Thursday, May 31, 2007

"Three Minute Drill" Spotlights Title IX

Today's edition of the NCAA website's feature "Three Minute Drill" focuses on Title IX and the upcoming 35th anniversary of the federal law prohibiting sex discrimination in all educational programs. The "Drill" features comments from Donna Lopiano of the Women's Sports Foundation, who praises Title IX for expanding opportunities for women, but notes that women still have fewer opportunities than men to compete in college athletics and that their programs still receive a mere fraction of the operating, recruiting, and scholarship funds. NCAA President Myles Brand then harshly criticizes schools who blame Title IX for program cuts that are, he said, motivated by internal priorities.

A former Stanford men's tennis coach, however, questioned Title IX's fairness in light of what he sees as a higher interest and participation among boys than girls in tennis. This argument seems to me to fall short on fact and law. The law does not require gender proportionality in tennis per se. If girls have higher rates of participation in college tennis than boys, this is likely because they have fewer (or zero) opportunities to play other sports, like football. Also, tennis is a sport that recruits heavily from overseas. So to the extent that the coach's comments invoke an image of American boys disappointed because can't play in college because of Title IX, this image is far from reality.

Universities Working on Pregnancy Policies

In the wake of ESPN's high profile coverage of pregnant athletes and the discriminatory treatment they often face in the absence of university policies (see this prior post), athletic administrators are starting to take action. According to this report from the Eugene Register-Guard, the University of Oregon and Oregon State are both working on official policies that would prevent unlawful discrimination against pregnant athletes, such as the revoking of scholarships. Both schools currently leave decisions in such matters to the discretion of coaches.

The article also notes that the NCAA's Committee on Women's Athletics plans to meet in July to address its pregnancy policies. Currently the NCAA allows schools grant an extra year of eligibility to athletes who miss a season due to pregnancy. By not requiring this accommodation, the NCAA leaves its members open to Title IX violations, as the federal regulations expressly prohibit discrimination on the basis of pregnancy.

Friday, May 25, 2007

Recent Legal Scholarship on Sport and Gender

Two new articles on sport, law and gender have caught my eye.

First, Professor Suzanne Eckes from Indiana University School of Law has published Title IX and High School Opportunities: Issues of Equity on and in the Court in the current issue of the Wisconsin Women's Law Journal (citation: 21 Wisc Women's L.J. 175). She suggests that after Jackson v. Birmingham, "school districts need to pay even closer attention to Title IX compliance because they may face more challenges from coaches and other observers."

Second, Yael Lee Aura Shy, a third year law student at Northeastern, has an excellent article in the Sports Lawyers Journal (citation: 14 Sports Law. J. 95) called "Like Any Other Girl": Male-to-Female Transsexuals and Professional Sports. Focusing on professional sports, Shy does not directly address the legal status of transsexual athletes in intercollegiate sport. But she does point out the trend of transsexual inclusion policies by sport governing bodies, and cites some evidence suggesting that the NCAA is considering an inclusive policy as well. More generally, she suggests that the discourse surrounding transsexual inclusion cases and policies can undermine gender equality by reinforcing a gender binary and generalizations about physical inferiority of female athletes.

Title IX for Club Sports Too

At Santa Clara University, a women's volleyball team recently succeeded in its three-year effort to become an officially recognized club sport. Things did not look good for the club, until "some of the players looked up information about Title IX online, checked out the Department of Education's Web site and reported their findings to [the] Campus Recreation Director."
"It was actually really interesting to find that Title IX really does apply to everything, from NCAA to club to intramurals," said Reilley [the co-president of the team]. "And I think just the mention of it kind of got them to thinking."
University officials had apparently not realized that Title IX applies to all university programs, including club and intramural sports. A little information (and the power of the Internet!) goes a long way!

Thursday, May 24, 2007

Farewell to Abstinence-Only Funds

USA Today is reporting that Democratic leaders of the House Committee on Energy and Commerce plan to let the grant currently matching state funding for abstinence-only education expire next month without renewal.

