Federal district court judges have denied defendants' motions for summary judgment in two separate sexual harassment cases this past week, paving the way for factfinding by a jury in both cases.
In Padula v. Morris, a district court in California held that the allegations by a female high school student that her male high school principal hugged her, "rubbed her shoulders and asked her what was the matter in the school hallway, and, during a disciplinary meeting, told her, 'I don't know whether to hug you or spank you' and then hugged her and swatted her on the buttocks as she walked out the door" were legally sufficient to constitute severe and pervasive harassment under Title IX. The court rejected the defendants' attempts to analogize to workplace discrimination cases and peer harassment cases in which acts of similar severity did not constitute sexual harassment, stating "what may not be offensive enough to be actionable between adults [or between children] could be actionable between an adult and a child."
In Hurd v. Delaware State University, the district court in Delaware held that the plaintiff, a female college student, could proceed against both her professor, Dr. Panda, and Delaware State University. The plaintiff had alleged "at least seven detailed instances, involving sexually explicit statements and advances" and that "because of Dr. Panda's harassment, she missed approximately six to ten classes." Concluded the court, "a reasonable jury could find that the environment was sexually hostile." Moreover, a jury could find that Delaware State responded with indifference to knowledge of the harassment, even though "Hurd did not file a formal complaint and chose, instead, to send an e-mail to Dr. Panda." Action by the plaintiff does not necessarily absolve the university of a responsibility to address the harassment, so "DSU's inaction was reasonable is a question for the jury."
Also notable in light of the Supreme Court's pending resolution of Fitzgerald v. Barnstable School Committee, the court denied plaintiffs' claims under section 1983 that Dr. Panda and Delaware State had violated her constitutional rights, calling those claims "subsumed by Title IX."
Decisions are:
Padula v. Morris, 2008 WL 4370075 (E.D. Cal. Sept. 24, 2008).
Hurd v. Delaware State Univeristy, 2008 WL 4369982 (D. Del. Sept. 25, 2008).
Tuesday, September 30, 2008
Monday, September 29, 2008
College Class for Men Only
In Grant Lopez's speech class last year, he learned how to tie a double Windsor knot, had lunch with the college president and discussed what qualities to look for in a woman.That is the lead from this article in the San Antonio News about a men-only speech class at Northeast Lakeview College, which has recently come under criticism for offering preferential treatment for male students in violation of Title IX. The professor, Archie Wortham, defends his the exclusion of women from his course saying that it allows men to "sit back and talk about men issues just among themselves." He continues, "It's kind of like, ‘What is said in Vegas stays in Vegas.' There is a measure of confidentiality.'"
As regular readers of this blog well know, I am very dubious of single-sex education for its tendency to reinforce gender stereotypes. And the article's description of Wortham's class proves my point. What stays in Vegas? Why does any issue that's suitable and appropriate for classroom discussion -- a standard that surely excludes the "what qualities to look for in a woman" discussion -- need a measure of confidentiality? This appears to me just another grown up version of the "girls keep out" clubhouse -- only these club members are adults, in a publically funded educational institution. This clubhouse, operating under the loose aegis of an educational purpose, conveys to the men and women of Northeast Lakeview College that men need their space because women will hold them back, oppress, nag, and silence them. Not to mention that female students aren't equally deserving of the networking opportunities afforded to this class, such as lunch with the college president. And last but not least, not to mention the heterosexist assumptions that all men and only men will want to talk about certain stuff like tying ties and what to look for in a woman (again, questioning the academic value of those two examples).
As Bernice Sandler and others quoted in the article explain, this class is on shaky legal grounds and I don't expect that the college can enforce an enrollment restriction on women over a legal challenge. In the meanwhile, it is good that folks are calling attention to this course, so that it can serve as a starting point for a discussion about the messages that it sends.
Great Title IX Bibliography
Looking for a complete list of Title IX cases, statutes, regulations, studies, articles, books and websites? Check out this new Title IX bibliography by librarian Christine Hepler of the University of Maine School of Law.
Saturday, September 27, 2008
Add to the settlement column...
...former San Diego State University swim coach Deena Deardruff Schmidt.
We can also add Schmidt to the million plus settlement club. SDSU agreed to a $1.45 million settlement in the case. Schmidt did not comment after the settlement was announced (her attorney called it a "fair and reasonable" result), but SDSU is patting itself on the back saying:
“The parties agreed that this settlement recognizes the substantial efforts by Schmidt to implement, develop and improve the women's swimming program at SDSU, and reflects her contributions as a coach,” SDSU said in a statement. “The case was settled at its early stages before any determination of liability was considered or reached.”
Of course had the university recognized her efforts and their own sexism earlier, they wouldn't be paying out $1.45 million. The article linked above breaks down the amount. It also does well to note the trend in settlements and jury awards going to coaches charging discrimination and retaliation.
You can read some of the history of the case in the article or our coverage of it here.
