Saturday, March 31, 2007

Coach fired over Title IX violations

South Carolina State University fired its head basketball coach last week. Jamal Brown was fired, according to university reps because he "violated the university's obligations under Title IX."
Because this is a personnel matter, and because the violations could result in litigation the university will not release any more details. This means we are left to speculate. Erin thinks the only thing the vague official comments could mean is that Brown was involved in some kind of harassment situation.
This was Brown's first season at SC State and it was losing one with a 13-17 record. But apparently there were even bigger problems.

4/2 UPDATE: This article actually sheds a little more light on the situation with Brown and SC State. He has been investigated for a relationship with a team trainer who has said the relationship was a professional one. So reading between the lines it seems that the school has dismissed him because perhaps he was less than cooperative during the investigation. Or at least that is the official reason.

Friday, March 30, 2007

NYT on Cheerleading Injuries

As we've noted in the past, one argument we frequently hear for "counting" cheerleading as a sport is safety. Treating cheerleaders like athletes would give them access to athletic department resources for injury prevention, protection, and treatment, like trainers, physicians, and trained coaches. Additionally, if cheerleading was a sport, a conference or govering body could more effectively regulate dangerous activity.

In light of these arguments, I was interested in this recent article in the New York Times that describes cheerleading's high risk of injury. Cheerleading has a high injury rate per participate relative to other sports:
Of 104 catastrophic injuries sustained by female high school and college athletes from 1982 to 2005 — head and spinal trauma that occasionally led to death — more than half resulted from cheerleading, according to the National Center for Catastrophic Sports Injury Research. All sports combined did not surpass cheerleading.
The article also provides statistics on the increase in cheerleading injuries over times, data that support a conclusion that cheerleading stunts are becoming increasingly more risky.

The article does not address whether bringing cheerleading programs under the aegis of athletic departments would make cheerleading safer. It does point out that some states have imposed safety regulations on cheerleading directly, though enforcement of such laws could be stronger.

That said, this article doesn't help settle whether cheerleading should be a sport. But you can't read the data and the stories of individual injuries and deaths and escape the conclusion that sport or not, cheerleading should be as safe as one.

Wednesday, March 28, 2007

See You in Cleveland!

Kris and I are off to the Title IX Conference in Cleveland. I'm sure we'll have lots to blog about when we get back!

Legislative Updates in California, Iowa

California's legislature is considering legislation that would protect GLBT students from bullying, similar to legislation that passed in Iowa earlier this year. According to Equality California, the group that is spearheading the lobby effort:
Nearly 8 percent of California students report being harassed because of their actual or perceived sexual orientation, according to the 2004 Safe Place to Learn report issued by the California Safe Schools Coalition and the 4-H Center for Youth Development at UC-Davis. In addition, more than 91 percent of all youth report hearing students make negative comments based on sexual orientation
Meanwhile, Iowa legislators seem to have decided that protecting gay students was such a good idea that they might as well protect all gay Iowan from discrimination. The state senate recently voted to add sexual orientation to the statewide nondiscrimination bill that covers employment and public accommodations.

Tuesday, March 27, 2007

New Jersey HS Football Perks May Violate Title IX

OCR is investigating a complaint against Phillipsburg (NJ) High School that its preferential treatment of football violates Title IX. The Express-Times reports:

According to the complaint, football players were given free game-day breakfasts, post game parties in the school, shirts, rings and jackets.

The complainant alleges football players were provided SAT tutoring and allowed to practice during the school day. The complainant also claims the football, boys basketball and wrestling teams hire a paid videographer for all games while the girls basketball team only has home games taped.

Another local paper, the Morning Star, adds that one school board member who supports the charges discovered on his own "several inequities including that the varsity baseball coach earns more than the varsity softball coach, and there is a baseball program but no softball program at the middle school." Now it's not per se unlawful to pay a boy's team coach more than a girl's team coach, or to field baseball but not softball. But if the rest of the allegations against Phillipsburg hold true, the greater the likelihood that that these isssues are part of inequality at the program level. If OCR does find that the school has treated the boys athletic program better than the girls athletic programl, then it will likely leverage the threat of lost federal funding to compel the school to come into compliance.

Monday, March 26, 2007

"Responsible Fatherhood" Initiative Draws Complaint

Legal Momentum and NOW have filed administrative complaints with the U.S. Department of Health and Human Services to challenge the agency's award of $80 million in grants under the 2006 "Responsible Fatherhood" program authorized by Congress last year. The organizations complain that the agency's decision to award the money only to programs that benefit men violates Title IX.

