Wednesday, December 31, 2008

Stories of the Year: 2008

In what is becoming an annual tradition, here is a roundup of the top ten Title IX stories of 2008! In no particular order...
  • A high profile sexual harassment case involving University of North Carolina soccer coach Anson Dorrance settled for $385,000.
  • There was a small handful of what we'll call "softball is not the equivalent of baseball" stories (here, here, and here).
  • Government agencies announced plans to root out sex discrimination in the allocation of research grants in science and engineering, evoking an alarmist and distorting missive by New York Times columnist John Tierney that turned "Title IX" into a verb.
Thanks to our readers for being with us for all the Title IX news, good and bad, in 2008. Our best wishes to the Title IX community for a happy, healthy, sporty, educational new year!

Monday, December 29, 2008

Women Ski Jumpers Sue for Inclusion in Olympic Games

Though outside the scope of Title IX, the Title IX community may be interested in the pending lawsuit to include women's ski jumping in the 2010 Winter Olympics in Vancouver. Some of my favorite women's sports blogs have been posting on this for a while, and All Things Considered covered it in its broadcast tonight. Ski jumping is the only Olympic sport that excludes women, so 10 female ski jumpers, including American champion Lindsey Van, have sued the Vancouver Organizing Committee, arguing that as a government entity, it must comply with the Canadian Charter of Rights and Freedoms, their equivalent of our constitution's equal protection clause. In American constitutional law, the US Olympic Committee is not a state actor (thus, the USOC was immune to equal protection challenge of its prohibition on the "Gay Olympics") but I don't know if Canadian courts have similar precedent or whether they are more likely to impose constitutional requirements on their Olympic entities. But if the charter does apply to VANOC, it seems unlikely that it could justify the exclusion of women by simply evoking the fact that the IOC does not sanction women's ski jumping. To use a Title IX analogy, that would be like letting colleges that are subject to Title IX get away with gender inequalities by blaming the policies of NCAA. An entity's obligation to comply with nondiscrimination law (by virtue of being a state actor in VANOC's case, or by virtue of accepting federal funding in the Title IX case) is not negated by that entity's association with another entity that is outside the scope of that law.

Anyway, it will be interesting to see how the case resolves. Maybe the plaintiffs will win, and the Americans will rock at women's ski jumping, and colleges across the country will start adding women's ski jump teams to comply with Title IX?

[thanks SJE]

Wednesday, December 24, 2008

Appeals Court Affirms Dismissal of Band Director Harassment Case

The Court of Appeals for the Seventh Circuit recently affirmed the district court's decision to grant summary judgment to the Hamilton Southeastern (Indiana) School Corp. in a sexual harassment case. Parents of a former student had sued the school district to recover damages under Title IX for a sexual relationship that their daughter had with an assistant band director, Dmitri Alano.

The issue of notice proved fatal to the plaintiffs' case. Their daughter concealed the relationship while it was happening and for two years thereafter. When school officials finally did learn of Alano's sexual misconduct, they immediately suspended him. Alano resigned while the district's investigation was pending. The plaintiffs argued that the district should have known that Alano posed a risk to his students, because it was "common knowledge" that he is married to a former student. But, the court reasoned, "[s]imply knowing that a teacher married a woman formerly his student, without actual knowledge of misconduct, does not suffice to hold a school district liable under Title IX."

I agree that it's probably a stretch to say that a teacher's marriage to former student without more puts a district on notice of that teacher's sexual misconduct with current students. But this case definitely illustrates an unfortunate absence of remedy for sexual relations that a student victim chooses to conceal -- which is what probably happens most of the time.

Decision is: Hansen v. Board of Trustees of Hamilton Southeastern School Corp., 2008 WL 5336904 (7th Cir., Dec. 23, 2008).

