Stories of the Year: 2008

In what is becoming an annual tradition, here is a roundup of the top ten Title IX stories of 2008! In no particular order...

• Florida Gulf Coast University was sued by two former coaches, Jaye Flood and Holly Vaughn, and the university counsel Wendy Morris, on claims that the university retaliated against all three women for trying to air concerns about Title IX violations in the athletic department. This fall FGCU settled with the coaches for $3.4 million and with Morris for $850,000.

• The NCAA delved into Title IX issues, limiting the use of male practice players in Division III and putting together a toolkit to help member institutes protect the rights of pregnant and parenting student athletes.

• A high profile sexual harassment case involving University of North Carolina soccer coach Anson Dorrance settled for $385,000.

• We saw several stories about schools going overboard with sex segregated classrooms, such as Greene County Georgia, which backed off of its preliminary plan to convert the entire school school district but vows to continue to explore the possibility, and a middle school in Mobile County, Alabama, whose entire conversion to single sex classes is being challenged by the ACLU.

• Fresno State drops its appeals of jury verdicts in favor of former coaches Stacy Johnson-Klein and Lindy Vivas in exchange for $9 million and $5.2 million settlements, respectively. It also settled with administrative assistant Iris Levasque for $125,000 and preemptively with softball coach Margie Wright for $605,000.

• More retaliation cases brought by coaches are filed -- against University of Tennesee-Martin, Texas Southern, and San Diego Mesa -- settled -- by San Diego State -- and resolved by a jury in the plaintiff's favor -- against Iowa State.

• There was a small handful of what we'll call "softball is not the equivalent of baseball" stories (here, here, and here).

• Remember when Title IX's unlikely poster-child was Sarah Palin?

• There was much wringing of hands about the knees and heads of female athletes. The subtle and not so subtle implication of Title IX in the rise of concussions and ACL tears among female athletes seemed to evoke the persistent myth of female frailty.

• Government agencies announced plans to root out sex discrimination in the allocation of research grants in science and engineering, evoking an alarmist and distorting missive by New York Times columnist John Tierney that turned "Title IX" into a verb.
  

Thanks to our readers for being with us for all the Title IX news, good and bad, in 2008. Our best wishes to the Title IX community for a happy, healthy, sporty, educational new year!

Women Ski Jumpers Sue for Inclusion in Olympic Games

Though outside the scope of Title IX, the Title IX community may be interested in the pending lawsuit to include women's ski jumping in the 2010 Winter Olympics in Vancouver. Some of my favorite women's sports blogs have been posting on this for a while, and All Things Considered covered it in its broadcast tonight. Ski jumping is the only Olympic sport that excludes women, so 10 female ski jumpers, including American champion Lindsey Van, have sued the Vancouver Organizing Committee, arguing that as a government entity, it must comply with the Canadian Charter of Rights and Freedoms, their equivalent of our constitution's equal protection clause. In American constitutional law, the US Olympic Committee is not a state actor (thus, the USOC was immune to equal protection challenge of its prohibition on the "Gay Olympics") but I don't know if Canadian courts have similar precedent or whether they are more likely to impose constitutional requirements on their Olympic entities. But if the charter does apply to VANOC, it seems unlikely that it could justify the exclusion of women by simply evoking the fact that the IOC does not sanction women's ski jumping. To use a Title IX analogy, that would be like letting colleges that are subject to Title IX get away with gender inequalities by blaming the policies of NCAA. An entity's obligation to comply with nondiscrimination law (by virtue of being a state actor in VANOC's case, or by virtue of accepting federal funding in the Title IX case) is not negated by that entity's association with another entity that is outside the scope of that law.

Anyway, it will be interesting to see how the case resolves. Maybe the plaintiffs will win, and the Americans will rock at women's ski jumping, and colleges across the country will start adding women's ski jump teams to comply with Title IX?

[thanks SJE]

Appeals Court Affirms Dismissal of Band Director Harassment Case

The Court of Appeals for the Seventh Circuit recently affirmed the district court's decision to grant summary judgment to the Hamilton Southeastern (Indiana) School Corp. in a sexual harassment case. Parents of a former student had sued the school district to recover damages under Title IX for a sexual relationship that their daughter had with an assistant band director, Dmitri Alano.

The issue of notice proved fatal to the plaintiffs' case. Their daughter concealed the relationship while it was happening and for two years thereafter. When school officials finally did learn of Alano's sexual misconduct, they immediately suspended him. Alano resigned while the district's investigation was pending. The plaintiffs argued that the district should have known that Alano posed a risk to his students, because it was "common knowledge" that he is married to a former student. But, the court reasoned, "[s]imply knowing that a teacher married a woman formerly his student, without actual knowledge of misconduct, does not suffice to hold a school district liable under Title IX."

I agree that it's probably a stretch to say that a teacher's marriage to former student without more puts a district on notice of that teacher's sexual misconduct with current students. But this case definitely illustrates an unfortunate absence of remedy for sexual relations that a student victim chooses to conceal -- which is what probably happens most of the time.

Decision is: Hansen v. Board of Trustees of Hamilton Southeastern School Corp., 2008 WL 5336904 (7th Cir., Dec. 23, 2008).

Transgender Student's Discrimination Case Under Investigation

The Pennsylvania Human Relations Commission is investigating a discrimination complaint against Harrisburg Area Community College that was filed by a former student, Jamie Nicole Anderson. According to this article about case, Anderson is a 42-year-old ex-Marine who had a 3.8 GPA at HACC, where she was pursuing an x-ray technician degree. In May she underwent "a sex change operation" and "that's when the trouble started."* She was harassed by clinical instructors who referred to her by male pronouns -- in contrast to her patients, who always called her ma'am. Despite her efforts to seek support and assistance from program directors and the instructors' supervisors, she claims, HACC's response was half-hearted and consequently, ineffective. In October, HACC suspended her for using the women's restroom. Later that month, she was expelled for violating the dress code policy that forbids students from wearing more than one earring in an ear. It seems unlikely to me that all students who accidentally wear an extra earring are expelled, so I am guessing PHRC will examine whether Anderson was singled out for an unusually harsh punishment for discriminatory reasons.

PHRC enforces the Pennsylvania Fair Educational Opportunties Act, which prohibits schools from discriminating against students on the basis of "race, religion, color, ancestry, national origin or sex." It is unclear from PHRC's published materials and decisions whether it considers sex discrimination to include discrimination on the basis of gender identity. Perhaps the results of this case will be informative on that issue.

* I'm direct quoting the article here because it seems unlikely to me that discrimination against Anderson "started" when she had sex reassignment surgery. Anderson must have been taking female hormones and living full time as a woman prior to that time. Surely these outward gender markers would have made her a target for discrimination more so than the status of her anatomy.

Obama Taps Arne Duncan to Head the Department of Education

Yesterday President-elect Obama announced his pick for Secretary of Education: Arne Duncan, CEO of the Chicago Public Schools. The Department of Education is charged with primary enforcement of Title IX, so Duncan have enormous influence with respect to policy and enforcement on issues of gender equity in athletics as well as single-sex education.

I haven't been able to find any evidence of Duncan's attitudes about gender equity in athletics, so we'll have to take it on faith that he shares Obama's general support for the law. Perhaps as a former college and professional athlete (basketball), Duncan realizes the value of athletic opportunities and will work to ensure they are available to women on equal terms. Of course, many associated with men's athletics view Title IX as the enemy, so experience as a college athlete doesn't necessarily translate into warm fuzzy feelings about Title IX, let alone a clarity of vision regarding the statute's relationship to men's sports and a willingness to backpedal on compliance loopholes and enforcement malaise. We'll just have to see.

As for single-sex education, it appears that Mr. Duncan has supported sex-segregated charter schools in Chicago. However, his position on sex-segregated education seems rooted more in a recognition of children's diverse learning styles rather than a basic belief that all girls and all boys are the same. Regarding this issue in the Chicago Public Schools, Duncan said, "Some children learn better in a classroom surrounded by all boys or all girls. Some learn better when they can take classroom material and immediately apply it to real-world situations. Other children need a residential school that allows them to better focus on academics. We want to provide all of these education options and more." His position on diverse educational opportunities is so expansive, even supported a controversial proposal (later withdrawn) for public high school in Chicago that would be "deliberately welcoming" of lesbian, gay, bisexual and transgender students. So it might be the case that while Duncan supports single-sex classrooms as an option among many, he may have little tolerance for the schools and districts that are trying to replace gender integrated learning altogether. Again, we'll just have to see.

