure all professors are on equal footing when applying for grant money. As one person commented in response to this article, academic practices were created by men and "evolved to be what they are today by virtue of the extent to which they were designed, revised, and maintained to meet the needs and expectations of men." Is it possible that male scientists benefit from this pedigree when applying for grant money? Is it easier for men to rely on existing social networks for advice and support in this area? Does the application process create unnecessary barriers to entry for some women? Are there mechanisms to ensure that decisionmakers don't engage in gender stereotyping when comparing among applicants?

I hope that Leboy and others continue to shed light on the gender disparities in research grants, which seems like a predicate to dismantling the structural inequalities in the academic sciences.

Idaho case reexamined

The Coeur d'Alene school district in Idaho thought it was done with Title IX investigations after a complaint that charged the district with "historical and callous practice of denying civil rights" was investigated and unable to be substantiated. But the anonymous complainant has introduced new evidence that convinced OCR at the end of August to re-open the case. No one is saying what the new information is but the initial complaint cited the district for not meeting the interests and abilities of girls, disparity in coaching, and lack of a district Title IX coordinator.
The administrators in Coeur d'Alene seem confident this new information will not alter the initial finding of compliance.

NCAA Welcomes Women's Rugby

ESPN.com reported recently on the first ever NCAA women's rugby match, which took place last weekend between West Chester and Eastern Illinois. Rugby is on the NCAA's list of emerging sports for women, which means it has 10 years to attract 40 teams. Barring an extension, rugby has four years left to add 36 more teams. If it does, it becomes a full-fledged NCAA sport with an NCAA-sponsored championship. Otherwise, it's off the list.

The NCAA is hoping that rugby succeeds and is encouraging many of the hundreds of existing club-level teams to elevate to varsity status. Advocates for NCAA women's rugby point out that the sport creates lots of participation opportunities and it's relatively inexpensive, which should make it attractive to athletic administrators seeking gender equity. They also say that it's fun sport to play and to watch, which makes it easy to attract participants and fans.

Interestingly, however, many women ruggers want nothing to do with the NCAA. They enjoy the flexibility and freedom of being unregulated club teams. Joining the NCAA means, for example, being limited to one game a week, which conflicts with the rugby tradition of weekend-long tournaments at which teams play two or three games. Also, NCAA-governed competition could not end with a post-match, inter-squad "social," which for some players, is part of what makes the sport of rugby different and special.

Still, many point out that the advantages of varsity status -- access to financing, equipment, facilities and medical personnel -- outweigh the sacrifices that come with submitting to the NCAA's rules. The NCAA seems genuinely invested in growing this sport, so perhaps it will be willing compromise on some of the rules that are making varsity status so unattractive to players. Obviously there's no way they'll sanction drinking after the game, but the one-game-a-week rule might be a good place to start.

OCR Affirms Cuts at Ohio University

As we predicted back in April, OCR has rejected a petition challenging Ohio University's decision to cut four athletic teams earlier this year. The petitioners argued that OU's decision was discriminatory because more men's opportunities were cut than women's. We suggested that because women already received disproportionately fewer athletic opportunities, there was nothing discriminatory about OU's decision to seek balance in their athletic offerings, and it appears that OCR agrees.

No money is not an excuse

Earlier in the month I wrote about the inequitable facilities at Winona Senior High in Minnesota. Administrators are aware of the problems but state they don't have enough money to fix the problems.
This editorial takes aim at this flimsy excuse noting that lack of funds would not be an acceptable excuse in other contexts like providing subsidized lunches. The writer also correctly notes that good facilities and good treatment are not the privilege of the sports that have large audiences.
Lack of money has never been an acceptable rationale for the perpetuation of inequitable treatment and conditions. Winona is going to need to come up with some creative solutions soon. For example, condition and size of the locker rooms are one of the issues. What about alternating the locker rooms on a yearly basis?
Given that everyone in Winona knows about the disparity it seems some action needs to be taken very soon if Winona wants to avoid the additional cost of a lawsuit.

College Need Not Recognize Men-Only Fraternity

On Thursday the Second Circuit Court of Appeals overturned a lower court's injunction that had barred CUNY from enforcing its gender nondiscrimination policy against a fraternity.

