Friday, August 31, 2007
Policies that protect "gender identity and expression" potentially provide greater protection to transgender and gender nonconforming students than sex discrimination statutes such as Title IX, which are subject to arguments that they only cover discrimination based on one's biological sex. Such protection is important, say GenderPAC and others, due to the high numbers of students reporting harassment and discrimination due to perceived gender nonconformity.
N.B. This blogger's institution, Western New England College (a "top" college in my book!) added gender identity and expression to its nondiscrimination policy last year.
Sept 20 update: Stanford, noticeably absent from the GENIUS Index, has since revised its nondiscrimination policy to include gender identity.
Thursday, August 30, 2007
University administrators maintained that their ongoing difficulties stemmed primarily from a limit to the number of sports played by women at west coast universities. This last claim is a curious one, and I wonder if other west coast schools have claimed to struggle with the proportionality prong of Title IX for the same reason.
Tuesday, August 28, 2007
A good analysis of the case is posted at the Sexual Orientation and the Law Blog (the newest addition to our blogroll). For my part, I'll try to put this decision in the context of other cases involving Title IX and harassment of gay students.
Title IX protects against discrimination on the basis of sex, not sexual orientation. The sex stereotyping rationale allowed courts to sidestep an outcome, seen in some employment discrimination cases, that gay students are out of luck. By viewing gender nonconformity, rather than sexual orientation, as the basis for harassment and discrimination, courts have held that Title IX protects against some forms of discrimination against gay and lesbian students. See Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000); Snelling v. Fall Mountain Reg'l Sch. Dist., 2001 WL 276975 (D.N.H., Mar. 21, 2001).
However, the Seiwart decision bucks what seems to be more recent trend of finding such protection exists without relying the sex stereotyping rationale. Some courts have treated sexual orientation discrimination as a subset of sex discrimination. For example, a federal court in Connecticut recently held that verbal taunting of a female student, which included "a variety of pejorative epithets, including ones implying that she is a female homosexual" is discrimination on the basis of gender -- "If not for her status as a female, a reasonable trier of fact could conclude that [plaintiff] would not have been called the offending slurs." See Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d (D. Conn. 2006). Similarly, a federal court in California held that a student who is targeted for harassment on the basis of his "perceived sexual status as a homosexual," is subject to harassment that is "sexual in nature," which is, necessarily, discrimination on the basis of sex. Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165 (N.D. Cal. 2000); see also Martin v. Swartz Creek Community Schs., 419 F. Supp. 2d 967 (E.D. Mich. 2006).
This sexual-orientation-discrimination-as-sex-discrimination rationale could potentially offer more protection to gay and lesbian students than the sex stereotyping rationale because it does not foreclose students who cannot prove that their gender nonconformity is what motivated their harassers. An openly gay but macho guy, for example, might have difficulty demonstrating that he was targeted for harassment because of his atypical presentation of masculinity.
Monday, August 27, 2007
For an in-depth description of Gibson's life and achievements, check out the USTA website, here.
They do not appear to be all that concerned with Title IX compliance which is mentioned only briefly in this article. With 63 percent of their student body women and only 43 percent of their athletes women they are clearly not meeting proportionality. But the Dean of Student Services says they meet the other two prongs. She also added that courts are more likely to look at things like scholarships, facilities, services, and female coaches.
The people at Crowder do not seem to completely understand Title IX. First, of course , you only need to prove compliance with one of the three prongs in regards to opportunities. But we haven't even heard Crowder's evidence that it is in compliance with prong two and/or three. Second, things like facilities and scholarships are their own issues. A school can have exact proportionality and still be in violation of Title IX because it, for example, provides better fields for the baseball team than the softball team. Equity in distribution of scholarships and services dos not excuse providing fewer opportunities for women.
According to the proposal to add men's soccer, the school is considering adding women's sports as well. But this sounds vague and certainly not as planned out as the intentions for men's soccer. Adding men's soccer and not simultaneously adding women's opportunities places Crowder College in a precarious position.
Saturday, August 25, 2007
The grievances include a sub-par weight room, and playing facility which includes the field, dugout, and concession stand.