Vivas Case Settled for $5.2 M

Fresno State has opted to settle with former coach Lindy Vivas rather than continue to appeal the the trial court's decision in her favor. Last year, Vivas won a $5.85 million jury verdict in the Title IX retaliation suit she filed after she was fired for advocating gender equity within the athletic department. A trial judge reduced it to $4.52 million, attorneys fees and court costs raised the total to over $5.6 million. Monday's settlement compensates Vivas and her lawyers through annuitized payments. Vivas's $2.1 million share will be paid out in $5,995 monthly installments for 30 years. Each of her two attorneys will receive $7040 a month for 20 years.

This is the last pending Title IX lawsuit against Fresno State. The others, along with their total settlements costs, are listed here.

Adding sports?

Columbus State University in Georgia seems to be throwing caution to the wind and adding sports despite these troubled economic times. The DII institution does not have a football program which might mean the school has a little more budgetary freedom. If so, it's using it to add four more sports. FOUR! Men's and women's track/field (not sure if it's both indoor/outdoor; they already have cross-country), women's golf, and co-ed rifle are the lucky winners at CSU.

The school currently fields 8 sports, including a tennis team that has both men and women. I have never seen this particular situation before because usually the seasons are different for men and women, though often times teams will use the same coaching staffs.
No word on the size of the new teams but currently CSU has an undergrad population comprised of 61 percent women with women receiving 52 percent of athletic opportunities. Though with the addition of sports CSU can certainly argue continuing expansion of programs and might satisfy prong three as well; it is possible that some of these sports were club sports that had requested varsity status.


The school is, apparently, all about expansion. They are planning a new state-of-the-art recreation center and just announced that, by the way, the facility with have an aquatic (also state-of-the-art, of course!). Lest you think that administrators are just going wild with the plans and the spending, it was the student government association that approved the addition of the aquatic facility; many of the costs associated with the new facility are being funded by student fees.

Interestingly, the new facility will have a women's-only workout space. Wonder how that will play out...

More good booster news

Taking off of Erin's recent post about the Benicia High School booster club, I just thought I would mention this little piece of news about the Elk Lake (PA) school board. (Especially since there seems to be a lot happening lately in PA high schools regarding Title IX.) A proposal by a member of the boys' basketball booster club to charge admission to games was turned down by the school board. The booster club wanted the money from ticket sales to offset the cost of sending members of the team to basketball camp over the summer. But the school district was concerned about the Title IX ramifications. Board member and superintendent William Bush said this: "The proposal is only for boys' basketball, and with Title IX there may be some legal ramifications if we didn't do the same for the girls' team." As I said, it's not huge news. Rather I bring it up here because it seems to suggest that there's a widening awareness not just of Title IX by non-sports administrators, but about the specific issues of gender equity including booster clubs. We certainly hope this is a trend!

"It was never a money issue. It was a Title IX issue."

This is the explanation University of Delaware athletic director gave for his decision to cut men's indoor track and add (eventually) women's golf. Ironically, this statement follows on the heels of UD's announcement of its long-term strategic plan to revamp its athletic facilities. The university's first priority is to add an athletic performance center so that the football coach can impress recruits (that's not me being snarky. That's in the article). Subsequent priorities include rebuilding the football stadium, a project that will require it to destroy and reconstruct two other athletic facilities -- the ice arena and the outdoor swimming pool.

Here's why I think the timing of the two announcements are ironic and ill-timed. Cuts are always about money (they are also always about Title IX, because Title IX reasonably and appropriately protects women's athletic opportunities from getting cut when --and only when -- women have proportionately fewer opportunities to start with). First of all, there's no requirement that universities comply with prong one. Adding women's sports often results in compliance with either the other two alternative prongs (continuous expansion of opportunities for women, and effectivement satisfying the interests and abilitis of the underrepresented sex). And let me emphasize this point with respect to UD's case: adding golf alone (i.e., without cutting men's indoor track) could have given them a strong basis to claim compliance with Title IX under prongs two or three. This casts doubt on the AD's claims that cutting men's indoor track was a Title IX issue.

Second of all, there's no requirement that a university comply with the first prong by cutting men's teams. If a university wants to achieve proportionality it can either (1) add more opportunities for women so that the percentage of opportunities matches the percentage of women in the student body; or (2) cut opportunities for men until the percentage of opportunities matches the percentage of men on campus; or (3) some of each. Why would any university chose door number 2 or door number 3, rather than door number 1? When asked, they always say it's because they don't have the finances to choose door number 1. Thus, in UD's case, the AD's "It's not a money issue" statement smacks of incredulity. His university has announced that it will undertake an aggressive fundraising campaign in acknowledged hard economic times to renovate facilities that largely benefit football. It is about money. It's also about priorities.

Saying "there's no money" is one thing. Saying "we'd rather spend money on football than on providing a diverse array of athletic opportunities for both men and women" is another thing altogether. Unfortunately, I'm not optimistic that those eager to blame Title IX for university's misdirected priorities will probe the AD's statement deeply enough to recognize the difference.

Private Donors Give to Softball Field Project

Too often in our posts about booster clubs we bemoan that parents and community members create or contribute to discrimination in scholastic sports by supporting boys' teams more than girls'. So, it's nice to see that the Panther Foundation, a group of parents supporting athletics at Benicia High School, has pledged $50,000 to the school district to support the construction of two softball fields on the high school campus.

The gift is well timed. Earlier this week, OCR identified Benicia High's lack of a softball field as contributing to Title IX violations it discovered after investigating anonymous complaint.

Title IX Litigation in Montgomery County, Georgia

From a reader, I learned of a Title IX retaliation suit that was filed in federal court recently against the Montgomery County (Georgia) Board of Education. The plaintiff, Christopher Bowman, was a teacher at Montgomery County High School until he was fired, he alleges, because he provided evidence to state officials of a sexual relationship between the guidance counselor, Carrie O'Connor, and a 16-year-old male student. Soon after cooperating in the state's investigation of the charges against O'Connor, Bowman was informed by the district superintendent of his termination -- ostensibly, for "insubordination." Incidentally, the superintendent, Dale Clark, is also O'Connor's mother. Bowman alleges that Clark also sabotaged his efforts to find employment with other school districts in Georgia.

Though a jury recently cleared O'Connor of criminal charges due to insufficient evidence to substantiate the victim-student's claims, this will not have an affect on the legal arguments in Bowman's suit. That is because Title IX protects whistleblowers who reasonably believe that a violation of the statute -- here, severe and pervasive sexual harassment -- has occurred. Otherwise, whistleblowers would only come forward if they were absolutely certain that a violation had occurred, which is to say, hardly ever.

Bowman's suit is not the only Title IX case arising out of this circumstance. The victim's mother has also sued the school district, claiming among other things that the district violated Title IX in failing to protect her son from the guidance counselor's sexual conduct, which could qualify as severe and pervasive harassment under Title IX. Though the outcome of O'Connor's criminal trial -- especially the fact that the jury returned its "not guilty" verdict within 30 minutes -- casts some doubt on the viability of this case, it does not necessarily foreclose it as a matter of law. The plaintiff need only prove that it's more likely than not that the sexual misconduct occurred, where the state had to prove it beyond a reasonable doubt.

California School District Violates Title IX, OCR Concludes

No surprise here, but OCR has concluded that the Benicia (California) Unified School District is in violation of Title IX in light of its failure to provide athletic opportunities to girls that are equitable in quantity and quantity.

As we have noted in prior posts, OCR's investigation commenced after an anonymous complainant alleged that female athletes at the high school were being treated unfairly. While the specifics of the complaint and the scope of investigation were not made public, the local paper's own reporting shed some light on the issues that were likely under consideration. One problem is that Benicia High School allocates over 60% of its athletic opportunities to boys, a distortion that stems in large part to its three football teams. It also spends more than 12 times as much on boys' athletics than girls,' which has created inferior opportunities for girls, especially in softball. The softball team must play at the city park when it is not being used by the local adult league, in contrast to boys baseball team, which has its own, recently-renovated facility on the high school campus.

Though news of OCR's conclusions did not mention a specific remedial plan, the district has agreed to "conduct yearly surveys to determine the athletic interests of females, and work with coaches and parents to ensure softball athletes have acceptable access to the Community Park fields." Since neither of these promises is certain to remedy the violations OCR has found, I predict that the agency will be keeping an eye on Benicia High.

More on Pittsburgh's history

In our post on the Title IX audit underway in the Pittsburgh school district, we mentioned there had been an investigation by a local paper many years ago that discovered some glaring gender inequities.
Thanks to a loyal reader, we have the link to this investigation by the Pittsburgh Tribune Review and written by reporter Carl Prine.
The page contains its own links to each day's story that focused on a separate issue such as coaching and fundraising. Many stats are also available about the state of the city's athletics in 2001. It will be an interesting marker when the results of the current audit come out.

