More coverage of Iowa case

Inside Higher Ed has a good article about the recent ongoings at University of Iowa involving the alleged sexual assault and harassment of a female student-athlete by several football players. It references recent Title IX cases involving sexual assault such as University of Colorado and delves into what schools can and should be doing to both cut back on campus sexual assault and advocate for victims.

Single-sex education and science

I usually stay out of the single-sex education blogging we do here because it is not really my area of expertise. I am, of course, opposed to single-sex classrooms in public schools and find the reasoning behind them highly suspect. Much of the rhetoric inspires great fear in me, actually.

But I also happen to live practically down the street from one of the most venerable women-only colleges in the country. And as more and more formerly women-only colleges become co-educational, I feel somewhat of a loss.

With the recent surge in the discussion over women in science and my own concerns and internal debates about the right to choose one's own learning environment, I found this editorial at Inside Higher Ed laid out some of the pros and cons. There is a lot in there but I will just highlight some of the issue raised.

The author, a chemistry professor at a women's-only college, writes about the benefits her female students have being in a single-sex environment and how that environment has facilitated their learning of the subject. She presents the possibility that such productive learning, for some students, would not have taken place in a mixed gender environment.

Unfortunately the confidence many of these young women gain in their undergraduate years just is not enough to help them deal with the highly sexist and misogynist environments they encounter in graduate school and in the work place. Would they have been better prepared for such opposition if they had had to deal with it in the classroom?

It is, of course, impossible to say. Individuals react differently to confrontations, discrimination, and stresses. But I think the raising of the issues, especially as they exist in slightly different versions than those that come up when we are talking about the K-12 system, are important to keep alive in the discussion.

Religious Employer Immune from Title IX Claim

A federal district court recently confirmed that religious educational institutions are exempt from Title IX when making employment decisions affecting clergy. The case involves the claims of a former nun, Lynette Petruska, who was demoted from her position as chaplain at Gannon University and forced to resign after she blew the whistle on a priest's affair. Title VII, the basis for her initial claim, was deemed inapplicable to Gannon by the Third Circuit Court of Appeals because of the ministerial exception to Title VII, which derives from the institution's First Amendment freedom of religion.

Petruska sought leave to amend her complaint to include a Title IX claim, since Title IX duplicates Title VII's protection of school employees from sex discrimination, but (as we predicted), the court held the ministerial exception to Title VII is equally applicable to Title IX. It doesn't matter which statute offers protection from discrimination, reasoned the court, because the exception "is rooted in a source of law higher than legislative enactments--namely, the First Amendment of the Constitution."

Citation: Petruska v. Gannon University, 2008 WL 2789260 (W.D. Pa. Mar 31, 2008).

Government Supports Plaintiffs' Arugment in Peer Harassment Case

Staehling v. Metropolitan Government of Nashville is an ongoing Title IX peer harassment case pending in the Middle District of Tennessee. Last week, the court received a brief that "address[ed] two misconceptions regarding Title IX's legal standard promoted by Defendants in its motion for summary judgment" specifically:

First, the actual notice requirement of Title IX does not confine liability to school districts with individualized notice, i.e., notice to the threat to the specific victim or from the particular perpetrator of sexual harassment. Notice of a more generalized threat to students in a program operated by the District will sustain a claim under Title IX. Second, Defendants incorrectly assert that a one-day or two-day episode of sexual battery, as alleged by Plaintiffs, cannot constitute "severe and pervasive" harassment as a matter of law.

Are you wondering who is challenging the school district's attempt to narrow the liability standard for peer harassment under Title IX? I'm pleased to say, it is our very own Department of Justice, submitting an amicus brief behalf of United States government. From an Administration that often lags when it comes to civil rights enforcement, this brief is noteworthy!

[Thanks, DC!]

Gender Equity in Math Achievement

Science magazine's current issue reports on a study which shows that the achievement gap in math between boys and girls has disappeared (article here (subscription required); summary and discussion on NPR). The study was based on the standardized tests administered annually to all public school students in 10 states as part of the No Child Left Behind educational reforms, as well as testing by the National Assessment of Educational Progress. In all, over 7 million scores were included in the study.