Parents also may be worried that the softball outfield will be used for football stadium parking because previous parking, according to the article is being taken away to make room for a new gymnasium.
Once the Title IX representative receives the complaint he will undertake an investigation.
Friday, August 24, 2007
Use of the term "women athletes" serves to reinforce the norm that "athletes" must mean men, and therefore if women are playing sports, that must be clarified by using the modifier (our culture uses many terms like these, in which the modifier implies that the term naturally belongs to another group -- for a derogatory example with racial implications, consider the term "white trash"; for a derogatory example related to sex stereotypes, consider the term "male 'ho").
At any rate, the ad campaign serves to reinforce the message of Alvina Carroll, a streetballer, on being an athlete: “It’s not a girl thing. It’s not a boy thing. It’s a skills thing.”
The legal standard for granting an injunction required EIA to show that the harm of denying the injunction outweighs the harm in granting it. It also required EIA to convince the judge that it would likely succeed on the merits of its argument that the cuts were unlawful. The judge decided that EIA did not satisfy either test. While recognizing the harm to the athletes that would result to the athletes by JMU's decision, the judge also considered that EIA waited five months after the university announced its decision to file suit. During that time, the university and the athletes behaved in reliance on the decision to cut teams, thus making it more disruptive in the judge's view to reinstate the teams than to let JMU's decision stand.
The judge also found that EIA's legal argument against JMU was unlikely to succeed on the merits. He noted that every court that has considered similar challenges has determined that it is lawful for schools for seek proportionality compliance by reducing opportunities for the overrepresented gender. He also rejected EIA's attempt to use the Supreme Court's recent rejection of a race-based affirmative action program as the basis on which to reject any classification of students on the basis of sex, pointing out that race-based classifications are subject to higher scrutiny than sex-based classifications. Finally, he rejected EIA's arguments that the three-part test is itself unconstitutional, unworthy of deference, and promulgated by improper procedures.
The judge's order is technically confined to EIA's claims against JMU and does not resolve EIA's claims against the Department of Education that challenge the validity of the three-prong test under the U.S. Constitution, Title IX, and the Administrative Procedure Act. However, the judge addressed many of these same arguments in denying the injunction against JMU. Whether EIA will appeal the judge's order to the Fourth Circuit or continue to press the claims against the Department of Education remains to be seen, but EIA will have to factor into its decision that a judge -- one appointed by President Bush, no less -- has just told them their arguments are unlikely to succeed.
For previous posts on the JMU decision and the lawsuit, use the JMU label below.
Thursday, August 23, 2007
According to EADA data, there's an 11 point difference in the percentage of female students and the percentage of female athletes, so the school cannot rely on prong one to demonstrate compliance with Title IX, even counting the added opportunities for female volleyball players. The plaintiffs argue that the school does not have a history of continuing to expand athletic opportunities for women, the standard for compliance with prong two. If this is true -- which it well might be, as the plans to add volleyball will not alone establish a history of continued expansion -- the plaintiffs have a strong argument that the college does not comply with prong three, the only available remaining compliance option. Prong three requires schools to accommodate the interests and abilities of the underrepresented sex. Courts have held that this prong cannot be satisfied when a school terminates a viable team, one with a sufficient number of able and interested participants and a likelihood of finding competition.
According to the roster, last year's team had a roster of 20 players, which, incidentally, consisted entirely of freshman and sophomores, players likely to return. They also played a full schedule and had a decent record. From what I could tell, this seems to be a viable team. I think the plaintiffs could convince a court to at least issue a preliminary injunction to keep the college from terminating this year's season.
Wednesday, August 22, 2007
In late May administrators in the Palmer school district in Texas received word that a Title IX complaint had been filed with OCR. The district is supplying information and a visit by a team of investigators is forthcoming, though no date has been set. The superintendent and others seem quite willing to provide the information and respond to the allegations which, according to the superintendent, are somewhat general right now. No specific teams have been mentioned but the complaint lists areas in which the district allegedly discriminates against its girls' programs at the both the middle school and high school level. They include: provision of equipment and supplies at the high school; provision of locker rooms, practice and competitive facilities at the high school; opportunity to receive coaching and assignment and compensation of coaches at the middle school.
