Friday, February 29, 2008

College Sports Council Cites Lack of Proportionality at Historically Black Colleges

The College Sports Council (no fan of Title IX) earlier this week released a study about Title IX compliance at historically black colleges and universities. The results: 73 out of 75 of HBCUs fail the proportionality prong of the three-part test. This means that for nearly all HBCUs, the percentage of athletic opportunities for women is lower, in some cases much much lower, than the percentage of women on campus. According to CSC President Eric Pearson, "The purpose of this study is to show that schools like the HBCUs that want to attract more male students run into a virtual roadblock when it comes to complying with Title IXs proportionality standard...The CSC calls on the NCAA to support HBCUs use of surveys to comply with Title IX. HBCUs need the flexibility that surveys offer, if they want to use sports to increase male enrollment."

First, I think that some context is required to better frame the story of proportionality problem among HBCUs. According to a recent Women's Sports Foundation study, 87% of colleges and universities are not within three percentage points of proportionality. So while the nonproportionality rate among HBCUs is quite high (97%), it is important to remember that the vast majority of all colleges and universities are also out of compliance with that prong.

Next, I think CSC overstates the consequences of failing to comply with the proportionality prong. Proportionality is not the only way to satisfy Title IX. Most schools that don't satsify this prong (which is to say, most schools) are in compliance or claim they are in compliance under prong three: effectively accommodating the interests and abilities of the underrepresented sex. In the absence of a decision by a school to (a) cut a women's team or (b) turn down a request to add a viable women's team, there is very little reason to doubt such claims.

So why is the CSC arguing that HBCUs should have the NCAA's blessing to use interest surveys? Without getting in to the controversial aspects of the interest survey methodology that OCR endorsed in 2005 (WSF does a fine job of that here), I'll just say that an advantage of using the interest survey is, from a school's perspective, that it provides concrete, statistical evidence of compliance with prong three. This evidences give schools the confidence to add more sports for men -- even when those additions compound already existing inequities in the distribution of athletic opportunities. The CSC wants the NCAA to bless a practice that would (lawfully, to be sure) result in HBCUs making even fewer athletic opportunities available to female students.

It seems to me that this argument exploits HBCUs for their tendency to invoke support, thus strategically pitting race against sex in CSC's larger project of challenging proportionality and Title IX. The subtext of its press release is that if you are for HBCUs (i.e., if you are not a racist) you must be against Title IX. But the CSC's argument that HBCUs should have the NCAA's support in eluding proportionality trades in both racial and sexist stereotypes. Most obviously, the argument that HBCUs in particular need to offer sports to attract male students suggests that the only way to get black men to college is to offer intercollegiate sports. It also assumes that prospective female HBCU students are uninterested in, or undeserving of, athletic opportunities in comparable ratios to their male counterparts. HBCUs should be working just as hard as other schools to eliminate gender disparities in their athletic departments. The NCAA should continue to encourage all schools, including HBCUs, to forgo interest surveys and strive for gender equity.

Wednesday, February 27, 2008

Court Won't Dismiss Pay Discrimination Case Against Youngstown State

The federal district court for the Northern District of Ohio held last week that Sandra Denman, formerly the general counsel for Youngstown State, could proceed with her claims of wage discrimination and retaliation against her former employer.

In September 2003, Denman analyzed the salaries of executive positions in the university and concluded that they revealed a pattern of discrimination against women. (Youngstown State had recently been advised by an outside consultant to raise the salaries in certain, higher-level pay grades to correct disparities between the salaries of long-serving employees and those of newer hires. However, it apparently incorporated this advice selectively and only to the advantage of male executives.) So Denman sent two memoranda to the university president regarding her conclusions. One warned that YSU might be exposed to liability based on its discriminatory compensation practices. In the other, Denman claimed in her individual capacity that she was being discriminated against because of her gender. Later that month, the President decided that Denman's contract would not be renewed.

Denman filed suit under the Equal Pay Act, Title VII, and Title IX, claiming that she was underpaid on account of her sex and that she was terminated in retaliation for speaking up about it. In denying Youngstown State's motion for summary judgment, the court agreed that Denman had stated a case for pay discrimination, as her salary was lower than the men in her pay grade and the men in the President's cabinet--a discrepancy for which Youngstown State could offer no legitimate business explanation. As for the retaliation claim, the court agreed there was a triable issue of fact whether Denman's memo got her fired. The timing of the President's decision, while not conclusive of a causal relationship between the memo and Denman's termination, is certainly suggestive of that. Moreover, there was also evidence that the President only started to gather evidence of Denman's ostensibly poor performance after Denman sent her memo, which casts doubt on the legitimacy of the President's stated reasons for firing Denman. As a result, the court decided that Denman can bring her case to trial.

Citation: Denman v. Youngstown State Univ., 2008 WL 483066 (N.D. Ohio 2008).

