Title IX Does Not Apply in Grenada (In Case You Were Wondering)

A federal district court recently held that Title IX does not apply to a university operating entirely outside the United States -- even if it is considered a federal funding recipient by virtue of federal assistance received by American students enrolled there (an issue the court assumed without deciding).

The plaintiff, Erika Phillips, is a student at the Saint George's University School of Veterinary Medicine, located in Grenada. In 2006 she was repeatedly sexually harassed by a university employee. She sued SGU in an American federal court, alleging that university officials' failure to remediate the situation, which she called to their attention, violated Title IX.

SGU moved to dismiss the case for lack of subject matter jurisdiction. The district court agreed, reasoning that the power of the federal courts to apply federal law is limited to the territorial United States unless Congress has clearly indicated otherwise. By its terms, Title IX says nothing about applying extraterritorially, and in fact, expressly prohibits discrimination by federally funded educational institutions only against persons "in the United States," so the court easily determined that the requisite congressional intent that the law apply abroad is lacking.

The court was clear to distinguish this case from another court's decision that Title IX did protect American students in South Africa who were participating in a study abroad program sponsored by Eastern Michigan University. When Title IX applies to an educational institution, it applies to every program under control of that educational institution, which in that case, included the study-abroad program operated by EMU. SGU had no comparable relationship to an educational institution subject to Title IX.

Decision is: Phillips v. Saint George's University, 2007 WL 3407728 (E.D.N.Y., Nov. 15, 2007).

NCAA Website Hosts Title IX Resources

If you're looking for information about women's participation in college sport, check out the NCAA Gender Equity website, which we've recently added to our blogroll. There you can:

• access the newly revised Gender Equity Manual for colleges and universities;
  
• visit the NCAA's Title IX Resource Center for news, information and videos about Title IX;
• register for the Women in College Sports Forum in Tampa on the Sunday of the women's final four;
• read reports by the Women's Sports Foundation and the Institute for Diversity and Ethics in Sport about gender participation trends and diversity in leadership;
• get information about the NCAA's efforts to support women in sports, including its annual Gender Equity Issues Forum, the emerging sports for women, and the Women Coaches Academy.
  

Chronicle Reviews Title IX Trilogy

The Chronicle of Higher Education (subscription req'd) recently reviewed a trio of new books about gender equality in sport. One book, Equal Play: Title IX and Social Change by Nancy Hogshead-Makar and Andrew Zimbalist, was reviewed by us here. Another, The Encyclopedia of Title IX and Sports, by Nicole Mitchell and Lisa Ennis, was described by the reviewer as "a pithy desk reference for Title IX, with brief entries on the people, organizations, and court cases that have figured prominently in the law's 35-year history."

The third book, Playing With the Boys: Why Separate Is Not Equal in Sports, by Eileen McDonagh and Laura Pappano, criticizes the sex-segregated structure of athletics and argues, according to the reviewer, "that sports teams at all levels should be integrated by gender, with sex segregation serving as the final, rather than the first, resort."

I'll definitely be getting my hands on a copy of Playing With the Boys. I agree that we over-rely on sex as a proxy for athletic ability and end up segregating sports unnecessarily in many contexts. I also agree with the authors that the presumption that girls shouldn't or can't play with boys is demeaning and ensures the second-class status of women's sports (and women, in general). So I'm interested in how far the authors take this view, and also how they address some of the mores persuasive counterarguments to an integrated model of sport. Even in this post-Title IX era, boys still get better access and more encouragement to participate in sport, and thus have an advantage over girls when it comes to developing athletic skill. As a result, there is a very real concern that selective coed sport would disproportionately exclude girls if not exclude them altogether. Relatedly, if selective sports were coed, would women be disadvantaged, at least in certain sports, because they tend to be outsized by men? If so, is the downside of lost opportunities outweighed by benefit women might collectively experience when individual women do compete on equal terms as men? I'm interested in whether and how the book addresses these questions.

Can Title IX benefit disabled athletes?*

This editorial briefly asks this question, wondering where the opportunities are for disabled athletes in the educational system and suggests that instead of being placed under special education, activities like wheelchair basketball should be under athletics like other sports. Or it recommends making sports into club activities which include disabled athletes. It is an interesting discussion--one that is not raised nearly enough--especially when we are speaking of student-athletes instead of elite level athletes who compete at the national and international levels.