Southern Nevada girls start soccer season

As we noted not too long ago, the Title IX lawsuit brought by the parent of a high school soccer player in southern Nevada was "settled" in that both sides agreed that the girls could play in the winter for another year. The school district has tried repeatedly to move girls' soccer to its traditional season--fall. This would allow a statewide championship instead of post-season play that is more sectional in nature.

I'm not going to rehash the argument as to why Title IX is not applicable in this case, as we see it.

But this article about the upcoming season has me shaking my head--again--about what people are thinking in southern Nevada. The Clark County School District will spend the year looking at Title IX compliance and the finances; as in, do they have money to add a girls' winter sport. The sport they are considering is lacrosse. But girls' lacrosse is played in the spring, you might say. Right. So to remedy a situation in which a girls' sport is being played in its non-traditional season, the district is considering adding a different sport which would be played in a non-traditional season.

We could be talking about southern Nevada for a long, long time.

ISU seeking different outcome

Lawyers for Iowa State University have asked that the recent jury verdict against the school for retaliation against former softball coach Ruth Crowe be overturned. And if the judge will not agree to that, they would like a new trial.
Those working on behalf of the university believe the jury did not decide the case based on its merits and that it did not understand Title IX. A misunderstanding of Title IX would not be out of the realm of possiblity. So many people, including those in administration, frequently misrepresent the statute. Including, apparently, ISU's own lawyers who do not believe there were any Title IX violations because Title IX does not require equal spending on men's and women's athletics. they say. True. But it does require equitable funding and the evidence presented at Crowe's trial convinced jurors that things in the athletic department were not equitable.
Sure, you're going to spend more on a football stadium than a softball facility. But if your football stadium has locker rooms with bathrooms and your softball facility has port-o-potties that the players use--there's inequity. When football coaches are given thousands of dollars to wine and dine recruits and their families or fly to them via private jet while coaches of women's teams have to fight just to justify bringing recruits to campus and can only afford to take them to Arbys--there's inequity. These specific examples are not necessarily happening at ISU. But they're happening elsewhere. And the mentality that athletic departments do not have to provide the same quality of experience to women as they do to men does seem to be present at ISU.
That is likely what the jury saw. Holding ISU accountable for it is not a decision based on "passion and prejudice"--unless the jury felt passionately that the very evident prejudice against women in athletics is a bad--and yes, illegal--thing.

SDSU raises fees to support athletics

San Diego State University has been contemplating for a while now a fairly dramatic increase in one of its student fees. An increase that would support their cash-strapped athletic department.
When I first read about the story a while ago the increase was being presented as a way to fund an additional two women's sports that SDSU needed to add to meet the gender equity standards for CSU schools.
This presentation was disturbing because it painted a picture of women's sports as sucking dry athletic departments and then asking the general university population for help.
The latest news from SDSU has confirmed a fee increase of $80 per semester. But it also clarified that the increase would be going to support a student spirit initiative, the general athletics budget, club sports, and two women's sports. The list reflects the many needs of the department and that the increase will support more than just student-athletes. It also provides evidence to contrast the nonbelievers who say football is able to support women's athletics and thus should be exempt from certain rules and regulations.

Fitzgerald Oral Argument Roundup

Yesterday the Supreme Court heard oral arguments in the Title IX preemption case, Fitzgerald v. Barnstable School Committee. For background, see our prior posts on the district court's decision, the appellate court's decision, the Supreme Court's grant of certiorari grant, and a preview of the oral argument.

The transcripts of yesterday's oral arguments are available here. Also, there's coverage in, among other places, the New York Times, the Associated Press, and Education Week.

From the transcript and press cited above, it appears that the Court's chief concern was whether the plaintiff's ability to sue under Section 1983 along with Title IX actually matters to the outcome of the case. Justice Ginsburg, for example, suggested that if the school board's response was not "deliberate indifference" under Title IX, it was also not a constitutional violation remediable via 1983. The plaintiffs' lawyer argued that the Constitution prohibits a broader range of sex discrimination than Title IX, such as, for example, decisions that have a disparate impact on one sex or the other, but the Justices seemed concerned that none of those areas were implicated in this particular case. So why, they wondered, should the Court decide that Title IX and Section 1983 cases can proceed simultaneously in a case where the additional Section 1983 remedy does not change the result? The best the plaintiff's counsel could do was to argue that the legal question is relevant, even though it's seemingly outcome-neutral here. The court of appeals could have relied on its Title IX analysis to conclude that no Equal Protection violation occurred either, but it didn't do that. Rather it said the 1983 claims were preempted. If that conclusion is wrong as a matter of law, then the Supreme Court should fix it, even if it means that the First Circuit will, ultimately, summarily decide that no constitutional violation occurred.

A decision will be forthcoming sometime before the end of the Term in June.

Dropped Teams Better Off as Clubs?

The NY Times had this brief article about collegiate club teams, which are providing competitive opportunities for athletes in sports that universities no longer decide to sponsor as part of their varsity program.

A former Yale water polo player who now coaches the club team said he was initially upset about Yale's decision to drop the varsity program: "But now, I think the athletes are better off in the club model. Unless you want to be a water polo player in the Olympic Games, a club team epitomizes the athletic experience in a more pure form."

The executive director of the National Collegiate Wrestling Association* was also interviewed about his organization's support for club wrestling, and I found his comments particularly interesting in light of the wrestling community's historic opposition to Title IX, which is often blamed for cuts. Jim Guinta said that when he realized Title IX policies would not "level out" and create opportunities for wrestling to coexist with existing, disproportionately larger men's athletics programs, he has "come to realize that institutions have been using Title IX as a cop-out. The real reason they are cutting sports is to save money. So we still encourage teams to be reinstated in the N.C.A.A. if they can, but that’s rare. We’ve moved on and have a strong association of thriving wrestling programs."

One shortcoming of the article is that it did not discuss how club sports work and what relationship they have with their universities. Most receive support in some form or another (access to facilities and equipment, maybe some help with transportation) and universities must allocate this support in a nondiscriminatory manner in order to comply with Title IX. Students are for the most part paying their own way and making their own decisions about how the team is run. This is, presumably, what the Yale water polo coach meant when he described clubs as a "purer" form of sport.

* Not the National Wrestling Coaches Association, as I had earlier posted. Apologies for the error.

Pittsburgh schools will do Title IX audit

I thought we had written about this before, but apparently there are a lot of Title IX issues in Pennsylvania public schools--so it's easy to get confused.
In what appears to be a collaborative effort, the nine schools in a Pittsburgh school district will start an internal Title IX audit. Issues of discrimination (no specifics though) against female student-athletes have been known since 2001 investigation by a local newspaper.
The schools will work with a Title IX expert as well as the Women's Law Project (their presence makes one believe that district administrators did not just wake up one morning and decide to do this of their own volition). Though it should be noted, as a WLP attorney has, that the schools are doing this audit even though there is no litigation pending. This in itself is impressive--no matter the impetus--given that so many schools turn a blind eye or engage in some heavy denial even when faced with lawsuits and a mountain of evidence of discriminatory treatment.
The audit will last about two weeks. No word on when reports of the findings will be released.

Fitzgerald v. Barnstable School Committee Oral Argument Tomorrow

Lyle Denniston at SCOTUSBlog has a comprehensive preview about the Title IX case that will be argued before the Supreme Court tomorrow.

He points out that, though the underlying case is about some pretty egregious student-on-student sexual harassment, the Court is "unlikely to be distracted by the controversy" and will instead remained focused on the narrow legal question for which the Court granted cert, which is, whether the availability of legal remedies under Title IX foreclose plaintiffs from simultaneously raising constitutional claims via 42 U.S.C. section 1983. He points out that, while a number of lower appellate courts have found 1983 claims preempted by Title IX, "only once in history – in 1984 – has the Court barred a claim of discrimination filed under Section 1983 because Congress had passed another law that it intended to be the exclusive way to remedy particular wrongs, displacing the remedies that had been available under the old law."

Denniston's prediction:

The Justices will have to analyze closely the differences between the two legal regimes and decide, among other things, whether Title IX review is truly comprehensive, given its internal limiting factors. The fact that the Court does not easily – and does not often — displace constitutional lawsuits with alternative statutory schemes will probably counsel caution this time, too. More than likely, whatever the Court decides will be as narrow as the Court can make it. For example, it would be inclined, it seems, to indicate that it is not dealing with anything other than student-on-student harassment claims.

I agree that the Court tends to decide such issues as narrowly as possible. But can it justify a ruling that only applies to peer harassment cases under Title IX? Neither the statute nor its legislative history differentiates between those types of claims and other applications of the statute (for example, other manners of harassment and discrimination in the context of education and athletics). So its hard to imagine the reasoning the Court would rely on to justify treating them differently.