We can also add Schmidt to the million plus settlement club. SDSU agreed to a $1.45 million settlement in the case. Schmidt did not comment after the settlement was announced (her attorney called it a "fair and reasonable" result), but SDSU is patting itself on the back saying:
“The parties agreed that this settlement recognizes the substantial efforts by Schmidt to implement, develop and improve the women's swimming program at SDSU, and reflects her contributions as a coach,” SDSU said in a statement. “The case was settled at its early stages before any determination of liability was considered or reached.”
Of course had the university recognized her efforts and their own sexism earlier, they wouldn't be paying out $1.45 million. The article linked above breaks down the amount. It also does well to note the trend in settlements and jury awards going to coaches charging discrimination and retaliation.
You can read some of the history of the case in the article or our coverage of it here.
Friday, September 26, 2008
Ex-Player Brings Homophobia Case Against SMU Coach
The Dallas News reports that a former Southern Methodist University basketball player, Jennifer Colli, has filed a lawsuit in federal court against the university and head coach Rhonda Rompola. She alleges that Rompola questioned her and other players about their sexual orientations, and then revoked her scholarship when she complained to the athletic director about it.
Colli, who had a relationship with a teammate while she played for Rompola, alleges that Rompola expressed her disapproval of gay relationships at the very first team meeting she attended. She also states that the Rompola frequently made reference to her players' sex lives, such as mentioning that "people were not performing well because they had not 'gotten any' the night before" and that she asked Colli directly about her relationship with another player "and what their plans were for the year to come." Two months after Colli complained to the athletic director, Rompola terminated Colli's scholarship, on the grounds that she had committed "serious misconduct" by giving "unverified" information about Rompola to the AD. Colli appealed the scholarship decision but lost. She transfered to and played for a junior college, where some DI coaches expressed interest in recruiting her. However, Colli maintains, those coaches changed their minds (one even revoked a scholarship offer), presumably after talking to Rompola.
Colli also submitted affidavits from her teammates attesting to their knowledge of the fact that Rompola herself had a relationship with a female assistant coach before marrying the men's basketball coach, who now coaches elsewhere.
It will be interesting to see what facts emerge as this case goes forward. Were Rompola's comments motivated by a valid coaching concerns, such as the effect of relationships between players on the overall team dynamic? Or was Rompola pressuring her players to join her on the straight and narrow? If so, was she acting under pressure to neutralize the team's reputation for homosexuality, which Rompola's own prior prior relationship with a female assistant coach might have created? Most significantly to the legal case, was Rompola's decision to terminate Colli's scholarship actually retaliatory, or did she have a valid reason for doing so? We will stay tuned!
[Via Pat Griffin's LGBT Sports Blog]
Colli, who had a relationship with a teammate while she played for Rompola, alleges that Rompola expressed her disapproval of gay relationships at the very first team meeting she attended. She also states that the Rompola frequently made reference to her players' sex lives, such as mentioning that "people were not performing well because they had not 'gotten any' the night before" and that she asked Colli directly about her relationship with another player "and what their plans were for the year to come." Two months after Colli complained to the athletic director, Rompola terminated Colli's scholarship, on the grounds that she had committed "serious misconduct" by giving "unverified" information about Rompola to the AD. Colli appealed the scholarship decision but lost. She transfered to and played for a junior college, where some DI coaches expressed interest in recruiting her. However, Colli maintains, those coaches changed their minds (one even revoked a scholarship offer), presumably after talking to Rompola.
Colli also submitted affidavits from her teammates attesting to their knowledge of the fact that Rompola herself had a relationship with a female assistant coach before marrying the men's basketball coach, who now coaches elsewhere.
It will be interesting to see what facts emerge as this case goes forward. Were Rompola's comments motivated by a valid coaching concerns, such as the effect of relationships between players on the overall team dynamic? Or was Rompola pressuring her players to join her on the straight and narrow? If so, was she acting under pressure to neutralize the team's reputation for homosexuality, which Rompola's own prior prior relationship with a female assistant coach might have created? Most significantly to the legal case, was Rompola's decision to terminate Colli's scholarship actually retaliatory, or did she have a valid reason for doing so? We will stay tuned!
[Via Pat Griffin's LGBT Sports Blog]
Thursday, September 25, 2008
"The Title IX Blame Game Should End"
...said Marj Snyder of the Women's Sports Foundation to the Wall Street Journal in an article about the Foundation's new study on college sport participation.
Consistent with prior studies (e.g.), the WSF report concludes that both men's and women's participation has increased in the last 25 years, which itself should neutralize criticism that Title IX hurts men. It is true that the number of teams in certain men's sports have declined and that many schools today offer fewer teams for men than for women, but since men's teams (e.g., football) offer more opportunities, no net loss in participation opportunities has occurred. The report also points out that the only years when men's athletic participation declined was in 1984-87, a period when Title IX did not apply at all to college athletics, due to a Supreme Court decision that was later negated by Congress.
