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).

Arizona State May Be Liable for Rape by Football Player

In April we posted about a pending Title IX case against Arizona State stemming from a rape committed by a football player, Darnel Henderson, against another student. The plaintiff, identified only as J.K., sued ASU, alleging that in light of university officials' actual knowledge of prior instances of sexual harassment committed by Henderson, they acted unlawfully with deliberate indifference in failing to supervise him or take other corrective action that would have prevented his act of rape against her.

Specifically, Henderson had been kicked out the Summer Bridge program (a transition program for incoming freshmen) for committing various acts of sexual harassment and other behavior problems. His behavior was so threatening to female residence hall staff members in Henderson's dorm that one actually resigned her position and another moved out on his account. Even though Henderson was expelled from the summer program, he was allowed to return to ASU as a student that fall and to join the ASU football team thanks to the intervention of the football coach, Dirk Koetter. Moreover, due to Koetter's policy that players live in on-campus housing, Henderson was assigned to the same dorm from which he had been expelled earier that summer. Notwithstanding subsequent instances of of behavior problems, Henderson receievd "no special supervision, monitoring, mentoring, counseling or guidance; a zero-tolerance plan [that had been promised by Koetter] was never implemented." In the spring of his freshman year, Henderson raped plaintiff J.K., who lived in the same dorm. Though criminal charges were not brought, ASU's internal investigation concluded that it was "more likely than not" that Henderson assaulted J.K.

In considering ASU's motion for summary judgment of J.K.'s claim that it violated Title IX, the federal district court rejected ASU's argument that it responded reasonably to Henderson's disruptive, sexually harassing behavior in the summer program. Even though Henderson was kicked out of the summer program, his expulsion was not reported to the Judicial Affairs Board as required, his return to ASU and to the football team was facilitated by the football coach, he was allowed to live in the dorms without supervision, and he was not disciplined by the football coach with a "three strikes" policy, as the coach had promised in securing Henderson's reentry to ASU. This response, said the court, is not clearly unreasonable as a matter of law, and thus J.K.'s case should proceed to trial.

The court also denied the football coach Dirk Koetter's motion for summary judgment, leaving open the possibility that a jury could find him liable to J.K. for his failure to discipline a player with known behavior problems as he had promised.

Decision is: J.K. v. Arizona Board of Regents, 2008 WL 4446712 (D. Ariz. Sept. 30, 2008).

Bristol, PA School District Investigated for Title IX Violations

Booster-raised funds are at the heart of a recent complaint to the Department of Education that the Bristol (Pennsylvania) Borough School District is discriminating against female athletes in the allocation of athletic department resources like facilities, equipment and supplies. The Department's Office for Civil Rights is investigating the charge. Not too many details are provided in this AP report other than that the claimed inequities are charged to result from the district's spending of funds raised by a "recently formed football booster club."

As we frequently point out (booster club cases are common), per OCR's policy, funds raised by booster clubs are considered revenue of the school, the spending of which does not provide a defense for inequities between boys' and girls' sports. If the football team is getting preferential treatment, the district is violating Title IX regardless of the source of funds.

Yale settles sexual harassment suit

Somehow we missed this story about an alleged incident of sexual harassment at the Yale School of Drama. A female student was dismissed from the school in 2005 and subsequently filed a lawsuit citing retaliation after she reported sexual harassment in the context of an acting workshop in which the instructor asked students to simulate masturbation as part of a class exercise.
Yale settled for $10,000, the cost of the student's legal fees, and admitted no wrongdoing.
More details on the incident and the lawsuit can be found here.

Court Won't Throw Out Transgender Student's Prom Dress Case

Recently a federal district court judge in Indiana refused to dismiss a lawsuit challenging a Gary, Indiana high school's decision to prohibit a male-to-female transgender student from attending the prom in a dress. We blogged about the case here, after it was filed last December. So you may recall that in his senior year at West Side High, the plaintiff, Kevin "K.K." Logan, began wearing women's clothing and accessories to school as a reflection of his gender identity. He maintains, and the school district does not deny, that his manner of dress did not cause disruption to the school and that he was largely accepted and supported by the faculty and peers. Until, that is, he was physically barred from entering the prom by the principal, Diana Rouse. She was apparently invoking School Board Policy #319, which prohibits "Clothing/accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements."

Logan sued the school district claiming that School Board Policy #319 is an invalid restriction on free speech protected by the First Amendment and that the application of the policy to him was discrimination on the basis of sex in violation of Title IX. The school district filed a motion to dismiss both claims, which the federal court denied. The nature of the defendant's motion did not require the court to address the legal merits of Logan's case decision, and the court did not do so. Rather, the court simply noted that the standard for dismissal for failure to state a claim (Rule 12(b)(6)) is a high, and that it would be "premature" to dismiss them at this early stage of the litigation. Notably, however, regarding Logan's First Amendment claim, the court did cite language from appellate court decisions suggesting that courts should not interfere in a school's effort to enforce a disciplinary policy. However, even those cases recognize that the school's policy and its application must be tied in some way to actual discipline -- promoting order and preventing disruption. From the facts of this case, such a purpose is hard to see. After Logan's friends learned that he had been denied entry to the prom, they left the prom to sit with him in the parking lot. This suggests that the policy itself was more disruptive than the ostensible breech.

Decision is: Logan v. Gary Community Sch. Corp., 2008 WL 4411518 (N.D. Ind. Sept. 25, 2008).

Retaliation Case Filed Against Texas Southern University

Another coach has sued her former employer alleging that she was fired in retaliation for speaking out against Title IX violations.

Surina Dixon has sued Texas Southern University, alleging that they fired her from the head women's basketball coach position to which she had recently been hired after she insisted on contract terms equivalent to that of the newly hired men's basketball coach. Specifically, she protested the one-year contract she was awarded, pointing out that the men's basketball coach who had less coaching experience than Dixon had a five year contract and a salary twice as high as hers. She further pointed out that TSU's NCAA Gender Equity Self-Study had revealed this to be part of a pattern of discrimination against female coaches. Moreover, she argues, the fact the Athletic Director justified the one-year contract term by telling her she had to "prove herself" bolsters her claim of a sexist double standard.

Dixon alleges that the Athletic Director fired her based on her rejection of the employment contract offered by the university. Dixon insists that she did not reject the agreement, she protested its discriminatory terms, and is thus protected against retaliation under Title IX. She has sued to recover lost wages and other nonmonetary damages.

Title IX Fact Sheet for College Activists

The ACLU Women's Rights Project and Students Active for Ending Rape (SAFER) have collaborated to produce a new fact sheet related to a college or university's obligations to deal with sexual harassment, assault and rape, and the potential liability faced by educational institutions when they are deliberately indifferent to harassment and rape occurring in their educational programs and activities. The fact sheet lays out the Title IX landscape in a way that's easy to understand and use to promote more comprehensive policies and practices regarding rape and harassment prevention at colleges and universities.

Thanks to the folks at the SAFER blog for bringing this to our attention.