OCR Inquiry at Weatherford College

A Title IX "inquiry" from the Department of Education Office for Civil Rights has Weatherford College officials pulling together data, policies and procedures about its athletic department. No word on what aspect of compliance has put Weatherford on OCR's radar, but according to public data, this NJCAA member institution offers twice as many opportunities for male athletes as for female athletes. In addition to a coed rodeo team (cool!) which has 16 men and 18 women, Weatherford's other teams are men's and women's basketball (16 men and 13 women) and men's baseball (29 men). Thus, at a school where women constitute 60% of the student body, their percentage of the athletic opportunities is a mere 33%. While this disparity is not a Title IX violation per se, it probably illustrates why OCR is making inquiries. Fortunately, college officials, including the newly-appointed first-ever athletic director, are seeming to embrace the opportunity to receive input and advice from OCR on how to ensure they are not discriminating against Weatherford's female students.

Mistakes versus flaws

University of Delaware alum and current ESPN Page 2 columnist Jeff Pearlman has a column about the rumors regarding the cuts to men's track at UD. It's entitled "It's a mistake if Delaware cuts men's track, cross country."
And it's a very well-written piece. It is very clear that Pearlman had a better-than-average student-athlete experience at UD on the cross country team. And that experience was engendered by an amazing coach and, I would argue, participation on a team that was fairly tight-knit, in part because it was marginalized. As Pearlman himself notes no one really cares about watching running or reporting on it. And the story he tells of his own time on the team reflects an experience based more on personal goals and motivations rather than public recognition and accolades. It is not fair to say this is a more "pure" form of sport or that these athletes are more devoted to their sport. But it does remind us that athlete experiences are diverse. Cutting teams diminishes the diversity of experiences.
None of us believe that cutting teams is the right thing to do. But given that UD's undergrad population is comprised of 58 percent women but female student-athletes are only 47 percent; and that UD has not added a women's team for about a decade, UD must do something.
But it does not mean, as Pearlman states, that Title IX is wacky or flawed. It means that even though UD will not be adding opportunities for women, for those young, dreaming girls Pearlman invokes, it will not be taking them away. Do I wish that schools would not take away any opportunities from anyone? Yes. Do I wish that most schools had a little more foresight? Yes. Do I wish that they had provided opportunities all along, even when Title IX was not being as well enforced? Yes. But it is not the law's fault that administrators chose to ignore it when no one was looking.

Haven't we heard this story already?

Another lawsuit is pending against the Indiana High School Athletic Association (IHSAA) because of its rule prohibiting girls from trying out for baseball when there is a softball team.
Another lawsuit? Indeed. As you might recall, last year a different Indiana high school student sued IHSAA for the chance to try out. And IHSAA granted a waiver to its rule. At the same I wrote this:
[Though it is curious that Bauduin was granted a waiver. Why didn't IHSAA just abolish the rule once they knew it was discriminatory?]
Seems that what was in the brackets was important. Because IHSAA has said it would be just fine with granting another waiver, this time to Logan Young.
But Public Justice, which was involved in the last case, is focused on eradicating the rule.
It's a good move. Even if there wasn't going to be a fight over Logan Young's tryout, the fact that the rule still exists means there is more effort that a female student must go through to try out. Why does every girl who wants to play baseball have to engage in a battle with IHSAA? Why do they have to ask for a waiver? Essentially IHSAA is creating a different standard for participation. It is setting up a hurdle for girls that boys do not have to jump over in order to play. It is implying that it is natural for boys to want to play baseball, but not girls. It is making every girl who wants to play, ask for permission.
Last time around it was made pretty clear that the argument that baseball and softball are similar enough sports is just not good enough--heck, it's just plain not good. The existence of the rule continues to perpetuate the belief that any girl who wants to play baseball should be just as satisfied with softball because they are virtually the same. No one is benefiting from this false comparison anymore (not that they ever did). Just ask the International Softball Federation which is trying desperately to get its sport back into the Olympic Games by, in part, separating itself from baseball.

Former Iowa State Coach Wins $287K in Retaliation Suit

An Iowa state trial court jury awarded $287,000 in damages Friday to former Iowa State softball coach, Ruth Crowe. Crowe had challenged her termination as unlawful retaliation under Title IX, claiming she was fired for complaining to about inequitable compensation for most coaches in women's sports and about the university's failure to allocate comparable money for recruiting female athletes compared to male athletes.

The university claimed that Crowe was not fired in retaliation, but because of her overall losing record and due to athletes' and parents' complaints. The jury must have been persuased that the athletic department used her losing record as an excuse to fire Crowe. Moreover, Crowe testified that she was not aware of the complaints against her until after she filed her lawsuit. Perhaps this testimony cast doubt in the jury's mind about the legitimacy of Iowa State's reliance on those complaints as a basis to fire her. By not giving Crowe the opportunity to respond, address, or defend herself against the complaints, athletic department officials may have appeared as though it had already made up their minds to fire Crowe.

The jury's verdict awarded amounted to $90,000 in back pay, $160,000 for past emotional distress and $37,000 for future distress from her improper firing. Additionally, equitable remedies such as reinstantement could be forthcoming. And, according to Crowe's lawyer, the judge in the case could order Iowa State to conduct a Title IX compliance audit and to make improvements to the school's softball facilities.

School District Proposes Unified Booster Club

After a Title IX compliance report prepared for Mercer Island (Washington) School District revealed funding disparities between boys and girls athletics programs, the district's athletic director is proposing a partial solution in the form of a unified booster club.

As we've noted before, schools must provide athletic opportunities of comparable quality to boys and girls, regardless of donations to the school made by booster clubs of individual teams. Disparities can result when popular sports (often football) receive a great deal of parental and community support compared to other less popular sports. When these disparities track gender lines, a school district risks violating Title IX.

Such compliance concerns have prompted Mercer Island officials to propose that a single, school-wide booster club replace the 22 individual booster clubs for respective teams. Not surprisingly, this idea is reportedly unpopular, as some of the more well-organized and effective clubs are reluctant to sacrifice control and submit to profit sharing with other teams. But Mercer Island is right to insist that they do so. If parents and community members do not want to voluntarily support their daughters' teams in the same manner as their sons', the school district has to figure out a way to neutralize the inequality that results, either by matching funds raised by the effective clubs, or forgoing booster club donations altogether. Unified booster clubs are a responsible, fair alternative to both of these expensive and unfavorable extremes.

Wrestling tries to save itself

Taking off on Erin's post yesterday about the tightening of athletic budgets...University of Missouri is trying to make itself a lttle less cut-able by funding its own scholarships. The team has been taking money from ticket sales and putting it towards a wrestling scholarship endowment fund. Not sure how they are allowed to do this--I would think the athletic department might have something to say about where those revenue dollars go. But good for wrestling for thinking ahead; too bad though about the columnist who choose to describe the situation that intercollegiate wrestling finds itself in thusly: "Tough economic times that strain athletic departments and the constant cloud of Title IX loom over the sport."
"Cloud of Title IX"? I know it is a column and not a strict news article and so there is some room for opinion, but still. When will writers stop blaming Title IX for wrestling's woes? It would have been nice to talk about how, in these tough times, football (at all the many many schools at which it does not cover its own expenses) is going to start raising money to fund itself too in case the winds shift and the Title IX cloud floats on over its head. Oh wait, yeah, that's never going to happen.

NCAA President Seeks to Preempt Title IX Blame

NCAA President Myles Brand recently told USA Today that he expect that member institutions will cut athletic teams in the coming months due to financial pressures stemming from problems with the economy. He is encouraging member institutions not to cut teams and engage in a strategy of belt tightening in "highly visible sports" (read: football) instead. Additionally, he is encouraging them to be honest that "Any cuts at this point in sports are certainly going to be tied to financial pressures" and not blame them on Title IX.

And not that I would expect readers of the Title IX Blog to be duped by the College Sports Council's criticism that Brand is asking member institutions to "join him in a whitewash," no one is denying that Title IX operates once the decision to make cuts has been made. The regulations appropriately and fairly operate to protect whichever sex has proportionately fewer opportunities to begin with (usually women) from taking the hit. What Brand is talking about is blaming Title IX for the causing the cuts in the first place a la JMU and Rutgers.

Segregated Alabama Middle School Challenged by ACLU

Earlier this year, the Mobile County School System segregated the entire student body of Hankins Middle School by sex. This is the most drastic form of public school sex segregation to date, as it applies to an entire school, leaves parents with no option at all for coeducation, and according to the ACLU, "goes so far as to punish boys and girls who are caught speaking in the hallways."