The report also demonstrates that universities have more often responded to Title IX by adding women's teams than by cutting men's teams. Schools that weren't in compliance in 1995-96, for example, were less likely to reduce men's opportunities and more likely to add women's opportunities than those who were. The report also presents financial data showing that rapidly increasing athletic department expenditures, which may cause the financial straits that cause schools to make cuts, are concentrated at Division I instituitons in football and men's basketball rather than women's sports.
Last the report considers a number of factors that may have influenced the realignment of sports offerings. For instance, increased participation in men's and women's lacrosse may be due to the perception of universities that lacrosse players possess traits that universities value, such as stronger academic preparation and families with higher income levels. The higher injury rate associated with gymnastics, coupled with the rising cost of health care, helps explain the declining number of teams in that sport, while the decline in tennis teams correlates to prevalence of international players, which might make the sport less appealing to schools, especially state schools, that need to serve a local market.
The report is being criticized by the College Sport Council, an advocacy group for men's sports, which argues that the WSF report relies on unverifiable data from the NCAA. However, according to the report, even using data collected by the Department of Education under the Equity in Athletics Disclosure Act, men's opportunities have still increased 5.1% in the last 25 years (compared to the 6.3% increase you get using NCAA's data).
Consistent with prior studies (e.g.), the WSF report concludes that both men's and women's participation has increased in the last 25 years, which itself should neutralize criticism that Title IX hurts men. It is true that the number of teams in certain men's sports have declined and that many schools today offer fewer teams for men than for women, but since men's teams (e.g., football) offer more opportunities, no net loss in participation opportunities has occurred. The report also points out that the only years when men's athletic participation declined was in 1984-87, a period when Title IX did not apply at all to college athletics, due to a Supreme Court decision that was later negated by Congress.
The report also demonstrates that universities have more often responded to Title IX by adding women's teams than by cutting men's teams. Schools that weren't in compliance in 1995-96, for example, were less likely to reduce men's opportunities and more likely to add women's opportunities than those who were. The report also presents financial data showing that rapidly increasing athletic department expenditures, which may cause the financial straits that cause schools to make cuts, are concentrated at Division I instituitons in football and men's basketball rather than women's sports.
Last the report considers a number of factors that may have influenced the realignment of sports offerings. For instance, increased participation in men's and women's lacrosse may be due to the perception of universities that lacrosse players possess traits that universities value, such as stronger academic preparation and families with higher income levels. The higher injury rate associated with gymnastics, coupled with the rising cost of health care, helps explain the declining number of teams in that sport, while the decline in tennis teams correlates to prevalence of international players, which might make the sport less appealing to schools, especially state schools, that need to serve a local market.
The report is being criticized by the College Sport Council, an advocacy group for men's sports, which argues that the WSF report relies on unverifiable data from the NCAA. However, according to the report, even using data collected by the Department of Education under the Equity in Athletics Disclosure Act, men's opportunities have still increased 5.1% in the last 25 years (compared to the 6.3% increase you get using NCAA's data).
Wednesday, September 24, 2008
New facilities will resolve WI complaint
Resolution of a 2006 complaint filed anonymously regarding the situation at Arrowhead High School in Wisconsin is forthcoming. The OCR investigation of the complaint that alleged discrimination because the girls' field hockey team did not receive equitable resources compared to boys' teams at the high school. Improvements to the field hockey field as well as the softball field will take care of the situation according to the school superintendent.
Implications for Title IX In Transgender Plaintiff's Victory in Landmark Title VII Case?
Last week a federal district judge in D.C. held that the Library of Congress unlawfully discriminated against Diane Schroer when it rescinded the job offer made to her prior to learning of her plans to transition from male to female. The ACLU attorneys who represented Schroer advanced and prevailed on two theories to explain why she should win under Title VII, the federal statute that prohibits employment discrimination on the basis of sex (among other categories, but not gender or gender identity). First, invoking Price Waterhouse v. Hopkins, in which the Supreme Court held that discrimination on the basis of gender nonconformity constitutes sex discrimination (at least in some cases), they argued that the Library's decision was unlawfully motivated by Schroer's failure to conform with stereotypical male appearance and behavior. Second, they argued that discrimination against Schroer because of her (trans)gender identity directly constitutes discrimination on the basis of sex.
The judge's decision to agree with the ACLU's first argument is good news because it joins and many courts that have read Price Waterhouse broadly to prohibit employers from requiring employees to conform with sex stereotypes, in contrast to some courts that have read it narrowly to prohibit employers from doing so only when the employee's compliance would also result in a negative consequence on the employee. (Adopting this reasoning, a court could hold that Schroer could not recover on a sex stereotyping theory because no negative employment consequence would have befallen her if she had decided to continue to present as David). The more decisions that adopt a broad view of Price Waterhouse, the easier it will be for plaintiffs to argue that those who invoke the narrow reading are outliers.
The court's decision to agree with the ACLU's sex theory is great news because it is the first time a court has held that discrimination against transgender employees is sex discrimination per se. The court used a helpful analogy to explain why this is so. Take an employer who doesn't discriminate against either Christians or Jews, but is biased against religious converts and fires an employee from converting from one to the other. Surely this is discrimination "on the basis of religion." Similarly, the court reasoned, an employer who hires men and women on equal terms, but won't hire a person who is or has transitioned from one sex to the other is discrimination on the basis of sex.