Even though the article cites religious conservatives' "surprise" at this "radical" policy, I think think the writing has been on the wall for some time. Last November, we posted about survey evidence suggesting overwhelming public support for comprehensive sex education, as well as recent independent studies on the harmful gender stereotyping that plays out in some of the popular, government-approved sex ed curricula. Then in April, the LA Times reported that states themselves are increasingly opting out of the federal money after government research found that abstinence-only programs are ineffective at preventing pregnancy and sexually transmitted diseases. This suggests that the federal matching funds were becoming irrelevant anyway. Nonetheless, I'm looking forward to Congress's final farewell to this failed federal policy.

Blog Challenges "War Against Boys" Mentality

Jim Horn at Schools Matter (recently added to the blogroll) has a good post about what he calls the "gender segregation movement" in public schools. He links to/excerpts from two interesting pieces, one by economist Janna Goodridge, and another by sociologist Michael Kimmel, who both dismantle some of the scientific and statistical mythologies underlying the popular view that the education system is somehow failing boys (and that single-sex classrooms are the answer).

Wednesday, May 23, 2007

Who's the Title IX Coordinator Around Here?

Every educational institution that receives federal funding is required by Title IX's implementing regulations to “designate at least one employee to coordinate its efforts to comply with and carry out Title IX responsibilities.” Every state and local education agency is required to have a Title IX Coordinator as well.

When someone like a student, a parent, a teacher, or a coach believes that a school is engaged in unlawful gender discrimination, the Title IX Coordinator is the first person she or he should contact. The coordinator's job is to investigate and resolve complaints. So important is this job that OCR requires schools to post the name and contact information of its Title IX Coordinator with its official notice of nondiscrimination that must be displayed prominently in each announcement, bulletin, catalog, or application form used in connection with recruitment of students or employees.

However, it's not always easy for students, parents, teachers, and staff, to find the Title IX Coordinator at their school, in their district, or for their state. (Try -- you'll see!) To help make at least some of these officials easier to identify, the Feminist Majority Foundation's website provides a list, recently updated, of every state education agency's Title IX Coordinator. FMF estimates that there are over 120,000 people who hold the position at a school or at some level of government. Thanks to FMF's list, at least 50 of them are easy to track down!

Monday, May 21, 2007

Interview with Jessica Gavora

Newsweek ran an interview this past weekend with Jessica Gavora of the College Sports Council.

I am not going to pick on every little thing she said but I do want to point out two things that struck me.

First, Gavora claims repeatedly that it's not Title IX she is against, per se, it is the proportionality "quota." Her anti-proportionality stance leads to her comments that the financial burdens of football and men's basketball are not the problem, rather it's the meticulous counting of opportunities that result in the cuts to men's programs. She divorces the issue of finance from the discussion of opportunity which, of course, it cannot be.

Second, she takes issue with women's sports advocates who argue that the interest survey is flawed. Gavora believes we are asking the "university to create interest" when our real argument is that the university, itself a site of gender discrimination, should not continue to discriminate by using a method of assessing interest that cannot even begin to deconstruct the way our society has created, in its own interest, gender roles that clearly steer young men and women toward different activities.

Friday, May 18, 2007

Two Sexual Harassment Plaintiffs Survive Summary Judgments

Recently, in two separate cases, plaintiffs suing school districts for Title IX violations arising from sexual harassment were able to survive the schools' motions for summary judgment.

One case, in Iowa, involved peer harassment perpetrated by a group of middle school boys against a group of their female classmates. The school district argued that as a matter of law, the girls did not have a Title IX claim because the school responded to the girls' initial complaints by reprimanding at least one of the boys. However, the judge determined that a jury might nevertheless find that the school's reaction constituted "deliberate indifference," one of the elements for Title IX liability for peer harassment under Davis. The judge emphasized that a school's response need not curtail all harassment, but must be reasonable in light of the circumstances. In this case, the court pointed out that the Principal's reprimand of one of the offenders was not accompanied by an inquiry or investigation into the nature or the severity of the harassment that the girls had complained of. Nor did the school avail itself of the services of a professional investigator who had been designated under the school's harassment policy to investigate charges such as those in this case. After also concluding that the plaintiffs might also be able to establish the "notice" and "severe and pervasive" elements as well, he denied the school's motion for summary judgment.