The ACLU recently informed (.pdf) the school district of the patent illegality of the single-sex program at Hanksins. While recent revisions to the Title IX regulations allow schools more leeway than ever before to experiment with single-sex education, single-sex programs must be voluntary. By leaving Hankins parents no alternatives but segregated classrooms, the school district violates this requirement. Moreover, the middle school program almost certainly violates the Constitution's Equal Protection Clause, which requires gender-based distinctions to be backed by "exceedingly persuasive justifications" have been defined by the Supreme Court to exclude generalizations about tendencies (such as, in learning style) of the respective sexes. It is also hard to imagine what kind of "exceedingly persuasive justification" accompanies the rule that girls can't talk to boys in the hallways and vice versa.

If the school district doesn't make changes, the ACLU will file suit. I predict it will win on summary judgment.

One other interesting thing about the ACLU's challenge: in its letter to the school district, the ACLU points out that the district is not only violating the Department of Education's regulations on single-sex education under Title IX, but that it runs afoul of the U.S. Department of Agriculture's nondiscrimination requirements as well. The USDA prohibits any school that receives school lunch program grants from "carry[ing] out any of its education program or activity separately on the basis of sex." See 7 C.F.R. § 15a.34. This means that if the USDA decides to enforce this regulation, it could withhold school lunch program funds from Hanskins Middle School, along with any other of the 100,000+ public and private schools that participate in the National School Lunch Program that elect to operate sex-segregated education programs.

Via Feminist Daily New Wire.

If you're in the area...

Our area that is--western Massachusetts. Andrew Zimbalist is speaking tonight at Smith College, where he is a professor of economics.
Here is the link. Here is a brief description of the talk:

Andrew Zimbalist, sports commentator, consultant and author, will present a talk about the history, operation and impact of this landmark legislation. Signed into law with little or no fanfare in 1972, it prohibits sex discrimination against students and employees of educational institutions. In the 36 years since it became law, Title IX has hardly ever been free of controversy.

He will also be signing copies of the book he co-edited with Nancy Hogshead-Makar after the talk.

NCAA Releases Resources and Model Policies Regarding Pregnant Student Athletes

As we noted last summer, the NCAA responded to concern for recent instances of discrimination against pregnant student athletes by deciding to employ an informational approach rather than regulation to assist its member institutions avoid violating Title IX's protections for pregnancy. True to its word, the NCAA has now published a "toolkit" that includes resources like information about the physical and emotional challenges of pregnancy, medical information on the safety of exercise and training during pregnancy, and model language for including in the institution's athlete handbook. The toolkit also includes a Model Policy that member institutions can adopt as their own approach for dealing with pregnant and parenting student athletes.

Specifically, by adopting the Model Policy, member institutions agree to a presume that a pregnant athlete is able and entitled to participate fully on the team. Only in cases where medical evidence demonstrates that her participation would be unsafe may her participation be limited. The Model Policy also ensures that universities cannot make athletes sign contracts not to get pregnant or revoke scholarships because of pregnancy. Moreover, the Model Policy clarifies that athletic departments must regard pregnant student athletes like any other athlete with a temporary disability, honoring medically excused absences and temporary medical leave, making reasonable modifications to the training and workout regimen, and providing medical assistance, counseling, and rehabilitation services. Recognizing that discrimination against pregnant athletes is a broader issue than just whether or not the athlete is barred from playing or receiving her scholarship, the Model Policy also protects pregnant athletes from harassment, retaliation, threats, pressure and shame. The Model Policy also affirms that discrimination on the basis of one's status as a parent is expressly prohibited as well. So, male as well as female student athletes are protected against losing their scholarships because of their status as parents.

The Model Policy is commendable for its breadth, for its strong position on inclusion of pregnant athletes, and for its strong statement against discrimination against parenting students regardless of gender. Because the policy is really just a clarification of what Title IX already requires, it is in the interest of colleges and universities to adopt and implement the Model Policy and to avail themselves of the additional resource the toolkit provides.

Simpson panel provides more details

In a vein similar to that of a post the other day on attorney Walter Paboojian, I wanted to mention briefly a panel discussion of the Lisa Simpson case that highlighted the role of supporters in Title IX cases--especially the cases that become pretty vicious.
University of Massachusetts professor Dr. Todd Crossett, who was an expert witness in the lawsuit against University of Colorado, put together the panel of five individuals who either worked directly on or were affiliated with the case last week in Denver at the annual conference of the North American Society for the Sociology of Sport.
What was especially valuable about the panel was the diversity of participants and the approach: they all told their own stories about their involvement with the case. The Title IX Blog started writing about the Simpson case fairly late in the process (sorry--we didn't exist in 2001 when it all began!). So the panel was helpful in filling in some of back story. Additionally, I heard details I hadn't ever seen reported in the press about the administration's ambivalent (at best) response and all the details about Simpson and some of the others involved that were "leaked" to the media.
And finally, the panel so adeptly illustrated that it takes a group of people to successfully challenge, both in the courts and in society more generally, beliefs about sport--football in particular, violence, masculinity and femininity, race, and sexuality--all of which (and more) were part of the discourse around this case.
Included in the panel were: Baine Kerr, one of Simpson's attorneys (I actually missed his piece but I saw him a couple of years ago at Harvard when the case was ongoing); Scott Adler, a political science professor at CU who served on the Special Committee on Athletics Reform that had begun to address some of the ills in the athletic department before the Lisa Simpson story broke; Catherine Guerrero, a community organizer who is currently working at the Colorado Department of Health and Environment in the Sexual Assault Prevention Program. She was not directly involved in the case but worked within the feminist community as it addressed both the Simpson and Kobe Bryant cases. Kim Hult, another of Simpson's lawyers who did a great job describing her own feelings about and experiences with CU football, former president Betsy Hoffman, and other administrators; and Joanne Belknap, a criminology professor at CU who spoke up in support of Lisa Simpson and basically got a lot of crap for it--I mean, a lot: threats of all sorts and colors.
The discussion clearly had a cathartic effect for most of the panelists as well as providing information most of us--even those who followed the case closely--would never have had access to.

Rumors of Possible Cuts at University of Delaware

It's just a rumor, but there is apparently some concern that the University of Delaware may trim its sports offerings to exclude the men's cross country and track teams.

Title IX has, of course, entered into the discussion. Whenever one sex receive disproportionately more athletic opportunities than the other, Title IX effectively says you can't cut from the side with less (doing so brings you out of compliane with both of the alternative compliance prongs). So, since men make up 42% of the UD student body, but receive 53% of the athletic opportunities, UD can't cut a women's team without violating Title IX. But does it have to cut teams? There's no official word on whether or why this might be done. No one is challenging the UD's sports offerings under Title IX, though the UD may be feeling pressure to add another women's team -- golf has been mentioned -- in order to bolster compliance with either prong two or prong three. More likely, it is the economy and the high cost of running other sports programs that are putting financial pressure on UD's athletic department. UD is in the same D-IAA football conference with UNH and JMU, which both cut teams in 2006, as well as Towson State, which cut its cross country team in 2004. So it's possible that UD is enduring similar financial pressure due to the high cost of operating a football program that does not have the opportunity to occaisionally recoup costs at a bowl game. Probably due to the football team's strength -- it regularly competes in the D-IAA tournament and was the champion as recently as 2003 -- it is looking to maintain or even bolster its financial investment in the program. Whether this will come at the expense of 115 runners remains to be seen.

Voice of reason at VCU

Because I spend so much time berating various media outlets and their misinformed employees when they proffer false information about Title IX, I figure it's my responsibility to offer some praise as well.
Looks like we are not the only ones a little worried about the possible addition of football at Virginia Commonwealth University. A local columnist in Virginia wrote this about the rumors of a new football team under a new administration.
Paul Woody, in his dissent, provides some more specific details that go beyond just the usual pitfalls we hear of when adding football is considered (i.e. the money and compliance issues). Woody tells us that the baseball team, a regular NCAA tournament participant, doesn't have a practice field and that men's soccer--which has also had success in the post-season--may lose its stadium. In other words, the athletic department has plenty to worry about without adding a football team.
Kudos also go to Woody for seeing what so many others failed to see regarding the JMU situation:
Faced with a similar dilemma [regarding allocation of resources] in 2006, James Madison University opted to protect its football program. The Dukes dropped seven men's and three women's sports.
JMU's football program is ranked No.1 in the country in its subdivision. JMU also has just six men's sports.