What implications might this decision have for Title IX plaintiffs? Title VII cases are often invoked by courts deciding Title IX issues, so Title IX plaintiffs might invoke the Schroer case to support arguments in support of gender nonconforming and transgender students and student-athletes (especially if Schroer is upheld on appeal, if there is one, or if it is cited favorably by other courts). For example, a plaintiff like Jennifer Harris, who had alleged that she was kicked off the Penn State basketball team for essentially being too butch, could have included this case among others to support her argument that she was penalized for failing to conform to her coach's stereotypes about appropriate dress and behavior for women. Even more significantly, the novel second part of the decision could provide support to transgender students who might want to use Title IX to challenging discrimination in the designation of dorms, facilities (see, e.g.), sports teams, etc., that fail to accommodate them.
The judge's decision to agree with the ACLU's first argument is good news because it joins and many courts that have read Price Waterhouse broadly to prohibit employers from requiring employees to conform with sex stereotypes, in contrast to some courts that have read it narrowly to prohibit employers from doing so only when the employee's compliance would also result in a negative consequence on the employee. (Adopting this reasoning, a court could hold that Schroer could not recover on a sex stereotyping theory because no negative employment consequence would have befallen her if she had decided to continue to present as David). The more decisions that adopt a broad view of Price Waterhouse, the easier it will be for plaintiffs to argue that those who invoke the narrow reading are outliers.
The court's decision to agree with the ACLU's sex theory is great news because it is the first time a court has held that discrimination against transgender employees is sex discrimination per se. The court used a helpful analogy to explain why this is so. Take an employer who doesn't discriminate against either Christians or Jews, but is biased against religious converts and fires an employee from converting from one to the other. Surely this is discrimination "on the basis of religion." Similarly, the court reasoned, an employer who hires men and women on equal terms, but won't hire a person who is or has transitioned from one sex to the other is discrimination on the basis of sex.
What implications might this decision have for Title IX plaintiffs? Title VII cases are often invoked by courts deciding Title IX issues, so Title IX plaintiffs might invoke the Schroer case to support arguments in support of gender nonconforming and transgender students and student-athletes (especially if Schroer is upheld on appeal, if there is one, or if it is cited favorably by other courts). For example, a plaintiff like Jennifer Harris, who had alleged that she was kicked off the Penn State basketball team for essentially being too butch, could have included this case among others to support her argument that she was penalized for failing to conform to her coach's stereotypes about appropriate dress and behavior for women. Even more significantly, the novel second part of the decision could provide support to transgender students who might want to use Title IX to challenging discrimination in the designation of dorms, facilities (see, e.g.), sports teams, etc., that fail to accommodate them.
Tuesday, September 23, 2008
Fresno State adds lacrosse
In need of rectifying the disproportionate amount of scholarship dollars going to men and women, Fresno State has added--rather hastily it seems--women's lacrosse to its slate of intercollegiate sports. The decision was made last winter, and the season starts this spring. The university recruited Sue Behme who had been head coach at Nazareth College (a DII school). Her reaction when they offered her the position: "What, are you guys crazy?"
I thought she meant because, you know, she would never, ever go to Fresno State with its infamous history of sexism. But no, she was referring to the abbreviated timeline for starting--from scratch--a varsity team. The article describes Behme as a "live wire." Not sure how well that will go over in the Fresno State culture. Granted certain leadership positions have undergone change, but the school seems to have some issues with women who speak their minds, or actually just with women generally if you look back at some of the evidence.
I wish Behme and her fledgling team the best of luck. And I am heartened that Fresno State is dealing with some compliance issues. But I think I am going to remain a little subdued in my praise and excitement for now.
I thought she meant because, you know, she would never, ever go to Fresno State with its infamous history of sexism. But no, she was referring to the abbreviated timeline for starting--from scratch--a varsity team. The article describes Behme as a "live wire." Not sure how well that will go over in the Fresno State culture. Granted certain leadership positions have undergone change, but the school seems to have some issues with women who speak their minds, or actually just with women generally if you look back at some of the evidence.
I wish Behme and her fledgling team the best of luck. And I am heartened that Fresno State is dealing with some compliance issues. But I think I am going to remain a little subdued in my praise and excitement for now.
Thursday, September 18, 2008
OCR Finds Title IX Violations at San Diego Mesa College
The Department of Education's Office of Civil Rights validated the premise of a discrimination lawsuit filed by two former coaches when it confirmed "substantial and unjustified" Title IX violations at San Diego Mesa College this week. The coaches, Lorri Sulpizio and Cathy Bass, sued the college in July, alleging that they were fired in retaliation for complaining about gender inequities within the athletic department as well as for their sexual orientation. OCR lent support to the retalition claim when it found Mesa had discriminated against female athletes in the scheduling of games and practices, access to facilities and locker rooms, and access to medical training. This is consistent with the allegations by Sulpizio and Bass, who reported, for example, that their women's basketball team was frequently disrupted in their practice time by the men's football team and sometimes had to yield their locker room to visiting football teams. OCR also found that that softball, a women's sport, was the only sport that had to share a field with another sport (men's and women's soccer). However, OCR did not find sufficient evidence to conclude that Mesa was discrimination against female athletes in terms of access to coaching, equipment and supplies, and support services.