The opinion is at: Bruning ex rel. Bruning v. Carroll Community School District, 2007 WL 1447753 (N.D. Iowa, April 17, 2007)

The second case involved a substitute teacher named Terry Wright. Students at an Autauga County, Alabama elementary complained one day that while he was their teacher, Wright touched them in ways that made them uncomfortable on their cheeks, hair and shoulders. The superintendent did not believe this to be improper sexual conduct, but was concerned enough to have Wright removed from the substitute teachers list for November. Unfortunately, the intermediate school principal was not aware of the new list and a few days later, on October 29, called Wright to substitute for a fourth grade class. On this day, 6 students in that class complained that Wright touched them, this time leaving no ambiguity as to whether the conduct was sexual in nature. Their parents sued. When the school moved for summary judgment, the judge had to decide whether on these facts (1) the first incident was sufficient to provide notice of the second, and (2) whether removing Wright's name from the sub list was an adequate response.

On the first question, the judge concluded easily that Wright's behavior in the first incident would "raise alarm bells to the average person and certainly should seemed suspicious to an educational professional like Butler [the Superintendent]." Butler would not have removed Wright's name from the list if Wright's behavior in the first incident was "benign." On the second question, the judge rejected the argument that removing Wright's name from the November sub list was an adequate response to protect against harassment in October.

The opinion is at: A.G. v. Autauga County Bd. of Education, 2007 WL 1412431 (M.D.Ala. 2007, May 11, 2007).

Barring an appeal, these cases are theoretically headed for trial. In the Alabama case, none of the facts seem particularly difficult to prove, so a settlement favorable to the plaintiffs seems more likely. In the Iowa case, the deliberate indifference question seems a closer call, so perhaps the parties will take their chances with a jury.

Wednesday, May 16, 2007

Title IX Resolution Soon to be Introduced in Congress

According to the American Association of University Women, Representative Mazie Hirono (D-HI) will soon be introducing a resolution celebrating Title IX's success and recognizing the need for its continued enforcement.

AAUW's website makes it extremely easy to email your congressional representatives to encourage them to cosponsor this resolution along with Representative Hirono.

Tuesday, May 15, 2007

Pregnant Athlete Policies Addressed by ESPN's "Outside the Lines"

ESPN's "Outside the Lines" (reairing today at 3:30) is taking on the issue of pregnant student athletes and how they are treated by their universities and the NCAA. The accompanying article on ESPN's website explains that schools seldom have formal policies addressing pregnancy and often treat pregnancy as grounds to revoke an athlete's scholarship.

For its part, the NCAA does not offer any clear guidelines on this issue according to Professor Beth Soresam from Wright State, who is featured in the program. Deborah Brake, a law professor and Title IX expert from Pitt, told OTL that this omission could be leaving NCAA's member institutions open to Title IX violations. She explains that it is a clear violation of the Title IX implementing regulations to discriminate against students on the basis of pregnancy.

Professor Brake is referring to 34 C.R.F. 106. 40, which states that an educational institution receiving federal funds "shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student's pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom...." The regs also indicate that pregnancy should be treated like any other "temporary disability," and that pregnancy, childbirth, and recovery is "a justification for a leave of absence... at the conclusion of which the student shall be reinstated to the status which she held when the leave began."

