Wednesday, January 31, 2007

Gender Representation in Science Competitions

The New York Times has a feel-good article today about finalists in the Intel Science Talent Search, the nation’s premier high school science contest. There are 40 finalists chosen from over 1,700 applicants and this year, for the first time since the competition was started in 1942, there are an equal number of boys and girls representated among the finalists. It's not scientific evidence as to the overall interest of girls in pursuing higher education or careers in the sciences, but it does provide some refreshing anecdotal evidence to counter those who think that girls might not have the same "science gene" as boys.

Title X: Safety from football

Mississippi State (and props to MSU student newspaper, The Reflector for covering Title IX in its sports pages twice in one week!) baseball coach, Ron Polk, thinks we need a Title X to protect men's sports. He is quick to give his support for women's athletics and Title IX but now he wants some sort of equal treatment that provides "protection against men's sports being cut." He believes proportionality is akin to quota filling.
There seems to be a little bit of two-sided mouth talking going on here. Additionally, because Title IX and its attendant regulations regarding compliance never mention, let alone advocate, cutting men's sports, Polk's desired "Title X"--to be compatible with Title IX, which Polk himself supports, remember--would have to make some provision for micromanaging athletic department budgets. Because as we have said repeatedly here, cuts are due to budget constraints.
Polk does bring up football--not in terms of budget but in how many spots the football roster fills in the overall count of athletes, noting that not many people realize that football takes up usually half of athletic opportunities for men. Many of us do realize this and have suggested that football trim its roster to allow other men's sports to offer more scholarships. This is a suggestion Polk himself does not make. I wonder how badly he really wants to protect men's baseball?
The article discusses JMU's fight to save sports in the wake of massive cuts and cites Jennifer Chapman, a female student-athlete who is leading the charge. I have some issues with what Chapman has been saying to the media about the situation at JMU and the Title IX blaming going on. But comment is right on track:
"Athletic departments have become a business run by accountants, not a place of opportunity run to educate students," she told The New York Times. "What are you saying to young boys involved in youth sports when you only offer six college sports for them?
"You're saying, 'You better play football or basketball, because if you run track or swim, you don't matter.'"
Exactly! And that has nothing to do with Title IX but everything to do with bad accounting and misplaced priorities.
And let's not forget that this message of "you don't matter" is exactly the one girls get when attempts to blame and weaken Title IX are made.

Tuesday, January 30, 2007

More Undue Credit to Title IX

Yesterday Kris commented that the media seem to frequently give Title IX too much credit or too little. In another example of the former, consider this nostalgic piece in Washington State University's Daily Evergreen (via U-Wire) about the historic case Blair v. Washington State University. In 1982 female athletes and coaches sued WSU alleging gross inequities in participation opportunities, equipment and funding. The article gives the misimpression that the victory plaintiffs achieved in this case was a Title IX victory. The 1987 Washington Supreme Court decision makes clear that the case was decided entirely as a violation of the state Equal Rights Amendment and the state Law Against Discrimination. Title IX is not even mentioned in the Supreme Court's decision.

And for good reason. In 1984, the U.S. Supreme Court in Grove City College v. Bell construed the nondiscrimination mandate of Title IX to only apply to university programs receiving federal funds, which essentially exempted all athletic departments from compliance obligations. In 1987 Congress restored Title IX's application university-wide, but for much of the 1980s, while Grove City made its way up the federal courts, and for the period of time before the Civil Rights Restoration Act took effect, Title IX was off the table to female athletes seeking redress for discrimination.

In the end, the injunction the Blair plaintiffs won against WSU on state law grounds motivated the school to become the first to satisfy Title IX's proportionality prong. In that regard, the case was a state ERA decision but also a Title IX success story.

So does it matter that Title IX is mistakenly credited as the legal grounds for the plaintiffs' victory? Perhaps. Many people believe that Title IX has been around for 30+ years, women are as interested in sports as they are ever going to be, so the statute has done its job and can be retired. So its important to speak accurately about Title IX's early history because the truth is that Title IX has only effectively offered protection to female athletes for a relatively short time.