Mesa has entered into an agreement with OCR to resolve the inequities identified by OCR. It will hire an additional trainer to improve medical treatment for female athletes, it will avoid locker room scheduling conflicts posed by non-conference play, and it will construct a softball field by spring.*
Meanwhile, the lawsuit by Sulpizio and Bass against Mesa remains pending. Technically, the plaintiffs did not need OCR to validate their allegations about discrimination in the athletic department, since they only need to have reasonably believed that Mesa was violating Title IX in order to be protected from retaliation. However, it certainly plays better for a jury for the plaintiffs to say that they were fired for complaining about actual violation, rather than perceived discrimination.
* I'll be impressed if Mesa can really construct a softball field in such a short time. I am going to San Diego for a conference in January -- I think I should head over to the college while I'm there to check on the progress!
[Thanks, Courtney!]
Mesa has entered into an agreement with OCR to resolve the inequities identified by OCR. It will hire an additional trainer to improve medical treatment for female athletes, it will avoid locker room scheduling conflicts posed by non-conference play, and it will construct a softball field by spring.*
Meanwhile, the lawsuit by Sulpizio and Bass against Mesa remains pending. Technically, the plaintiffs did not need OCR to validate their allegations about discrimination in the athletic department, since they only need to have reasonably believed that Mesa was violating Title IX in order to be protected from retaliation. However, it certainly plays better for a jury for the plaintiffs to say that they were fired for complaining about actual violation, rather than perceived discrimination.
* I'll be impressed if Mesa can really construct a softball field in such a short time. I am going to San Diego for a conference in January -- I think I should head over to the college while I'm there to check on the progress!
[Thanks, Courtney!]
Wednesday, September 17, 2008
Busy guy...
...that Warren Paboojian of Fresno, California. He represented both Stacy Johnson-Klein and Diane Milutinovich in their Title IX lawsuits against Fresno State--successfully with both plaintiffs receiving either substantial settlements or jury awards. (Click the Fresno State tag for the whole Fresno State saga.)
And now he has a new client, former Exeter High School girls' basketball coach Linda Wachter. Wachter was fired last spring and she believes it was in retaliation for complaining about (the lack of) gender equity. She is also citing a hostile work environment and asking for an as-yet-unknown amount of damages.
Eerily similar to some of the other Fresno State cases, it appears there are some disgruntled players on Wachter's former team. Though they have not come forward with specific allegations against anyone unlike the players who, for example, spoke out against Johnson-Klein at her trial.
And now he has a new client, former Exeter High School girls' basketball coach Linda Wachter. Wachter was fired last spring and she believes it was in retaliation for complaining about (the lack of) gender equity. She is also citing a hostile work environment and asking for an as-yet-unknown amount of damages.
Eerily similar to some of the other Fresno State cases, it appears there are some disgruntled players on Wachter's former team. Though they have not come forward with specific allegations against anyone unlike the players who, for example, spoke out against Johnson-Klein at her trial.
Tuesday, September 16, 2008
I stand corrected
Welch Suggs was nice enough to gently correct me regarding my concerns over the portrayal of the financial doings of the University of Tennessee athletic department. Or should I say athletic departments--plural. I was surprised--clearly--to learn that UT still keeps separate men's and women's athletic departments. (Suggs mentions it briefly on page 98 of A Place on the Team.)Thus it is theoretically possible that their student activity fee goes to the women's athletic department. But whether it is the whole thing or part or even if part goes to the men's department is unknown.
Of course, just because there are two athletic departments does not make the accounting practices any clearer. It could even make things more complicated.
If I, or my cohorts, find out more, I will update.
Of course, just because there are two athletic departments does not make the accounting practices any clearer. It could even make things more complicated.
If I, or my cohorts, find out more, I will update.
Saturday, September 13, 2008
Basketball Star Age 12 and "Going on LeBron"
Two of my favorite blogs (see here and here) have already posted about Elizabeth Weil's profile in the New York Times of the 12-year-old basketball phenom, Jaime Nared. You may recall Nared from the controversy that erupted last spring after she was excluded from a private boys' league in Oregon because she always beat them (another of my favorite blogs covered that story, here). Today Nared is playing against high school-age girls in an elite private program. But that too is controversial. Those players want to play college ball in the near future. They, and their parents, resent having to share valuable court time with a 12-year-old, even one who's clearly poised to take the basketball world by a storm.
How do we accommodate athletes like Nared? As Weil points out, athletic talent is not the product of biology alone. "According to sports scientists, the most significant predictor of an athlete’s skill is the time spent in practice," the article states. Kinesiologist Jean Côté attributes athletic ability to "about 10,000 hours" of practice. Nared, the article points out, started playing basketball at a very young age -- so young that when she was tossed in with other 9-year-olds, who were just learning the game, it was already clear that she could never fairly compete against girls her age.