Tuesday, August 21, 2007
Michelle Jaureguito, the former Upward Bound director, and Paul Thein, the vice president for students services/athletic director allege that they were retaliated against for turning in an Upward Bound program staff member who sexually assaulted several female students. The staff member in question is the son of a prominent FRC professor.
Laurel Wartluft, the head women's basketball coach, and Thein both allege that they were retaliated against for reporting inequitable treatment of the women's basketball program, including the President's decision to reduce the head coach position to part time. Wartluft, who was the interim head coach when she applied for the head coach position, reports that the search committee selected a male applicant with no collegiate coaching experience rather than vote to offer her the job. (Perhaps the comments of committee members -- including the committee's designated EEOC coordinator -- referring to Wartluft as a "closet lesbian" explain this result). But when Thein hired her anyway, the President apparently retaliated by changing the coaching position from a faculty tenure status to part-time with no job security.
California NOW supports the plaintiffs' cases and has posted a detailed synopsis of the case. Thein's and Juareguito's cases are also pending in federal court, see Thein v. Feather River Community College, Slip Copy, 2007 WL 926568 (E.D.Cal. Mar. 27, 2007) (scheduling order). Wartluft has a state court case pending.
Monday, August 20, 2007
Some schools, such as Lake Erie College in Ohio and Husson College in Maine, are "making extra efforts to attract male applicants by creating football teams." Further, college counselors are sometimes advising male applicants to "emphasize their maleness," says Steve Goodman, a longtime independent college counselor. He encourages male students to submit pictures or trumpet their sports activities "anything to catch an admissions officer's eye." (The article doesn't say what a male applicant who's interested in, say, the art club, is supposed to do to emphasize his maleness).
This article is fascinating from numerous angles: is there a need for a certain ratio of men and women at a college to achieve an optimum learning environment? If so, does that rationale carry over to racial or ethic groups? Certainly this quota system for admitting male students, if used in a racial context, would have affirmative action opponents screaming for reform (or lawsuits).
Also, what does it mean to be representatively male at a school? Some colleges and college counselors seem to think that athletics is the key, hence the creation of football teams or emphasizing one's athletic accomplishments in the application process. But what does this say about gender stereotyping and the expectations that we have for male students in our schools, or in society generally?
The lawsuit was brought after officials at Wilson High School made the decision to convert the gym the gymnastics team had been using into a weight training and cardio room. Officials contend that the new fitness room can be used by a larger number of students. The space had been permanently allotted to the gymnastics team and their equipment, including a new spring floor. But those charging discrimination say the new room will primarily benefit the football team.
The gymnastic equipment is now located in two separate storage areas and the team will have access (but not unlimited) to a smaller gymnasium where they will have to set up and dismantle the equipment whenever they are allowed to use it.
The article linked above is a little vague about the actual violation. The attorney for the team says the move violates the criteria mandating "quality of competitive opportunity." But the description that follows describes proportionality. Also, there is a discussion of the demise of the sport because of the burden of having to set up and dismantle the equipment that will deter gymnasts and could contribute to injury. But this is solely speculation. The sport has not been eliminated by the school, though this article states that the plaintiffs believe the principals want to eliminate the team. Regardless of the intentions the move will negatively affect what had been a viable girls' program. And apparently Wilson High School already has some issues in the equitable distribution of opportunities.
Sunday, August 19, 2007
She suggests that a university's liability might turn on factors such as whether the blog was written during the work day or after hours, and whether it uses university equipment -- such as computers, networks, etc. -- or not. But while these and similar factors might be dispositive under common law principles of vicarious liability, Title IX does not so narrowly define a university's liability to only conduct that is part of an employee's scope of work. Otherwise, there could be no liability when, say, a professor writes harassing notes to his students after work and on his own stationery. The other day I blogged about a high school band director who was in a sexual relationship with his student, which was (naturally) carried on after school hours and off school property. This did not preclude a judge's conclusion that Title IX's legal standard for sexual harassment could be met.