Tuesday, February 26, 2008

Maine parent sues school district over teacher's sexual assault of her son

A lawsuit filed last week in the federal district court in Portland, Maine, alleges that the school district violated Title IX by not protecting the plaintiff's son from sexual assault by a female teaching assistant at the alternative high school he attended. The teaching assistant, Amy Shriver, has been arrested, convicted and sentenced on charges of sexual abuse of a minor. The victim's mother's civil suit alleges, among other things, that even though she reported what was going on to Shriver's supervisors and to a member of the school board, the district did nothing to stop the abuse, which continued for seven to eight month period.

Monday, February 25, 2008

If you cheer louder...

...maybe you'll get a better grade.

The University of Oregon recently elevated competitive cheer to varsity status but that has not helped its grade on the recently released Gender Equity Scorecard. Oregon earned an F and has found itself 97th among 115 colleges and universities (and last in the Pac-10) for its gender equity efforts. The scorecard considers female participation rates (in terms of proportionality only) and funding.

Senior associate athletic director Renee Baumgartner says that if the scorecard was based on satisfying prong two, which Oregon cites compliance with, they would have received an A. But a look at the athletic department's finances suggest otherwise. For example, a significant, and arguably disproportionate, amount of money goes toward paying the coaches of football and men's baseball.

Oregon administrators are looking into their poor grade on the scorecard.

Sunday, February 24, 2008

Belmont Abbey College Faculty Challenge Exclusion of Contraception from the Health Care Policy

Update 2/25. We have heard that, contrary to the media report cited herein, the faculty and their counsel are not planning to challenge the college's contraception policy under Title IX. Rather, they have filed a complaint with the EEOC under Title VII, and they are challenging the school's policy under state law that requires insurers that offer prescription drug coverage to include coverage for contraceptives -- a law that, like Title IX, makes an exception for religious institutions.

Faculty at Belmont Abbey College, a Benedictine college in North Carolina, are considering whether to file a lawsuit to challenge the College's decision to exclude coverage for contraception from the health care plan offered to its faculty. They argue that the exclusion of contraception is sex discrimination in violation of Title IX.

Should the faculty file suit, their lawyers at the National Women's Law Center will have to contend with the religious exemption from Title IX, 20 U.S.C. § 1681(a)(3), which provides that the statute “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” Belmont Abbey College, of course, insists that contraception is inconsistent with its religious tenants. But interestingly, according to NWLC, the College's articles of incorporation do not stress an overtly religious purpose. And what's more, the College has in the past successfully litigated its eligibility for state scholarship funding reserved for secular institutions. There are no judicial decisions interpreting Title IX's religious exemption, so it's unknown how much weight a court would give to evidence that seemingly contravenes the College's stated position on its religious tenets.

The contraception question itself is also interesting. The College could defend that the health care policy withholds contraception from both male and female faculty and thus is not discriminatory. (Of course, this argument would fail if the policy covered, say, vasectomies, but not birth control pills.) The Eighth Circuit recently endorsed this position in a case construing Title VII, the statute that prohibits discrimination on the basis of sex (among other characteristics) by private employers. Union Pacific, 479 F.3d 936 (8th Cir. 2007). The faculty would have to contend that lack of access to contraception disproportionately impacts women, or argue that access to contraception is required under Title IX's express prohibition of discrimination on the basis of pregnancy, or make the case that the health care policy's exclusion of contraception results in women receiving fewer health benefits on the whole.

Saturday, February 23, 2008

Two Title IX Notes in the Wisconsin Women's Law Journal

The new issue of the Wisconsin Women's Law Journal contains two student-written pieces that address different aspects of Title IX.

The first, by Madeline E. McNeeley, argues that educational institutions should do more to protect pregnant and parenting girls from discrimination, as the law requires. Among other forms of discrimination that McNeeley describes, she points out how the No Child Left Behind Act creates incentives for schools to fail or expel pregnant and parenting students (often citing attendance problems) by tying federal funding to students' academic performance. Schools are often willing to work with disabled or ailing students by providing homebound instruction and other assistance, but they would rather not encourage pregnant/parenting students to stay in school and give them the help they need to lift up their grades and test scores because there is too much to loose if they should fail.

The second, by Elizabeth S. Kisthardt, examines the Department of Education's new regulations allowing schools to experiment with single-sex education. Kitshardt encourages educators and school districts to "remain cautious" about implementing single-sex classrooms, owing to the mixed research results "regarding both the existence of the 'boy crisis' and the remedial benefits of single-sex settings." (Her advice comes too late for Greene County.) She argues that "to the extent the research has produced conflicting results, it remains questionable whether the current educational and psychological evidence should be used to justify segregation by sex."

Madeline E. McNeeley, Title IX and Equal Educational Access for Pregnant and Parenting Girls, 22 Wisc. Women's L.J. 267 (2007);

Elizabeth S. Kisthardt, Singling Them Out: The Influence of the "Boy Crisis" on Title IX Regulations, 22 Wisc. Women's L.J. 313 (2007).