This study is heartening: not only to show that the gender gap in math has closed, but to combat gender-based stereotypes that girls have a hard-wired math deficit or that they aren't interested in learning about math.

San Diego considering additions

San Diego State is considering adding women's teams to compensate for the continuing disparity between men's and women's grants-in-aid. SDSU has continually fallen short of meeting the maximum 5 percent difference allowed by the settlement between NOW and the CSU schools negotiated in the 1990s.

So, despite severe budget limitations, the athletic department is looking at options including adding two women's sports (perhaps gymnastics and lacrosse).

I find it somewhat disconcerting that the school thinks its most viable option is to find funding for two more sports rather than eliminate some of the scholarship dollars that go to, say, men's football. I am NOT suggesting cutting players. Number of opportunities is not the issue being presented here. It's student aid. There are plenty of football players who are on the roster who do not get scholarship money. Adding a few more to that list is going to do some huge amount of damage??

Because I worry about the quality of the experience that female student-athletes will have on teams that have been added in the midst of a budget crisis. I am all for adding opportunities for women but not if the institutional commitment to supporting them is absent. Because if it is, we might see, not too far down the road, some gender equity complaints.

Coaches' Lawsuit Charges San Diego Mesa With Homophobia, Retaliation

A lawsuit filed in California state court charges that San Diego Mesa College discriminated against former women's basketball coach Lorri Sulpizio and former director of basketball operations Cathy Bass when it fired them both last year. The coaches were advocates for gender equity and had challenged discriminatory treatment of their team, such as being barred from their own locker room during a November invitational because it was being used by visiting football teams, being disrupted in their practice by the men's football team, and other inequities.

Sulpizio and Bass had also recently been identified in a local news story as domestic partners, which the plaintiffs believe contributed to the Athletic Director's decision to fire them because he had in the past investigated and inquired about Sulpizio's sexual orientation. In fact, the AD had once told a faculty member that someone needed to restore “the image” of the team, and that “lots of people” in the community had been talking about “it.” (referring to Sulpizio’s and Bass’s sexual orientation).

Before her termination, Coach Sulpizio had spent five years as head coach, a year as interim head coach, and three years as an assistant coach of the Mesa women’s basketball team. During this time, the team was successful by several measures, including logging regular appearances in the conference tournament and winning a conference championship in 2002. Sulpizio also sent a higher-than-average percentage of athletes to play ball and receive degrees from four-year schools. Bass and Sulpizio met when both were assistant coaches in 1999; Bass later became an adjunct faculty member and the director of basketball operations.

Sulpizio and Bass are represented by the National Center for Lesbian Rights (the folks who brought down Rene Portland) and two local law firms. NCLR's Helen Carroll, quoted in this story at Outsports.com, sounds confident as she puts the case in the context of the trend in retaliation cases (which we've noted on this blog before): “Women coaches, and especially lesbian coaches, are taught to not rock the boat... But I think we’re seeing a new wave of Title IX retaliation cases because I believe the coaches feel that they have help now with that. Before, coaches would be quiet and leave and just get another job somewhere. Now the courts are saying, ‘We’ve got your back.’”

Iowa Athletic Department Cover-Up of Sexual Assault Investigated

The University of Iowa seems poised to join in ignominy the likes of University of Washington, University of Colorado, ASU, Hofstra and the University of Georgia, all of whom have had to defend their athletic departments in court for covering up rape and sexual assault promulgated by their football players.

Though no lawsuit against the University of Iowa has been filed, the Board of Regents is investigating a sexual assault case allegedly perpetrated by two football players on a female student athlete. The Board learned only last week that the victim's mother has claimed that the athletic department officials -- including football coach Kirk Ferentz and AD Gary Barta -- encouraged her daughter not to report the assault to university officials or the police so that the athletic department could handle the matter internally. But while the athletic department did nothing for over three weeks, the victim continued to suffer harassment by the alleged perpetrators. Only after the victim contacted the local police over three weeks after the assault did Ferentz announced the suspension of the two players who had been charged with sexual assault, for undisclosed reasons.