Saturday, December 20, 2008

Transgender Student's Discrimination Case Under Investigation

The Pennsylvania Human Relations Commission is investigating a discrimination complaint against Harrisburg Area Community College that was filed by a former student, Jamie Nicole Anderson. According to this article about case, Anderson is a 42-year-old ex-Marine who had a 3.8 GPA at HACC, where she was pursuing an x-ray technician degree. In May she underwent "a sex change operation" and "that's when the trouble started."* She was harassed by clinical instructors who referred to her by male pronouns -- in contrast to her patients, who always called her ma'am. Despite her efforts to seek support and assistance from program directors and the instructors' supervisors, she claims, HACC's response was half-hearted and consequently, ineffective. In October, HACC suspended her for using the women's restroom. Later that month, she was expelled for violating the dress code policy that forbids students from wearing more than one earring in an ear. It seems unlikely to me that all students who accidentally wear an extra earring are expelled, so I am guessing PHRC will examine whether Anderson was singled out for an unusually harsh punishment for discriminatory reasons.

PHRC enforces the Pennsylvania Fair Educational Opportunties Act, which prohibits schools from discriminating against students on the basis of "race, religion, color, ancestry, national origin or sex." It is unclear from PHRC's published materials and decisions whether it considers sex discrimination to include discrimination on the basis of gender identity. Perhaps the results of this case will be informative on that issue.

* I'm direct quoting the article here because it seems unlikely to me that discrimination against Anderson "started" when she had sex reassignment surgery. Anderson must have been taking female hormones and living full time as a woman prior to that time. Surely these outward gender markers would have made her a target for discrimination more so than the status of her anatomy.

Wednesday, December 17, 2008

Obama Taps Arne Duncan to Head the Department of Education

Yesterday President-elect Obama announced his pick for Secretary of Education: Arne Duncan, CEO of the Chicago Public Schools. The Department of Education is charged with primary enforcement of Title IX, so Duncan have enormous influence with respect to policy and enforcement on issues of gender equity in athletics as well as single-sex education.

I haven't been able to find any evidence of Duncan's attitudes about gender equity in athletics, so we'll have to take it on faith that he shares Obama's general support for the law. Perhaps as a former college and professional athlete (basketball), Duncan realizes the value of athletic opportunities and will work to ensure they are available to women on equal terms. Of course, many associated with men's athletics view Title IX as the enemy, so experience as a college athlete doesn't necessarily translate into warm fuzzy feelings about Title IX, let alone a clarity of vision regarding the statute's relationship to men's sports and a willingness to backpedal on compliance loopholes and enforcement malaise. We'll just have to see.

As for single-sex education, it appears that Mr. Duncan has supported sex-segregated charter schools in Chicago. However, his position on sex-segregated education seems rooted more in a recognition of children's diverse learning styles rather than a basic belief that all girls and all boys are the same. Regarding this issue in the Chicago Public Schools, Duncan said, "Some children learn better in a classroom surrounded by all boys or all girls. Some learn better when they can take classroom material and immediately apply it to real-world situations. Other children need a residential school that allows them to better focus on academics. We want to provide all of these education options and more." His position on diverse educational opportunities is so expansive, even supported a controversial proposal (later withdrawn) for public high school in Chicago that would be "deliberately welcoming" of lesbian, gay, bisexual and transgender students. So it might be the case that while Duncan supports single-sex classrooms as an option among many, he may have little tolerance for the schools and districts that are trying to replace gender integrated learning altogether. Again, we'll just have to see.

Tuesday, December 16, 2008

Vivas Case Settled for $5.2 M

Fresno State has opted to settle with former coach Lindy Vivas rather than continue to appeal the the trial court's decision in her favor. Last year, Vivas won a $5.85 million jury verdict in the Title IX retaliation suit she filed after she was fired for advocating gender equity within the athletic department. A trial judge reduced it to $4.52 million, attorneys fees and court costs raised the total to over $5.6 million. Monday's settlement compensates Vivas and her lawyers through annuitized payments. Vivas's $2.1 million share will be paid out in $5,995 monthly installments for 30 years. Each of her two attorneys will receive $7040 a month for 20 years.

This is the last pending Title IX lawsuit against Fresno State. The others, along with their total settlements costs, are listed here.

Monday, December 15, 2008

Adding sports?

Columbus State University in Georgia seems to be throwing caution to the wind and adding sports despite these troubled economic times. The DII institution does not have a football program which might mean the school has a little more budgetary freedom. If so, it's using it to add four more sports. FOUR! Men's and women's track/field (not sure if it's both indoor/outdoor; they already have cross-country), women's golf, and co-ed rifle are the lucky winners at CSU.