*The answer is likely, no. What the editorial really illustrates is that a law that perhaps combines the philosophies of both Title IX and the Americans with Disabilities Act might be beneficial to disabled athletes.

Board Will Light Up Softball Fields

Earlier this week we mentioned that OCR had recently determined the Pitt County (North Carolina) Board of Education to be out of compliance with Title IX due to the absence of lights at its softball fields. The Daily Reflector reports that at a meeting Monday night, the Board approved a plan to install lights at the three high school softball fields, a total cost of $180,000, ensuring that girls and boys have equal opportunity to play evening games. Administrators also announced plans to develop a policy to ensure that booster club spending does not result in such disparities in the future.

Oregon School District Defends Four Sex Discrimination Suits

A school district that hasn't had a sex discrimination lawsuit in decades is now dealing with four. Over the past several months, former employees have filed separate, unrelated sex discrimination suits in federal court against the Salem-Keizar (Oregon) School District. The Salem Statesman-Journal reports that the district already settled with one plaintiff, a language teacher named Viola Carlile, who had alleged that a high school principal retaliated againt her after she rebuffed his sexual advances.

Two other cases are in discovery. A former high school teacher alleges that she was harassed by two special education instructors while supervisors refused to transfer her to another school in the district and instead subjected her to retaliatory employment conditions. She seeks $300,000 in damages. In a separate case, a former middle school teacher, William Warren, alleges that the principal terminated his position as girls' volleyball coach because of his sex; the complains suggests that, in the wake of a sexual molestation scandal involving another teacher in the district, the principal did not think men should not coach girls teams.

In the lawsuit most recently filed, a 21-year-old former instructional assistant, Andrew Distad, seeks $21 million in damages. Distad alleges that he was offended by sexual jokes made by co-workers and teachers and by their insensitivity to his desire not to be alone in a room with any woman other than his wife. Because he was unable to comfortably attend work under these conditions, Distad argues he was constructively discharged, in discrimination of his religion and sex.

OCR, Title IX, and High School Athletics

Title IX's most well-known application -- to college and university athletics -- sometimes overshadows the fact that it applies to high schools schools and secondary schools as well. In this light, I thought it was worth noting three separate, recent examples of Title IX enforcement taking place at the high school level.

First, the Department of Education's Office for Civil Rights recently paid a visit to the public high schools in Springfield, Missouri to follow up on a Title IX complaint alleging discrimination between the conditions of softball and baseball. The high schools have baseball facilities on campus but girls play at city-owned parks off site. This is not per se inequitable, but in context it may be -- schools do not transport the softball players to their home fields for games or practice, and the city fields lack amenities like locker rooms that are available to athletes who play at the school.

On a similar topic, OCR recently informed the Pitt County (North Carolina) Board of Education that it was out of compliance with respect to its softball facilities, which unlike the boys' baseball fields, did not have lights for night play. The board meets tonight to review OCR's report and make plans to address the issue, which had been under investigation since a complaint filed with OCR in 2005.

Meanwhile, in Phillipsburg, New Jersey, school district officials are working to set up a meeting the OCR to go over the independent gender equity audit the district commissioned after it was named in a Title IX complaint last year. (Prior posts about this case are here and here.) The district seems reluctant to address all of the inequities the auditor found -- most of which relate to booster-club-funded perks -- without first checking with OCR to make sure remediation is necessary. However, since the complaint, the district has eliminated some preferential treatment for football players (no more free breakfasts on game day) and added new coaching positions for middle school field hockey and a varsity girls track coach. It has also equalized salaries for the coaches of boys and girls teams, which officials say was the district's own initiative, not in response to the auditor's investigation.

Ithaca Editorial Argues for Stronger Antidiscrimination Provisions in Education Law

Last month we blogged about a decision by the Ithaca, New York school board to challenge the applicability of the state human rights law to schools, a legal strategy aimed at avoiding the jurisdiction of the local human rights commission investigating incidents of race discrimination at one of the local schools. This decision was controversial in town, as people wanted the school district to take responsibility for the underlying incident rather than raise a jurisdictional challenge to the human rights law. It was also controversial because had the school board won on appeal, the only law applicable in New York that provides any protection against discrimination on the basis of sexual orientation would have been nullified in the education context.