Friday, February 22, 2008

Survey says? No baseball

In Michigan, the Gladstone Area Schools will not be adding baseball any time soon. Though there is interest in the sport, starting a program would further exacerbate the Title IX problems the district is having. They have not achieved proportionality which would mean adding baseball would mandate adding a girls' sport which, officials say, is not in the budget. They cannot cite compliance with prong 2 because in the last decade gymnastics has been cut and only competitive cheer added.
But in the hopes of complying with prong 3, interests and abilities, the schools surveyed their high school students. The results showed that the boys definitely want to play baseball but that girls are interested in, among other things, gymnastics, bowling, swimming, and soccer.
So no baseball. But if I was a high school girl in the Gladstone Area Schools interested in playing one of those sports I would take that survey data and demand the creation of a new program. They aren't proportional, aren't expanding the program, aren't meeting interests and abilities and there is a survey* that says girls want to play sports. The district may have just surveyed themselves into a corner.

* I am not advocating the use of surveys in assessing compliance with prong three. I am aware of the many faults of such "evidence."

Thursday, February 21, 2008

Parents Demand, Are Promised, Equity for Girls' Sports

“I guarantee you this.... From this day forward, if the girls are eating a bologna sandwich, the boys will eat a bologna sandwich.

This memorable quote was Raleigh County (WV) Superintendent Charlotte Hutchens's unequivocal promise for equal treatment for the female athletes at Woodrow High School. Hutchens made this promise after forty parents presented a petition to the school board demanding that the board address the condition of the high school gymnasium where the girls' basketball team plays. The gym's roof has so many leaks that the floor becomes dangerously slippery and has caused injury to players. The boys' basketball team is transported to a bigger, nicer, gym at the convention center in town. Parents insisted that if the boys had to play at Woodrow's gym, the conditions would not have been allowed to deteriorate so badly.

In response to the parents' argument, Hutchens emphatically promised that the girls and boys would receive equal treatment going forward. She is on the record stating that the girls will play at the convention center too, if that is where the boys continue to play (the board also debated fixing the roof at Woodrow). Pressed further, Hutchens issued her bologna sandwich promise, reminiscent of Bush I's famous "read my lips." It's hard to backslide from a memorable, emphatic promise like that.

Since we so often report about OCR investigations and lawsuits, it is good to see a seemingly successful example of resolving inequity issues without invoking the adversarial process. It is also good to see parents organizing themselves and making such a persuasive case for gender equity.

Wednesday, February 20, 2008

Florida's Foley: Don't Blame Title IX

This month's issue of Scholastic Coach and Athletic Director features an interview with University of Florida Athletic Director Jeremy Foley. I was extremely pleased to read his take on Title IX:
[SC&AD]: Depending on who you talk to, Title IX is responsible for cuts in non-revenue sports (like fencing, soccer, and wrestling) or Title IX is being used as an excuse by athletic departments to justify cutting non-revenue sports and reallocating that money to the big ones (football and basketball). There’s no shortage of examples of both sides, but in recent years it seems that it’s more to generate a profit for the athletic department. Rutgers has been cited as an example: cutting the rowing team and some other sports on the heels of a successful football and women’s basketball year. What is your take on this? Is there any validity to this argument?

Foley: I’ve never been a believer that you can blame Title IX on reductions. Maybe financially you can. At the end of the day, Title IX may be a legal obligation but to me it’s a moral obligation. Certain men’s sports don’t make any money either. Certain men’s sports are expensive to run as well. But you have got to have to equal opportunities for women. I don’t know how you have a conversation; look a woman in the eye, look a daughter in the eye, or look a sister in the eye and say, “Well, your sport isn’t as important or you’re not as important.” Obviously it’s a financial conversation because to have equal opportunity costs money. But you still have to have it. If it means that there are some sports that get eliminated on the men’s side, there’s not a lot that protects the men’s sports. There’s a law that says you have to do what’s right by the women. And as I said, to me, that’s a moral obligation. It is what it is. For the longest time you’ve had women’s sports that have been under-funded. You’ve had women’s sports that have not been getting the right priority. You’ve had women’s sports where the facilities are abysmal. You’ve had women’s sports that have been treated as second-class citizens. That’s just not right. So that part has to be fixed. And if it means taking away from another area of your program or your university, that’s what you have to do.
[Thanks, Scott.]

Tuesday, February 19, 2008

Other voices in North Carolina

The coverage and commentary we have read thus far on the proposal to add a football team at the University of North Carolina Charlotte has suggested that there is near-unanimous support for the plan, though with a healthy amount of concern over where the millions of dollars it would take to do so would be coming from. But recently, two former UNC system presidents stepped forward and publicly expressed their concerns over adding football.
Dick Spangler and Bill Friday will be meeting with faculty at UNCC to tell them just how much football really costs. And though actual money is a concern and will be discussed extensively, they won't be talking just dollars and cents. Information from the Knight Commission on Athletics will be presented to faculty so they are able to assess how football affects then entire university community. Because while many proponents of the plan are discussing the excitement that a football program would create within and outside the university community, few are talking about how football affects a school's overall reputation. As collegiate sports (and not just DI; I witnessed how the addition DIII football program affected the climate of a tiny liberal arts school I used to work at) grow more and more out of control, it is something a school like UNCC will want to factor into its decision.