The College of Staten Island, part of the CUNY system, requires student clubs seeking official recognition to agree not to discriminate on the basis of sex. A recognized student club is entitled to use College facilities and services, in contrast to an unrecognized club, which may exist but is not eligible for such privileges. The College turned down Chi Iota, a Jewish fraternity, for official recognition because it excludes women from membership. The fraternity challenged this decision, and a lower court enjoined the College from withholding recognition to the fraternity. Specifically, it held that the College's policy infringes on the fraternity's First Amendment rights as an expressive association. (Title IX is not implicated in this case because the statute expressly excludes fraternities and sororities from its scope. 20 U.S.C. 1681(a)(6)).

The Second Circuit disagreed, reasoning that some restrictions on an expressive association are permissible, so long as they don't unreasonably infringe on the organization's strongly-held interest in associating with an exclusive membership.

First, the court reasoned that the fraternity did not have a strong interest in exclusivity. Its "broad, public-minded goals" -- including promoting respect for “the traditional values of men’s college social fraternities, community service, and the expression of Jewish culture" -- "do not depend for their promotion on close-knit bonds." While fraternity brothers may seek to form "deep attachments and commitments" and share "a community of thoughts, experiences, beliefs and distinctly personal aspects of their lives," the "same can be said of nearly any student group in which members become close friends." The court also considered the fact that the fraternity is otherwise an inclusive organization (one needn't be Jewish to join) and the fact that it regularly includes women in its social activities as evidence that its claimed associational interest in restrictive membership is relatively weak. (Tangentially, I think the court's close examination of the organization's purpose is more evidence that the deference the Supreme Court extended to the Boy Scouts to determine whether its purpose was compitable with its exclusion of an openly gay scoutmaster was erroneous and appropriately confined to that particular case.)

Second, it was significant to the court that the College's policy does not prohibit the fraternity from existing on campus, it merely denies them official recognition and the use of college facilities and services. "[The College's] refusal to subsidize the Fraternity’s activities does not constitute a substantial imposition on the group’s associational freedom." The court also considered the College's compelling interest in ensuring that its resources are equally available to all its students.

It will be interesting to see whether more colleges and universities chose not to officially sanction fraternities and sororities in light of this decision. Significantly, the decision does not threaten the existence of single-sex fraternities and sororities. It merely affirms that the scope of private discrimination is, appropriately, kept private.

Chronicle Follows Up on Hawaii Lawsuit Story

We posted recently about track coach Carmyn James's lawsuit against the University of Hawaii. The Chronicle of Higher Education covers the story here (subscription req'd) and quotes this humble blogger briefly near the end.

Former OU Student Suing University for Harassment by Professor

The Athens News reported recently on developments in a sexual harassment lawsuit filed earlier this year by a former Ohio University graduate student, Christy Speakman. Speakman sued OU and professor Yoshitomo Saito, alleging that the professor repeatedly harassed her over the course of several years. The paper reports that she "first complained to OU officials about Saito's behavior in November 2003, again in June 2004 when the behavior continued, and a third time in June 2005." Yet, "'nothing was done to remedy the sexual harassment until Oct. 28, 2005,' when OU suspended Saito."

This week, a federal judge dismissed Speakman's claims against Saito because the statute of limitations had passed before the lawsuit was filed. OU remains a defendant in Speakman's lawsuit. OU's attorneys maintained that Speakman "failed to take advantage of preventive or corrective opportunities provided to (her)," through her "failure or refusal to cooperate fully with (the university's) procedures, investigation, and discipline process."

CU Decision in the News

Last week we blogged about the 10th Circuit decision that paved the way for a jury to decide whether the University of Colorado did enough to protect female students from sexual assault at the hands of football recruits.

The Colorado Daily News is reporting that CU's attorney Larry Pozner has "all but ruled out the possibility of a settlement" and will likely choose a course of action that involves any or all of the following options: seeking a reconsideration of the panel ruling by the entire (en banc) 10th Circuit; appealing to the Supreme Court; and/or going to trial. Pozner does not seem intimidated by the prospect of a trial, calling it the first and only available opportunity for CU to present its version of the facts.

Elsewhere, Inside Higher Ed published an extensive analysis of the decision, including consideration of whether universities will be held to a higher standard of protection as a result. On one side of this question, Larry Pozner characterizes the opinion as a "twisting of Title IX law designed to render a university liable in all kinds of situations it can’t control." He fears "a brave new world that will require universities to monitor student activities and interactions in ways that go far beyond what they have been required to do previously."