Monday, January 29, 2007

A little too much Title IX praise

The student newspaper at Mississippi State University recently published an article on the benefits of Title IX. Amidst all the backlash from the JMU cuts, "mandated" cheerleading, and male practice players, the article was a nice change. The author interviewed administrators, coaches, and female athletes, all of whom expressed their unequivocal support for the legislation. (I have some issues with how representative these sentiments are of the entire campus population.)
Unfortunately the women's athletic director, Ann Carr, in lauding Title IX conveyed some misinformation about the "benefits" to female coaches, administrators, trainers, and others in positions of leadership. Here is the excerpt from the article:
Carr, a former MSU athlete, sees the changes that Title IX has brought between the time she played sports and the time she joined the faculty. She also pointed out that when she was an athlete, almost all of the staff in the athletic department were male, but that has changed.
"Because of Title IX, there are more female coaches, female athletic counselors, female trainers and female athletic directors," Carr said. "There are even female managers in sports you would never expect to see them in. Women are now learning and wanting to be in those areas."
I don't know when Carr was an athlete or the specific situation at MSU, but I do know that post-Title IX the number of female coaches dropped significantly (but more than hlaf in some sports) as did the number of administrators when formerly separate men's and women's athletic departments merged pushing most of the women out of their leadership positions.
Carpenter and Acosta talk about this phenomenon in their work. And other scholars have discussed it as one of the little known and little discussed drawbacks to Title IX.
And a little searching uncovers that Carr is not the women's athletic director--a title that suggests women's and men's athletic departments are still separate--but rather she is an associate AD and, probably by virtue of her position as the highest-ranking female administrator, is in charge of women's athletics. She still answers to the head AD.

Friday, January 26, 2007

Professor Cervenka on Free Shoes

Professor Patricia Cervenka (Marquette Law) has a brief and handy piece in the Marquette Sports Law Review on the legality of one of those little things that actually mean a lot to student athletes: free shoes.

From the introduction:
When a company offers to give a school's basketball team free shoes or any other kind of equipment or gear, it may seem like a welcome gift... But what happens when the company gives the gift to only the girls' team or to only the boys' team and not the other gender in either case? The statutes and regulations of Title IX step in and give guidance to primary and secondary schools. This article will consider the applicable statutory and regulatory language concerning gifts of shoes and other equipment; the administrative policies and judicial interpretations that have been applied to the statutory and regulatory language; and the efforts that have been made to educate the administrators of school districts, booster organizations and parents about gifts of free gear and equipment.
For more see Patricia Cervenko, Free Shoes for Primary and Secondary Schools: Playing by the Rules of Title IX, 17 Marq. Sports L. Rev. 285 (2006).

Thursday, January 25, 2007

Ohio University Drops Four Sports

Ohio University will no longer sponsor varsity men's indoor and outdoor track, men's swimming and diving, and women's lacrosse. According to Athletic Director Kirby Hocutt, the cuts will save the Athletic Department $685,000, a fraction of its $4 million deficit and will also bring Ohio University into compliance with Title IX's proportionality prong.

According to data reported to Department of Education, Ohio's student body is 52% female but its students athletes are only 42% female. The cuts will reduce the number of opportunities for male athletes from 359 to 227 (a loss of 110 positions on the indoor and outdoor track and field teams + 26 swimming and diving team). And cutting women's lacrosse will reduce the number of female athletes from 258 to 230. So women will make up 50% of Ohio's student athletes, which is within the range that courts and federal regulators have deemed "substantially" proportionate.

Officials acknowledged that substantial proportionality could also have been acheived by adding more opportunities for women, but the athletic department deficits precluded this possibility. I For the details, I returned to the same Department of Education data, and found that Ohio University's football program cost $1.9 million last year; all other men's sports combined cost about $1 million; and all women's sports combined cost $2.2 million. That works out to a per student subsidy of $17,757 for each football player; $3968 for each non-football male athlete (this number reflects that men's basketball made a $300,000 profit); and $8527 for each female athlete.

Wednesday, January 24, 2007

Knight Commission discusses gender equity

The Knight Commission met earlier this week to discuss recruiting practices and gender equity issues in intercollegiate sport.
Dr. Christine Grant spoke (Chronicle of Higher Education--subscription only) about the growth of football and men's basketball budgets and their role in achieving (or not) gender equity. At the Division 1A level football budgets have tripled in the past two decades while men's basketball budgets have quadrupled. [Part of the exponential increases are due to the rising coaches' salaries--an issue the commission addressed as well.]
Together, the budgets for football and men's basketball comprise, on average, 76 percent of men's sports budgets. That leaves very little left for what are now being called men's "minor" sports such as wrestling, track, rowing, gymnastics, and tennis. When cuts are made to such teams, Title IX gets blamed as we have seen most vividly in the response by wrestling coaches, players, and fans to cuts incurred in their sport.
But as Dr. Grant noted, "It's not Title IX that's causing this problem. It's the insatiable appetites of football and basketball."