Notice, deliberate indifference, subsequent harm to the plaintiff -- sounds like a Title IX lawsuit to me.

Via Feministing and Lawyers, Guns and Money

Legal Scholars Examine The Heart of the Game

The current issue of the Virginia Sports & Entertainment Law Journal includes an article that combines three of my favorite things:
1. law review articles that take films seriously
2. films that take women's sports seriously
3. Title IX scholars Debbie Brake and Verna Williams (OK that's actually four things).

The Heart of the Game: Putting Race and Educational Equity at the Center of Title IX examines the interrelated themes of race, pregnancy, sport, and education in the 2006 documentary film, The Heart of the Game. If you haven't seen it (and seriously, if you're reading this blog, you are the type of person who really ought to see this film*), the film profiles the Roosevelt High School girls' basketball team and its star player, Darnellia Russell. Bucking the de facto segregation of Seattle public schools, Russell enrolls at predominantly white Roosevelt where she is the only black player of the girls' basketball team. Despite challenges, she emerges as a good student and a star player and forges cross-racial friendships with her teammates. Their loyalty is put to the test when Russell loses her eligibility after becoming pregnant. Risking forfeiture of the season's wins, the team stands by Russell as she challenges the Washington Interscholastic Athletic Association's denial of her hardship waiver.

Brake and Williams use the film to explore some undertheorized aspects of Title IX's applicability to athletics, including its limitations in providing access to African-American teenagers to opportunities in sport. Such limitations arise not only from the statute's focus on the single axis of sex discrimination, but also from the interplay of racial stereotypes that operate to particular effect on black female athletes, as well as patterns of segregation that create inequities in public education on the whole. The authors then focus on the film's pregnancy narrative, tying in the effect of antidiscrimination law as well as society's views about teen pregnancy, which are modulated by race. The authors also make the interesting point that the WIAA's refusal to accommodate Russell's pregnancy as hardship-- irreconcilable with a truly educational model of sport -- could reflect the ever-widening gap between sports and education and an overreliance on the view that girls' sports are (only) important for their tendency to mitigate teen pregnancy.

Citation: Deborah Brake & Verna Williams, The Heart of the Game: Putting Race and Educational Equity at the Center of Title IX, 7 Va. Sports & Ent. L.J. 199 (2008).

*In fact, consider using my favorite tactic of armchair activism: asking your librarian to purchase a copy.

Let men bowl!

I think the common perception of bowlers is of men of various shapes and sizes drinking beer in matching shirts engaging in some kind of male bonding away from women.
Basically men have access to bowling. Of course there are plenty of women's bowling leagues and mixed gender leagues as well.
But the discourse changes when we talk about intercollegiate bowling. Bowling is an officially recognized NCAA sport for women. But not for men. And what happens when a sport is being supported for women and not for men is that Title IX frequently gets cited as a quota system and an instrument of reverse discrimination that plagues our politically correct society.
Utter nonsense, of course. But those who are worried that male student-athletes are being denied their right to bowl can look at Viterbo University in Wisconsin, which has just added varsity bowling for both women and men.
The decision was motivated by the growth in girls' high school bowling in the state. No specific reason for why they added a men's team but the lack of varsity men's programs in the state mean that the team will largely be competing against club teams. I am not sure what it means to have a varsity sport for men that the NCAA does not recognize. But the male bowlers will benefit presumably from their status in ways their club sport peers will not.