Many of the benefited programs provide job training and education (and thus covered under Title IX). For example, one recipient in Connecticut, The Fortune Society, received $250,000 a year for a “Promoting Responsible Fatherhood Project” that will serve “primarily African American and Latino fathers” and which “will provide a minimum of 120 criminal justice involved fathers and husbands” services that will include among others “job readiness training,” “financial planning seminars."

Legal Momentum and NOW do not dispute the importance of such job training opportunities in underserved communities, but argue that women's programs should be equally served by the federal grants -- especially considering that women earn less than men and are more likely to be disadvantaged by single parenthood.

A conversation at Berkeley

Interesting "conversation" in the editorial pages of the UC Berkeley paper, The Daily Californian. Over a week ago, Olympic swimmer and long-time Title IX advocate, Donna de Varona, wrote this opinion about the state of Berkeley athletics. She cites the university's history of providing equitable opportunities for women but also the recent backsliding she has seen due to a variety of factors. (I won't rehash the details which she does a good job providing.)
A week later, this piece by the vice chancellor of admissions, Nathan Bostrom, appeared in response to de Varona's. Unfortunately Bostrom does not really take on any of the issues de Varona raised. He believes it was "ironic" that de Varona's piece was published the same week female athletes won six national titles (in track/field and swimming). He cites the numerous titles won by women's teams at Berkeley. He gives Berkeley's standing in the Pac-10 in terms of number of female athletes and women's teams. He talks about growth and championships and conference titles. This is all well and good--in fact it looks quite impressive. But it does not address de Varona's concerns but gender equity, because you cannot talk about equity and only gives facts and figures about the women's program. It is all relative. It does not matter how many female athletes Berkeley has in comparison to the rest of the Pac-10. It matters how proportional their female athletes are to their undergrad population. Within conference school sizes differ so saying you have one of the highest numbers of athletes does not mean all that much.
Bostrom uses the tactics of someone in admissions: he praises the program; he shows why Berkeley women's athletics are good.
De Varona takes the stand of a women's sports advocate who understands how to measure gender equity.

Sunday, March 25, 2007

Former College Soccer Coach Brings Retaliation Suit

The Fargo-Moorhead Forum reports on an ongoing lawsuit between Minnesota State University Moorhead and its former women's soccer coach, Eric Swanbeck. Swanbeck sued in state court over a year ago under Title IX and a state whistleblower protection statute, alleging that the university refused to renew in contract in retaliation for bringing a Title IX complaint on behalf of his team in 2003. According to the article, we will find out in the coming weeks whether the court will dismiss the charges or schedule a trial for summer 2007.

A lot of facts seem to be at issue, raising the possibility of a trial. Some former players lodged complaints against Swanbeck in 2002 and 2003, which Swanbeck explains as resistance to his "high standards [of behavior] on and off the field." MSUM will try to show that it decided not to renew Swanbeck for these or related reasons, which is their right, instead of in retaliation for his Title IX complaint, which is unlawful.

FWIW, Swanbeck's complaint to OCR forced Minnesota State Moorhead to agree to make repairs and renovations to various women's sports facilities.

Friday, March 23, 2007

Reflections on JMU Lawsuit

On Monday, Equity in Athletics sued the Department of Education in federal court to challenge Title IX and the three-part test applied to athletics. Equity in Athletics is motivated to challenge Title IX by JMU's recent decision to cut 10 (men's and women's) teams. Here are some early reflections on the lawsuit:

The argument: EIA argues that the problem with Title IX is that the three-part test has been applied with the force of law instead of mere policy. The complaint chronicles the procedural history of the three-part test, including that, in 1979, regulators characterized the three-part as nonbinding, interpretive guidance document rather than mandatory regulation precisely to avoid certain procedural requirements that apply to Title IX regulations (like a presidential signature). EIA then suggests that if the 1979 three part test was invalid, a "relative interest" standard would apply by operation of the Title IX regulations that had earlier been promulgated in 1975. "Relative interest" means that if men are more interested in sports than women, they should have a greater share of opportunity (or, a lesser share of any cuts). The problem with such a standard, I believe, is that interest tends to follow opportunity. As proof, consider how women's interest in sports has increased exponentially since Title IX was passed -- because the statute required schools to add opportunity. A "relative interest" standard would only insulate the inequities of the status quo. Fortunately, the federal courts have tended to reject universities' attempts to construe prong three as a relative interest test. However, none have considered the question in precisely this way--i.e., that relative interest standard applies by virtue of the 1975 regulations rather than the three-part test.