The school currently fields 8 sports, including a tennis team that has both men and women. I have never seen this particular situation before because usually the seasons are different for men and women, though often times teams will use the same coaching staffs.
No word on the size of the new teams but currently CSU has an undergrad population comprised of 61 percent women with women receiving 52 percent of athletic opportunities. Though with the addition of sports CSU can certainly argue continuing expansion of programs and might satisfy prong three as well; it is possible that some of these sports were club sports that had requested varsity status.

The school is, apparently, all about expansion. They are planning a new state-of-the-art recreation center and just announced that, by the way, the facility with have an aquatic (also state-of-the-art, of course!). Lest you think that administrators are just going wild with the plans and the spending, it was the student government association that approved the addition of the aquatic facility; many of the costs associated with the new facility are being funded by student fees.

Interestingly, the new facility will have a women's-only workout space. Wonder how that will play out...

Saturday, December 13, 2008

More good booster news

Taking off of Erin's recent post about the Benicia High School booster club, I just thought I would mention this little piece of news about the Elk Lake (PA) school board. (Especially since there seems to be a lot happening lately in PA high schools regarding Title IX.) A proposal by a member of the boys' basketball booster club to charge admission to games was turned down by the school board. The booster club wanted the money from ticket sales to offset the cost of sending members of the team to basketball camp over the summer. But the school district was concerned about the Title IX ramifications. Board member and superintendent William Bush said this: "The proposal is only for boys' basketball, and with Title IX there may be some legal ramifications if we didn't do the same for the girls' team." As I said, it's not huge news. Rather I bring it up here because it seems to suggest that there's a widening awareness not just of Title IX by non-sports administrators, but about the specific issues of gender equity including booster clubs. We certainly hope this is a trend!

Friday, December 12, 2008

"It was never a money issue. It was a Title IX issue."

This is the explanation University of Delaware athletic director gave for his decision to cut men's indoor track and add (eventually) women's golf. Ironically, this statement follows on the heels of UD's announcement of its long-term strategic plan to revamp its athletic facilities. The university's first priority is to add an athletic performance center so that the football coach can impress recruits (that's not me being snarky. That's in the article). Subsequent priorities include rebuilding the football stadium, a project that will require it to destroy and reconstruct two other athletic facilities -- the ice arena and the outdoor swimming pool.

Here's why I think the timing of the two announcements are ironic and ill-timed. Cuts are always about money (they are also always about Title IX, because Title IX reasonably and appropriately protects women's athletic opportunities from getting cut when --and only when -- women have proportionately fewer opportunities to start with). First of all, there's no requirement that universities comply with prong one. Adding women's sports often results in compliance with either the other two alternative prongs (continuous expansion of opportunities for women, and effectivement satisfying the interests and abilitis of the underrepresented sex). And let me emphasize this point with respect to UD's case: adding golf alone (i.e., without cutting men's indoor track) could have given them a strong basis to claim compliance with Title IX under prongs two or three. This casts doubt on the AD's claims that cutting men's indoor track was a Title IX issue.

Second of all, there's no requirement that a university comply with the first prong by cutting men's teams. If a university wants to achieve proportionality it can either (1) add more opportunities for women so that the percentage of opportunities matches the percentage of women in the student body; or (2) cut opportunities for men until the percentage of opportunities matches the percentage of men on campus; or (3) some of each. Why would any university chose door number 2 or door number 3, rather than door number 1? When asked, they always say it's because they don't have the finances to choose door number 1. Thus, in UD's case, the AD's "It's not a money issue" statement smacks of incredulity. His university has announced that it will undertake an aggressive fundraising campaign in acknowledged hard economic times to renovate facilities that largely benefit football. It is about money. It's also about priorities.

Saying "there's no money" is one thing. Saying "we'd rather spend money on football than on providing a diverse array of athletic opportunities for both men and women" is another thing altogether. Unfortunately, I'm not optimistic that those eager to blame Title IX for university's misdirected priorities will probe the AD's statement deeply enough to recognize the difference.

Thursday, December 11, 2008

Private Donors Give to Softball Field Project

Too often in our posts about booster clubs we bemoan that parents and community members create or contribute to discrimination in scholastic sports by supporting boys' teams more than girls'. So, it's nice to see that the Panther Foundation, a group of parents supporting athletics at Benicia High School, has pledged $50,000 to the school district to support the construction of two softball fields on the high school campus.