Tuesday, January 23, 2007


A columnist in The Daily Evergreen, the college paper at Washington State, recently (and seemingly apropos of nothing in particular) went off on Title IX as the cause of ruin for men's sports. To this end, he wrote:
It wouldn’t take a genius to figure out that men are more inclined to play sports than women are, and simply offering more sports for women to participate is not going to solve the problem of inequality.
Since the author in question is a college student and not a professional journalist, I will resist the temptation to be snide. But we here at Title IX Blog are always interested in analyzing and correcting media misrepresentations about Title IX as well as basic principles of law, justice, and culture that are implicated in the Title IX debate. It's actually not true that men are naturally more inclined to play sports than women. There is no sports gene on the Y chromosome. Men's interest in sport, and women's increasing, but still (at least at WSU, apparently) comparatively lower interest is a response to social forces. We live in a society that conveys to its members as soon as they are born that sports are for boys. (Anyone who has shopped for children lately knows this, and if you haven't, you can read all about it in Sharon Lamb and Lyn Mickel Brown's new book, Packaging Girlhood). We presume boys will participate in youth sports and we encourage them to improve their athletic skills. While a father tossing a football with his daughter is not unheard of, compare the number of times you have seen that to the number of times you have seen the same activity performed by fathers and sons. Sports are clearly normalized for boys in a way that it is not for girls. To the extent that girls' interest in sports is relatively lower than boys, it could be because girls receive fewer opportunities, less support, and, and generally no presumption of interest and skill.

To further cast doubt on the theory that girls are less interested, consider what happens to girls' interest and participation when they actually are given the opportunity to play. Women's participation at the college level has increased from mere 30,000 in 1972 to well over 150,000 today -- because the statute required schools to offer the opportunity to play. Based on this trend, the better theory to explain women's comparatively lower participation in college sports is that opportunities are still not made available to women in numbers equal to men (compare the 150,000 female college athletes to the 210,000 male). If "offering more sports to women" has already made great progress to "solve the problem of inequality," shouldn't the "genius" deduce that universities should offer more, not fewer?

Monday, January 22, 2007

Another Cincinnati Rowing Update

You'll recall from prior posts that the University of Cincinnati cut its rowing team last November, a decision it maintains was not related to fact that the team had filed an administrative complaint with OCR alleging that the university's failure to provide the team with proper equipment violated Title IX.

The team then sued the university in federal court, claiming that the cut violates Title IX as well. Last week, the team filed a motion for a temporary restraining order, which would put on hold the University's decision to discontinue the team.

In deciding whether to grant the TRO, the judge will consider among other factors the likelihood that the team will succeed on the merits of its case against the University. In other words, the court's decision on the TRO might preview whether it thinks cutting rowing violates Title IX. Before its decision to cut rowing, Cincinnati had proportionality points to spare: It has a student body population that is 47.5% female and a student athlete population that was 49% female. Cincinnati may have cut rowing, but it is adding lacrosse, so the percentage of female athletes drops slightly* to 46.6%, still within 1 percentage point of proportionality.

Courts agree that cutting viable women's teams violates Title IX when the school in question is attempting compliance under prong three (satisfying interests and abilities) not prong one (proportionality). But Cincinnati appears to comply with prong one even with the cuts. Thus, it's not obvious from the numbers that the rowers have a viable case. We will see if the court agrees.

* I checked a couple of other Division I women's lacrosse teams in the midwest and they seem to have around 28 players. Cincy had 54 rowers, so the net loss of female athletes was 26.

Sunday, January 21, 2007

Details of UC Davis Settlement Released

We posted last month about the preliminary settlement that ended litigation between UC Davis and its former wrestling coach, Michael Burch. Burch had sued the university under Title IX, claiming that its decision not to renew his contract in 2001 was retaliation for his advocacy on behalf of female wrestlers.

Recently, the University of California Board of Regents approved and finalized the settlement, and we now know the amount: $725,000. UC Davis maintains that it decided to settle only to put an end to the litigation and avoid a possible hefty attorneys fee award. (Burch was represented by the AAUW Legal Advocacy Fund.)