Monday, February 18, 2008

Slippery Rock cuts swimming

It's official. Slippery Rock University which, several years ago tried to cut women's swimming and diving and water polo but was prevented by a lawsuit, has done so. SRU was prevented from cutting these viable women's teams because it had not achieved proportionality and the court ordered that SRU must remain within two percentage points. They currently are. Earlier in the year some of the original plaintiffs attempted to re-open the case when rumors of the cuts were swirling but the judge would not rule on how potential future proportionality would break down.

SRU administrators have said they plan on remaining compliant with the court's mandate through roster management though the article did not give further details about what teams might be expanding their rosters.

Lead plaintiff Beth Choike, a member of both the swim and water polo teams, noted one of the issues with roster management:

"It's not fair for teams because the ones not playing aren't getting the quality experience."

Sunday, February 17, 2008

Softball Players Sue WVU Tech

Two softball players recently filed a Title IX lawsuit in federal court challenging the inequality of facilties, equipment, and funding for the West Virginia University Institute of Technology softball team. The plaintiffs, Terri Harrison and Alexis Cox, allege that WVU Tech reneged on its promise to install new lights, restrooms and locker rooms at the softball field, which it made last year to resolve a complaint the players had filed with OCR. They also claim that the athletic department retaliated against the team for complaining about the facilities by changing the way scholarship money is awarded and by firing their coach, who had supported their cause.

Saturday, February 16, 2008

Entire Georgia County Moves to Single-Sex Schools

Even the National Association for Single Sex Public Education thinks that Greene County, Georgia, is going too far in its plan to convert the entire district to single sex schools by next fall. Hundreds of school districts have incorporated single-sex education into their curricula since the Department of Ed made it legal in 2006, but this is the first time the practice has been implemented county-wide.

The superintendent says the move is necessary to improve test scores and graduation rates and to reduce pregnancy and disciplinary problems in this poor, rural school district. But NASSPE's Leonard Sax told the Atlanta Journal-Constitution that the county's move was likely illegal, since parents must also have the option of a public coeducation as well. He further described Greene County's action as "embarrassing" and "the worst kind of publicity for our movement" because it "misses the whole point" of creating a single-sex alternative to coed classrooms so that parents can choose what's better for their children.

I think, of course, that the district's policy is extremely troubling. As I've said before, I'm skeptical of the claims of benefits from single-sex education and I think that schools should raise test scores and graduation rates in other ways that don't rely on and promote the myths that all boys learn one way and and all girls learn another way. I think the fact that NASSPE finds itself now in the position of arguing against single-sex education proves how dangerous it is to promote the difference theory. Of course our culture, susceptible as it is to a hegemonically-induced mythology of natural gender differences, would hear an argument that some classrooms should be segregated and generate from that the belief that sex-segregation is a magic bullet for all educational challenges in all educational settings. How did NASSPE not foresee that?

Friday, February 15, 2008

Another Thing in Common

Fresno State and Florida Gulf Coast University have been compared for evoking similar claims of widespread sex discrimination in their athletic departments. So it is worth noting another thing they have in common. They both hired female head coaches this week.

Fresno State announced that it has hired Lauren Netherby-Sewell, formerly of Hofstra, as its new volleyball coach. The other two finalists for the position were men. Netherby-Sewell succeeds Ruben Nieves, who went 18-71 in three seasons after taking over for Lindy Vivas in 2005. This brings the total number of female head coaches at Fresno State to four (out of fourteen): Margie Wright (softball), Becky Malmo (equestrian), and Angie Cates (golf).

On the other coast, FGCU announced that Jennifer Magley, a woman of color currently serving as an assistant coach at Wichita State, would be new head coach of it women's tennis team. She takes the reigns from Webb Horton, the men's tennis coach, who had doubled as the interim women's team coach for the last two seasons. Also, it has hired LPGA veteran Terry Jo Myers to coach the men's and women's golf team. She replaces former women's golf coach Holly Vaughn, who "resigned" last fall, and men's golf coach Jim Suttie, who will "remain with the program and provide instruction." With these new hires, FGCU now has two female head coaches (not counting Carry Lundy, who is serving as the interim women's volleyball coach in the wake of Jaye Flood's termination) out of 12.

Hopefully, with these new hires, both universities are on the way to establishing a critical mass of female head coaches in their respective athletic departments. This would be a step in the right direction if these univerities want to mitigate and move beyond the hostile and retaliatory environments that female coaches have been subjected to, or allegedly subjectly to (in FGCU's case), there.

Johnson-Klein Accepts Revised Damages Award

A brief update to last week's post about the choice confronting Stacy Johnson-Klein in the wake of a judge's ruling on Fresno State's post-trial motions: accept a revised damages award of $6.6 million in place of the $19.1 million the jury awarded her in December, or roll the dice with a new jury.

We thought she would take the $6.6, and she did.

Fresno State could still appeal the judge's ruling. But SJK is looking forward to getting on with her life, telling the Bee that she plans to write a book about her life and become a national advocate for stronger gender-equity laws.