Professor Brake on Discrimination Against Pregnant Athletes

Professor Deborah Brake's article "The Invisible Pregnant Athlete and the Promise of Title IX" in the current issue of the Harvard Journal of Law and Gender examines the legal protection for athletes who become pregnant during their college careers. Until very recently, this issue had been entirely off the radar screen of colleges and universities, OCR, and the NCAA, despite clear regulatory language prohibiting such discrimination. Brake devotes careful attention to the question why discrimination against pregnant athletes -- often experienced as a scholarship revocation rather than medical redshirt status -- was invisible for so long. She attributes this invisibility to socially constructed dissonance invoked by the concept of a "pregnant athlete" which is to say that pregnancy is incompatible with both the competitive (male) model of sport that operates within college athletics as well as notions of physical activity in general. To acknowledge and accommodate pregnancy would, moreover, underscore the presence of women in sporting structures, which were designed by, for, and remain largely controlled by men. Add to this the pervasive stigmas that accompany the pregnancy of unmarried women in general and unmarried women of color in particular, and it's easier to understand why it took 30+ years for anyone (which is to say, ESPN) to begin to pay attention to this issue.

Brake goes on to examine OCR's response to recent attention to the plight of pregnant athletes, embodied in a 2007 policy letter, as an "amalgam" of both equal treatment and special treatment, as well as the likelihood of successful enforcement going forward.

Citation: Deborah Brake, The Invisible Pregnant Athlete and the Promise of Title IX, 31 Harv. J. L. & Gender 323 (2008).

OCR Rejects Attempt to Exempt High Schools from Title IX

This was, I regret, off my radar when it happened, but a year ago, the College Sports Council petitioned the Department of Education's Office for Civil Rights to "clarify" Title IX's application to by stating that the three-part test for measuring equity in participation does not apply to high school athletics. But earlier this year, OCR denied this petition, affirming the applicability of the three-part test to high schools.

Rather than make the three-part test mandatory outside the context of intercollegiate athletics, OCR stated that the 1979 Policy Interpretation "may be used as guidance by the administrators of such programs where appropriate." Since that time, courts have uniformly referenced the three-part test as an appropriate measure of participation equity in high school athletics. Thus, OCR concluded in its denial of CSC's petition, "In light of this existing guidance, which the federal courts have applied authoritatively and unambiguously to interscholastic athletics, further clarification on this matter is not necessary."

We give Spellings and the current administration a lot of grief over the 2005 Clarification (allowing universities to set participation levels for women based on responses to an email survey), so even though this news is late, I thought it was important to acknowledge when the Office for Civil Rights does in fact live up to its name.

Source: Letter from Margaret Spellings to Steven Giseler, Pacific Legal Foundation, March 27, 2008 (.pdf).

Student Note Advocates for Title IX Compliance Without Cutting Men's Teams

In the current issue of the West Virginia Law Review, law student Ryan Smith argues that public universities in West Virginia can comply with Title IX without eliminating men's sports like track and field. I think the fact that this approach strikes students as novel shows just how pervasive the assumption that Title IX is a mandate to do otherwise.

Citation: Ryan T. Smith, Bulls Eye: How Public Universities in West Virginia Can Creatively Comply With Title IX Without the Targeted Elimination of Men's Sports Teams, 110 W.Va. L. Rev. 1373 (2008).

Physics, Engineering, and Title IX Quotas, Oh My!

The alarmist tone of John Tierney's column in today's New York Times, warning that university physics and engineering departments are about to be "Title Nined," conjures up an image of banished male scientists being consoled by ex-wrestlers as they all gaze longingly at the university campus from just outside the gates. Science is about to invoke the dreaded Q-word (as in Quota).

Indeed, government agencies that dispense federal funds are becoming increasingly concerned about the possibility of sex discrimination by universities who receive research grants.
But this doesn't mean that NASA or the National Science Foundation, for example, are about start counting scientists by sex the way that athletics departments do. Because while all education programs are governed by Title IX, only athletics programs are subject to the regulatory interpretation that measures equality by statistical proportionality (as one option among several). And this is for good reason. Only athletic departments have been granted the special dispensation to satisfy Title IX's nondiscrimination mandate by employing a "separate but equal" framework. Because athletic departments practice segregation, which history teaches is usually discriminatory, they have to compensate by proving equality in other ways, one option being statistical proportionality.