The defendant: I earlier reported -- in error, I regret -- that EIA was suing JMU. I'm obviously wrong about that, but wouldn't a suit against JMU make more sense? For one thing, the Department of Education had nothing to do with JMU's decision to cut 10 teams. They were not investigating the school or considering any enforcement action against it. JMU voluntarily chose to cut 10 teams. And it voluntarily chose to make such cuts as would put it in compliance with the proportionality prong, instead of one of the other alternative prongs. This is surely represents "choice," given that JMU had the option of administering a survey to establish compliance with prong three without cutting or adding any sports. Thus, winning a lawsuit against the DOE would not restore the 10 teams cut at JMU. All JMU would have to say is that it cut 10 sports because it couldn't afford to keep so many teams. Nor does it violate the law to cut more men's teams than women's, given that women had relatively fewer opportunities to start with. In other words, there is no reason to believe that even if the three-part test was invalidated, JMU could and would still do exactly the same thing.

EIA seems to accept this, and acknowledges in its complaint that JMU might in fact be an indispensable defendant. Leaving them out of the complaint -- for now -- seems to be a strategy to get JMU to agree to defer the cuts until the litigation has concluded: "If EIA cannot expeditiously convince JMU to defer its cuts pending the completion of this litigation against the federal defendants, EIA will amend this Complaint to include JMU and its Board of Visitors, ensuring this Court’s ability to provide complete relief."

The plaintiff: According to the complaint, Equity in Athletics is a broad coalition of athletes, future athletes, fans, alumni, coaches, and others with connections to intercollegiate athletics at federal funded schools in Virginia. By including athletes and future athletes, EIA seems likely to avoid the standing problems that the National Association of Wrestling Coaches had. One interest that is not mentioned in the complaint is the financial interest of EIA's principle donor, Brute Wrestling, "the world’s largest supplier of wrestling gear." Unless additional facts emerge that show Brute Wrestling is more than a donor but controlling the litigation, it is unlikely that the federal court would find its interest relevant to the case.

Thursday, March 22, 2007

Portland Resigns

Rene Portland has resigned her position as head coach of Penn State's women's basketball team.

In answer to my first question,
"This did not have anything to do with the lawsuit to our knowledge,'' Karen Doering, attorney for Harris at the National Center for Lesbian Rights, said regarding Portland's resignation.
AD Tim Curley affirmed that Portland was not forced to resign, and that he wasn't surprised by her decision.

On the other hand, a reporter at cites "a source close to the situation [who] said Portland was given an ultimatum by the university last Friday -- step down or be dismissed." Addresses Communites for Equity

Earlier this year, the Michigan High School Athletic Association petitioned for Supreme Court review of the Sixth Circuit's decision in MHSAA v. Communities for Equity, that its decision to schedule girls sports "out of season" violates the Equal Protection clause and Title IX.

We still don't know for sure whether the Supreme Court will grant cert and hear the case -- for the second time -- but the authors of the "Conference Call" column at consider it a "likely candidate" for Supreme Court review.

We've written about the 6th Circuit decision (see here and here), which Conference Call describes as presenting the following two questions:
Whether differences in single-sex programs are constitutional unless the plaintiff can prove either discriminatory animus or that the programs are substantially unequal overall; and

whether Title IX of the 1972 Education Amendments is the exclusive remedy for gender discrimination by federal fund recipients in their athletic programs.
We'll know soon--possibly by April 2--whether the Supreme Court will take the case or let the 6th Circuit decision stand.

Title IX doesn't apply to high schools?