Because the unusual talent of Nared and her fellow phenom, 14-year-old, 6-2 Kailee Johnson, is not a simply the product of a statistically aberrant genetics, but training, we will see an increase in the number of phenomenal female athletes as early-age training becomes more popular and accessible to girls. As these athletes challenge the assumption of female inferiority that justifies segregation of athletics based on sex, we will be forced to grapple with a difficult question: What measure of equality will we use as the separate-but-equal framework, a measure of nondiscrimination that has been satisfactory in the wake of Title IX, becomes increasingly obsolete?
How do we accommodate athletes like Nared? As Weil points out, athletic talent is not the product of biology alone. "According to sports scientists, the most significant predictor of an athlete’s skill is the time spent in practice," the article states. Kinesiologist Jean Côté attributes athletic ability to "about 10,000 hours" of practice. Nared, the article points out, started playing basketball at a very young age -- so young that when she was tossed in with other 9-year-olds, who were just learning the game, it was already clear that she could never fairly compete against girls her age.
Because the unusual talent of Nared and her fellow phenom, 14-year-old, 6-2 Kailee Johnson, is not a simply the product of a statistically aberrant genetics, but training, we will see an increase in the number of phenomenal female athletes as early-age training becomes more popular and accessible to girls. As these athletes challenge the assumption of female inferiority that justifies segregation of athletics based on sex, we will be forced to grapple with a difficult question: What measure of equality will we use as the separate-but-equal framework, a measure of nondiscrimination that has been satisfactory in the wake of Title IX, becomes increasingly obsolete?
Friday, September 12, 2008
Oral Arguments Scheduled in Fitzgerald
As our regular readers know, the Supreme Court has a Title IX case on the docket this Term -- its first since Jackson in 2005. Earlier this week, the Court announced that oral arguments in Fitzgerald v. Barnstable School Committee have been set for Tuesday, December 2.
The legal issue in this case is whether plaintiffs like the Fitzgeralds -- whose daughter was sexually harassed on the school bus -- can claim that the school district violated their daughter's rights under the Constitution's Equal Protection Clause by bringing a lawsuit under 42 U.S.C. 1983, or whether the possibility of a 1983 claim is preempted by the remedy provided by Title IX. (The issue is described remarkably well in this article in the Cape Cod Times, as well as in our prior posts about this case.) The National Women's Law Center recently filed an amicus brief arguing that 1983 was passed to give plaintiffs access to the courts for violations of their constitutional rights and should remain available to plaintiffs absent a clear indication that Congress has intended to replace that remedy with an identical one provided in another statute. While Title IX and the Equal Protection Clause overlap in some of the ways it protects plaintiffs from certain forms of sex discrimination by some defendants, Title IX's coverage and remedial scheme is sufficiently different from the private enforcement of the Equal Protection Clause. Thus, Congress could not have intended for Title IX to preempt plaintiffs' access to remedies for constitutional violations under 1983. We'll have to wait until December to see if Justices seem persuaded to agree.
P.S. Title IX Blog's fondest wish is to live-blog an Oral Argument at the Supreme Court and would be eternally grateful to anyone out there who can score a ticket to the gallery.
The legal issue in this case is whether plaintiffs like the Fitzgeralds -- whose daughter was sexually harassed on the school bus -- can claim that the school district violated their daughter's rights under the Constitution's Equal Protection Clause by bringing a lawsuit under 42 U.S.C. 1983, or whether the possibility of a 1983 claim is preempted by the remedy provided by Title IX. (The issue is described remarkably well in this article in the Cape Cod Times, as well as in our prior posts about this case.) The National Women's Law Center recently filed an amicus brief arguing that 1983 was passed to give plaintiffs access to the courts for violations of their constitutional rights and should remain available to plaintiffs absent a clear indication that Congress has intended to replace that remedy with an identical one provided in another statute. While Title IX and the Equal Protection Clause overlap in some of the ways it protects plaintiffs from certain forms of sex discrimination by some defendants, Title IX's coverage and remedial scheme is sufficiently different from the private enforcement of the Equal Protection Clause. Thus, Congress could not have intended for Title IX to preempt plaintiffs' access to remedies for constitutional violations under 1983. We'll have to wait until December to see if Justices seem persuaded to agree.
P.S. Title IX Blog's fondest wish is to live-blog an Oral Argument at the Supreme Court and would be eternally grateful to anyone out there who can score a ticket to the gallery.