The university is also quick to point out that nothing ever came of the female wrestlers' claims, that Burch claims he was terminated for defending. The Office for Civil Rights found that the three women wrestlers were not discriminated against by the University when they were cut from the men's wrestling team and denied the chance to form a wrestling team of their own. (AAUW's website make clear that the decision to cut women from the men's team was the Athletic Director's, not Burch's.) The agency found that the female wrestlers did not follow the university's process for adding new varsity sports, had too few potential participants, and had no prospect of competition within Davis's conference.

Friday, January 19, 2007

More on "Equal Cheers"

Several NY Times readers contributed opinions about last week's article about unfavorable reaction in upstate NY to OCR's mandate that they equalize cheerleaders at girls and boys games (which we posted on here). My favorite letter was from Donna Lopino, CEO of the Women's Sports Foundation, who writes in part:

As a society, it would be unthinkable to allow students to cheer only for white athletes and individuals without disabilities. Yet we have no problem providing cheerleaders to only men’s sporting activities.

Discrimination is discrimination, regardless of race, gender or ability. If the presence of cheerleaders helps motivate players and create a level of excitement at the games, shouldn’t we be fostering this type of atmosphere at all sanctioned sporting events?

When schools treat their athletes differently, they are creating a culture that emphasizes support only for the male athletes and devaluing the notion of women supporting one another. Is this the overall message we want to be teaching our children in school?

Lopiano's point is easier to understand when one draws the distinction between the activity of sideline cheerleading and the activity of competitive cheerleading. That some cheerleading squads engage in competition, either in addition to sideline cheering or as an alternative altogether, gives rise to valid arguments that cheerleaders should be treated as athletes instead of boosters. But the duality of cheerleading shouldn't obscure the fact that when the cheerleaders are performing in their sideline role, they are acting as as the school's agents of publicity and promotion, and as such, should be deployed in equitable fashion.

Thursday, January 18, 2007

A Hero for Daisy screening

If anyone is in the area of Middlebury College (VT) tomorrow (1/19) afternoon at 2pm check out the free open-to-the-public screening of the documentary A Hero for Daisy from which our masthead picture is taken. Writer, director and producer Mary Mazzio will be there to discuss the film after the screening.
Even if you cannot make it to VT tomorrow, we at the Title IX blog highly recommend this film. I had to get it from interlibrary loan when I screened it for my Women and Sport class a few years ago but it was worth it.

Wednesday, January 17, 2007

"Granny" Basketball Leagues

The Houston Chronicle ran a fun article the other day about women over the age of 50 who are joining seniors-only basketball leagues. The leagues are a way to exercise, socialize and just have fun. Players mentioned not having the chance to play basketball as girls and teenagers, when some were told that it was "unladylike" (most of the women involved were in school prior to Title IX's passage), and discussed how much they enjoyed having the opportunity to play now.

Using 2 to get to 1

This article about the new women's swim team at Boise State is a feel-good piece that, while not quite lauding Title IX, does show its impact at the individual level.
Boise State added women's swimming this year to "enhance Boise State's compliance with Title IX." Interesting word choice: enhance. As in, we're going to make our compliance look a little prettier, a little shinier?
According to the article's last paragraph, Boise State is already in compliance with Title IX "under one of three prongs but wants to continue to expand its compliance." Which prong BSU thinks it has achieved compliance under is never stated, though. It is not proportionality. Last year's stats show an over 16 percent gap in their proportionality ratio. Even with the addition of the women's swim team this year that gap is not closing very much given that there are currently only 10 members on the team.
Perhaps they believe they are complying under prong three: interests and abilities. But if they really believed that they wouldn't feel the need to add the swim team; or the planned softball team in 2008, lacrosse in 2012 and an additional yet to be determined sport in 2017.
What they are doing is making an argument--probably to the NCAA first and foremost and then to any potential litigants--that they are complying under prong 2: history and continuous expansion of the women's program. But they weren't even doing that until this year if, as the article states, the last women's team they added was golf in 1993. A decade plus gap between new sports does not constitute continuous expansion.
So it appears BSU will continue on the prong 2 path until it achieves proportionality. It's a slow path, certainly, but one that seems to be fiscally responsible and honor its student athletes. In adding women's programs, it does not appear that BSU will cut any of its men's programs. And for a Division I program that is pretty remarkable.