This is one of my "will sports writers please learn what Title IX is" posts.
The latest misinterpretation of Title IX is fairly egregious and comes from Andover, MA where Eagle Tribune sports writer Dave Dyer has written an article about the possibility of adding varsity wrestling at Andover High School. According to the article there is a very strong club program at both the middle and high school; and the Merrimack Valley Conference, of which Andover is a member, is a known wrestling powerhouse.
A few things need to be worked out. First, the costs. There seems to already be a strong parent booster association in place but the school would still likely have to cover some of the costs of adding the program.
And then there is Title IX.
The Andover principal said a girls' sport would have to be added if wrestling went to varsity status.
Dyer, though, has his doubts about this claim:
...and Title IX is more a guideline at the high school level rather than the strict mandate it is for colleges. There are plenty of schools in the region that have at least one or two more boys sports than girls sports.
A guideline? No, actually it's a federal statute that mandates equity in athletics in educational institutions receiving federal monies. Now I know Andover is a pretty wealthy community, but I am pretty sure they receive federal dollars.
Issues regarding access to sport opportunities have certainly been focused on colleges and universities but that does not mean high schools can take or leave Title IX. There is no national governing body like the NCAA in high school sports. And as problematic as the NCAA has been, it does require institutions to report on issues of gender equity. To date most investigations of Title IX violations at high schools are instigated by concerned parents and community members who believe something is amiss and file a complaint with OCR.
More attention is being paid to high school athletic departments, though, and if Senator Snowe's proposal to make high school athletic departments report their distribution of opportunities and monies similar to the way universities must, more attention is forthcoming.
Clearly there is a need for more attention because although Dyer's assertion that there are more boys' teams than girls' teams at many high schools (as a way to justify adding wrestling without adding a girls' sport) reveals that he misunderstands that equity is not based on number of teams but number of spots/opportunities, his observation probably means that high school girls in Massachusetts are being denied equitable opportunities.
Dyer also notes that girls can become members of the wrestling team as they have at other area schools. This could indeed happen (though Title IX would not mandate access to wrestling because it is a contact sport) and is certainly welcome from my point of view, but unless there are equal numbers of girls and boys then distribution of opportunities is still an issue. [This is all assuming that Andover is already in compliance with Title IX.]
We shall have to wait and see what transpires.

Wednesday, March 21, 2007

New Scholarship Suggests Title IX Policy Look to Canada

A new article in the UC Davis Journal of Juvenile Law & Policy suggests that Title IX policy in the context of student harassment should use Canada's approach to protecting human rights as a model for reform. From the abstract:
This article critically examines the success of Title IX in eradicating sexual harassment in educational settings following the Supreme Court decisions in Gebser v. Lago and Monroe v. Davis. Regrettably, the high bar for recovery established by these cases, in addition to poor administrative enforcement of Title IX, have eroded the legislation's ability to maintain discrimination-free schools. After examining how the Canadian human rights model operates in the context of sexual harassment in educational settings, the United States should refer to the Canadian model to improve its own system. Specifically, the United States should streamline and simplify its administrative enforcement of Title IX and articulate clearer legal standards for injunctive relief as opposed to recovery of compensatory damages.
One notable difference between the U.S. and Canada is that in Canada, sexual harassment and other charges of human rights violations are considered in special administrative tribunals rather than the judicial system. The author suggests that thes
e "human rights tribunals, though impartial, are in a particularly good position to properly adjudicate discrimination complaints because their sole jurisdiction and experience is in human rights law."

The article is: Brianne I. Weiss, Title IX Versus Canadian Human Rights Legislation: How the United States Should Learn from Canada's Human Rights Act in the Context of Sexual Harassment in Schools, 11 UC Davis J. Juvenile L. & Pol'y 55 (2007).

Tuesday, March 20, 2007

Is Girls' Weightlifting the Solution to Title IX Compliance Problems?

Yes, says Jackie Metcalf, who coaches female high school weightlifters in Florida. In a recent article in the New York Times, Metcalf expressed surprise that her state is the only one to sanction girls' weightlifting as an official sport, “because it’s a great way to get girls involved for gender equity. You don’t have to be a skilled athlete to do this.”

In addition to being inclusive of those less coordinated, weightlifting offers athletic opportunity to girls of different sizes and body types, and unlike the country club sports popular in wealthier areas of the state, weightlifting is accessible to participants of various economic means. And, girls' weightlifting flies in the face of stereotypes about girls and strength. The athletes interviewed in this story report they now they feel at home in the weight room and wear T-shirts with slogans like "Silly Boys, Weights are for Girls."

Girls' weightlifting is still not as readily accepted elsewhere as it apparently is in Florida. Recall this story about a girl temporarily banned from weightlifting class because the principal feared for her safety in the weight room with other boys. We suggested that this rationale was sadly ironic; denying her the opportunity to participate in weightlifting only ensured that she would continue to be physically vulnerable to the very thing the principal feared -- the sexual aggression of boys.

In this context, the idea that Title IX might motivate schools to open the weight room door to girls is very appealing to me. What could be better than busting up stereotypes, achieving equity in the distribution of athletic opportunities, and giving girls of all types and backgrounds access to physical strength and power, all in one?

Monday, March 19, 2007

New Article on Women Coaches and Title IX

Professor Deborah Rhode and Christopher Walker have been researching the impact of Title IX on women coaches (surveying 450 male and female coaches about their experiences and expectations in coaching). The results of their research are forthcoming in the Stanford Journal of Civil Rights and Civil Liberties. A working draft of the paper is available here. Rhode and Walker have concluded that although Title IX has contributed significantly to the opportunities for female athletes, the situation of women coaches is more conflicted due to a variety of factors. This is a really interesting read -- the authors are looking forward to reader comments and suggestions as well, so we encourage you to post a comment on the blog.