What we haven't yet mentioned here is that the school district reversed its decision and dropped its challenge to the applicability of the state human rights law. This decision, as well as the leadership of the board member Seth Peacock (who was my classmate in law school) in the efforts to reconsider, was praised by an Ithaca Journal editorial. The editorial also went on to point out that while the human rights law's applicability to schools is safe for now, other schools in the future could borrow the argument Ithaca would have used, which, if successful, would leave students lacking the broader protection that the human rights law affords.

The editorial suggests that in light of this uncertainty, we should strengthen state and federal statutes that prohibit discrimination in public schools so that plaintiffs need not rely on the human rights law for the broader level of protection it provides. A fine idea, but a long shot strategy, at least at the federal level. President Bush has indicated he will veto the Employment Nondiscrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation. It's hard to imagine that the current administration would support an effort to enumerate protection on the basis of sexual orientation in laws like Title IX.

In New York, though, an easier solution might be to amend the human rights law to clarify its applicability to schools. Arguably, its public hearing provisions are inconsistent with federal laws protecting students' privacy. But the legislature could amend the hearing provisions to be consistent with privacy laws, such as by allowing schools to call for closed hearings and a sealed record when necessary. A procedural amendment aimed at protecting privacy is far less likely to be controversial than an effort to expand antidiscrimination laws.

Flood may be recognized

In an editorial about the suspension of head volleyball coach Jaye Flood of FGCU, writer Deron Snyder looks into why Flood's recent Atlantic Sun Coach of the Year award went unmentioned by the university.
In talking to sports information director Matt Fairchild, Snyder discovered that he was asked by AD Carl McAloose not to mention Flood in the press release that went out last week when the A-Sun announced their annual awards that included ones for FGCU players as well. But McAloose may be backing off--he and the school are getting a lot of flak over Flood's suspension and now this slight and the appearance that this is all in retaliation for Flood's participation in a gender equity complaint last summer. McAloose said there may be another press release forthcoming that does mention Flood's award but did not comment on why she was omitted from the first one.
Meanwhile, the university has told Flood's lawyer that the investigation is complete. But Linda Correia said the investigation did not even include an interview with Flood herself.

Anti-Title IX shirts at Slippery Rock

The VP of Financial Affairs for the Slippery Rock University Student Government Association (SGA), Michael Combs, showed up at a meeting wearing a t-shirt that read "End Title IX." The meeting the included a presentation by the VP of Student Life about the recent lawsuit between some of the women's teams and SRU and her support for the teams. The article does not offer much context and only that Combs wanted to raise awareness about how Title IX has affected men's teams. Members of the field hockey team confronted Combs about the shirt and its potential negative repercussions on the whole SGA, but it does not appear that any further discussion occurred. (You can see pics of the shirt at the above link.) More information on the situation can be found in the letters to the editor where two of the lead plaintiffs in the case against SRU write in to express their disappointment in the presence of multiple t-shirts at the SGA meeting. (Suggesting that Combs was not the only SGA member supporting one) and providing some necessary clarifications on Title IX that the article failed to bring up.

Flood wins coach of the year

Head volleyball coach Jaye Flood of Florida Gulf Coast University unanimously won coach of the year in the Atlantic Sun Conference. This is despite being suspended since October 15 for "student welfare issues" that seem to center around Flood grabbing a player's shirt in practice and subsequently missing the end of the season and FGCU's run into the postseason. The incident is still under investigation according to university officials. But this accolade for Flood has to make the university and the athletic department look a little foolish given that the incident happened a month ago and they have kept her away from her very successful team since that time while providing little information. They don't even seem to want to talk about the award: a university press release about the A-Sun honors talked about the players' accomplishments but failed to mention Flood at all.

Round up the posse!

Columnist David Whitley criticizes the status, conferred by the NCAA, of women's bowling as an intercollegiate sport as he recounts his search for the championship trophy in the halls of Vanderbilt University. (He never finds it--it seems to be off being cleaned somewhere.) He seems upset that the sport now "enjoys the same collegiate status as football." [Note: no intercollegiate sport enjoys the same status as football.]
And though Whitley claims to be all for women's equality and access to sport he sees the addition of bowling as evidence that "schools have turned sports into a semi-farce in order to stay ahead of the Title IX posse."
Why didn't anyone tell me there was a posse??