However, courts do require that for a school to be liable under Title IX for the conduct of an employee, that conduct must result actual harm to a colleague (or a student) by compromising her ability to do her job (or to get an education). In the case Absinthe describes, the professor posted on his blog a sexist and offensive commentary about female professors in his discipline. Such remarks would likely and appropriately spark outrage, debate, and faculty discord, but I think a court would be unlikely to conclude that a blog post, standing alone, causes an actual compromise to a colleague's employment.
Friday, August 17, 2007
Thursday, August 16, 2007
If anyone doubts that The Dangerous Book for Boys is promoting harmful gender stereotypes, they need only consider the spinoff it has inspired, the Great Big Glorious Book for Girls -- or at least this review in the Guardian, where Carole Cadwalladr calls it "a primer for any girl whose ambition is to be a Fifties housewife." She further laments:
Please! Everybody -- male and female -- should know how to sew on a button, just as they should be taught how to cook. But to package these as 'Girl' activities alongside chapters on ponies and make-up isn't helpful to anyone. There are lots of activities and suggestions in the book that come into the category of harmless fun (although the great beauty of most craft and cookery books is that they employ a modern invention called 'photography' to help show you how), but, taken as a whole, it's not: it's retrogressive claptrap dressed up as nostalgia.The existence of The Glorious Book helps prove Gandy's point about what's harmful about The Dangerous Book. A message that boys = outdoor adventurers contributes to the assumption that girls must therefore = cautious homebodies. As Gandy points out, this line of thinking is underlying our education policy, as more and more schools are experimenting with single-sex classrooms based on the people's assumptions about the differences between boys and girls. Where do these assumptions come from? Not from valid scientific studies, but from our culture, which produces and consumes books like these.
Wednesday, August 15, 2007
Flood's interview reveals her experiences in the department including how her requests from support were rejected, the atmosphere in the department, and her feelings for her coaching colleagues and the administrators. She comes across as very fair. She points to specifics rather than making generalizations. She expresses her desire to stay at the institution but does not mince words about the need for things to change. She is able to see the good qualities in AD Carl McAloose but does not hesitate to show his inability to deal with issues that affect women's sports.
What also comes through in the interview is that the issues that have been raised at FGCU, and left largely unaddressed at this point, are affecting student-athletes. Flood reports that her players see the tension in the department, specifically, the tension between her and McAloose. Flood seems to be trying to address things diplomatically attributing the tension to the "intense" personalities in the department.
It is becoming more and more clear, to me anyway, that this internal audit done by the school is not going to satisfy most people--within or outside the institution. But until a complaint is filed with OCR or a private lawsuit brought, I do not see anything happening. And I am sceptical that a complaint or lawsuit would be filed by any of the coaches initially involved because of fear of greater retaliation. If it's going to happen, it will have to come from a student-athlete or a parent.
Tuesday, August 14, 2007
Freeland also gives specific examples that illustrate the problems in the department with regards to gender equity and that relate only to her own experience (including sexual harassment), but notes that there were only four women in coaching positions (head or assistant) and all four were involved in the complaint. In other words, though their experiences may have been different, they all knew things were amiss.
And the internal investigation probably did little to engender change. Freeland wrote of the tension-filled atmosphere in the department during the investigation. It is unlikely that has dissipated with the new charges of retaliation.
Monday, August 13, 2007
The plaintiff was a seventeen-year-old senior in 2003-04. During that year, she and the then-29-year old band director Christian Oakes had a 10 month long sexual relationship.
After graduating, the plaintiff sued the school and the principle under Title IX. School districts can be liable for sex discrimination committed by their students and teachers when an appropriate person, like a principal, has notice of and is deliberately indifferent to the ongoing discrimination. Harassing a student on the basis of sex is an actionable discrimintion under Title IX. In this case, the school district argued that because the sexual relationship between the student and the teacher was consensual (by plaintiff's own admission) it did not amount to sexual harassment.
The judge rejected this argument, analogizing to two lines of precedent in which a person is considered legally incapable to consent to sex. The first line established the principle that a person in an authoritative, custodial position (paradigmatically, a jailer) is considered to have so much power over the individuals under his or her control that consent to sex by a subordinated individual is meaningless. The second analogy was to the concept of statutory rape, under which a minor is deemed incapable to consent to sex with an adult for no other reason than the minor's age. The judge reasoned that "The teacher-student relationship encapsulates both of these lines, with teachers exercising custodial control over high school students in their classrooms... Under these circumstances, the Court concludes that Plaintiff did not have the legal capacity to welcome Oakes's sexual advances."