Pregnancy is one of those things that affects women differently than men. While both male and female student-athletes can (and should) face equal challenges as a result of parenting (just ask Eric Butler), only female student-athletes will ever face possibility of being physically incapacitated for a period of time while they are pregnant and recovering from childbirth. Thus, a formal equality approach, one that revokes the scholarship of "any" student athlete who "gets pregnant," does not take into account this reality. The Title IX regulations wisely reject formal equality here, in favor of a standard that accommodates the physical incapacity that pregnant student athletes face. To paraphrase Professor Brake's comments to OTL, sometimes equality doesn't mean treating men and women exactly the same.

Monday, May 14, 2007

Michigan's ripple effect(s)

The Hawaii High School Athletic Association has decided to move three sports into their traditional seasons, a year ahead of original plans to do so. It seems the case in Michigan prompted the change in the timetable. HHSAA apparently thought the risk of a lawsuit, in the wake of the Michigan decision, was great enough to move softball, boys' volleyball, and girls' basketball this year.
And though it took twelve years for this change to occur, there seems to be much less strife over the decision.

Saturday, May 12, 2007

Commissioners Skeptical of Women's Interest in Sport

The U.S. Commission of Civil Rights held hearings on the Title IX interest survey policy yesterday. According to this coverage in USA Today, the Commissioners expressed support of the interest survey policy (as predicted). This support came notwithstanding testimony of the NCAA's Judith Sweet and NWLC's Joceyln Samuels, among others, who argued that the results of an interest survey only reflect past and ongoing discrimination against women and girls in sport and will thus ensure that discrimination continues.

The USCCR is not a typical agency. It has no enforcement powers, only the power and responsibility to investigate and provide reports on discrimination and to make recommendations to Congress and the President. To ensure the commission's independence from either political branch or party, half of its 8 members are appointed by the President and half by Congress. The President has limited power to remove commissioners prior to the expiration of their 6 year term. No more than four members may be from one political party. (The present USCCR consists of 4 Republicans, 1 independent, 2 Democrats, and 1 vacancy.)

Because of the USCCR's atypical function, it is not altogether clear what effect yesterday's hearing will have, if any. Any recommendations it might make will be precatory in nature and not carry the force of law. So even if the Commission endorses the interest survey policy (which it seems poised to do), OCR, the agency that enforces Title IX, remains as free as it has always been to reconsider it at any time -- as does Congress. On the other hand, having a second government agency endorse the interest survey policy could give political cover to a school that wants to be the first to rely on the survey as their sole manner of compliance. But that seems unlikely to me. OCR, the agency that enforces Title IX has already endorsed the survey policy and schools haven't jumped on board. So what the USCCR seems unlikely to make a difference.

Additional links of interest:
  • Inside Higher Ed has related coverage here.
  • The National Coalition for Women and Girls in Education submitted this report in support of its position against the interest survey policy.

Thursday, May 10, 2007

Two positive editorials in one week!

It makes us women's sports advocates a little giddy when two columnists in one week show anti-Title IXers the misdirection of their pointed fingers.
Ron Morris of South Carolina's The State took Mississippi State head baseball coach Ron Polk to task for blaming Title IX for the fewer number of scholarships. Baseball player discrimination, is what Polk calls it. Morris calls it stupid--not in those words; he is a little more diplomatic. Morris, like the USA Today editorialist, sees bloated football rosters as the culprit here and recommends the elimination of red-shirting except in the case of injury.
Many of us have been pointing to the excesses of football for so long that we wonder if anything will ever change, but Morris is optimistic:
A decade ago any talk of football reductions would have fallen on deaf ears. Today, with more and more businessmen replacing former football coaches in athletics administration, the time might be sooner than you think to begin serious talks of trimming the excesses in football.

Wednesday, May 09, 2007

Chronicle Hosts Web Forum on Women Coaches

Today at noon (EST), the Chronicle of Higher Education's online Colloquy series will examine the "Glass Ceiling" for women coaches. Professors R. Vivian Acosta and Linda Jean Carpenter are the featured guests for the online discussion, which will be hosted here.

Last week, the Chronicle published this article about the declining number of women coaches.

