That's the thought of a writer in New York who believes that the growth of competitive cheerleading and its acceptance as a sport by some schools could help ease all the Title IX controversy over "quotas."
Would that it were so (or that we would want it to be so).
From what I have heard and read on blogs, in personal correspondence, and in the media, the competitive cheerleading issue has engendered more controversy--nearly every day, in fact, in recent weeks. (For more of a "history" on the emergence of competitive cheerleading click on the cheerleading tag.)
Last month was the Quinnipiac case in which the university cut women's volleyball and elevated cheerleading to varsity status. The volleyball team won an injunction preventing QU from cutting it until the lawsuit charging non-compliance with Title IX was complete. (Mediation is currently underway in that case.) But the discussion around competitive cheerleading in that case seemed to die when the volleyball team won their injunction.
Currently we have Florida Parents for Athletic Equity filing an injunction and lawsuit against the Florida High School Athletic Association over cuts to all athletic competitions except football and cheerleading. But the cheerleading issue has not received a lot of the coverage. We do know that there are far more male football players than female cheerleaders which makes the cuts inequitable, of course. But Nancy Hogshead-Makar, one of the lawyers for FPAE, has concern over cheerleading as a competitive, varsity sport. My guess is that those competitive cheerleaders are, in most cases, also sideline cheerleaders. And that is a big no-no if you want to count your cheerleaders as student-athletes.
A recent article in Inside Higher Ed has done a better job than most in addressing the cheerleading controversy and includes information about both QU and Florida as well as comments from Hogshead-Makar.
I predict (may be eating my words on this one) that the cheerleading issue is going to have to be decided soon. The case-by-case basis that OCR has allowed for is a little too abstract. It also places the burden on female students who have been denied a sporting opportunity (for example when a women's club sport is not elevated) to sue their school when it decides to take the cheap way out and elevate cheerleading. This, in effect, is pitting these athletes against the cheerleaders--an issue that was raised in the QU case by the cheerleading coach. It's an unfortunate situation, at best.
Also I see a difference between being treated like a sport and actually being a sport. And this is contentious territory. Competitive cheerleading is being counted as a sport for Title IX purposes when the team is treated like other varsity teams in terms of access to coaching, competition, facilities, etc. But is it really a sport just because it involves athletic elements? What definition of sport do we employ? If, as many claim, cheerleaders are largely former gymnasts, why don't we just have more gymnastics teams? It's hard to believe gymnastics is a dying sport if there are so many cheerleaders with gymnastic skills and experience.
I have some doubts though that when (if?) the final decision is made it will be based on defining a sport. It probably seems easier to base it on how the participants are treated. If this turns out to be the case, I encourage marching bands everywhere to apply for varsity status. There are plenty of athletic elements there: the actual marching, the need for good lung capacity, and lots of push-ups! Because if we take cheerleaders away from the sidelines can the marching band be that far behind?
Tuesday, June 30, 2009
Monday, June 29, 2009
Title IX Doesn't Cover Coach's Discrimination Against Female Football Player, Court Rules
Ivyanne Elborough played football on the freshman team at Evansville High School in Wisconsin. She was the only female member of the team. Her coach, Ron Grovesteen, apparently did not like having a girl on the team. He regularly failed to unlock the girls' locker room, so Elborough had to find someone with a key to let her in so she could get her equipment. This made her late to practice, an infraction Grovesteen punished with pushups. Grovesteen also supplied the boys' locker room with snacks, and posted a copy of the practice schedule there. Elborough, of course, was not permitted in the boys locker room. Elborough also alleges, that Grovesteen told Elborough she had to get her hair cut like a boy, though Grovesteen denies this.
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Friday, June 26, 2009
Court Reconsiders Severity of Single-Incident Harassment
Rarely do courts grants motions to reconsider prior rulings, but a federal judge in New York did so this week in the context of a peer harassment case. CG was a special needs student at a public junior high school in New York City. During computer class, she was assaulted by two male students, one who grabbed her breasts from behind and another pulled her pants down and touched her buttocks. The teacher, Mr. Raskin, was present in the classroom, but was ostensibly helping students at the front of the room during this incident, which took place at the back of the classroom. CG called out for help, but did not call to Mr. Raskin in particular. Eventually her friend pushed through the crowd of students who had gathered around and pulled the boys off of her. CG's friend reported the incident and the boys were suspended and then transferred out of school.
CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.
Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.
Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 2009).