Thursday, September 11, 2008
Settlement in Nevada
I really hope someone in this Nevada soccer seasons case gets a Title IX expert on board soon. Because I was shocked to read that the Nevada Interscholastic Activities Association (NIAA) has settled with parent Eric Johnson of southern Nevada who claimed that moving girls' soccer (his daughter Emma plays) from the winter to the fall (when she plays volleyball, but when the rest of the state plays soccer) is a Title IX violation. Johnson said such a move would limit the number of opportunities girls have to play winter sports and give boys more winter sport opportunities. But as we have said before, it's about the aggregate number of opportunities, not how they break down by season. And the season issue should really be about whether the girls experience adverse effects from the placement of the season. Johnson argues that girls who play winter soccer are denied the opportunity for a state championship. The settlement has NIAA agreeing to, for another year, hold a championship for the southern part of the state. But one could argue that this could have a negative effect. The majority of high school state soccer championships are in the fall. This is also when recruiting is done. Do the girls in southern Nevada lose out because their championship is not viewed as legitimate or as competitive? (Granted this all relies on a dominant version of sport that fails to disrupt notions of what competition is and should be or question the value and goals of interscholastic high school sports, but since the court isn't doing this, I am not going to either--for now.)
It could be that NIAA is just biding its time until Emma Johnson graduates. The article linked above does note that there will be a continuing exploration of the Title IX ramifications including the possibility of adding a girls' winter sport.
It could be that NIAA is just biding its time until Emma Johnson graduates. The article linked above does note that there will be a continuing exploration of the Title IX ramifications including the possibility of adding a girls' winter sport.
Oklahoma school paying attention
Administrators at Westmoore High School in Oklahoma say they are taking the recent Title IX complaint filed by two sets of parents of softball players very seriously. Moore school district superintendent Debbie Arato said she is thoroughly reviewing the complaint which lists eight points of concern by the parents, including inequitable facilities.
Arato says the issue of the softball facilities, which the complainants claim are inferior to those used by the baseball team, is something they are aware of and had planned on addressing.
Nothing like a lawsuit to get people thinking about turning plans into actions.
Arato says the issue of the softball facilities, which the complainants claim are inferior to those used by the baseball team, is something they are aware of and had planned on addressing.
Nothing like a lawsuit to get people thinking about turning plans into actions.
Wednesday, September 10, 2008
The (mis)management of information
Sometimes I am casually reading an article and have to just stop in disbelief. No, they can't possibly be saying what I think they are saying.
Here is such a paragraph in an article about athletics at the University of Tennessee:
University of Tennessee is different than most, however. It is one of a handful of public university athletics departments that do not receive state dollars or money from the university's academic side. In short, whatever money UT athletics brings in, that's what it can spend. The only exception is $1 million in student fees that are used to support women's sports.
So many things going on here, it's hard to figure out where to begin.
The first thing to note is that it is very difficult to prove definitively what is true or false or a just a little bit off in the above statement. This is because, as we--and so many others--have mentioned before, accounting practices in athletic departments are not uniform across institutions and generally are quite confusing if not outright misleading.
Second, there are some things we can probably figure out by what little information we have. The above paragraph makes it seem like men's sports are self-supporting and women's sports rely on student fees to exist. This is not the case. There are not two separate athletic departments. They all take from the same pool. Football at UT does appear to make money (this does not take into consideration costs associated with facilities (energy, upkeep, staffing, etc.) but that does not mean that these revenues support say men's tennis over women's track. Whether it's really true that UT athletics takes no money from the state or the "academic side" of things could be true. (According to the numbers at the Department of Education website they operate about 3 million in the black.) But there is a large chunk of non-gender and non-sport specific revenues (of which I would assume the student fee is a part) that it would be difficult to find a complete explanation for. Fees, boosters, donors, etc. is my guess. But again it is revenue not specifically generated by one sport or gender and is not applied to one gender or sport.
And lastly, the paragraph reads like a fact--unequivocal. Did this information come from the university and/or the athletic department? Did the writer/editors, using information provided by the university, just presume that student fees only support women's sports? Which way the misinformation flowed may be difficult to discern. And it is likely that it is flowing in all sorts of directions. Because the problems exist at multiple levels. Stats and data are presented as neutral. They are read and interpreted by people who believe they too are neutral/unbiased. And then we get incidences like the above and, of course, all the other information presented as fact to people who really want to believe a particular version of how intercollegiate athletics operate.
Here is such a paragraph in an article about athletics at the University of Tennessee:
University of Tennessee is different than most, however. It is one of a handful of public university athletics departments that do not receive state dollars or money from the university's academic side. In short, whatever money UT athletics brings in, that's what it can spend. The only exception is $1 million in student fees that are used to support women's sports.
So many things going on here, it's hard to figure out where to begin.
The first thing to note is that it is very difficult to prove definitively what is true or false or a just a little bit off in the above statement. This is because, as we--and so many others--have mentioned before, accounting practices in athletic departments are not uniform across institutions and generally are quite confusing if not outright misleading.