Fresno lawyer gets big kudos

Warren Paboojian who represented--quite successfully--some of the coaches who filed Title IX lawsuits against Fresno State, received the attorney of year award from the Consumer Attorneys of California, a trial lawyers' association, this past weekend. The award was in recognition of Paboojian's work on the Stacy Johnson-Klein case in which Johnson-Klein, the former Fresno State women's basketball coach, won a $9 million jury verdict.
The award recognizes a lawyer whose work on a case has far-reaching effects. We believe we have seen such effects not only in CA but beyond; the recent settlements in three of FGCU lawsuits seem to be evidence of the "Fresno Effect."
It's nice to see those who work (often for very little money) on behalf of those who have faced institutional discrimination get recognized.

(Somewhat) New anti-IX campaign

I'm in Denver at the North American Society for the Sociology of Sport (NASSS) annual conference and I just ran into a colleague which reminded me that I had not yet posted about the interesting information she passed on to me a while ago. Fairness in Sports Foundation is not the most vocal of the anti-Title IX orgs out there, but they are a presence. (Side note: It will be interesting to see the approach the anti-Title IXers take with the new administration. I am sure we will be talking more about that in the coming months.)
I probably don't need to point out the irony in their use of the term "fairness" or that their board of directors is made up of five men (including former Olympians Peter Vidmar, karch Kiraly, and Tim Daggett) and one woman.
Of special interest is their new campaign: MOMSS: Moms on a Mission to Save Sports.
Check out the website (and note the use of the quote "well-behaved women seldom make history" frequently invoked by actual feminists or at least those with feminist leanings) and then check back here. When I get back from Denver I plan a more nuanced post on this campaign.

DI Schools Allocate Smaller Share of Athletic Budget for Women's Sports

Inside Higher Ed reported last week on the NCAA's recent update to its biennial gender equity report, which provides statistics on athletic participation and funding for women's sports. For the most part, college women's sports fared as well in 2005-2006, the years covered by the current report, as they had in 2003-2004, the last year for which the NCAA had published data. The average percentage of athletic opportunities afforded to women at Division I institutions nudged up slightly from 44% to 45%, while the average at Division II & III schools continues to hover at 41% and 42% respectively.

But while the percentage of opportunities allocated to female athletes held steady, the percentage of money allocated to women's teams has dipped downward a bit. Among Division I schools, the average percentage of athletic department funds allocated to women's sports has gone from was 37% in 2003-04 to 34% in 2005-06. Average spending on both men's and women's sports has increased in absolute terms, but men's teams are receiving comparatively more than women. Which means that, even in these tough, budget-cutting times, schools are finding money to increase their athletic budgets overall. They are chosing, however, to allocate more of these new funds to men's teams than to women's.

While Title IX does not require schools to spend equal or proportionate dollars on men's and women's sports, spending disparities are often an indicator that schools are discriminating against female athletes by providing them less favorable treatment than male athletes, who might receive superior equipment and facilities, more coaches, trainers, training tables, covering more travel expenses and meals, better publicity, etc. Thus, the declining percentage of athletic budgets allocated to women's sports could be a sign that such disparities are widening rather than decreasing. In the IHE article, Donna Lopiano suggests that the Bush Administration's failure to enforce Title IX could have a lot to do with this trend. If she's right, there's one more place we can look for change from the next Administration.

It just could be a trend

Virginia Commonwealth University is thinking about adding a football team. Those who have advocated for such an addition see a potential opening coming their way. The current VCU president, who said he would never approve the addition of football, is leaving next summer. A new president, who was a football fan, could get on board with the addition. All they would have to do is convince him/her that raising all that money for new facilities would be a piece of cake; that incurring all that debt shouldn't be a problem--especially in this economy; that figuring out how to become Title IX compliant with the addition of all those opportunities for male athletes and all those scholarship dollars shouldn't take much longer than, say, a weekend.
The current athletic director believes because of VCU's size (32,000) that somehow football would inevitable. It will be interesting to see if the search for a new president is somehow influenced by the desires of certain VCU constituents.
And while VCU is still in the consideration phase, other schools are forging ahead. Old Dominion begins DI play next year and Georgia State will field a team in 2010.

Does OCR have an Alaska office?

Hope so, because they received a Title IX complaint about the University of Alaska, Anchorage this past summer. The complainant(s) remains anonymous for now and the athletic department is incredulous.
Says Athletic Director Steve Cobb:
"This complaint is mind-boggling to me. To tell the truth, I can't wait for them to come up here....The idea that we are disadvantaging our women athletes is absolutely ridiculous."
This is despite the fact that Cobb admits that the locker room situation is problematic. Women's teams, six of them. share 2 locker room, while men's basketball has their own as does men's hockey, with the three remaining men's sports (skiing, track, and cross country) sharing one locker room. A new sports complex currently in the design phase will remedy that particular problem, but not for at least five years. There are two other aspects of the complaint: access to quality coaching, and access to medical trainers and other medical personnel.
One doesn't hear a lot about the issue of quality coaching at the collegiate level and it will be interesting to see the specifics of this part of the investigation.
The specifics of the trainer situation is also interesting. Cobb insists that the decision is based on risk rather than gender with a trainer attending every men's hockey practice and game. But gymnastics, also a high risk sport, does not get a trainer because the team practices off-site and thus sending a trainer would present time issues. I don't think time constraints are going to prove to be a viable excuse.

V is for Victory. So is IX.

That's the great title of a new initiative by the Women's Sports Foundation to encourage girls and parents to think about what kinds of opportunities are afforded to male and female athletes at their schools.

The page also features a couple of videos which are short, funny (but probably too close to the painful truth at some schools) and to the point:

For parents:


V is for Victory. So is IX. from Womens Sports on Vimeo.

And for students:


I hope this initiative gets out to more parents and students with questions and concerns about their local athletic programs.

Obama, McCain answer questions on Title IX and women in STEM

Earlier this month the Obama and McCain campaigns answered questions presented to them by the Association for Women in Science and the Society of Women Engineers. The entirety of their answers can be found here. The questions are largely centered on how the candidates intend to achieve more gender equity in science, technology, engineering, and mathematics, including how Title IX might be enforced across the academy--and not just in athletics.
Neither, of course, suggested there should not be gender equity, but once again John McCain took the opportunity to show his ignorance of Title IX while trying to diss the Democrats. Though he does plan to enforce Title IX according to its "original intent" he has some caveats:
I am concerned, however, that the Clinton administration took unwise liberties in interpreting Title IX with the consequence that many schools have adopted policies of strictly equal funding for male and female athletic programs. Unfortunately, many popular athletic programs have been cut because the overall amount of funding available for athletics programs will not sustain identical men's and women's programs in every sport.
Because I have made this complaint before, I will keep it brief, in the hopes that someone from the McCain campaign will absorb it and pass the info on to their boss.
Title IX does not call for identical programs in every sport. This rhetoric clearly belies your intent to exempt football from the Title IX equation. Don't think we don't see this. And second, I have yet to see (though would be happy to) an athletic department that is equally funding its men's and women's programs.

Teacher's Complaint Prompts Title IX Investigation, Changes to Facilities

The New Hanover (N.C.) County Schools, which had been under investigation by the Office for Civil Rights, recently agreed to upgrade athletic facilities and locker room for female athletes, who had been receiving inferior access in violation of Title IX. A teacher and coach named Alan Sewell triggered the investigation when he filed a complaint with OCR. After reading an article about Title IX in the local newspaper, he said, he realized that something should be done to remedy the inequities he'd witnessed over the years. Particularly, Sewell was concerned about the girls' basketball team's access to locker rooms at Laney, one of the district high schools. The team had to yield the locker room to visiting boys' teams, which often resulted in the girls having to change in the lobby restroom or the weight room. The team's booster club lobbied the district unsuccessfully to remedy the situation.

OCR's investigation also revealed gender disparities in athletic facilities at both New Hanover high schools, particularly, the inferior quality of the girls' softball fields relative to the boys' baseball fields. According to OCR's report, the boys' facility "look[ed] closer to a major league baseball park and the softball field look[ed] closer to an abandoned sandlot field."

According to the resolution agreement, New Hanover has two years to upgrade the girls' facilities at its high schools.

