OCR Inquiry at Weatherford College

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

Mistakes versus flaws

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

Haven't we heard this story already?

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

Former Iowa State Coach Wins $287K in Retaliation Suit

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

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

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

School District Proposes Unified Booster Club

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

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

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

Wrestling tries to save itself

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

NCAA President Seeks to Preempt Title IX Blame

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

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

Segregated Alabama Middle School Challenged by ACLU

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

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

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

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

Via Feminist Daily New Wire.

If you're in the area...

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

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

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

NCAA Releases Resources and Model Policies Regarding Pregnant Student Athletes

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

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

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

Simpson panel provides more details

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

Rumors of Possible Cuts at University of Delaware

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

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

Voice of reason at VCU

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

Fresno lawyer gets big kudos

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

(Somewhat) New anti-IX campaign

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

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

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

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

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

It just could be a trend

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