Tuesday, May 08, 2007

USA Today Editorialist Defends Title IX

Yesterday's editorial in USA Today defended Title IX against the charges that it is to blame when schools cut teams. It also went on to defend proportionality as a standard for compliance, even though men's declining enrollment in college is making it a difficult standard to attain. Though men's enrollment is a problem that should be examined,

[i]n the short term, if women make up a majority of students, they deserve a majority of athletic slots.

As you might expect, folks posting comments to this editorial decried this position as unfair to men. What I think is very interesting (ironic, even?) about the "proportionality is unfair to men" argument is that the people who came up with proportionality in the first place are the very people who decry it now: advocates for men's sports. Back in the 1970s, when OCR was coming up with the implementing regulations for Title IX, men's sports advocates favored proportionality because at that time, women constituted a 40-or-so percent minority of the college student population. OCR agreed, saying, essentially: You can comply with Title IX if you give everyone the same rate of opportunity to participate. You can give a majority of the opportunities to the population that's a majority on campus.

Interestingly, proportionality only became objectionably and "unfair" when women attained the same majority status on campus that men had back then.

Friday, May 04, 2007

Beware: radical feminist hijackers*

[Also beware of a fair amount of sarcasm to follow. I feel like I have been reading a lot of vitriolic anti-Title IX sentiments this week, so this is my response.]
Yep--we're out there infiltrating college athletics departments and making them implement Title IX.
In an article that showcased the success of the University of Minnesota's efforts to achieve equity in athletics, wrestling coach J Robinson thought Title IX--which he has no problem with, allegedly--has been perverted by radical feminists who have hijacked its enforcement.
It was amusing and, of course, disheartening.
The article itself was fairly thorough in its reporting on the state of gender equity at Minnesota. The reporter gets into some of the nuances of the law pointing out that just because Minnesota has achieved proportionality that does not mean they are Title IX compliant. For example, Athletic Director Joel Maturi noted that the distribution of scholarships is not in line yet. Unfortunately Maturi does not think they will get there, saying, that because football scholarships comprise 20 percent of aid given, "it's impossible for us." He goes on to complain that some of the promotions done for some (presumably "minor" sports) do not make back the money spent and that it might be better allocated to revenue-generating sports which could have benefits for the department as a whole.
Two problems (at least) with this. The first is that not spending money promoting minor teams just perpetuates the idea that some athletes are just more important than others. (And consequently puts more pressure on the programs and athletes who are generating revenue to continue to do so.) The second issue I see is that Minnesota is not in dire financial straits.^ Yet it doesn't want to even try to get more female scholarship athletes? And it resents having to print some posters and schedule cards for the golf teams?
And you say it's the radical feminists who are hijacking sports?

*I was thinking of screen printing Radical Feminist Hijacker on a t-shirt but I was worried that I might be arrested under some provision of the Patriot Act that impinges on my right to sartorial free expression.
^ According to data on the Chronicle of Higher Education website Minnesota was $10 million in the black last year. Of course we all know how problematic athletic department accounting can be. Certainly there are other costs the department incurs that do not fall neatly under the gender-segregated expenses/revenues columns. This being said, Minnesota is in better financial shape than many other institutions who are not showing profits in these categories.

Thursday, May 03, 2007

KQED Forum on Title IX

One of my students sent me this link to last Thursday's edition of The Forum with Michael Kransy, a program on Northern California Public Radio, KQED.

The guests on the program were:
Brandi Chastain, soccer player
Myra Strober, education professor at Stanford
Welch Suggs, author and scholar
Deborah Rhode, law professor at Stanford
and Ann Killion, reporter for the San Jose Mercury News.

They discussed a number of my favorite topics, including the cultural resistance to women in sports, the double bind of coed sports, and the relationship between interest and opportunity.