Others do not see the sky falling in a world where universities are expected to protect students from sexual assault in the context of school-sponsored activities like football recruiting events. Florida Coastal law professor Nancy Hogshead-Makar says the opinion confirms that schools should have and effectively enforce an anti-harassment policy. "'If colleges have a policy, have done the training in the appropriate way, then they are taking appropriate action,' she said. 'It's not a huge burden.'"

More on Millry

Last month I wrote briefly about complaints about the treatment of the Millry (Alabama) School's softball team. According to this recent article about the complaint put together by parents, the document was never given to the Title IX representative because it contained two forged signatures.
But Millry officials have addressed the allegations despite the lack of a formal complaint. According to the athletic director, Teddy Taylor, he has never received any complaints about softball. But he seems to put the responsibility for field conditions back on the complainers:
"When you see the condition of the softball field," he continued, "you are going to wonder why those 27 people who complained have not been working on the softball field or had the work done."
Apparently a used John Deere was given to the "softball group" (not sure who these people are) but it no longer works.
There is speculation that the Title IX complaint developed out discontent over the fact that the softball outfield is used for overflow football stadium parking. Taylor said they can't use the baseball field for such a purpose because that field has a sprinkler system installed and parking on it would destroy it. A logical explanation but one that begs the question: why does the baseball field have a sprinkler system and the softball field does not?
But unless the complaint actually gets delivered we probably will never know the real story nor will the school be forced to formally address the allegations.

Track Coach Sues University of Hawaii

Carmyn James, head women's track and field coach at the University of Hawaii, filed a Title IX lawsuit against the university this week. She alleges that the UH discriminates against women's athletics by providing male students more opportunities and by underfunding women's teams (something we've blogged about before). She cites disparities between the terms of her employment and those of her male counterparts, and also charges that the Athletic Director, Herman Frazier, retaliated against her for advocating for gender equity.

By one account, James's decision to file suit "crystallized while attending the Aug. 30 UH dinner celebrating 35 years of Title IX and Hawai'i Congresswoman Patsy Mink's contributions to the landmark equality in education amendment that carries her name." She was inspired by the event to, in her words, "take this final option that was left and try and create a positive change within the department."

10th Circuit Reinstates Harassment Case Against University of Colorado

Yesterday a federal appellate court reinstated Lisa Simpson and Anne Gilmore's sexual harassment lawsuit against the University of Colorado when it overturned a 2005 district court decision that granted summary judgment to CU.

Simpson and Gilmore allege that in 2001, they were assaulted by CU football players and recruits, all of whom were participating in a university-sponsored effort to "show recruits 'a good time.'" Their lawsuit against the university was thrown by the lower court judge who did not think that the plaintiffs' evidence established that CU knew about and was indifferent to the risk of assault posed to the plaintiffs by its recruiting practices.

But the appellate panel unanimously disagreed. It held that the evidence presented could support a finding that the risk of an assault during recruiting visits was obvious. The Women's Sports Foundation submitted 14 articles published in mainstream news outlets prior to the 2001 assaults that addressed the prevalence of sexual misconduct associated with college football recruiting in general. Moreover, in 1997, high school students were assaulted by CU football recruits at an off-campus party. This incident was investigated by the Boulder police and brought to the attention of the Athletic Director, the Chancellor, and the University Counsel. In the wake of this investigation, the Boulder DA asked these university officials to adopt better policies and procedures for supervising recruits. However, there were no changes in CU's recruiting policies or practices that specifically addressed sexual conduct by recruits.

Moreover, the minimal guidance that the university did provide to its football players about sexual harassment had clearly proven to be inadequate. First, there was evidence that head coach Gary Barnett knew about the harassment that kicker Katie Hnida had been subject to at the hands of her teammates in 1999 and 2000 (described in her memoir Still Kicking), as well as the rape of a female trainer by a football player two months before the assaults on Simpson and Gilmore.

In light of all of this evidence, the appellate court concluded that the appropriate CU officials, namely Barnett, knew that the football recruiting program posed a serious risk of sexual assault to female student hosts. Thus, "a jury could infer that the need for more or different training of player-hosts was so obvious, and the inadequacy so likely to result in Title IX violations, that Coach Barnett could reasonably be said to have been deliberately indifferent to that need."

A jury could now potentially get that chance, unless CU sees the writing on the wall and offers a a generous settlement.