CG's guardian sued the City on her behalf, claiming that the school was liable Mr. Raskin's failure to intercede and stop the assault as it was happening. Last month, however, the judge dismissed this claim. He agreed that the a jury could find that he was aware of the situation and that his failure to act amounted to deliberate indifference, he held that it did not constitute "severe and pervasive" harassment because it only happened one time. In response to the plaintiff's motion to reconsider, however, the judge admitted that he overlooked cases judicial decisions -- as well as topical Department of Education guidance -- holding that a single incident of harassment may render a school district liable if it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." In other words, "severe and pervasive" goes to the effect that the harassment could reasonably be expected to have on the victim. It does not refer to the pattern of the harassing conduct itself. The "deliberate indifferent" element already takes that into account; where a teacher's failure to intercede in an ongoing assault could amount to indifferent, failure to intercede in namecalling may not unless/until that namecalling becomes a pattern.
Applying this standard, the judge reasoned that a jury could find that the assault on CG was serious and caused her emotional harm that impaired her access to education. This is a sensible result, in my view. The court was right to recognize that sexual harassment comes in many forms, and that the courts' concern about making schools liable for single incidents of harassment arises in the context of schoolyard taunts and teasing -- concerns not applicable when the manner of harassment is assault.
Decision is: TZ v. City of New York, 2009 WL 1794702 (E.D.N.Y., June 23, 2009).
Thursday, June 25, 2009
Re-shuffling the program in West Virginia
The athletic department at Salem International University in Salem, WV has had some problems with ineligible players and institutional control. So while they are on NCAA and conference probation (including no post-season eligibility), administrators are doing some reorganization. The university, which has stated that is currently in good standing with Title IX, will drop four sports: men's and women's golf, women's volleyball, and men's tennis. The athletic director has said these four squads are mostly made up of athletes from other sports--sports that said athletes consider to be their primary ones. In other words, the dropped sports have had to do some heavy recruiting from within the athletic department and not very successfully. And though winning isn't everything, it does not seem that many of the sports--dropped or saved--have had a lot of success. So the university is also using this time to beef up the program. Forthcoming is a discussion of bringing back football. The SIU considered it in 2003 but decided to focus on restructuring academics, but now it is back on the table with a potential on-campus stadium that would also serve soccer and softball--both of which currently use off-campus facilities. Costs to start up and maintain a football program will be central to discussions as well as how to increase the participation opportunities to female students.
Wednesday, June 24, 2009
Under pressure, FHSAA calls emergency meeting
Realizing what many before them have not, the Florida High School Athletic Association has decided that doling out legal fees might run counter to efforts to save money--exactly what their plan to reduce the number of athletic contests was supposed to do. After failed talks between FHSAA and the Florida Parents for Athletic Equity and the latter's subsequent filing of a lawsuit and injunction to prevent the inequitable cutting of contests, FHSAA has decided to try to deal with the matter. The board will meet July 15 to discuss the situation. They should be hoping the judge grants the injunction that would prevent the cuts from being enacted this fall. That would at least buy them some time to come up with an equitable solution and work with FPAE--for real this time.
Tuesday, June 23, 2009
White House Celebrates Title IX Anniversary
President Obama will commemorate the 37th anniversary of Title IX today during his press conference from the Rose Garden. Also (in another example of the interface between Title IX and Facebook) the White House is hosting an online discussion this afternoon (2:30 EST) to honor the anniversary. According to the Women's Sports Foundation website, the roundtable discussion will be streamed on the White House website using "an innovative Facebook application that allows users to both watch the live-stream and be part of an online chat about the roundtable simultaneously."
Finally, the White House blog is also celebrating the anniversary by collecting (and presumably posting, at some point later today) photos of women playing sport. UN Ambassador Susan Rice inspired this project with her own post and photo about playing point guard in high school.
Finally, the White House blog is also celebrating the anniversary by collecting (and presumably posting, at some point later today) photos of women playing sport. UN Ambassador Susan Rice inspired this project with her own post and photo about playing point guard in high school.
Training Rules screening in Minneapolis
Training Rules, the documentary about Rene Portland's anti-lesbian policies and the case brought against her and Penn State by former Lion Jennifer Harris, is screening tomorrow evening (Wednesday, June 24) at 7pm at the Walker Art Center. The movie, which will be followed by Football Under Cover, a documentary about Iranian women's soccer, is part of the Walker's Queer Takes film series.
Check out this column about the film.
Check out this column about the film.
Saturday, June 20, 2009
More coverage of Florida case
This site has an interview with Nancy Hogshead-Makar, several student-athletes, and a parent about the lawsuit and injunction Florida Parents for Athletic Equity have filed against the Florida High School Athletic Association which has a policy that will cut athletic contests for all students athletes except football players and cheerleaders. It also mentions the group's Facebook presence which seems to be growing every day.
Then there is this editorial in which the writer sees FHSAA caving. I happen to concur. I don't think it's much of a limb-climbing gesture to say that the chances of this case seeing a courtroom--past preliminary hearings--are pretty small. Unfortunately he calls Hogshead-Makar a pit bull lawyer being followed by pit bull parents carrying the Title IX banner. Not sure how I feel about this. Haven't we heard this pit bull rhetoric recently???