Tuesday, January 16, 2007

School Officials Couldn't Have Known that Eighth Grader Would Molest

Last week, a federal judge in Michigan dismissed Title IX claims against the Mesick Consolidated School District which had been filed by the parent of a kindergartener who was allegedly molested by an eighth grader. See Peer v. Porterfield, 2006 3898263 WL (W.D. Mich. Jan. 8, 2007).

The eighth grade boy had been assigned to an "apprenticeship" with the plaintiff's daughter's teacher as part of the school's career skills curriculum. He is alleged to have used that position to gain access to and molest a number of kindergarten girls, including the plaintiff's daughter, who was the first one to report the situation to a teacher. Immediately, the eighth grader was suspended, barred from school property, and ultimately expelled.

A school district is only liable under Title IX liability for peer harassment if appropriate officials remain indifferent to sexual harassment of which they have actual knowledge. Thus, in this case, it was necessary for the plaintiff to prove that school officials knew or should hve known that the eighth grader was a sexual threat and should not have been given access to kindergarten students. However, the court determined that the eighth-grader's history of poor academic performance and disciplinary problems that were not sexual in nature did not constitute the requiste notice.

Monday, January 15, 2007

Guardian Columnist Lauds Title IX

In The Guardian today, Steven Wells opines, rather humorously, on Title IX and the cultural backlash it has inspired.

(Thanks for the link, Truth)

In Pursuit of Compliance

In this week's Chronicle of Higher Education, Kevin R. Davis, university counsel at Vanderbilt, opines on the rise and emerging role of the university compliance officer. The job title conjures up an image in the public mind of someone running around with a clip board and a checklist, making sure that the university is following all the rules of tax, copyright, environmental, immigration, discrimination, and every other area in which universities are regulated.

But in Davis's opinion, the job is more complex: "Compliance involves discerning and evaluating a lot of gray areas and, in essence, knowing what one can get away with." Among other examples, Davis cites the indeterminacies of Title IX to prove this point. Noting what counts as "substantial" proportionality is a matter of interpretation, "some institutions, viewing themselves as falling short under the law, deciding strategically how quickly they will act to change their behavior." He continues: "Compliance under Title IX can be measured by institutional trends, and when a college is trending in the right direction, it often claims to be in compliance. "

Davis's point is that, because compliance is a matter of (self-interested) interpretation, internal compliance is not a substitute for regulatory oversight and enforcement. As long as the government continues to provide oversight, there is no problem. But some regulators take it easier on universities with compliance programs, leaving university compliance officers' interpretations of what constitutes compliance unchecked and unchallenged.

Without taking issue with Davis's essential point, I would just point out that a void of government enforcement in the area if Title IX is not as problematic as it sounds. Historically, private enforcement (i.e., lawsuits) has played a far more important role than government enforcement in nudging university athletic departments toward gender equity. No college has ever lost its federal funding, the government's final sanction for failure to comply with Title IX, but the threat of hundred-thousand-dollar settlements or damages awards is definitely real. I don't know of any court that has deferred to the definition or timetable of compliance put forth by a university's compliance officer.

Sunday, January 14, 2007

Cheerleading and Backlash

Today's New York Times carried an interesting article on the mandate in several upstate New York school districts that cheerleaders support boys' and girls' basketball programs in equal strength. After a complaint was filed with the Department of Education by the parent of a female basketball player, the Whitney Point, NY school district and others entered into a compliance agreement to provide equal publicity to boys' and girls' sports teams, including the presence of cheerleaders. To accommodate the additional work, the cheerleaders generally attend the home games of both the boys' and girls' team, and forgo the away games, meaning that most games do not have rival cheerleading squads, but just the squad for the home team.

The article focuses on the reaction of school administrators, parents, basketball players and the cheerleaders to the change in the program. According to the article, administrators at the schools which made the changes range from being satisfied to grudgingly compliant, and parents, basketball players and the cheerleaders are unhappy about the change. Parents of boys on the basketball team are reportedly upset that there is a lack of cheering for away games. Female basketball players apparently adjusted to having cheerleaders after some time. The most interesting reaction is that of the cheerleaders themselves, which was mixed. Although some of them were agreeable to the change, many girls dropped off of the cheerleading squad because "some of the girls... just did not want to cheer for other girls, while others said the team was not as fun without traveling to away games and being able to check out routines by rival cheerleading teams."