The gift is well timed. Earlier this week, OCR identified Benicia High's lack of a softball field as contributing to Title IX violations it discovered after investigating anonymous complaint.

Wednesday, December 10, 2008

Title IX Litigation in Montgomery County, Georgia

From a reader, I learned of a Title IX retaliation suit that was filed in federal court recently against the Montgomery County (Georgia) Board of Education. The plaintiff, Christopher Bowman, was a teacher at Montgomery County High School until he was fired, he alleges, because he provided evidence to state officials of a sexual relationship between the guidance counselor, Carrie O'Connor, and a 16-year-old male student. Soon after cooperating in the state's investigation of the charges against O'Connor, Bowman was informed by the district superintendent of his termination -- ostensibly, for "insubordination." Incidentally, the superintendent, Dale Clark, is also O'Connor's mother. Bowman alleges that Clark also sabotaged his efforts to find employment with other school districts in Georgia.

Though a jury recently cleared O'Connor of criminal charges due to insufficient evidence to substantiate the victim-student's claims, this will not have an affect on the legal arguments in Bowman's suit. That is because Title IX protects whistleblowers who reasonably believe that a violation of the statute -- here, severe and pervasive sexual harassment -- has occurred. Otherwise, whistleblowers would only come forward if they were absolutely certain that a violation had occurred, which is to say, hardly ever.

Bowman's suit is not the only Title IX case arising out of this circumstance. The victim's mother has also sued the school district, claiming among other things that the district violated Title IX in failing to protect her son from the guidance counselor's sexual conduct, which could qualify as severe and pervasive harassment under Title IX. Though the outcome of O'Connor's criminal trial -- especially the fact that the jury returned its "not guilty" verdict within 30 minutes -- casts some doubt on the viability of this case, it does not necessarily foreclose it as a matter of law. The plaintiff need only prove that it's more likely than not that the sexual misconduct occurred, where the state had to prove it beyond a reasonable doubt.

Tuesday, December 09, 2008

California School District Violates Title IX, OCR Concludes

No surprise here, but OCR has concluded that the Benicia (California) Unified School District is in violation of Title IX in light of its failure to provide athletic opportunities to girls that are equitable in quantity and quantity.

As we have noted in prior posts, OCR's investigation commenced after an anonymous complainant alleged that female athletes at the high school were being treated unfairly. While the specifics of the complaint and the scope of investigation were not made public, the local paper's own reporting shed some light on the issues that were likely under consideration. One problem is that Benicia High School allocates over 60% of its athletic opportunities to boys, a distortion that stems in large part to its three football teams. It also spends more than 12 times as much on boys' athletics than girls,' which has created inferior opportunities for girls, especially in softball. The softball team must play at the city park when it is not being used by the local adult league, in contrast to boys baseball team, which has its own, recently-renovated facility on the high school campus.

Though news of OCR's conclusions did not mention a specific remedial plan, the district has agreed to "conduct yearly surveys to determine the athletic interests of females, and work with coaches and parents to ensure softball athletes have acceptable access to the Community Park fields." Since neither of these promises is certain to remedy the violations OCR has found, I predict that the agency will be keeping an eye on Benicia High.

More on Pittsburgh's history

In our post on the Title IX audit underway in the Pittsburgh school district, we mentioned there had been an investigation by a local paper many years ago that discovered some glaring gender inequities.
Thanks to a loyal reader, we have the link to this investigation by the Pittsburgh Tribune Review and written by reporter Carl Prine.
The page contains its own links to each day's story that focused on a separate issue such as coaching and fundraising. Many stats are also available about the state of the city's athletics in 2001. It will be an interesting marker when the results of the current audit come out.

Monday, December 08, 2008

Southern Nevada girls start soccer season

As we noted not too long ago, the Title IX lawsuit brought by the parent of a high school soccer player in southern Nevada was "settled" in that both sides agreed that the girls could play in the winter for another year. The school district has tried repeatedly to move girls' soccer to its traditional season--fall. This would allow a statewide championship instead of post-season play that is more sectional in nature.

I'm not going to rehash the argument as to why Title IX is not applicable in this case, as we see it.