"A different approach"

This article about the athletic department at Minnesota State Mankato illustrates that Title IX compliance doesn't always mean cutting sports.
In fact administrators at Mankato, who thought about cutting some men's minor sports to compensate for the growing roster sizes, figured that it could possibly cost them more to cut these sports in the long run as compared to the short-term savings.
Says Athletic Director Kevin Buisman:
"Ultimately, it was determined it would do more harm than good. We felt like we would alienate alumni, and when we looked at the cost savings versus the damage that would be done with our donors, we decided to take a different approach."
So the university added bowling and increased the rosters in other women's sports. The university gave them $500,000 to implement the changes.
And if you continue to read the article you will see that both the men's and women's programs at this DII school are doing very well since the decision.

Saturday, March 17, 2007

Sixth Circuit Affirms Jury Verdict Against Professor's Retaliation Claim

Dr. Elizabeth Nelson sued her employer, a federally funded Tennessee college called Christian Brothers University, after she was denied tenure in 2003. In her complaint she alleged that CBU's decision was in retaliation for her criticism of CBU's sexual assault policy and advocacy for female student who had charged a male classmate with sexual assault.

CBU moved for summary judgment, but the district court held that Nelson's allegations would, if proven, satisfied the legal standard for actionable retaliation under Title IX. It then became up to the jury to decide whether the facts Nelson alleged were true.

To this end, the parties presented their cases to a jury. After hearing all the evidence, the jury received the following instruction:
Under the law to be applied in this case, an employer, such as defendant ... has the right to promote or not promote an employee, such as plaintiff ... for a good reason, a bad reason, or no reason at all, as long as the decision not to promote is not motivated by the employee's protected Title IX activity. If you find that the defendant's decision to not promote the plaintiff in this case was not motivated by the plaintiff's alleged protected Title IX activity, then you must render a verdict for the defendant, even though you might feel that the defendant's actions were unreasonable, arbitrary, or unfair. You are not to focus on the soundness of the defendant's business judgment or to second guess its business decisions.
The jury returned a verdict in favor of CBU. Nelson then appealed to the 6th Circuit Court of Appeals, challenging the jury instruction and arguing that the verdict should be overturned as contrary to the weight of evidence. Last week, the 6th Circuit rejected both arguments (as well as a third argument pertaining to a separate breach of contract claim) and affirmed the verdict against Nelson. It held that the jury instruction sufficiently instructed the jury to take into consideration Nelson's right not penalized for advocating against conduct by the school that might violate Title IX. It focused on the language emphasized above, and concluded that it clearly explained the retaliation exception to an otherwise employment-at-will standard.

As for the weight of the evidence, the court held that there was sufficient evidence before the jury to support its decision that the CBU's decision not to promote Nelson was not about her objections to the sexual assault policy. Rather, the jury could have plausibly found that the tenure committee members "were not upset that Dr. Nelson challenged the sexual assault policies at the school, but were dismayed by the way that she chose to challenge them." In particular, the court explained,
The record clearly demonstrates that faculty members were surprised by the lack of professional judgment that Dr. Nelson displayed in putting two current students on parade in a case study, effectively revealing their identities, raising false and unsubstantiated allegations about one student, and not presenting a fully researched position.
As the court noted, this case emphasizes the importance of the factfinders role in discrimination cases. Even though a plaintiff may establish a prima facie case against the employer, it is the jury's prerogative to find as a matter of fact that the employer's decision was motivated by permissible considerations rather than unlawful discrimination.

The case is: Nelson v. Christian Brothers University, 2007 WL 764025 (6th Cir. Mar. 14, 2007).

Thursday, March 15, 2007

Federal Suit to be Filed Against JMU

Swimming World Magazine has the scoop:

A group called "Equity in Athletics" is suing* James Madison University to challenge its decision to eliminate 10 teams. According to the article, the lawsuit will challenge the three-prong test as inconsistent with the 1975 regulation that it purports to interpret. The plaintiffs also argue that the three-prong test is not binding because it is an interpretation of a regulation rather than an actual regulation.

*The article says that the suit has already been filed; but I spoke to someone at EIA who says that it will be filed next week.

Law Review Comment Addresses Whistleblowing After Jackson

This recently published piece provides a comprehensive look at the Jackson decision:

Lindsay C. Ferguson, Comment, Whistle Blowing Is Not Just for Gym Class: Looking into the Past, Present, and Future of Title IX, 39 Texas Tech L. Rev. 167 (2006).