Anita Hill weighs in on Title IX

Professor Anita Hill, guest columnist for The Boston Globe, has a column about the benefits of Title IX this week. She touches upon some of effects, specific and general. For example, that the Rutgers women's basketball team got a prime time slot on ESPN and will be featured on the station four times in the coming month. She also cites research that has shown the benefits of sports and other physical activities for girls--activities that have grown since the passage of Title IX 35 years ago. She may not say much that is new about the benefits and effects of Title IX, but at a time when the legislation is being consistently attacked, a high-profile lawyer and scholar supporting it in a major newspaper is a good thing.

Lawsuit Challenging Substitute Teacher's Harassment Survives Summary Judgment

In May we blogged about a decision by a federal court judge in Alabama, holding that the parent of a child sexually abused by a substitute, Terry Wright, could sue the school district under Title IX. The superintendent knew about Wright's earlier inappropriate behavior in a different classroom and did not immediately fire him, choosing instead to leave his name off the sub list for the following month. This decision resulted in Wright's being called to sub again, which was the setting for his sexual contact with six students, including the plaintiff.

Two other children who were abused that day also sued the school district, and recently, a different federal court judge reached the same conclusion as the judge in the first case: no summary judgment for the school district. The superintendent was apparently concerned that the first incident would result in bad publicity, and so he tried to remove Wright quietly and without disclosing the reason for his concern. Rather than spreading an effective alarm about Wright, he simply removed him from the sub list for the following month. This constituted deliberate indifference to the safety of students, as it put them at risk for encountering Wright again before month's end, which is what happened to the plaintiffs.

Now that the school district has failed twice in its efforts to get these lawsuits dismissed, it shouldn't be long before it offers these plaintiffs -- and any others who might have filed a lawsuit over this -- a settlement to avoid having to fight a loosing battle at trial.

Decision is: Doe v. Autauga County Bd. of Educ., 2007 WL 3287 (M.D. Ala. Nov. 7, 2007).

Title IX Lawsuit Filed Against San Diego State

According to the San Diego Union-Tribune, Deena Deardurff Schmidt, recently fired from her position as head coach of the San Diego State swimming and diving team, has filed a Title IX sex discrimination suit against San Diego State, "alleging several years of mistreatment at the school, including being sexually harassed by an unidentified booster."

One example of alleged discrimination is the University's decision to close the pool for seven years during construction of a new facility. During that time, the swimming and diving team (a women's team) had to practice and compete in inconvenient and allegedly "dangerous" off-campus locations. She also alleges gender inequities in pay, practice times and administrative support, and that the university told her to "deal with" the sexual advances of a booster who promised to make a donation in exchange for sex.

The article points out that SDSU swimmers finished last in their conference for the last five seasons, which suggests that the University might defend its decision to fire Schmidt as performance-related. But further complicating the case is the fact that Schmidt has cancer and was scheduled for surgery when the Athletic Department told her that her contract would not be renewed. The department apparently lacked confidence that she would be able to take the team to the "national level."

FGCU update

This update actually has nothing to do with Title IX--at least that we know of right now--but since I wrote recently about the second paid administrative leave of a female coach at FGCU I wanted to report on the "resolution" of this situation. Though there seems to be no word on the investigation of volleyball head coach Jaye Flood's shirt-grabbing incident, the investigation into the student welfare issues surrounding assistant softball coach Gina Ramacci is complete. Ramacci has been fired for an inappropriate sexual relationship with a student-athlete.

The article says that Ramacci has a "partner" and that she denies having a sexual relationship with a player on her team. She and her lawyer are planning on looking at the report this weekend. But right now she will remain on paid leave until December when her current contract expires. But apparently whether or not Ramacci had a sexual relationship with the unknown player, she will stayed fired because of an overall inappropriate relationship with said student-athlete. Additionally there seems to be issues about whether Ramacci knew about illegal drug use by players, her own disparaging remarks about head coach, David Deiros, and relaying confidential information about one student-athlete to another.

It is difficult to say much about this situation. Ramacci is young and likely naive about "appropriate" behavior for a coach having so recently been a player herself. Also, her situation as an apparently out coach is something I suspect we will be hearing about more and more. Many more teenagers are out when they get to college--if not earlier. They don't really know what it is to be closeted. But they are encountering an older generation that has not been so open and welcoming. Of course, if Ramacci did have a sexual relationship with one of her players there is no question that this was wrong. But given that neither coach nor player admitted to a sexual relationship, it may just be that coach and player did not know how to establish boundaries. And this is not surprising given that the atmosphere at FGCU for women, let alone gay women, does not seem all that good. Why wouldn't two gay women who share a love of a sport and are close in age develop a relationship that may read to others as inappropriate? Given FGCU's recent history I am reluctant to embrace uncritically the findings of this particular investigation.