But this article about the upcoming season has me shaking my head--again--about what people are thinking in southern Nevada. The Clark County School District will spend the year looking at Title IX compliance and the finances; as in, do they have money to add a girls' winter sport. The sport they are considering is lacrosse. But girls' lacrosse is played in the spring, you might say. Right. So to remedy a situation in which a girls' sport is being played in its non-traditional season, the district is considering adding a different sport which would be played in a non-traditional season.

We could be talking about southern Nevada for a long, long time.

Friday, December 05, 2008

ISU seeking different outcome

Lawyers for Iowa State University have asked that the recent jury verdict against the school for retaliation against former softball coach Ruth Crowe be overturned. And if the judge will not agree to that, they would like a new trial.
Those working on behalf of the university believe the jury did not decide the case based on its merits and that it did not understand Title IX. A misunderstanding of Title IX would not be out of the realm of possiblity. So many people, including those in administration, frequently misrepresent the statute. Including, apparently, ISU's own lawyers who do not believe there were any Title IX violations because Title IX does not require equal spending on men's and women's athletics. they say. True. But it does require equitable funding and the evidence presented at Crowe's trial convinced jurors that things in the athletic department were not equitable.
Sure, you're going to spend more on a football stadium than a softball facility. But if your football stadium has locker rooms with bathrooms and your softball facility has port-o-potties that the players use--there's inequity. When football coaches are given thousands of dollars to wine and dine recruits and their families or fly to them via private jet while coaches of women's teams have to fight just to justify bringing recruits to campus and can only afford to take them to Arbys--there's inequity. These specific examples are not necessarily happening at ISU. But they're happening elsewhere. And the mentality that athletic departments do not have to provide the same quality of experience to women as they do to men does seem to be present at ISU.
That is likely what the jury saw. Holding ISU accountable for it is not a decision based on "passion and prejudice"--unless the jury felt passionately that the very evident prejudice against women in athletics is a bad--and yes, illegal--thing.

Thursday, December 04, 2008

SDSU raises fees to support athletics

San Diego State University has been contemplating for a while now a fairly dramatic increase in one of its student fees. An increase that would support their cash-strapped athletic department.
When I first read about the story a while ago the increase was being presented as a way to fund an additional two women's sports that SDSU needed to add to meet the gender equity standards for CSU schools.
This presentation was disturbing because it painted a picture of women's sports as sucking dry athletic departments and then asking the general university population for help.
The latest news from SDSU has confirmed a fee increase of $80 per semester. But it also clarified that the increase would be going to support a student spirit initiative, the general athletics budget, club sports, and two women's sports. The list reflects the many needs of the department and that the increase will support more than just student-athletes. It also provides evidence to contrast the nonbelievers who say football is able to support women's athletics and thus should be exempt from certain rules and regulations.

Wednesday, December 03, 2008

Fitzgerald Oral Argument Roundup

Yesterday the Supreme Court heard oral arguments in the Title IX preemption case, Fitzgerald v. Barnstable School Committee. For background, see our prior posts on the district court's decision, the appellate court's decision, the Supreme Court's grant of certiorari grant, and a preview of the oral argument.

The transcripts of yesterday's oral arguments are available here. Also, there's coverage in, among other places, the New York Times, the Associated Press, and Education Week.

From the transcript and press cited above, it appears that the Court's chief concern was whether the plaintiff's ability to sue under Section 1983 along with Title IX actually matters to the outcome of the case. Justice Ginsburg, for example, suggested that if the school board's response was not "deliberate indifference" under Title IX, it was also not a constitutional violation remediable via 1983. The plaintiffs' lawyer argued that the Constitution prohibits a broader range of sex discrimination than Title IX, such as, for example, decisions that have a disparate impact on one sex or the other, but the Justices seemed concerned that none of those areas were implicated in this particular case. So why, they wondered, should the Court decide that Title IX and Section 1983 cases can proceed simultaneously in a case where the additional Section 1983 remedy does not change the result? The best the plaintiff's counsel could do was to argue that the legal question is relevant, even though it's seemingly outcome-neutral here. The court of appeals could have relied on its Title IX analysis to conclude that no Equal Protection violation occurred either, but it didn't do that. Rather it said the 1983 claims were preempted. If that conclusion is wrong as a matter of law, then the Supreme Court should fix it, even if it means that the First Circuit will, ultimately, summarily decide that no constitutional violation occurred.