Obviously, making a significant change to the cheerleading program take time to adjust to for students and parents, but the statement of Rosie Purdish, the mother who filed the complaint on behalf of her daughter speaks volumes as to why these changes are necessary in terms of Title IX and gender parity in schools. Noting that as many as 60 cheerleaders, along with their friends and parents, would attend the boys’ games, injecting a level of excitement and spirit that was missing from the girls’ contests, she said, “It sends the wrong message that girls are second-class athletes and don’t deserve the school spirit, that they’re just little girls playing silly games and the real athletes are the boys.” I couldn't agree more, and hope that eventually all of the students feel comfortable and enthusiastic in a system where cheerleaders can cheer for boys and girls (and maybe, just maybe, boys can become cheerleaders if they would like).

Finally, worthy of note is that three schools who were part of the original complaint have defied the mandate of the Department of Education. A lawyer for one of these districts noted that there was no need to send cheerleaders to girls' games, and that the district has "a really solid women’s athletics program and we support it our way.” Apparently that way involves not providing equivalent publicity to boys' and girls' programs, and not complying with Title IX.

Friday, January 12, 2007

NCAA Delegates Table Male Practice Player Policy

Earlier this week, the NCAA's Division III Delegates tabled, for now, the Committee on Women's Athletics proposal to limit the use of male practice players. According to the NCAA, the delegates "referred a proposal to limit the use of male practice players in women’s sports to the Division III Management Council for further study, expressing a desire to obtain more data about how widely males are used in practices by women’s teams and how they are employed."

Ever since the CWA announced its proposal, we've read and linked to a number of comments by coaches of women's basketball teams. They report using male practices in a limited and responsible manner that does not take away practice time from non-starters. But see. Based on these accounts, it's hard to imagine the data the D-III delegates will receive would uncover widespread abuse of this practice. Moreover, the likelihood that coaches would rely on male mercenaries to the detriment of female non-starters seems especially small among coaches at D- III schools, which, judging by mission statements of conferences like this one, focus on equitable participation and the personal development of student-athletes.

Adding sports=compliance

SUNY Potsdam will be adding a women's hockey team to its roster in a move to bring their athletic department in compliance with Title IX. This is what President John Schwaller had to say about the decision:
The College had the choice to increase women's participation in athletics and to add women's sports or to cut existing men's sports. Unfortunately, some colleges across the country have been forced to disband men's teams. Anytime we can increase opportunities for our students, we are eager to do so. We saw a definite advantage to adding opportunities for women, and it reinforces SUNY Potsdam's commitment to invest in gender equity in all facets of the institution.
The school decided to add ice hockey after surveying the interests of current students. Enough interest was expressed in hockey to go forward with the implementation of a program.
But what I am confused about is why Potsdam felt it was not in compliance. According to the Chronicle of Higher Education stats from 2004-05, the institution is within the 5% range of substantial proportionality.
But as a fan of women's hockey I am always pleased to see its expansion at the collegiate level. And if a men's team is already in place, the addition of a women's team is not especially difficult. And the continued growth of the game guarantees a high level of competition. The team will be at the club level next year and achieve varsity status the following which allows for recruitment of players.

Thursday, January 11, 2007

Seventh Circuit Relies on Jackson in Cracker Barrel Race Discrimination Case

Further proving that Jackson v. Birmingham Board of Education is more than just a Title IX case, the Seventh Circuit Court of Appeals recently relied on the decision to hold that retaliation is prohibited under 42 U.S.C. 1981, a federal civil rights statute that prohibits discrimination in the making and enforcing of contracts.

The plaintiff, Hedrick Humphries, an African American, was an associate manager at a Cracker Barrel restaurant in Illinois. In his complaint against the Cracker Barrel corporation, he alleges that he was fired in retaliation for complaining that disciplinary action against him and the manager's termination of a fellow African-American employee were racially motivated. (In addition to suing under 1981, he also brought a Title VII claim, but forfeited it for failing to press it before the district court.) The district court granted Cracker Barrel's motion for summary judgment, but the Seventh Circuit reversed.

In holding that 1981 covers retaliation, the Seventh Circuit acknowledged that its own prior precedent, which had rejected retaliation claims under 1981, was no longer good law after Jackson, the Supreme Court decision holding that Title IX protects a male coach from retaliation for complaining about inequal treatment of female athletes. Over objections from a dissenting Judge Easterbrook, a majority on the Seventh Circuit panel reasoned that "the Jackson court appears to have jettisoned our prior observation that 'retaliation and discrimination are separate wrongs.'"

The case is remanded to the district court for consideration of the merits of Hendricks's retaliation claims.