Penn State Plantiff Subpoenas Details About Harris Case

A plaintiff in a pending discrimination suit against Penn State has subpoenaed details about the University's handling of discrimination allegations by Jennifer Harris case, the Centre Daily is reporting. Constance Matthews, a former faculty member in the Education Department, sued Penn State in January alleging that she was passed over for promotion and tenure because of her open homosexuality and her advocacy for equity issues. The university defends that its promotion decision was based on the quality and quantity of Matthews's publications.

As part of the discovery in the pending case, Matthews's attorney requested details about Penn State's response to the allegations of discrimination by Harris's against former coach Rene Portland and AD Tim Curley. However, because the Harris case details are sealed, per court order and agreement of the parties, Penn State resisted. Now Matthews' attorney has subpoenaed them -- perhaps setting the stage for judicial consideration of the legality of sealed records?

Fresno State looking for new trial

It's not surprising that Fresno State has asked for a new trial in the Lindy Vivas case, but it's till disappointing given the unequivocal message sent by the jury with their $5.85 millions verdict and the apparent concern of the lawmakers in California. Fresno State filed a motion at the end of August seeking a new trial. The school will not release on what grounds they have filed for this new trial saying only, "There will be a right time for (disclosing) that and when that time comes, they will disclose it" (CSU spokeswoman).

Why Women Run Faster With Age

In her column last week in the New York Times, Gina Kolata observed that among non-elite runners, older women seem to be outracing the women in younger age brackets. Kolata investigated some possibilities as to why this might be so and quotes one expert's suggestion that "older women may be faster because, oddly enough, they are trying harder than younger women and discovering for the first time what they are capable of. " And younger women may not be trying as hard because they are inhibited and self-conscious:

Mary Wittenberg, president of New York Road Runners, thinks part of the answer is that most female runners shortchange themselves. Look at them before races she said. Men warm up and do strides, short runs to prepare to take off at the starting line. A lot of women hang back, often because they are embarrassed to be out there with the men, acting like determined athletes, Ms. Wittenberg said.

“They are too inhibited to put their full passion out there,” she said. “They are almost afraid to be serious about a sport. They think that if they’re not the best, they shouldn’t care so much.”

Why aren't younger women as competitive? I think this has everything to do with the prevalence in our society of messages and images that trivialize women's sports. From ads that treat elite athletes as sex objects, to the drumbeat of Title IX-haters who angrily equate women's success in sport as a threat to men, is it any wonder that women internalize the belief that a competitive drive is incompatible with femininity? At least there's hope, as older women, more secure in themselves seem less concerned about holding back in order to appeal to men.

[thanks, Giovanna!]

A doll to teach about Title IX

The American Girl company is releasing a new doll (with accompanying books and accessories) next week. Each doll in the series comes from a particular time and place and the books about her reflect the period (and her "station" in life though I do not know how much the books address this).
The new American Girl is Julie Albright and she is from the 1970s. She is white and seemingly middle class. She has an Asian-American friend, Ivy, who will also be arriving in doll form next week. She lives in San Francisco, has divorced parents, celebrates Earth Day, listens to the Beatles, and goes out for the boys' basketball team.
Yes, the stories will specifically address Title IX and how it allows Julie to try out and play on the basketball team. The American Girl people specifically have cited the need for girls of the current generation to know that their ability to play sport was not always without struggle.
Until the books actually come out, we won't know how they address Title IX. But teaching some of its history may create a curious knowledge gap among the generations. At the Title IX conference in Cleveland last spring we heard educators and administrators ask about the lack of awareness the current college generation has about how women gained access to sports. I don't know how ubiquitous these dolls or the books are, but it's possible that many 7-12-year olds will know more about Title IX than some 20-somethings.

Facilities issues in Winona, Minnesota

We keep hearing more and more about complaints being brought over unequal athletic facilities--so many of which have to do with baseball and softball fields.
This latest story of facilities out of Winona, MN is no different. This news story though goes into more depth than other accounts I have read of facility inequality. Also a problem in Winona though are locker rooms including showers--the boys have them, the girls' are currently being used to hold equipment.
There are varying levels of concern over these issues at Winona Senior High. And despite the detailed account of the discrepancies most everyone's awareness of them, it does not appear that solutions and actions are forthcoming.
Apparently the term "structural inequality" has taken on a new meaning in the halls of Winona High. The locker rooms are configured in such a way that expanding the girls' facility would require significant structural changes. This, of course, means a lot of money. Money (lack of) has been the impediment to bettering the softball field, according to the story. It seems the field improvements would be first priority especially because such a visible alteration, and the publicity might appease some.