Pre-trial offers in Long Beach

Set to go to trial next week is the case involving the Long Beach United School District and the displaced gymnastics team of Wilson Classical High School. Brief re-cap: the gymnastics team's dedicated facility within the high school was taken away from them last year and turned into a weight room allegedly for everyone but others contend it will be used primarily for boys' athletics. In this room was a spring floor. The gymnastics team has been allowed to return to the room pending the trial but the floor was damaged and has not been repaired or replaced.

Last week, in an attempt to avoid trial the co-principal sent a letter to parents saying that the school had worked to secure on off-site facility for the team which they could use 5 days a week and the school would provide bus transportation to the gymnastics academy located just under 3 miles from the school.

According to the team's lawyer, Danika Vittitoe, who had not read the letter yet, the school had tried to offer an off-site facility to the team back in a January negotiation but they turned down the settlement.

“We believe that Title IX requires equal resources on campus, and this facility should be kept on campus,” Vittitoe said. “With the elimination of this room, there is not a single facility on campus dedicated to girls’ sports, while there are several dedicated for boys’ sports.”

As in the case of Darien, CT, the issue of "dedicated" facilities comes up again. It will be interesting to see how (if this case does make it to trial--there are still a few days to go) how a judge and/or jury will address this aspect of the case.

Thursday, February 14, 2008

Two years, two complaints in Darien

OCR headed to Darien, CT for the second time in two years last week. In 2006 after a complaint filed by a parent of a female swimmer, OCR visited Darien High School only to find no problem with the swim programs but an issue with the number of opportunities female student-athletes were (not) getting. Girls' teams have, subsequently, been added.

But a complaint about facilities has drawn more attention to the school. A complaint was filed this past fall (how is it that DHS gets such quick turnarounds from OCR??) that again seems to stem from issues around the girls' swim team (less practice team and access to facilities) but has expanded to include issues of dedicated facilities that affect all female student-athletes. Additionally the softball team is citing inferior facilities to those afforded the boys' baseball team. Swim team boosters are also complaining that they have not been allowed to raise funds for a new pool in the same way supporters of boys' baseball raised money for a new field.

No word on when OCR will issue its report.

Wednesday, February 13, 2008

Single-Sex Education Stereotypes Boys

After reading Professor David Cohen's "No Boy Left Behind: Single-Sex Education and the Myth of Essential Masculinity" I am more convinced than ever that the single-sex education craze prompted by the Department of Education's 2006 policy has already started to entrench harmful rigid stereotypes about gender that are harmful to boys as well as girls.

From the abstract:
The public narrative about the need for single-sex education focused, in substantial part, on boys and an essentialized form of dominant heterosexual masculinity. This article catalogs the important components of this masculinity: heteronormativity, aggression, activity, sports-obsession, competitiveness, emotionlessness, and not being girls. The article then shows that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls). By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy.

Tuesday, February 12, 2008

UW Must Defend its Handling of Student Rape by Football Player

Yesterday the Washington State Court of Appeals reinstated a Title IX case against the University of Washington, paving the way for UW to defend at trial whether its handling of a football player's alleged rape of another student violated Title IX.

The plaintiff, referred in the opinion as S.S., was the student equipment manager for the UW football team. She alleges that in 2000, she was raped by then-UW football player Roc Alexander, (who is now in the NFL) , with whom she had recently ended a relationship. When athletic department officials found this out, they encouraged S.S. to submit to a mediation with the University ombudsman and did not inform her of the University's judicial disciplinary process or other options available to student rape victims. S.S. felt pressured to agree in order to keep her position with the Athletic Department.

The mediation was attended by the ombudsman, S.S., Alexander, and the assistant athletic director, Marie Tuite. S.S. argued that Alexander should be suspended from several games. Alexander recanted earlier statements of contrition and denied the allegation of rape. He also threatened to leave UW if he was suspended. Tuite stated that she would not consider suspending Alexander because the media "would ask why he was not playing" -- a statement that suggests she was primarily concerned about keeping the case out of the news. In the end, Tuite and the ombudsman decided that Alexander should attend counseling and perform community service.

The Court of Appeals determined that these facts, if proven, would satisfy the liability standard for peer harassment under Title IX. A jury could find on the facts alleged that the school's response constituted "deliberate indifference" to the reported rape, including such facts as: "a lack of appropriate discipline of her rapist,... keeping the matter out of the public eye to avoid negative publicity, offering only repeated mediation as an alternative remedial measure, repeatedly suggesting that S.S. leave her job with the football program where the rapist would remain, [and failing] to investigate...her rape report, and--in the absence of investigation--questioning her truthfulness...." (among other reasons).

Additionally, the court agreed that discrimination alleged by S.S. was sufficiently "severe and pervasive" to warrant liability -- even though, as UW argued, S.S. was only raped one time. The court supported its conclusion by comparing this case to others in which discrimination was deemed "pervasive" because the school contributed to the detrimental effects of an initial instance of harassment or assault.