Tuesday, January 09, 2007

Softball Parents Sue California School District

Parents of softball players at Ramona High School have sued the school district over the inferior quality of girls' softball facility relative to the boys' baseball facility, according to this article in the San Diego Union-Tribune.

The fact that girls play off site and at a smaller facility than the boys is not a direct violation of Title IX. The court will have to evaluate the quality of the girls' program overall relative to the boys' program.

Professor Mota on NCAA and Title IX

New Title IX scholarship was recently published in the Journal of College and University Law: Sue Ann Mota, Title IX, the NCAA, and Intercollegiate Athletics, 22 J. College and Univ. L. 121 (2006) [available on Westlaw at 33 JCUL 121].

Professor Mota examines the NCAA's role in Title IX compliance, specifically its requirement for Division I member institutions to include gender equity plans as part of their certification processes. She describes Title IX's regulatory requirements for equity in participation, scholarship, and other program factors that a university certification should address in their gender equity plans. She argues that the universities should use the rather "minimal" requirements of the NCAA self study process to perform more "comprehensive" program evaluations with an eye toward overall compliance.

The NCAA does not monitor compliance of its member institutions, but it does play an important "facilitat[or]" role. In light of this, Professor Mota recommends specific ways the NCAA could be more effective in this role. She recommends, for example, that in addition to requiring a gender equity plan, the NCAA actually "require that the plan moves the member toward compliance with Title IX." She also thinks the NCAA could do more than just collect and disseminate compliance data, but "best practices" as well. Last, she suggests NCAA "review roster and scholarship limits to see if these could be adjusted to help member institutions in the area of financial assistance." Here here. But this last recommendation would be helpful to member institutions even beyond reducing spending on financial assistance. Stricter roster and scholarship limits when applied to football would alleviate pressure on universities to cut other men's sports in order to achieve proportionality.

Sunday, January 07, 2007

Let's Add a Wrestling Team

Cheers to Grand Canyon U, for proving that decision can actually happen.

(But will it ever happen at a school with a football team?)

Friday, January 05, 2007

Can a "good" program have a Title IX problem?

Erin and Sudha are off at AALS this week so I am doing my best to keep up with the Title IX news. Luckily there hasn't been too much going on.
There was an interesting article in the San Francisco Chronicle that came out just before the end of the year about the athletic programs at UC Berkeley in which writer Rick DelVecchio profiles the highly successful athletic program at Berkeley, especially the success and support of its women's teams. But the success has not lead to more opportunities for women.
Cal's proportionality numbers are very, to use a technical term, out of whack. Women comprise 54 percent of the undergraduate population but only 41 percent of student-athletes who compete on 15 teams. This, according to DelVecchio, means there is about a 100-student gap.
What is interesting about the article is that it initially appears to be unmotivated by any particular event or moment, as if it was just a slow news week and DelVecchio said "hey, let's check out how Cal stacks up in terms of Title IX compliance."
But reading on we discover that Cal is in the process of "an audit of Cal's record under Title IX to see if there is gender discrimination in sports programs." A few paragraphs later DelVecchio writes this:
One review now under way is part of Cal's latest report card to the National Collegiate Athletic Association's certification committee, which looks over the nation's most ambitious intercollegiate athletic programs every 10 years for compliance with association rules. This time around, the committee is particularly interested in what schools have done to promote gender equity.
Is the "audit" and the "review" the same thing? Audit seems like more of an internal process Cal undertook of its own accord. But the NCAA "report card" is an external mandate. But this too is confusing. Schools undergo NCAA reaccreditation processes in which they are required to form committees and write reports on the status of the athletic department, including--but not limited to--gender equity. And this process occurs more than once every ten years. More typically it is every 4-5 years. And not just the "ambitious" programs are subject to the process.
So I am not quite sure what exactly is happening out in Berkeley but if it is an NCAA reaccreditation process then administrators should be very concerned about the disparity in opportunities.
In the gender equity component of their report to the NCAA they will have to unequivocally state which prong they comply with. Prong 1, proportionality, is, as the article notes, not even close to being achieved. Prong 2, history of expanding programs and opportunities also seems like a hard sell. DelVecchio reports that Cal added teams in the 90s but that is just too long ago to be acceptable to the NCAA review committee.
It seems that all they are left with is prong 3, meeting the interests and abilities of its female student body. And according to athletic director Sandy Barbour--one of the few female ADs in the country--that is the option they are going with. She says: "I would like our numbers to look better for a variety of reasons, (but) I have every faith we are fully accommodating the interests of our student body." Faith in what, though? Has Cal surveyed its undergrads? How do they know the interests are being met? The article does not mention whether a survey has been done or will be done. But I don't think faith alone is going to satisfy any review committee--or the courts if it comes to that.