Seattle School District Not Indifferent to Sexual Abuse

A federal district court in Washington recently dismissed claims that the Seattle School District No. 1 violated a female elementary student's rights under the Constitution and Title IX by not protecting her from the predatory advances of a male teacher.

The school district's liability for either a constitutional or Title IX violation both turn on whether the school district knew or had reason to know, and was deliberately indifferent about, the abuse that was going on. The court's decision affirms that a teacher's inappropriate behavior must be very obvious in order to put the school district on notice:
Here, there is nothing to suggest that there was an obvious need for the school to take different action to protect identifiable constitutional rights. Several of the teachers testified that while they witnessed Mr. Hill with his female students sitting on his lap, they did not directly report such behavior to the administration or did not become immediately concerned. . . .

Mr. Langston stated that he witnessed Mr. Hill inappropriately touching female students on several occasions, but did not think much of it at the time, and finally reported it to Mr. Packer [the principal] during a conversation pertaining to his own inappropriate behavior. These teachers also characterized Mr. Hill's actions as subtle, and all believed the appropriate step was to inform the administration rather than make a CPS report themselves.
Upon learning that a teacher was engaged in "inappropriate touching" and was letting students sit on his lap, the principal and vice-principal responded by talking to to that teacher "about appropriate boundaries." The court deemed this to be a sufficient response to protect the school district from liability.

The case is: B.E.S. v. Seattle Sch. Dist. No. 1, 2007 WL 710095 (W.D. Wash. Mar 06, 2007).

Wednesday, March 14, 2007

Oregon Poised to Add Sexual Orientation to Antidiscrimination Laws

A proposed amendment to Oregon's antidiscrimination laws passed a major hurdle this week, as the state senate's judiciary committee voted to bring the measure to the full senate for a vote. If it passes both houses, as predicted, the bill would add protections on the basis of sexual orientation and gender identity in public accommodations, including education. 17 states have similar laws already.

If the amendment passes, Oregon students will enjoy more protection against discrimination than they currently receive under Title IX. Title IX covers some discrimination against gay and lesbian students, but is limited to harassment that is sexual in nature.


Wrestling that is. Having long cried foul when gender equity kicked in in intercollegiate athletics, it seems that wrestling is making a comeback.
The Georgia state legislature is looking to boost wrestling in the state by "encouraging" Georgia public colleges to institute intercollegiate wrestling. Such encouragement actually makes some sense, if there are as many high school wrestlers in the state as the legislature claims. With currently no wrestling programs at state schools, any wrestler wanting to wrestle in college has to go out of state. The resolution the legislature has drafted to officialize the encouragement, however, does not really seem to have much bite to it. The legislature is not offering any kind of incentive or funding if public colleges do implement intercollegiate wrestling.
As reported earlier, wrestling at Bucknell started its comeback this year due to a donation from a wealthy alum who wanted the school to bring back the sport. The hook of this article is the dominance of the revived Bucknell program against the doomed JMU program which reminds the anti-Title IX wrestling supporters that all is not right in intercollegiate wrestling. But the article also notes that, since 1999, nine previously terminated wrestling programs have made a comeback.
And it appears that women's wrestling at the college level may be an emerging trend.

Tuesday, March 13, 2007

Kutztown adds lacrosse and bowling

We talk a lot about Title IX compliance at Division I schools because of big athletic department budgets and successful teams and lots of scholarship dollars, but the issue of compliance certainly exists at Division II and III schools as well.
Kutztown University in Pennsylvania has just committed to adding women's lacrosse and bowling. Several years ago they added women's golf. Kutztown is citing compliance with prong 2, a history of expansion of their women's program but also notes that they need to bring their athletic department numbers more in line with their undergraduate population. Women comprise just under 60 percent of the undergraduate population but in 2005-06 had only 43.4 percent of the athletic opportunities. The new teams will add 40 opportunities for women athletes.
With the two added teams, Kutztown will be carrying 23 intercollegiate sports: 13 for women, 10 for men. Division II has championships in 25 sports. This is a fairly high number of teams for a DII school. According to this fact sheet, the average number of DII men's teams is 6.5 and women's is 7.2.
I commend Kutztown for continuing to seek compliance but I wonder how sustainable 23 teams are. Too many teams was JMU's problem as well. Granted the situation is different between DI and DII schools but adding teams to meet compliance standards only to cut them later because of financial issues can lead to even more Title IX backlash as we have seen with the JMU case.
Here's hoping Kutztown is able to provide good opportunities for all its athletes now and in the future.