Football Profit Claim Challenged at SDSU

Professors at San Diego State are not letting the athletic director get away with calling his football program "a profitable enterprise."

To be clear, the faculty supports football -- they unanimously rejected a resolution calling for the termination of the team -- but some are objecting to the the athletic department's mischaracterization of the program's profitability, which, they argue,"obfuscates" consideration of the merits of a football program.

According to this column in the San Diego Union-Tribune, SDSU football shows a positive balance because it includes a "seven-figure subsidy" from the University on the revenue side of the ledger. Moreover, the columnist points out, college athletic departments are generally not bound by Generally Accepted Accounting Practices. Things that most enterprises would report as costs -- office space, utilities, debt service on facilities -- may not appear (or may be understated) on expenditure side of the football program's budget. This might explain why an independent accountant concluded that SDSU's program ran a $1.6 million deficit last year -- which doesn't count the $890K in the football took in from the University itself.

I agree with the columnist that "profit...is not the only purpose of college football. Nor can its value be adequately conveyed on a spreadsheet." But that doesn't give athletics the right to obscure the true financial cost of football. One member of the faculty said he wished the AD would just be honest about the cost of football and then explain "why we think its worth it."

More faculties should question the accounting practices of university athletic departments. When they labor under the myth of football profitability, athletic departments are afraid to trim the football budget. Instead, they'll cut entire teams, usually other men's sports, because the law prohibits schools from taking away opportunities from the sex that is already underrepresented to begin with. But if it's the case that all sports are subsidized, then no sport should receive special treatment. All sports should eligible to do their share of cost-cutting, and no sport should have immunity form cuts based on false pretense of profitability.

Ban on Laptops in Classroom to Create a Non-Hostile Environment?

One topic that generates a lot of controversy among law professors these days is how to deal with laptop use in the classroom. Some professors embrace it; others loathe it. In fact, a small movement has been brewing in which law professors ban laptops from the classroom altogether, calling them destructive to listening, note-taking and effective classroom participation.

A recent ABA Journal article notes that the decision of Suffolk law professor Kate Nace Day to ban laptops from her classroom stemmed, in part, from additional concern over women students feeling harassed at having to see their classmates surf the web for porn, or even sending them inappropriate text messages during class. According to Day, the use of laptops diminishes the learning potential of the class, and increases the potential for an uncomfortable classroom environment.

Title IX offers the possibility of bringing a claim against a federally-funded school for peer sexual harassment, if the school knows about it and neglects to take steps to stop the harassment.

Sex and Drugs Still at Issue in Fresno Trial

The sex discrimination trial between former women's basketball coach Stacy Johnson-Klein and her ex-employer Fresno State continues with more testimony about sex and drugs.

At issue is whether the athletic department terminated Johnson-Klein because of her drug problem (addiction to vicodin following an injury) or whether she was fired in retaliation for rebuffing sexual advances of the athletic director and threatening to expose gender inequities in the athletic department.

Johnson-Klein maintains that the fact she was terminated for drug use is actually further evidence of sexism in the athletic department, particularly, a sexist double standard when it came to addressing drug problems. An athletic department official testified at trial that some members of the basketball team who had failed drug tests continued to play for Fresno State. She also admitted to hearing concern that the (former) men's basketball coach, Ray Lopes, valued team success over athletes' health, and shared her opinion that he had both the discretion and the pressure to overlook drug use in the interest of winning. But she refused to support the plaintiff's characterization of the drug policy as a double standard, stating her belief that players' drug use and a coach's addiction warrant different responses, because coaches are in a position of responsibility for players.

Later, a separate witness, an athletic department employee, offered testimony that would tend to support Johnson-Klein's characterization of the athletic department's sexual culture. She described a sexual encounter that she witnessed in hotel room in Salt Lake City, where members of the athletic department traveled to watch the men's basketball team in the NCAA tournament, between the former athletic director, Scott Johnson, and a female athletic department employee with whom the witness was sharing a room. This testimony could undercut Johnson's earlier denial of charges of sexual impropriety. And if the jury thinks his denials are are not credible, they are more likely to believe Johnson-Klein's testimony that Johnson groped her at a car wash, a charge that Johnson also denied.