Because academic departments are not segregated, we are not likely to see anything like a "quota" forcing talented men out of science (or trapping talented women in, as Tierney seems to suggest). Rather, the application of Title IX to physics and engineering departments will more likely resemble the application of other discrimination statutes like Title VII to gender-integrated workplaces. In those applications, the focus is not on statistical parity, but on the rooting out of intentional discrimination, pretext, and "neutral" practices that have a disparate negative effect women. One has to wonder if these are practices that those who raise the red-herring of quotas secretly favor?

[h/t to BC, HW, and WM for sending along the link]

Mediation Prevents Another Lawsuit Against Fresno State

Fresno State will reportedly pay $605,000 to softball coach Margie Wright, who in 2004 filed a complaint with the Department of Education Office for Civil Rights challenging the disparity in salaries to women coaches and the facilities and opportunities provided to female athletes. Wright had not filed a civil suit against Fresno State like her colleagues Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein, but her OCR complaint -- which had raised issues similar to those cases that resulted in multi-million dollar payouts -- triggered a mediation that resulted in the settlement.

Wright testified at Vivas's trial about the sexist and homophobic culture of the Fresno State athletic department, including the "Ugly Women Athlete's Day" affair. She was prevented from mentioning how the baseball coach referred to her team as "Dykes on Spikes" but this testimony would have presumably been admissible in her own case.

Wright is the winningest softball coach in the NCAA, with 1307 career wins.

[Thanks, D!]

Snead settles

Snead State Community College in Arkansas has settled a Title IX complaint brought just under a year ago by softball players whose program had been cut to make way for women's volleyball.

The settlement was actually reached in April but this article talks about that as well as actions the college is taking to remedy some of the other gender inequities in the athletic department.

The settlement with the softball players entails the reinstatement of the program and a new field to be built on campus (the current field is not owned by the school) no later than September of 2010.

As part of the commitment to gender equity, the administration is doing some restructuring. Both the head coaching positions of women's basketball and softball were previously part-time. They will now be full-time positions.

Girls denied access to the deluxe

An unidentified student at Lake Oswego High School in Oregon has filed an OCR complaint alleging inequitable access to facilities. A site investigation is scheduled for next week when an investigator will take a look at the deluxe video analysis room outfitted with a flat screen television and couches as well as other facilities that are, according to the complaint, only available to the football team. School district administrators don't seem worried, however, stating that fixing the limited access will be easy when a screen is installed separating the room from the boys' locker room. Whether there are additional facilities issues on the campus remains to be seen.

No reinstatement for Oregon wrestling

A judge in Marian County, Oregon denied the request by the University of Oregon men's wrestling team to reinstate the program until the team goes before a court in September to state its case (which is being presented by Equity in Athletics Oregon).
When the judge issued his ruling against an injunction to reinstate the program, he noted that it was largely due to the time between when the announcement of the cut was made and when the team filed its request: about a year. But, he also noted, the denial is not an indication of what will happen when the merits of the case are presented in the fall.

Women Graduates Expect to Earn Less than Men

A recent study by Duquesne University professor Charles Wilf shows that women who graduate from college expect to be paid less than their male counterparts. The survey, called the Collegiate Seniors' Economic Expectation Research (SEER) Survey & Index, is intended to be administered annually and tracks trends in career expectations.

Fifty-one percent of women and 35 percent of men polled expect to earn under $30,000 in their first year after college. Twelve percent of women and 24 percent of men expect to earn more than $50,000. (A 2007 report by the American Association of University Women has similar findings: women earn 80 percent of what men make one year after college; that gap widens to 69 percent after 10 years.)

This gender gap in expected earnings results, at least in part, from the choice of academic major. Women who participated in the survey tended to major in the social sciences while men tended to major in fields like computer science and engineering, which generally have higher starting salaries and greater marketability. This finding only highlights the importance of encouraging women students to feel supported and mentored when pursuing fields such as computer science and engineering, something that many colleges and universities are still struggling to achieve.

Slate on "The Sex Difference Evangelists"

Slate.com's Amanda Schaffer takes on scientists and commentators who believe that certain differences in personality traits in humans are hard-wired based on gender. For women, those traits are (perhaps unsurprisingly) emotion-based and related to empathy. Though proponents of the theory of gender based differences couch their conclusions in terms of an "empathy advantage" for women and girls, Schaffer points out that the science is faulty and the conclusions drawn by the scientists are based more on societal presuppositions than on hard data.