Monday, March 12, 2007

PE Teachers Reflect on the Pre-Title IX Era

In honor of Women's History Month, a sports columnist at the Stockton (California) Record got retired female physical education teachers to reflect on their experiences from the pre-Title IX era. Because society disfavored athletic competition for girls, they had no organized teams with a season-long schedule of interscholastic competition. PE teachers in the 40s and 50s could only organize "play days," where girls from different schools got together to form ad hoc teams for a day's worth of games in volleyball, basketball or softball.

"Play days were the worst," said [Marge] Larsen, who taught high school P.E. from 1938-61. "They were so boring, playing with girls from other schools."

"And they'd give your team names after candy bars like 'Baby Ruths,' " [June] Downer said.

The former teachers also described the discrimination they experienced as educators, receiving less pay and less credit than their male counterparts. They also alluded to "the stigma" that attached to women in physical education. The article does not go into detail on this point, but surely those women were referring to the stigma of being perceived as lesbians.

As for Title IX, the teachers expressed some ambivalence. They are pleased that the number and quality of competitive opportunities for women has increased under the law. But,
[Doris] Meyer said women physical educators at four-year colleges at that time weren't eager to rush into dramatic changes. They didn't want to see women's athletics go the way of men's programs, beholden to big booster dollars to pay for recruiting and scholarships.
Perhaps they also feared (rightly, it would turn out) that Title IX would decrease the number of leadership opportunities for female coaches and administrators by making those opportunities more appealing to men.

Female PE teachers in the 40s, 50s, and 60s are important people in the history of women sports, and it's great that this column has recognized the value of their stories. Obviously, the situation that these women faced is even more complex than a newspaper article could convey. On the one hand, promoting any physical activity for women at that time was subversive behavior. On the other hand, they often promoted and endorsed limited programs like play days and insisted their their student athletes otherwise strictly adhered to feminine stereotypes. To a modern feminist, this sounds like complicity in the masculine hegemony of sport -- and on the latter point, the stuff of Rene Portland's character. But such compromises allowed these women to preserve their jobs, deflect the lesbian stigma, and justify the existence of their programs. Without them, there might have been nothing on which to build a future for women in sport.

For more on phys ed and phys ed instructors pre-Title IX, see Mary Jo Festle, Playing Nice: Politics and Apologies in Women's Sports (1995).

Thursday, March 08, 2007

New Book

Susan Cahn, whose 1994 book Coming on Strong, is an excellent piece of sport history, has a new collection about gender and sport in the United States. Cahn has co-edited (with Jean O'Reilly from UConn) Women and Sport in the United States: A Documentary Reader. Ebuz was able to snag a copy from the publishers recently and I have enjoyed it thus far.

The editors have done an excellent job incorporating primary documents and accounts in women's sports from throughout the 20th century alongside the work of sports historians and scholars.

This article actually gives a better overview than I can right now given that I have only read a few select pieces.

Wednesday, March 07, 2007

Ineffective Accomodation Claim Fails in Colorado

When Jessica Wieker was a senior at Grand Junction High School in Colorado, she tried out but did not make the varsity volleyball team. Her school had two other, nonvarsity volleyball teams, a JV team and a freshman team, but the head volleyball coach prohibited seniors from holding positions on the nonvarsity teams. As a result, Wieker was cut from the volleyball program.

Wieker sued the school, alleging that by cutting her, the school failed to accommodate her interests and abilities in satisfaction of the Title IX's third prong. Because GJHS did not satisfy either of the first two regulatory prongs (substantial proportionality, or a continuous expansion of opportunities for girls), it needed to accommodate female students' interests and abilities to comply with Title IX.

The third prong requires schools to fully accommodate women's interests and abilities. This means that if there is unmet interest and ability in a particular sport among the female student body, a school may be required to add an additional team in that sport, unless the school can show there there is no reasonable expectation of competition for that team.

Wieker argued that GJHS could have accommodated her interest and other students' unmet interests in volleyball by adding a fourth team. In support of this argument, she pointed out that girls get cut in significant numbers. Moreover, a fourth volleyball team would have been appropriate because the boys' football and other sports do not have any cuts, and thus accommodate all interests and abilities.

The court rejected Wieker's argument because she evidence she submitted of unmet interest was limited, essentially, to the number of girls cut from volleyball program The court refused to infer that every girl who was cut was interested and capable of playing on a competitive fourth volleyball team. As for the comparison to boys programs with no cuts, the court said this was irrelevant to the relevant question, whether girls interests and abilities were effectively accommodated.