Does your AD know Title IX?

I was going to let this editorial in an online news source out of Athens, Georgia go unremarked upon despite the egregious misinterpretations of Title IX the author presents. Initially I thought the author to be perhaps a naive student journalist or an uninformed community member/fan. But this piece was written by former University of Georgia senior athletic director Dick Bestwick, who is also a former football coach.
So it is not surprising to hear him say, as many football coaches have and continue to do, that football should be exempt from the Title IX equation. In other words, they support proportionality so long as you don't have to count one of the teams. I don't think I have to really point out here that this sets up football players and programs as somehow "more equal" than everyone else--men and women.
But I was most surprised at Bestwick's interpretation of proportionality as a policy that mandates distribution of opportunities and money based on the gender breakdown of the undergraduate population. Proportionality is a policy that applies only to one aspect of Title IX compliance: accommodation of interests and abilities. How much money is spent is another category that is not subject to a proportionality standard. There is no formula for determining which gender or which team gets how much money, but there is a standard of equity that allows investigation into budget line items that seem to be providing greater benefits to male athletes over female athletes.
In other words, equipment budgets do not have to be equal for men and women so long as everyone is receiving the same quality of equipment. But there are areas where monies need to be distributed equally. For example, per diems need to be the same for male and female athletes--though the overall amount spent on a team will of course differ based on the size of the team.
That someone (formerly) in sports administration at a big-time athletics school does not know the difference between proportionality and equitable budgeting is worrisome.

UMD and competitive cheer

Last week I attended the North American Society for the Sociology of Sport Conference where a lot of interesting work is being presented--including some on Title IX. A contingent of UMaryland folks, grad students Sarah Olson and Jaime Ryan and Professor Jaime Schultz, presented on competitive cheerleading. They, of course, have a unique opportunity to examine how competitive cheer has been implemented given that Maryland was the first, and until Oregon recently, the only school to elevate competitive cheer to varsity status.

The group's future plans with the project include interviewing administrators and cheerleaders and I imagine will address some of the key issues: is cheerleading a sport? is it an activity that promotes women's physical activity? is it in keeping with the spirit of Title IX? is this elevation of cheering to varsity sport status a trend--and is it one advocates of women's sports will be forced to either embrace or speak out against?

The UMD grad students in the Physical Cultural Studies program also have a blog worth checking out called The Corpus about a variety of issues regarding sport and physical culture.

Gymnastics team gets their space back

Late in the summer we heard about a high school gymnastics team in California that had their dedicated gym taken away from them to install a weight room that allegedly would be used primarily by male football players. The trial, initiated by parents upset that the team's permanent space was being taken away, has been postponed due to a serious medical condition suffered by a key witness, co-principal Diane Brown who was to testify that Wilson High School is in compliance with Title IX. [See stories here and here.]
In the meanwhile the team is getting their space back until the new trial. Good news for them given that their access to a different, non-permanent, non-dedicated gym has meant reduced practice time. Setting up and taking down equipment means a mere twenty minutes of practice on the days they are allowed to practice.
Unfortunately, the spring floor the team fundraised for may have been damaged in the move this summer and may not be able to be reinstalled.
The new trial is scheduled for early December.

Equal Play: Title IX and Social Change

Professors Nancy Hogshead-Makar (Florida Coastal) and Andrew Zimbalist (Smith) have edited a new anthology called Equal Play: Title IX and Social Change. Equal Play compiles a wide variety of sources including legislative and regulatory material, judicial opinions, scholarly commentary, political commentary, and sports writing. Its presentation of this material conveys the mutually-constitutive relationship between law and culture in the area of gender equality and sport.

Part I contextualizes Title IX with excerpt from scholars like Susan Cahn and Welch Suggs and sports writers for SI and ESPN.com that convey the challenges and obstacles for female athletes prior to Title IX's inception. Part II provides a snapshot of the legal and political efforts to secure Title IX and its application to athletics. In addition to the statute, the implementing regulations, and the policy interpretation, the editors also include evidence of failed efforts to weaken or neutralize Title IX, like Senator Bayh's statement in opposition to the Tower Amendment, which had it passed would have exempted revenue-producing sports from the Title IX, and a district court opinion rejecting the NCAA's efforts to undermine Title IX's application to athletics.