A look into the gender gap in higher ed

Inside Higher Ed reported last week about a new study by Linda Sax that examines some of the nuances behind the numbers of women and men attending college. We know, of course, how the increase in the number of female students has affected athletics, increasing the number of opportunities for participation in sports--especially in those schools choosing to comply with the proportionality prong. And, of course, we know that if those who proposed proportionality, in the late 1970s, knew that not that far into the future women would outnumber men in undergraduate enrollment, such a compliance measure likely would never have been considered. But here we are in 2008 with the number of female students still on the rise and some predicting the percentage to go as high as 75% women. (I predict schools will undertake--as some already are--their own version of "affirmative action" to prevent that from happening.)
Sax's work suggests a paradigm shift from the zero-sum game approach that has dominated the rhetoric that can be summed up like this: girls are getting into college, boys are in crisis. Her book is focused on experiences within education.
Here is a summary of some of her very interesting findings:

• girls who participate in sports and physical activity get better grades; boys' participation has the opposite effect.
• the more female professors at an institution, the better the grades of both female and male students
• private schools foster, in women, greater critical thinking skills

Note that none of these findings are contextualized. I, personally, am more interested in why these effects exist and worried about how they could be twisted, i.e. women are easier graders which is why students get better grades. Or they are more inherently nurturing.

If anyone has read or plans to read Sax's book and would like to do a review for the blog we would be happy to have more information on the study.

"If I had my choice of clients to represent, I would side with the plaintiffs."

That's what a lawyer for FGCU reportedly told its Board of Trustees at an August meeting to encourage the Board to settle with Coach Flood, Coach Vaughn, and general counsel Wendy Morris, who had all brought gender discrimination and retaliation lawsuits against the university. That lawyer, Aaron Behar, also questioned the credibility of the university president, Richard Pegnetter, whose truthful testimony would have been necessary for the university to mount a convincing defense, especially in Wendy Morris's case (her allegations of his direct involvement in the retaliation against her is detailed here).

Also, it was reported yesterday that FGCU's Athletic Director, Carl McAloose, will resign in the wake of the multimillion dollar settlements. FGCU agreed to buy out his contract for $653,872. Which seems generous to me, given McAloose's direct involvement in the retaliation that now seems certain to have occurred.

Title IX Bloggers Publish on Jennifer Harris Case

With apologies for tooting our own horn, my co-blogger Kris and I are pleased to announce that the Journal of Sport and Social Issues has published our article about race and the Jennifer Harris case.

Here is the abstract:

In 2007 Penn State basketball coach Rene Portland retired shortly after a confidential settlement ended a discrimination lawsuit brought by former player Jennifer Harris against Portland and Penn State. Because of Portland's infamous policy of not allowing lesbians on her team, her departure was celebrated as a victory against homophobia in sports. Yet although Harris's claims of sexual orientation discrimination were validated in the media, her allegations of racial discrimination were ignored or dismissed as implausible. In this article, we examine the omission of race from the discourse surrounding this case and suggest that both legal and cultural factors contribute to society's tendency to ignore the intersecting discrimination in sport and the multiplicity of identity.

A subscription is required to download the whole article, but we are more than happy to send reprints on request.

WIU using survey data

Cited for not providing opportunities to meet the needs and interests of its female students and not providing equitable amounts of publicity to its current male and female teams, Western Illinois University will be submitting evidence to explain these alleged disparities to the Office of Civil Rights next month. The report is required as part of the resolution agreement between OCR and WIU that resulted after a complaint was filed with OCR. It doesn't sound like much of a resolution really. After all WIU is not admitting any wrongdoing. It seems that the submission of evidence is normally part of an investigation that might lead to some kind of resolution agreement. One of the interesting aspects of the report, though, is that WIU will be using recent survey data to support its claim that it is meeting the needs and interests of its female students. (Though for some reason this data will not be submitted until April of 2009.) The survey, according to above link, asked students about their interest in sports the NCAA has deemed "core" or "emerging." We have noted the issues with surveys that ask current students about their interests in sports that do not exist at their institution--along with other problems in assessing interest via a survey. No mention of how the survey was administered or what the return rate was. According to this article, though, WIU does such surveys every few years.
WIU maintains that it is in compliance with Title IX. The evidence of this is due to OCR by November 1.

The benefits of precedent

As Erin wrote yesterday, FGCU has settled three of the lawsuits it had on its hands. Pat Griffin's dubbing of FGCU as Fresno East certainly became even more appropriate with the news that FGCU had settled with former volleyball coach Jaye Flood, former golf coach Holly Vaughn, and former university counsel Wendy Morris.
I don't have much to add to the news or yesterday's post, but I thought it was important to point out that if all the trouble that Fresno State went through recently had not have happened; if some of those women had not come forward, we might not have seen this settlement.
I think it's just so lovely when precedent (not in the legal sense in this situation) actually works in favor of the historically oppressed and marginalized. It is unfortunate that Flood will not be reinstated as part of the settlement, though given that both Carl McAloose and Kathy Peterson who set out to get rid of Flood are still around, I am somewhat surprised that she would want to return. She's a winning and committed coach, I hope someone snaps her up. It will certainly be FGCU's loss.
There is, though, a seemingly loose end in the FGCU situation: Gina Ramacci. Ramacci, an assistant softball coach, filed a complaint with the school regarding the non-renewal of her contract. But last we heard, investigation into the complaint had gotten held up.
Overall it's a pretty good day for female coaches. Wishing I had some FGCU volleyball or golf gear to proudly sport on a day like today.

School's Response to Teacher's Sexual Misconduct Did Not Violate Title IX

A teacher in Georgia showed students digital pictures of his genitals, but a federal district court concluded that the school's response was sufficient to forestall liability under Title IX.

In February 2005, a teacher at Lamar County High School overheard students discussing that their history teacher, Tyshon Byrd, had shown them pictures of genitals that were on his cell phone. The teacher informed the assistant principal, who informed the principal. For one week, the principal investigated the charges against Byrd, interviewing both the students whom the teacher had heard, as well as a number of students from Byrd's class who were selected at random. (The principal also attempted to discover whether there were in fact inappropriate pictures on the Byrd's cell phone, but such evidence was not found.)

Based on the students' consistent reports, the principal held a meeting where students presented their charges in the presence of Byrd and other school officials. Byrd was subsequently terminated.

A lawsuit was then filed by some of the students who had seen the photos. However, the court determined that, prior to the learning of the digital photos, the school district did not have actual notice of that Byrd posed a sexual threat. Moreover, the district's response --investigating the students' claims for one week, and then terminating Byrd after confirming the students' story -- was not deliberate indifference required to satisfy the standard for liability under Title IX.

This case clearly illustrates how tough the deliberate indifference standard can be for plaintiffs, as it seems to me pretty unreasonable to leave a teacher in the classroom as credible evidence confirming his sexual misconduct began to mount. In fact, I wonder if the court thought the plaintiffs' harm -- "only" being subjected to the anxiety of remaining in a teacher's classroom after being subjected to photographs of his genitals -- was trivial, and let that assessment cloud the question of liability. Of course, this anxiety could be emotionally damaging to students, especially to those with a sexual trauma history, as my psychologist friend points out. But to more clearly illustrate the point: what if the Byrd had sexually assaulted a student after the principal's week-long investigation had begun and before he was fired? Would the court have been more likely there to conclude that the principal's decision to leave the teacher in the classroom for that whole time amounted to indifference? If so, there should be no different result here on the question of liability, only, perhaps in the assessment of damages.

Decision is: Brown v. Lamar County School Dist., 2008 WL 4500135 (M.D.Ga. Sept. 30, 2008).

$3.4 Million Is "The Price of Retaliation"

We just learned that Florida Gulf Coach University will pay $3.4 million to settle a lawsuit filed by two former coaches, Jaye Flood and Holly Vaughn, who allege that they were terminated in retaliation for raising concerns about gender discrimination in the athletic department (more press about the settlement here and here). Their lawyer, Linda Correia called the 3.4 million figure "the price of retaliation."

Flood will get $2.965 million and Vaughn will take $435,000. FGCU has also agreed to submit to an independent review of Title IX compliance by an independent expert.

I am anxious to get this breaking news on the blog, so rather than summarizing the background here I will point you instead to our key prior posts: see here, here, here and here.

UPDATE: It was also reported that Wendy Morris's lawsuit recently settled for $850,000. Morris is the former university counsel who was terminated after she encouraged the university president to actually look into the coaches' complaints about gender discrimination before dismissing them as baseless. Background on Morris's case is here and here.

California Court Says Title IX Standards Apply to State Law Claims for Peer Harassment (but the Plaintiffs Win Anyway)

Section 220 of California's Education Code provides that students shall not be discriminated against on the basis of a number of protected categories, including disability, gender, nationality, race or ethnicity, religion, and sexual orientation. However, it is not clear on the face of this broadly worded statute when a school district violates this provision by failing to protect a student from harassment by his or her peers. That issue was the subject of a recent decision by the California Appeals Court, in a case stemming from the harassment two students were subjected to by their peers at Poway High School on the basis of their sexual orientation.