According to the Seattle Times, the plaintiff is glad that "Finally, the courts are on my side -- at least for now." The UW, which hasn't yet decided whether it will appeal, contests S.S.'s version of the facts and maintains that S.S. never called the underlying incident a "rape" until she filed suit against university. But while it may not have direct bearing on the facts of this particular case, it is also worth noting that a "disturbing level of criminal conduct and hooliganism" -- including another instances of sexual assault in 2000 -- by UW football players, enabled and covered by former coach Rick Neuheisel and athletic director Barbara Hedges, has recently come to light.

Decision: S.S. v. Alexander and the University of Washington, 2008 WL 352618 (Wash. App. Div. 1, Feb. 11, 2008).

Changes in Morehead State's Athletic Department

In an effort to increase opportunities for female student-athletes, Morehead State University, is reconfiguring its athletic department. What is especially interesting is how they are going about this. At UNH, OU, JMU all we heard about were cuts, cuts, cuts and the allegedly disparate effect on men.

But at MSU cuts is not a word we are hearing. MSU will eliminate men's and women's indoor track and field. But they are keeping men's and women's outdoor track and field. This means there are probably very few student-athletes who will be without a chance to play as most indoor athletes participate in outdoor track. Also, the men's and women's rifle team will be consolidated into a mixed team. The women's golf team is being elevated to varsity status. And, in the next few years, MSU has plans to add women's bowling and equestrian programs.

The story linked above is actually an MSU press release so obviously the insititution is not going to point out any negatives in this plan. But, from what I have read, this seems like a responsible and creative way to balance financial interests and limitations with gender equity.

Monday, February 11, 2008

Another Day, Another Softball Field Investigation

It's West Perry, Pennsylvania's turn to be investigated by OCR for allegedly inferior softball facilties. According to this story in the Patriot-Ledger, OCR's pending investigation prompted the the school board to allocate $10,000 to replace the backstop and fences, a decision that the board says should not be interpreted as an admission of liability.

The article notes that the investigation was triggered by a complaint filed by a former coach and teacher that "the field used by the girls' softball team was in poorer shape than the field used by the men's baseball team." It is not clear whether decision to describe softball players as "girls" and same-aged baseball players as "men" was the choice of the district solicitor to whom this statement was generally ascribed, or to the reporter for the Patriot-Ledger who relayed it in the press. But either way, it underscores that female athletes in West Perry are not taken seriously. No wonder they didn't have a functional backstop or fences long enough to protect the dugout.

Sunday, February 10, 2008

She said that out loud?

The drama that is the Florida Gulf Coast University Athletic Department continues this weekend with the revelation that AD Carl McAloose and Associate AD Kathy Peterson knew what steps needed to be taken in order to terminate volleyball coach Jaye Flood.
The pair was told one year ago by FGCU general counsel, the then president, and the HR director that there was nothing in Flood's file that would warrant firing her. Something like a poor performance evaluation would have to exist for such action to be considered. And in July of 2007 exactly that piece of "documentation" was added to Flood's file. She received a rating of "below expectations."
The report issued by Littler Mendelson, the law firm that investigated the claims of Title IX violation, employment disrimination, and retaliation, found that there was no evidence to warrant Flood's poor evaluation. The report noted that reprimands would be put into McAloose's and Peterson's own files for giving such an evaluation without evidence.
Without evidence, but not without cause, as we now know. Peterson told--as in spoke aloud--investigators that she did not like Flood and that if another coach--one whom she liked--had Flood's record and job performance, she would have given her an "exceeds expectations" rating. Also, the below expectations rating Flood did receive last summer was not the one Peterson and McAloose wanted to issue. They wanted to give her the lowest possible rating of unsatisfactory but were told by HR that Flood's performance did not reflect such an evaluation.
Peterson went back to investigators--after talking to McAloose--the day after her "I don't like her" testimony and tried to recant.
What about this isn't retaliation?
The investigation report downplayed the performance evaluation by simply saying there was not enough evidence to support Flood's rating. But there was clearly so much more going on. And this makes me--and it should make others--wonder about validity of this report. Littler Mendelson is being paid by FGCU and we have to ask whether the findings were presented in such a way as to benefit the client.

Saturday, February 09, 2008

Take the $6.6

Yesterday a judge in Fresno issued an order throwing out the $19.1 million judgment against Fresno State awarded to former women's basketball Stacy Johnson-Klein last fall, saying he will order a new trial unless Johnson-Klein accepts a reduced award of $6.6 million instead. She has until February 22 to decide. (Fresno Bee's coverage is here.)

Judge Black reasoned that while the component of the jury award based on past and future economic damages (lost pay) was supported by the evidence, there was insufficient evidence to support its conclusion that Stacy Johnson-Klein deserved the $14 million in noneconomic damages (emotional harm). He noted, "In an extensive search of the case law involving employment discrimination, the court has located not a single case where a comparable emotional distress award has been made....Even in this state famous for runaway juries, nothing was found approaching this award." Consequently, he reassessed the value of Johnson-Klein's emotion distress to $600,000 (past) + $950,000 (future).