Second, there are some things we can probably figure out by what little information we have. The above paragraph makes it seem like men's sports are self-supporting and women's sports rely on student fees to exist. This is not the case. There are not two separate athletic departments. They all take from the same pool. Football at UT does appear to make money (this does not take into consideration costs associated with facilities (energy, upkeep, staffing, etc.) but that does not mean that these revenues support say men's tennis over women's track. Whether it's really true that UT athletics takes no money from the state or the "academic side" of things could be true. (According to the numbers at the Department of Education website they operate about 3 million in the black.) But there is a large chunk of non-gender and non-sport specific revenues (of which I would assume the student fee is a part) that it would be difficult to find a complete explanation for. Fees, boosters, donors, etc. is my guess. But again it is revenue not specifically generated by one sport or gender and is not applied to one gender or sport.
And lastly, the paragraph reads like a fact--unequivocal. Did this information come from the university and/or the athletic department? Did the writer/editors, using information provided by the university, just presume that student fees only support women's sports? Which way the misinformation flowed may be difficult to discern. And it is likely that it is flowing in all sorts of directions. Because the problems exist at multiple levels. Stats and data are presented as neutral. They are read and interpreted by people who believe they too are neutral/unbiased. And then we get incidences like the above and, of course, all the other information presented as fact to people who really want to believe a particular version of how intercollegiate athletics operate.
Tuesday, September 09, 2008
Oklahoma update
Thanks to one of the plaintiffs (who emailed us) in the case of inequities regarding the softball team at Westmoore High School in Oklahoma we now know a little more. There is both a lawsuit pending and a complaint filed with OCR. I suspect we will hear more about this soon.
Monday, September 08, 2008
Inequality in Oklahoma softball?
It's hard to believe that there are issues of equity in softball in the state of Oklahoma. I mean, Oklahoma, where the College World Series is held every year. It's a state that would seem to prize softball. But apparently the value the sport has at the collegiate level has not had a universal trickle-down effect. (Not so surprising given the flaws of most trickle-down theories.)
Two sets of parents are complaining about inequities concerning the softball program at Westmoore High School. Specifically there are concerns over the amount of money spent on baseball versus softball and facilities.
The article linked above seems to use complaint and lawsuit interchangeably so I am not certain as to what exactly will happen next: an OCR investigation or a legal hearing.
Apparently (informal) complaints and concerns have been issued for over a decade with little change. One of the parents involved said this about the facilities issues:
"You look one way and see the baseball field. You look the other and see the softball field. Not much more needs to be said.”
It sums up perfectly the reason we have given in the past for the seeming surge in complaints related to softball: it's right there in front of your eyes. And administrators are being forced to open theirs.
Two sets of parents are complaining about inequities concerning the softball program at Westmoore High School. Specifically there are concerns over the amount of money spent on baseball versus softball and facilities.
The article linked above seems to use complaint and lawsuit interchangeably so I am not certain as to what exactly will happen next: an OCR investigation or a legal hearing.
Apparently (informal) complaints and concerns have been issued for over a decade with little change. One of the parents involved said this about the facilities issues:
"You look one way and see the baseball field. You look the other and see the softball field. Not much more needs to be said.”
It sums up perfectly the reason we have given in the past for the seeming surge in complaints related to softball: it's right there in front of your eyes. And administrators are being forced to open theirs.
Wednesday, September 03, 2008
Private School League Benches Female Kicker
Via New Moon Girls blog, I found this story from ESPN.com about Kacy Stuart, a female freshman at New Creation Center, a private high school near Atlanta, who was recently dismissed from her position as kicker for the school's football team, after a ruling by the private school conference to which New Creation belongs.
The article points out that Kacy had no trouble playing football when she attended public middle school, but it is wrong (sorry, NMG blog!) to credit Title IX for Kacy's public school football career. Since football is a contact sport, Title IX does not require schools to allow girls to try out. Rather, it is the Constitution's Equal Protection Clause that has in many cases required schools and other public entities to give girls equal access to football and other contact sports. But the trouble for Kacy is that the Equal Protection Clause does not govern private schools, so the Georgia Football League can discriminate all it wants.
This case is a good example of why Title IX's contact sports exemption is harmful and should be repealed. When it comes to private schools -- at least, those private schools that accept federal funds in some form, as many do -- Title IX is the only source of federal law that prohibits discrimination against students on the basis of sex. Thus, the statute should be comprehensive in its coverage of sports, and not exempt football due to some outdated, essentialist idea that it is categorically inappropriate for girls.
The article points out that Kacy had no trouble playing football when she attended public middle school, but it is wrong (sorry, NMG blog!) to credit Title IX for Kacy's public school football career. Since football is a contact sport, Title IX does not require schools to allow girls to try out. Rather, it is the Constitution's Equal Protection Clause that has in many cases required schools and other public entities to give girls equal access to football and other contact sports. But the trouble for Kacy is that the Equal Protection Clause does not govern private schools, so the Georgia Football League can discriminate all it wants.
This case is a good example of why Title IX's contact sports exemption is harmful and should be repealed. When it comes to private schools -- at least, those private schools that accept federal funds in some form, as many do -- Title IX is the only source of federal law that prohibits discrimination against students on the basis of sex. Thus, the statute should be comprehensive in its coverage of sports, and not exempt football due to some outdated, essentialist idea that it is categorically inappropriate for girls.
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