The plaintiffs argued that they should be able to recover money damages under Section 220 on a theory of respondeat superior, that is, that the school district is vicariously liable for the misconduct of its employees. In this case, that misconduct is various teachers' failures to address numerous reports by the plaintiffs that they were subjected to, among other things, "death threats; being spit on; physical violence and threats of physical violence; vandalism to personal property; and being subject to anti-gay epithets." However, the court disagreed that the respondeat superior standard should apply to claims under Section 220. It cited evidence that the California Legislature intended instead to incorporate the standards of liability for peer harassment that apply to Title IX cases, namely, that the district had actual knowledge of severe and pervasive harassment, and in the face of that knowledge, acted with deliberate indifference. This is a tougher standard for plaintiffs to satisfy.

Therefore, the court concluded, the trial court technically erred when it instructed the jury to decide the case using the respondeat superior standard. But it deemed that error harmless, because the jury also made specific findings to support a conclusion that the district was liable even under the tougher Title IX standard -- namely, that appropriate school officials had actual knowledge of the harassment that was going on and failed to respond. The jury also characterized the harassment as "severe and pervasive." Moreover, deemed the court, these findings were supported by substantial evidence presented at the trial.

The court thus sustained the jury award of $175,000 and $125,000 to the two plaintiffs, as well as attorneys fees of over $400,000.

Decision is: Donovan v. Poway Unified School Dist.,2008 WL 4531580 (Cal. App. 4 Dist. October 10, 2008).

Column Examines Women, Hockey, and Sarah Palin

If you are as interested as I am in the rhetoric about sports, Title IX, and especially hockey (my favorite sport) surrounding Sarah Palin's candidacy for Vice-President (which we've blogged about before), you may find interesting this column in the Beacon Broadside by the assistant women's hockey coach at University of Minnesota-Duluth.

Michelle McAteer argues that Palin does not "seem to understand the complexities of women in the women's hockey world" where "lesbians are a visible part of the game" and female hockey players "battle stereotypes that force them to defend their 'feminity' as they play a 'masculine game.' Notwithstanding this disconnect, McAteer argues, Palin has appropriated an association with hockey because it is politically useful:

Palin's claim to authority as a "hockey mom" is useful to her because this paradoxical phrase symbolizes the essence of Palin's brand. The unflinchingly patriotic masculinity associated with hockey allows Palin to take on a powerful position, but by fusing it with motherhood politics, she's kept within her God-given role as a submissive wife, mother, running mate, and perhaps even as a sort of First Lady.

With the interrelation of sports and gender taking on an important role in this campaign, it's good to get political commentary from a hockey coach!

Via Women's Hoops Blog.

District Court Upholds Damages Award in Sexual Harassment Trial

Last August we blogged about a Title IX case against the Hilldale Independent School District in Oklahoma arising from the sexual abuse of the 14-year-old plaintiff by the band director. At that time, we noted that the case had survived the school district's motion for summary judgment and appeared to be headed for trial.

Since that post, the case did go trial. A jury agreed with the plaintiff that the school district did not respond reasonably to information it received that called the band director's conduct into question. It then awarded the plaintiff $150,000 in damages on her Title IX claim. The jury also awarded $150,000 on the plaintiff's claim that the school district subjected her to danger in violation of her constitutionally rights, another $150,000 on her claim that the school district's inaction impaired her constitutional right to bodily integrity (derivative of the right to liberty), and yet another $150,000 on a theory of negligent supervision under state law.

The school district then moved to dismiss or reduce the jury awards, arguing that the plaintiff received "duplicative recoveries by pleading alternative theories for the same relief." The court disagreed, reasoning that while each of the plaintiff's legal theories stems from the same set of fact, the harm alleged under each claim is distinct, and the jury was instructed to devise its award accordingly. Specifically, the court emphasized the the damages covered in the Title IX award is the lost educational benefits, which is different from the harm to plaintiff's personal security and bodily integrity that are protected by the Constitution.

The decision upholding the jury award is: J.M. v. Hilldale Indep. Sch. Dist., 2008 WL 4511872 (E.D. Okla. Oct. 3, 2008).

Women's Sports Foundation Studies Gender Gap in Youth Sports

The Women's Sports Foundation released a new report today about youth sports, examining participation rates and trends across class, race, and geographic regions. Nationally, boys participate in youth sports at higher rates than girls. However, this gap is widest in urban, immigrant, and nonwhite communities. Though Title IX does not directly govern youth sports opportunities outside the context of schools, the statute's affect on culture has created a wide range of opportunities for girls. But, the report's lead author, Professor Don Sabo told the New York Times, "Title IX has left a favorable footprint on the soil of suburban communities...[but] it has yet to produce any semblance of equity within urban communities throughout the United States.”

The report also documents the benefits of youth sports participation on children’s general health and body esteem, healthy weight, popularity, quality of life and educational achievement. It also finds a positive correlation between children's participation in youth sports and strong families because it encourages intrafamily communication and time spent together.

In light of the social significance and benefits of youth sport participation, the WSF argues that policymakers should address the gender gap, especially in urban and minority communities. Schools, community organizations, churches and other nonprofits should be encouraged and supported in their efforts to provide more "girl-centered sports and exercise programs that emphasize 'fun and friendships'" that are likely to attract girls of elementary school age. It is also important to lower the barriers to entry to middle school sports, as the increasingly competitive nature of sports deters girls who have not played before.

Court Dismisses Trangender Plaintiff's Bathroom Complaint

A federal court in Nevada recently dismissed a Title IX case brought by the parents of a preoperative male-to-female transgender student (referred to in the decision as "Mary Doe") that challenged the school's decision that would have prohibited her from using the girls' restroom. Apparently (the decision does not provide a detailed factual account of what happened) the plaintiffs considered enrolling their daughter at Green Valley High School near Las Vegas, Nevada, but chose not to after the principal informed them that Mary would not be allowed to use the girls' restroom. Instead, the private bathroom in the nurse's office would be available instead.

The court found numerous weaknesses in the plaintiffs' case. First, it said that because the plaintiffs' did not enroll their daughter in GVHS, no discrimination or injury actually occurred. Second, it concluded that plaintiffs could not bring an Equal Protection claim against the school district because Title IX provides the exclusive remedy for such claims (similar to another decision we blogged about recently). Third, with respect to the plaintiff's Title IX claim, the court expressed doubt that Title IX covers bathrooms because the statute's scope is limited to educational programs. And fourth, even if Title IX does apply to bathrooms, the court determined that discrimination did not occur because a bathroom (in the nurse's room) would have been available to Mary Doe had she enrolled.

I have a big problem with the court's suggestion that Title IX does not apply to school restrooms. Clearly bathrooms on school grounds are part of an educational program. The court cites a Ninth Circuit case suggesting that it's appropriate for courts to make an "actual determination as to whether the relevant portions of a recipient's program is educational in nature." But that was a case about Title IX's application to a prison system's vocational education program. The court there was suggesting, appropriately, that Title IX, an education statute, doesn't govern the entire prison -- just the vocational educational program. To suggest that school bathrooms aren't covered by Title IX because there's not "education" going on in there misses the point of the distinction that the Ninth Circuit was making. It is also ridiculously dismissive of common sense. If a school (or, say, a college engineering building) had no female bathrooms, it would clearly be understood as an indirect exclusion of women from the educational program being conducted in that building, because people need bathroom access so that they can physically be where the education is going on.

Moreover, in determining that the school district did not discriminate against Mary Doe because it made another bathroom available to her, the court fails to consider the possibility that discrimination against transgender individuals is per se discrimination on the basis of sex, and thus prohibited under Title IX. Under such a theory, one could view the exclusion of the plaintiffs' daughter from the girls' bathroom as failure to treat her similarly to all other girls for the sole reason that unlike all the girls, she was born into a male body. As for the nurse's room alternative, the court does not address, nor seem to understand, that this is socially isolating and an affront to Mary Doe's dignity, which as a result is potentially tantamount to an outright exclusion from school.

Most likely the court, and the principal at GVHS, were concerned about the potential that Mary's presence in the girls' bathroom would be disruptive due to her male anatomy. But to the extent this concern is motivated by assumptions, stereotypes, and fear, it is not a valid concern. If the student in question has good behavior generally, why should the school assume that she will be aggressive or harassing or disrespectful in the bathroom? Even if the principal's concern was that the girls will be uncomfortable by the mere presence, however innocent, of a girl with male anatomy (which, I might add, would not be visible to anyone outside whichever individual bathroom stall Mary Doe elects to use), it does not seem that the principal even considered whether these concerns could be mitigated with education about tolerance and acceptance of those who are different before validating them with preemptive exclusion.

Decision is: Doe v. Clark County Sch. Dist., 2008 WL 4372872 (D. Nev. Sept. 17, 2008).