In our earlier post about Fresno State's post-trial motions, we suggested that this was the aspect of the jury's decision that was most vulnerable to reversal, and suggested that would seem to be an appropriate result. I think this is actually a no-brainer for Johnson-Klein: take the $6.6. This is an appropriate assessment of damages for past and future economic harm and a generous assessment of emotional harm. Fellow Fresno State plaintiff Lindy Vivas received $5.8 million a case where Fresno State's defense was, IMHO, even weaker.

In the same order, Judge Black rejected Fresno State's arguments that lack of evidence on the jury's findings on liability (as opposed to damages) warranted new trial or a judgment notwithstanding the verdict. The jury had substantial evidence from which to find that sexual harassment, gender discrimination, and retaliation occurred, he concluded.

Judge Black also rejected Fresno State's argument that juror misconduct occurred.

Thursday, February 07, 2008

The push for more football

The season is over. No more bowl games, no more NFL playoffs. But people still want football. Over the past month or so I've come across several stories of schools where someone(s) is pushing for the revival or institution of intercollegiate football.

The study on the viability and feasibility of adding football at UNC Charlotte concluded not too long ago. Not surprisingly the committee has decided to issue a recommendation to the chancellor that states football would be a positive addition to the institution.

The popular conception that football brings in alumni dollars and increases school spirit was likely a huge factor in the committee's decision. They did not take lightly, though, the huge expense adding a football team--a team that they want to eventually take to Division 1A--adds to the budget. And the increase in the budget also necessarily includes the costs associated with adding women's sports to keep in line the opportunities for male and female student-athletes.

Across the country in California, there is movement afoot at Cal State Fullerton to reinstate football at the school. Football was cut over 15 years ago in order to save money. Bringing back the sport at the Division I Championship Subdivision Level (formerly known as IAA--a far easier label, I thought) would cost, according to a guesstimate from athletic director Brian Quinn, at least $4 million--every year. It's not entirely clear from the article who is leading the push to bring back football but those involved have suggested raising some of the money by increasing student fees--likely above and beyond the 10 percent increase called for by Governor Schwarzenegger. Beyond the costs of a football program are--again--the costs that would be incurred when the university adds women's teams to keep the number of opportunities proportionate to the percentage of undergraduates at Fullerton (58 percent are women but only 52 percent of athletic opportunities currently are provided to women). Adding a football team at the DI level usually means a roster of at least 100 players. Fullerton doesn't currently have women's crew--they may want to consider it if the plan to reinstate football moves forward because they are going to need a lot of opportunities fast.

Also in California, UC San Diego (DII) has put together a task force to look at the possibility of adding a football team. But unlike at UNCC it looks like the task force is a student-run one out of their student government association. The debate over a potential addition has generated some discussion, both in person at meetings and on the internet where two opposing Facebook groups have formed to debate to the issue. Even though the task force will look at all the attendance issues addressed by the UNCC committee, the CUSD chancellor has said there just isn't enough money right now and argues that the pro-football Facebook group that claims the addition would cost $1 million (including covering the addition of women' sports) is underestimating.

Wednesday, February 06, 2008

Happy National Girls and Women in Sports Day

February 6th is National Girls and Women in Sports Day.

The folks at National Women's Law Center are celebrating the day by reflecting on what Title IX means to them -- check them out. Then go here to tell your representatives in Congress to support pending legislation that would strengthen Title IX enforcement at the high school level. Then if you're here in Springfield, register your daughter for the Girls and Women in Sports Day clinic at Western New England College--or find a celebration near you.

As for me, I'm going swimming at my college pool -- a facility that serves all faculty and students but that owes its existence to the fact that we have a women's swim team. Go Golden Bears. Yea Title IX.

Tuesday, February 05, 2008

Softball Inequities in L.A. County Draw OCR Investigation

The LA Times reports that the Deparment of Education's Office for Civil Rights is investigating the William S. Hart Union High School District upon allegations that softball fields and locker room at its three high schools are inferior to boys' facilities. At one high school, Saugus, repairs finally began this year to the softball field that players haven't been able to use for last three. Another, Hart, has no softball facility, so the team plays at an off-campus park. At the third, Canyon, softball players share a field with the freshman football team. According to the article, each schools' baseball fields, in contrast "are considered high-quality facilities."

A district official quoted in the story says he doesn't believe the district has a problem.

Monday, February 04, 2008

Kansas School District Settles Sexual Harassment Case for $45K

Unified School District No. 259 in Witchita, Kansas, will pay $45,000 to two high school students in settlement of their claims that the District was deliberately indifferent to ongoing instances of sexual harassment by a male classmate. According to the complaint, the male student called them and approached them to make rude, violent, and sexually suggestive comments, that on various occaisions he exposed himself to the girls and attempted to make her touch him, and that he was physically abusive of them. At one point they received a protective order from the police. But, they alleged, school officials were dismissive of their attempts to report this harassment on a daily basis. According to the District, it settled to avoid litigation costs, not as an admission of liability. The District disputed some of the girls' claims that they reported harassment and characterized the girls' relationship with the boy as friendly, suggesting that some of the alleged harassment was actually consensual. However, the District reports that it has changed its sexual harassment policies and appointed a staff member to coordinate Title IX matters.