Also, Professor Rhode described this great editorial cartoon, which I was pleased to find for myself at Ms. Magazine's website:

Wednesday, May 02, 2007

NPR's Frank Deford on Title IX

Frank Deford, a writer for Sports Illustrated and National Public Radio (NPR) contributor, opined on the effects of Title IX on NPR's Morning Edition today, painting both a doomsday scenario for men's college sports but also offering at least one constructive idea for how to maintain equal support for men's and women's athletics at a college (If I were Stephen Colbert, I'd have to give Deford a Tip of the Hat and a Wag of the Finger).

First, the Wag of the Finger part:
According to Deford, Title IX requires colleges and universities to have women athletes in numbers proportional to the percentage of women students enrolled. Following on that incorrect premise, Deford notes that the U.S. college population has been trending toward more women than men for some time, and appears to be continuing on that trajectory, meaning that women will outnumber men in greater proportions in the future. According to Deford, one of the reasons that women outnumber men is that they spend more time preparing for academic success, whereas men and boys spend more time playing sports and dreaming of turning their sports interest into a career. Thus, according to Deford, when colleges cut men's sports programs to comply with Title IX (once again, relying on the incorrect premise, and invoking JMU's situation), fewer of these sports-oriented men are able to go to college, creating a vicious cycle of fewer men at college meaning fewer men's sports at college, all because of Title IX. Deford then paints a picture of college teams of the future having only a handful of "Renaissance men" who are both academically inclined and interested in sports.

Where to start? Deford is just plain wrong on what Title IX requires. As we've discussed numerous times on this blog, Title IX offers three avenues of compliance for educational institutions. The first is proportionality, as Deford describes. The second and third prongs are: showing a consistent effort and history of increasing opportunities for the historically disadvantaged sex, and demonstrating that the educational institution has satisfied the interests of the historically disadvantaged sex. Title IX offers this flexibility so that schools are not required to fit the proportionality test if it doesn't make sense given the individual situation of a school and its students, and obviates any realistic possibility of Deford's dire predictions for men's sports programs as a whole.

Second, the Tip of the Hat part:
Deford, after his lament on the effect of Title IX, suggested numerous ways to deal with Title IX. One suggestion was to get rid of some athletic scholarships for "revenue generating" men's sports to allow for better financing of so-called minor men's sports that often get cut when a school is looking to trim its athletics budget. Deford's suggestion is a good one -- schools are reluctant to touch their men's football and basketball programs, but trimming the budget there should at least be considered by schools that want to avoid cutting other parts of the athletics budget.

Deford also suggests the exemption of football programs from Title IX by changing their categorization from "sports" to "entertainment" (sorry, Frank, but since Title IX applies to all programs at a school, not just sports, this move wouldn't be a cure-all).

Tuesday, May 01, 2007

Title IX on a silver platter

The Sundial, California State University at Northridge's student paper, published a column on Title IX by a self-proclaimed feminist. Now I am not usually one to criticize an individual's brand of feminism--at least not in a public forum--but someone who starts a column "I'm pretty sure Title IX was created to appease feminists such as myself" (italics mine) needs to look into how Title IX came about.
She goes on to write "I'm a firm believer that women should fight for the rights they receive. If you want something, do the work yourself--don't sit back and wait for change." I support the not sitting back and waiting for change part but the rest of it and the columnist's understanding of Title IX indicate a somewhat misguided understanding of feminist history. For example, the belief that we have to fight for any rights that are simply provided to others sets up a bad precedent, one that has been used actually in attempts to weaken Title IX: women just are not interested so they should not be receiving opportunities in equal numbers as men who, clearly, are more interested. In other words, we have to prove worthiness.
Also the columnist makes it seem like Title IX was just handed to feminists on a silver platter. Congress was feeling magnanimous one day and said "here, how about some equality in education for you ladies? Would you like that?" Feminists, like Bernice Sandler and activists from the Women's Equity Action League, fought for the rights Title IX brought. And so many others have continued the fight. The columnist is mistaken if she believes that since the law was passed feminists have moved on to other things. Today, as groups like Equity in Athletics, challenge the most basic tenets of Title IX, it is clear that the fight is nowhere near its end.