This conclusion is, according to the judge, consistent with the "result obtained by many courts, which have implicitly presumed, without much discussion, that a high school student's having sexual contact with her teacher constitutes sexual harassment or abuse."
Though the court clarified that a teacher's sexual relationship is sex discrimination under Title IX, a factual dispute over whether the principal knew or should have known about the relationship also precluded a summary judgment for the defendants. Barring a settlement, a jury will decide whether the principal knew about the relationship and took sufficient action to put an end to it.
The case is: Chancellor v. Pottsgrove School Dist., 2007 WL 2274837 (E.D. Pa., Aug. 8. 2007).
Sunday, August 12, 2007
USA Today reports that she has agreed to be a consultant to WSF for three years. Other than that, Dr. Lopiano has not announced her future plans, but has indicated that she could seek out her next challenge in academia or the non-profit sector.
A proven leader in both contexts (Lopiano was the women's AD at Texas for 18 years before taking over at WSF) she will bring invaluable expertise and experience to the table wherever she decides to go.
Saturday, August 11, 2007
The Naples Daily News and The News-Press of southwest Florida both report that golf coach Holly Vaughn and volleyball coach Jaye Flood have received poor job performance evaluations with Flood writing a memo that cites her involvement in the recent complaint that the department was violating Title IX as the reason for her low marks.
It is hard to figure out what exactly is happening at FGCU. Flood contends this is retaliation, administrators cite various problems they have had with her comportment within and outside the university. Additionally they say they did not see the report that implicated the coaches until after the evaluations were complete.
We will likely never know the reality of the situation. But we do know 1) that the atmosphere in the FGCU athletic department is not conducive to producing successful programs headed by female coaches; and 2) that women coaches are becoming more and more aware of avenues they can take to fight discrimination. The success Lindy Vivas had against Fresno State recently will have far-reaching effects. And I wouldn't be surprised to hear that other coaches, perhaps even the ones at FGCU, have been empowered to take action after the Vivas trial.
Friday, August 10, 2007
Sidhu's essay notes that unlike race-based affirmative action, a topic which seems to incite a great deal of passion and divisiveness in academia and elsewhere, single-sex education and gender-based affirmative action do not encounter as much skepticism from the general population or in legal opinions. Sidhu's essay explores whether and to what extent the affirmative action provision Title IX Educational Amendments permits institutions to offer sex-segregated education.
Wednesday, August 08, 2007
Dr. Conn, an elementary school principal and a J.D., surveys a number of lower court decisions post-Davis involving student-on-student harassment in the elementary school setting. Most of these decisions concluded that the young plaintiffs failed to satisfy the legal elements of a Title IX claim for peer harassment, whereas "[b]efore the Davis decision, courts were more inclined to find school districts liable for their actions or inaction in resolving complaints of peer sexual harassment, despite the lack of clear standards on which to base their decisions."
She suggests that the "severe and pervasive" legal standard, articulated in Davis, has enabled judges to factor in the perceived inability of a child of elementary school age to intentionally sexually harass another student. But, she points out, the harasser's intent is irrelevant under Title IX if the responsible adults were aware of the problem and could reasonably be expected to protect the victim.
She concludes by encouraging elementary school officials to effectively protect students from peer harassment by recognizing and reporting harmful sexual behavior. They must effectively intervene to curtail the conduct and try new strategies when their efforts are ineffective. At the same time, she argues, it is important not to over-react, especially to victimless sexual conduct: "A simple reminder to the child that such behavior is not proper school behavior may solve the problem... No educator should make a child feel guilty about normal sexual curiosity or exhibitionism, but the child should be taught appropriate school behavior." Sensitivity to the student engaging in sexual conduct is also required because sometimes it is a sign that the student is receiving abuse or harassment at home or elsewhere.
Citation: Kathleen Conn, Peer Harassment in Elementary Schools: Is Title IX the Answer? , 219 Ed. L. Rep. 25 (2007).