The case is Wieker v. Mesa County Valley School Dist. #51, 2007 WL 595629 (D. Colo. Feb. 21, 2007).

Tuesday, March 06, 2007

No Cross-Gender Tutoring Policy Challenged in Hawaii

In Hawaii, a male tutor survived the school board's summary judgment motion that would have ended his lawsuit challenging the school board's informal policy that prevents male tutors from working with female students. The complaint also alleged that the school board retaliated against him after he complained about the policy. In rejecting the school board's summary judgment motion, the federal district court judge determined that the facts of the case, if proven, would violate Title IX and Title VII, the statute prohibiting employers from discriminating on the basis of sex. The sta The decision is: Sherez v. Hawaii Department of Education, 2007 WL 602097 (D. Hawaii, Feb. 16, 2007).

Friday, March 02, 2007

District Court Rules Constitutional Claims Preempted by Title IX

A Wisconsin district court judge recently dismissed a plaintiff's constitutional claims against a school district defendant as preempted by Title IX. The judge reluctantly relied on Doe v. Smith, a recent Seventh Circuit decision (blogged about here) that dismissed plaintiff's constitutional claims against a school board arising from peer harassment, holding that both due process and equal protection claims are preempted by Title IX.

I say reluctantly because the judge had this to say about Doe:
As a matter of first impression, I would be inclined to agree with plaintiffs that Title IX does not preempt any constitutional claims other than those asserting discrimination on the basis of sex. After all, the test of Sea Clammers [a Supreme Court case] is whether the statute provides “comprehensive” relief for the type of claim the plaintiff seeks to bring. How can Title IX provide any relief, much less comprehensive relief, for violations of rights that the statute does not protect?....

For example, the court of appeals has emphasized repeatedly that not all sexual harassment is discrimination because of sex. In one case, the court went as far as to say that sexual harassment based solely on “personal attraction” is not discrimination because of sex. And even assuming that sexual harassment is generally related to gender, not all physical abuse of students by teachers is sexual in nature.

What happens to the claim of a student who is a victim of severe harassment but who is unable to prove that the harassment or the school's failure to remedy it occurred because of her sex? Title IX could provide no relief to such a student. Of course, the due process clause does not require proof of a sex-based motive. Any sufficiently severe invasion of the student's person could be a potential due process violation regardless of motive, so long as the conduct was intentional. Further, a school administrator or school board could be held liable under the due process clause for an employee's abuse of a student if the plaintiff could otherwise satisfy the standards for municipal or supervisory liability. Thus, the effect of preemption in that case would immunize a defendant who may have violated a student's constitutional rights.
The decision is: Baumgardt v. Wasau School District Board of Education, 2007 WL 582503(W. D. Wis. 2007).

Thursday, March 01, 2007

More Media Misinformation

A recent editorial in Foster's Daily Democrat (Dover, NH) takes issue with proposed federal legislation that would require high school athletic departments to report gender equity data. The editorial's argument goes like this: If high schools had to report gender equity data, this would improve Title IX compliance, which would be a bad thing because Title IX takes opportunities away from men and boys. To back up this latter claim, the editorial reports:
From 1982 to 2002, colleges eliminated 1,400 men's teams, a loss of 57,000 positions for male athletes. Meanwhile, schools added 2,000 women's teams, creating 51,000 new opportunities for women, according to the U.S. Department of Education's Office for Civil Rights.
Regardless whether colleges have actually eliminated 1400 men's teams and 57,000 positions since 1982, this figure is meaningless because it does not reflect the number of men's teams and positions that were added during that time. Contrary to the inference this editorialist is making, there was a net increase in the number of opportunities for collegiate male athletes between 1982 and 2001. The U.S. Department of Education's Commission on Opportunities in Athletics reported that men had 152,ooo opportunities in college sport in 1982 and 209,000 in 2001, a net increase of 56,948. High school boys' participation increased as well, from 3.7 million to 3.9 million. The General Accounting Office confirms that male athletes are doing just fine notwithstanding Title IX, reporting in 2001 that the overall number of intercollegiate men's teams has increased by 36. Particular sports (including wrestling, tennis, and gymnastics) saw declines in the number of teams, but these losses were outnumbered by gains in the number of teams in other sports (like soccer, baseball, and basketball). Like the government, scholars and advocates also report that men's athletic opportunities have increased overall in the Title IX era.

Men have not lost out under Title IX. Men still receive the majority of athletic opportunities and scholarship dollars. It is a shame that the media continue to perpetuate myth and misinformation about Title IX.