Case is: Doe v. Unified School District No. 259, 05-CV-1151-JTM
Complaint: 2005 WL
2453748 (D. Kan., Aug. 30, 2005)

Saturday, February 02, 2008

Another Student Note Defends Single-Sex Education

In a student note in the Boston College Law Review, author Rebecca Kiselewich argues that there are "inherent sex differences" in learning styles just like there inherent sex differences in athletic abilities. Owing to this similarilty, she suggests that Title IX's "separate but equal" framework for athletics should apply to classrooms as well. (Single sex education is popular among law student authors, as this is the second such article we've blogged about in recent weeks.)

Despite Ms. Kiselwich's efforts, I don't think there's an exceedingly compelling case to be made for either premise: that there are "inherent sex differences" in learning or that sex segregated model for athletics is a paradigm worth replicating.

On the first issue, though the author cites liberally to Leonard Sax and the propoganda at the National Association for Single Sex Public Education, other (less partisan?) research questions the popular assumption that boys' brains are hard-wired on Mars and girls' brains are hard-wired on Venus. Many scientists believe there are more learning style variations among boys and among girls than there are between girls and boys.

And while I'm not arguing for an immediate overhaul of Title IX's framework for sex-segregated sports, I think the separate-but-equal model is one that should be contained, not emulated. For the moment, Title IX's separate-but-equal structure is necessary to ameliorate for past and present structural inequalities that have suppressed women's interest and abilities in sport. If athletic opportunities were handed out on the basis of talent without regard to sex, women would be left out -- not because they are naturally and categorically inferior, but because of the long and recent history (and in some contexts, continuing practice) of banning, discouraging, inferiorizing, trivializing, and sexualizing women's participation in sport. The separate-but-equal framework of Title IX prevents schools from relying on the effect of this past/present discrimination as a justification for excluding women from sports altogether. There is no reason to believe that such a structure is necessary to ensure that girls and boys have access to educational opportunties in the classroom. Segregation, after all, has a tremendous cost. It forces generalizations around difference and it perpetuates a heirarchy of dominant/inferior. As a result, it should only be relied on as a last resort.

Citation: Rebecca A. Kiselewich, Note, In Defense of the 2006 Title IX Regulations for Single-Sex Public Education: How Separate Can Be Equal, 49 B.C. Law Rev. 217 (2008).

Friday, February 01, 2008

How the Civil Rights Act of 2008 Would Change Title IX

This week Democrats in the House and Senates introduced the Civil Rights Act of 2008 (H.R. 2159 & S. 2554). In a variety of contexts, this bill would strengthen civil rights protection and/or restore such protections that have been undermined by recent Supreme Court decisions. Some aspects of this proposed legislation would affect Title IX. One would make it easier to state a cause of action for harassment. Another would confirm that plaintiffs can sue schools for unintentional discrimination that has a disparate impact. I will address each one of these in turn.

I. Harassment

The Civil Rights Act of 2008 would make it easier for students to bring sexual harassment claims against educational institutions receiving federal funds. As noted in the bill, the Supreme Court decisions regarding sexual harassment under Title IX, Gebser and Davis, limit schools' liability to only those instances of harassment about which they had actual notice, acted with deliberate indifference, and which were so severe and pervasive to preclude victims' access to educational programs.

The proposed legislation would "reverse Gebser and its progeny and restore the availability of a full range of remedies for harassment" on the basis of sex, as well as harassment on the basis of race, age, and disability. Specifically, the statute would allow harassment victims to seek money damages against a school unless the school can show that it acted with "reasonable care"and that the victim "unreasonable failed to take advantage" of preventive or corrective opportunties offered by the school that would have likely prevented the harm.

In this article posted by the American Constitution Society, NWLC's Fatima Goss Graves makes a compelling case in support of this reform. She provides examples of real court decisions that dismissed victims' claims under the deliberate indifference standard, but would likely have come out differently had the courts applied a reasonable care standard instead.

II. Disparate Impact

In 2001, the Supreme Court held that plaintiffs did not have a private right of action under Title VI, the statute prohibiting race discrimination in public entities, to sue a covered entity for discrimination that was unintentional but had a disparate impact on members of the plaintiffs' race. Ever since then, the right of action to bring disparate impact claims under other civil righs statutes, including Title IX, has been in question. Prior to the 2001, for example, a court had held that female applicants to a scholarship program could challenge the program's reliance on a standardized test on which men tended to do better. After 2001, similar disparate impact challenges are likely foreclosed.

The Civil Right Act of 2008 would "reinstat[e]" that right of action for Title VI claims and "confirm[]" that right for other civil rights statute. Specifically, the statute would allow a plaintiff to maintain a cause of action against a school if the plaintiff can show that the school "has a policy or practice that causes a disparate impact on the basis of sex and that the [school] fails to demonstrate that the challenged policy or practice is related to or necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner."

The bill is now being considered by appropriate committees in each house.

h/t Feminist Law Profs
See also Workplace Prof Blog