Monday, August 06, 2007
Are there Title IX implications here? Under OCR's policy for booster clubs and private fundraising, universities can't use private funds to give either sex benefits or advantages that are denied to the other sex.
However, there is little risk of that happening in Hawaii. I checked out UH's athletic scholarship distribution, and women currently receive 43% of the $3.5 million athletic scholarship budget, though they receive 50% of athletic opportunities and make up 55% of the student body. Under Title IX's scholarship regulations, Hawaii's women should receive around 50% of the scholarship dollars, and a greater percentage if/when the school increases athletic opportunities for women to come into compliance with prong one.
Which means that regardless of how this fundraiser turns out, the university should be planning to increase women's athletic scholarships by $230,000 annually. UH's fundraiser and its coordination with Joyner-Kersee is a commendable plan for progress toward this goal, but since a $500,000 endowment can't possibly generate that kind of money every year, I think the university will still have to use athletic department funds to come into compliance.
Saturday, August 04, 2007
NCAA Bylaws already state that athletic scholarships and financial aid can only be reduced or canceled if the athlete "becomes academically ineligible; voluntarily withdraws from the sport for personal reasons; fraudulently misrepresents information on an application, letter of intent or financial aid agreement; or engages in serious misconduct."
The Committee has decided to develop an informational "toolkit" to help pregnant athletes understand their rights and it urges NCAA member institutes to examine their own policies for compliance with Title IX.
Friday, August 03, 2007
Though many Division I men's soccer players join PDL teams for off-season experience, the BYU Cougars is the only team in the league with a college affiliation. Unlike many of their opponents who go back to their college scholarships -- as well as NCAA restrictions on eligibility and professionalism-- at the end of the summer , the club team Cougars have more flexibility to, say, sign professional contracts while still competing for their school as a couple of them recently did. On the other hand, no scholarships.
BYU Cougars coach Chris Watkins explained that the Cougars joined the PDL in 2003 after years of unsuccessfully trying to elevate from club to varsity status. At BYU, male students already have a disproportionately higher number of athletic opportunities (which Watkins blamed on "the growth and expense of college football") so adding men's soccer without adding a comparable sport for women would have jeopardized the school's Title IX compliance.
But BYU was willing to support the Cougars' move to the PDL, which meant purchasing a franchise for $40,000. Compared to the cost of floating an NCAA Division I program -- as much as $500,000 -- that price tag was relatively cheap.
However, because Title IX regulations apply to club sports as well, the university should be offering comparable support to its club sports for women. In 2003, it was reported that women had unsuccessfully sought recognition for club field hockey, water polo and ice hockey teams. I wonder what happened to them. Today coed racquetball is the only club sport opportunity for BYU women. In addition to men's soccer, BYU has men's lacrosse and rugby clubs.
Thursday, August 02, 2007
The Fresno Bee reports that the university is considering adding new women's sports to equalize the amount of financial aid provided to female student-athletes. The school already offers the maximum amount of scholarships per sport mandated by NCAA so the only option is to add sports. Water polo, rowing, and bowling are all under consideration.
In other news that has come in the aftermath of the Lindy Vivas verdict: state Senator Dean Florez who has been leading the hearings on gender discrimination will visit Fresno State and talk to athletes and coaches; OCR officials have made some recent visits to campus though we don't know exactly why or what they were looking for as Boeh would not provide details of the visits.
Wednesday, August 01, 2007
The BYU researchers examined survey responses collected by the Department of Education from randomly selected female participants in their 8th, 10th, and 12th grade years and again 6 years after high school graduation. Controlling for other factors that could influence girls' educational attainment--including parents’ education, family income, type of school, student expectations, family size, race, high school test scores, college grades and whether the student continued their athletic career at college--the researchers found that former high school athletes were 42% more likely to graduate from college.
The study concludes that given this important benefit, "rather than looking for ways to excuse schools from Title IX compliance, the federal government should join state and local efforts to promote equal athletic opportunities for female students."
Citation: Kelly P. Troutman & Mikaela Dufur, From High School Jock to College Grad: Assessing the Long Term Effects of High School Sports Participation on Females' Educational Attainment, 38 Youth & Society 443 (2007).