Even though it's being touted as an "advantage," claiming girls are inherently more empathetic than boys also perpetuates a stereotype of what types of behaviors boys and girls should exhibit--probably the same stereotype that fosters the belief that single-sex educational environments ought to be so different from one another.

Coed's Parents File Suit in Oklahoma

Wagoner (Oklahoma) Public Schools have been sued by the parents of a sophomore female athlete, who allege that the schools are discriminating against female athletes by providing equipment, uniforms, facilities, and coaching that are inferior to the boys.'

According to the Muskogee Phoenix, the lawsuit "was filed by a University of Tulsa law professor and an associated Tennessee law firm on behalf of the Wagoner co-ed’s parents" (emphasis added). The fact that the local paper uses the word "coed" to refer to a female student surely underscores the importance of addressing sex discrimination in the local public schools. (In case it's not obvious, this blogger explains the problem with coed-as-a-noun far more articulately than I could.)

That law professor, by the way, has a pretty good track record -- 40-0, according to this story.

Jury Finds School District Not Liable for Teacher-Student Harassment

On Wednesday, a jury in South Dakota found that the Mitchell School District is not liable for a teacher's sexual battery of one of his students. In a lawsuit filed last year, plaintiff Brittany Plamp alleged that Andrew Tate touched her in a sexual manner while the two were alone in his classroom, and that he made sexually harassing comments to her. The jury accepted that Tate's conduct amounted to a sexual battery, but did not believe that the school district was liable for his conduct. Given the legal standard for employer's vicarious liability for an employee's tort, the jury presumably determined that Tate's conduct was not reasonably foreseeable by the school district.

This case also included a Title IX claim, as we noted when we first blogged about this case last month, when the district court magistrate denied the school district's motion for summary judgment. However, the Daily Republic reports that the Title IX claim was not part of the jury's verdict, having been dismissed after the close of testimony for lack of evidentiary support. Plamp was not allowed to call witnesses to testify of past sexual misconduct by Tate that was not reported to the school district, and the only accusations of Tate's misconduct that were directed to school officials were determined to be either too remote or too vague to give rise to knowledge that Tate posed a risk to students like Plamp.

Jury Foreperson in Johnson-Klein Case Files Retaliation Case of Her Own

Yesterday, the woman who served as the foreperson of the jury in Stacy Johnson-Klein's discrimination case against Fresno State filed a retaliation case of her own, alleging that she was fired because of her jury service. The former juror, Yolanda Cerrillo, was the assistant principal at West Park Elementary School, outside Fresno. She claims that she was fired two days after returning to work, despite exemplary service in the past.

Though it's not clear from the news report I read, it seems her claim is that she was targeted because of the verdict that the jury reached -- $19 million for Johnson-Klein (later reduced) -- and not the fact of her jury service for the two-month trial, which would have required her to miss a ton of work.

But either way, I think her claim is covered by the California law that governs public schools (Education Code s. 44037), which states:

It is unlawful for ... any school district to ... discriminate against any employee with respect to assignment, employment, promotion, or in any other manner because of such employee's service on any jury panel.

Though juror protection statutes like this are most frequently used to ensure that jurors don't get fired or lose pay for taking time off to serve on the jury, the statutory language "because of such employee's service on any jury panel" seems broad enough to cover retaliation motivated by the jury's result in addition to the act of service itself.

As in any retaliation case, the hard part for the plaintiff will be proving a causal connection between the protected activity (serving on a jury and rendering a verdict) and the adverse employment action she experienced -- especially if the school district argues convincingly that she was fired for some other, permissible, reason.

Programming Note

Sorry for the lack of fresh content lately. It's been a slow news week on the Title IX front. Kind of makes me miss the Fresno litigation and the excitement it provided to the blog last summer!

Hopefully, the mere fact of saying the words "slow news week" out loud will cause the floodgates to open, and Title IX news stories to come pouring forth!