A decision will be forthcoming sometime before the end of the Term in June.

Dropped Teams Better Off as Clubs?

The NY Times had this brief article about collegiate club teams, which are providing competitive opportunities for athletes in sports that universities no longer decide to sponsor as part of their varsity program.

A former Yale water polo player who now coaches the club team said he was initially upset about Yale's decision to drop the varsity program: "But now, I think the athletes are better off in the club model. Unless you want to be a water polo player in the Olympic Games, a club team epitomizes the athletic experience in a more pure form."

The executive director of the National Collegiate Wrestling Association* was also interviewed about his organization's support for club wrestling, and I found his comments particularly interesting in light of the wrestling community's historic opposition to Title IX, which is often blamed for cuts. Jim Guinta said that when he realized Title IX policies would not "level out" and create opportunities for wrestling to coexist with existing, disproportionately larger men's athletics programs, he has "come to realize that institutions have been using Title IX as a cop-out. The real reason they are cutting sports is to save money. So we still encourage teams to be reinstated in the N.C.A.A. if they can, but that’s rare. We’ve moved on and have a strong association of thriving wrestling programs."

One shortcoming of the article is that it did not discuss how club sports work and what relationship they have with their universities. Most receive support in some form or another (access to facilities and equipment, maybe some help with transportation) and universities must allocate this support in a nondiscriminatory manner in order to comply with Title IX. Students are for the most part paying their own way and making their own decisions about how the team is run. This is, presumably, what the Yale water polo coach meant when he described clubs as a "purer" form of sport.

* Not the National Wrestling Coaches Association, as I had earlier posted. Apologies for the error.

Tuesday, December 02, 2008

Pittsburgh schools will do Title IX audit

I thought we had written about this before, but apparently there are a lot of Title IX issues in Pennsylvania public schools--so it's easy to get confused.
In what appears to be a collaborative effort, the nine schools in a Pittsburgh school district will start an internal Title IX audit. Issues of discrimination (no specifics though) against female student-athletes have been known since 2001 investigation by a local newspaper.
The schools will work with a Title IX expert as well as the Women's Law Project (their presence makes one believe that district administrators did not just wake up one morning and decide to do this of their own volition). Though it should be noted, as a WLP attorney has, that the schools are doing this audit even though there is no litigation pending. This in itself is impressive--no matter the impetus--given that so many schools turn a blind eye or engage in some heavy denial even when faced with lawsuits and a mountain of evidence of discriminatory treatment.
The audit will last about two weeks. No word on when reports of the findings will be released.

Monday, December 01, 2008

Fitzgerald v. Barnstable School Committee Oral Argument Tomorrow

Lyle Denniston at SCOTUSBlog has a comprehensive preview about the Title IX case that will be argued before the Supreme Court tomorrow.

He points out that, though the underlying case is about some pretty egregious student-on-student sexual harassment, the Court is "unlikely to be distracted by the controversy" and will instead remained focused on the narrow legal question for which the Court granted cert, which is, whether the availability of legal remedies under Title IX foreclose plaintiffs from simultaneously raising constitutional claims via 42 U.S.C. section 1983. He points out that, while a number of lower appellate courts have found 1983 claims preempted by Title IX, "only once in history – in 1984 – has the Court barred a claim of discrimination filed under Section 1983 because Congress had passed another law that it intended to be the exclusive way to remedy particular wrongs, displacing the remedies that had been available under the old law."

Denniston's prediction:
The Justices will have to analyze closely the differences between the two legal regimes and decide, among other things, whether Title IX review is truly comprehensive, given its internal limiting factors. The fact that the Court does not easily – and does not often — displace constitutional lawsuits with alternative statutory schemes will probably counsel caution this time, too. More than likely, whatever the Court decides will be as narrow as the Court can make it. For example, it would be inclined, it seems, to indicate that it is not dealing with anything other than student-on-student harassment claims.
I agree that the Court tends to decide such issues as narrowly as possible. But can it justify a ruling that only applies to peer harassment cases under Title IX? Neither the statute nor its legislative history differentiates between those types of claims and other applications of the statute (for example, other manners of harassment and discrimination in the context of education and athletics). So its hard to imagine the reasoning the Court would rely on to justify treating them differently.