Part III focuses on Title IX in in the 1980s and is appropriately titled "The Initial Backlash." The editors excerpt from the Court's Grove City College decision, which limited Title IX's applicability to programs receiving federal funds, until Congress reversed the ruling in 1987 (the legislation is also included). They also describe the NCAA's change in strategy from opposing Title IX to taking over women's sports and its governing body, the AIAW. By including an excerpt from Professor Gary Roberts's address to the Knight Commission, the authors convey that the NCAA's absorption of the AIAW expanded concern about commercialization to now include women's sport.

In Part IV the theme changes from backlash to progress as the focus shifts to the 1990s. Excerpts include the First Circuit's decision in Cohen v. Brown University, which favorably construed the three-prong test, and Mariah Burton Nelson's examination of the benefits of athletic participation for women and girls. But in Part V, the current decade, the backlash theme returns. On offense we see the National Wrestling Coach's Association, Jessica Gavora, the Department of Ed, and the Commission on Opportunity in Athletics all challenging Title IX's legality, principle, and application. On defense we see Donna de Varona and Julie Foudy, Don Sabo and Christine Grant, and the editors themselves all attempting to neutralizing the offensive strike with reason, evidence, and statistics.

By dividing up the book this way, the editors shine the spotlight on the persistent struggle to sustain and protect Title IX, an important project that countermands the popular mythology of Title IX as a thirty-five year feel-good story for girls and women in sport. The reader can't help but parallel the backlash of today and that of the 1980s and internalize the fragility of the law, which faced/faces serious legal and cultural opposition. At the same time, the progress chapters show exactly why it is so important to continue the struggle to overcome resistance backlash and fully realize the equality promise of Title IX.

Librarians Turn Team Into Title IX Book Club

High school librarians in Hillsboro, Missouri, are doing their part to ensure that another generation of athletes does not grow up to emulate Jennifer Capriati -- who famously said, "I have no idea what Title IX is, sorry" in response to a reporter's question about President Bush's attempt to weaken the law.

This fall, they teamed up with the girls' volleyball coaches and assigned the team to read Let Me Play: The Story of Title IX by Karen Blumenthal. They then lead the girls in a four-part discussion of the book, which lead to many athletes discovering for the first time that their opportunities to play sports did not exist not so long ago. As Professor Linda Carpenter said in the story, it is important for girls today understand the struggle for equality so that they protect the law for the next generation.

It seems to have worked at least in Hillsboro. Inspired by the book club, the volleyball team made T-shirts that said "Ask me about Title IX" and wore them in the homecoming parade. They even challenged negative comments they received from coaches of the boys teams.

Aren't librarians great?

Article Addresses Public Enforcement of Title IX

The new issue of the BYU Education and Law Journal includes an article by Professors Julie Davies (McGeorge School of Law) and Lisa Bohon (Cal State Sacramento) called Re-Imagining Public Enforcement of Title IX. Their piece is an important contribution to the scholarship on Title IX, very little of which analyzes enforcement and evaluates its efficacy.

The authors maintain that we should not view private enforcement (i.e., lawsuits) as a substitute for government's efforts to enforce Title IX. Even though lawsuits are effective and remedying and deterring noncompliance, there are more instances of noncompliance than plaintiffs and attorneys have the financial incentive to litigate. Private enforcement, therefore, fails to fully enforce the statute, so public enforcement must be effective.

To this end, the authors recommend that OCR do more to help funding recipients prevent instances of noncompliance, and recommend specifically, for example, disseminating practical, useful materials like "sample policies, checklists or guidelines, research on issues or alternate procedures." OCR could provide this kind of service effectively if it partnered with and capitalized on the expertise of state and local officials who already serve as the "front lines of enforcement."

The authors also recommend that OCR employ "intermediate" sanctions. OCR's enforcement currently is aimed at determining whether or not to cut of an educational institution's federal funds -- a sanction so "draconian...that the enforcing agencies are reluctant to use it." OCR could, they argue, initiate litigation, take on litigation on behalf of a party, or intervene in ongoing private litigation. This type of enforcement action might help dispell the widespread perception, which the authors confirmed in interviews with educational institutions subject to Title IX, that OCR is a paper tiger.

Citation: Julie A. Davies & Lisa M. Bohon, Re-Imagining Public Enforcement of Title IX, 2007 BYU Educ. & L.J. 25 (2007).