Wednesday, January 03, 2007

Billie Jean King and Title IX

Over at the Huffington Post, Leanne Shear has written a nice tribute to Billie Jean King while also advocating for greater enforcement of Title IX--something King herself continues to do.
If you're a little tired, like some of us here at the Title IX Blog are, of steeling yourself against all the backlash and misinformation on Title IX, you should read Shear's well-written piece which includes quotes from her recent interview with BJK. She has also included a myriad of links to search through including popular media articles on Title IX and some sources on facts and stats.
I only had two itty bitty things to say about it when I was done.
The first has nothing to do with Sheer's writing, but with something BJK told her: "Sports are like a microcosm of society." To me, this implies that "society" is always acting upon sports; that the change is one way rather mutually constitutive.
And I am not sure if I believe BJK really believes this to be true either; especially when we consider her life's work and activism. She clearly works within the sports world and believes sports can change the lives of women. Her own Battle of the Sexes match certainly is evidence of sports influencing society. According to Johnette Howard in The Rivals King was always aware of the importance of the match and eventually Riggs (on his deathbed) saw the social impact of the highly-orchestrated event.
Second, Shear did well to note what few other articles fail to mention at all: prong two. Though she does not name it as such, Shear writes that schools have the option of not choosing proportionality to comply with Title IX but can "upgrad[e] women's sports from, for example, "club" level to varsity, or also [...] demonstrat[e] a willingness to improve opportunities for women."
My only wish is that she had noted that "compliance" with prong two is essentially an intermediary step. If a school continues to follow prong two, eventually it will satisfy prong one (proportionality) and possibly even prong three--though this is not a guarantee.
Overall it's a good read if you're feeling the Title IX blues.

Tuesday, January 02, 2007

Anti-Gay Peer Harassment Actionable Under Title IX

A federal district court judge in Connecticut recently denied the New Haven Board of Education's motion for summary judgment in a case involving peer harassment directed at a female student on the basis of her perceived sexual orientation. See Riccio v. New Haven Bd. of Educ, 2006 WL 3826687 (D. Conn. Dec. 26, 2006). Title IX does not directly prohibit discrimination on the basis of sexual orientation, but in this case, the judge decided that the anti-gay harassment at issue qualified as discrimination on the basis of sex, even though the victim and primary tormentor were of the same sex.

The plaintiff's daughter, Stefanie Andree, was an eighth grader in the 2003-04 school year when her classmates, including one female student in particular "began calling Andree derogatory names including 'bitch,' 'dyke,' 'freak,' 'lesbian,' and 'gothic.'" The verbal abuse was constant and sometimes escalated into physical altercations. Andree's mother notified school administration about the bullying. Administrators tried to curb the harassment through meetings and counseling but to no avail. Eventually, Andree and her primary tormentor, Lea Lucatino, were separated to opposite corners of the classroom, and when that didn't stop the harassment, Andree was transferred out of the class. The school also required Lucatino be supervised at all times, but unlike other students who bullied their peers, Lucatino was never suspended from school. Andree's mother sued the Board of Education alleging its deliberate indifference to peer harassment on the basis of Andree's sex, which is prohibited under Title IX.

The Board moved for a summary judgment arguing that Andree's harassment was not motivated on the basis of sex but on the basis of her perceived sexual orientation. Citing both the Supreme Court decision in Oncale v. Sundowner Offshore Services (harassment can qualified as employment discrimination on the basis of sex even when the perpetrator and victim are of the same sex) and OCR's sexual harassment policy for Title IX (explaining that some anti-gay harassment is harassment on the basis of sex when it is of a sexual nature), the judge rejected this argument and concluded:
If not for her status as a female, a reasonable trier of fact could conclude that Andree would not have been called the offending slurs. As such, Andree, a female student, targeted by other female students and called a variety of pejorative epithets, including ones implying that she is a female homosexual, has established a genuine issue of fact as to whether this harassment amounts to gender-based discrimination, actionable under Title IX.
Unless the Board appeals, Andree's case will either proceed to trial or settle.