But is also provides some of the economic realities of the situation; as in how much money comes in during football games. Unfortunately FHSAA never really calculated how much the cuts to every other sport would save.
Then there is this editorial in which the writer sees FHSAA caving. I happen to concur. I don't think it's much of a limb-climbing gesture to say that the chances of this case seeing a courtroom--past preliminary hearings--are pretty small. Unfortunately he calls Hogshead-Makar a pit bull lawyer being followed by pit bull parents carrying the Title IX banner. Not sure how I feel about this. Haven't we heard this pit bull rhetoric recently???
But is also provides some of the economic realities of the situation; as in how much money comes in during football games. Unfortunately FHSAA never really calculated how much the cuts to every other sport would save.
Friday, June 19, 2009
Settlement Reached in UC Davis Case
In 2007, three female students who played club sports at the University of California at Davis sued the university to challenge the lack of varsity athletic opportunities for women. They argued that Davis failed to satisfy any of the three alternative prongs for measuring compliance in this regard. The university argued that it complied with the proportionality prong, as women made up 56% of the student body, and received 50% of athletic opportunities. This difference of 6 percentage points is close to the +/- 5 percentage point difference that is commonly -- though unofficially -- recognized as acceptable to constitute substantial proportionality.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.
Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.
Thursday, June 18, 2009
Florida case and thoughts on cheerleading
The Florida Parents for Athletic Equity have indeed filed a lawsuit against the Florida High School Athletic Association as they promised they would if FHSAA did not make moves toward ensuring equitable competitive opportunities.
This case and the Quinnipiac University case which is now in mediation have brought up, seemingly on the side but maybe not, the issue of competitive cheerleading. In Florida, FHSAA said it would not cut the athletic contests for football and cheerleading. At QU competitive cheer was elevated to varsity status when the university announced the demise of three varsity sports, including women's volleyball.
But the goal and performance of cheerleading is at the center of a lot of debates. It is not, at the intercollegiate level, a recognized NCAA sport with its own championship. OCR has said it is generally considered a support activity unless it meets certain criteria, including NOT doing any sideline cheerleading. The intercollegiate teams that do achieve varsity status meet that criteria but whether high schools in Florida do is a little more uncertain.
This article that ties the two cases together outlines some of the issues from administrators, coaches of cheering and other teams, and cheerleaders themselves. (It would have been nice to hear from other female athletes, though.)
It is pretty certain, though, that this issue is not going to remain on the periphery. Whether it comes from below--athletes themselves; or from above--the NCAA or OCR; someone will press the issue a little more and we will have a version of cheerleading that is a little less amorphous.
This case and the Quinnipiac University case which is now in mediation have brought up, seemingly on the side but maybe not, the issue of competitive cheerleading. In Florida, FHSAA said it would not cut the athletic contests for football and cheerleading. At QU competitive cheer was elevated to varsity status when the university announced the demise of three varsity sports, including women's volleyball.
But the goal and performance of cheerleading is at the center of a lot of debates. It is not, at the intercollegiate level, a recognized NCAA sport with its own championship. OCR has said it is generally considered a support activity unless it meets certain criteria, including NOT doing any sideline cheerleading. The intercollegiate teams that do achieve varsity status meet that criteria but whether high schools in Florida do is a little more uncertain.
This article that ties the two cases together outlines some of the issues from administrators, coaches of cheering and other teams, and cheerleaders themselves. (It would have been nice to hear from other female athletes, though.)
It is pretty certain, though, that this issue is not going to remain on the periphery. Whether it comes from below--athletes themselves; or from above--the NCAA or OCR; someone will press the issue a little more and we will have a version of cheerleading that is a little less amorphous.
Wednesday, June 17, 2009
Facebooking a discrimination case
Florida Parents for Athletic Equity will be following through on their decision to file a lawsuit against the Florida High School Athletic Association over the latter's policy to reduce the number of athletic contests for all teams except football.
And they will also be updating the happenings in the case on Facebook. There has been a lot of discussion (in my circles at least) recently about new technology/media and sport: Twitter, Facebook, etc. Sports Illustrated even did an article on athletes who tweet.
But this will be interesting. And helpful to people like us who read news accounts of cases and wonder about some of the facts: what is verifiable, what might have been misconstrued, etc. So it will be nice to be able to read Facebook updates on the case next to news accounts.
And they will also be updating the happenings in the case on Facebook. There has been a lot of discussion (in my circles at least) recently about new technology/media and sport: Twitter, Facebook, etc. Sports Illustrated even did an article on athletes who tweet.
But this will be interesting. And helpful to people like us who read news accounts of cases and wonder about some of the facts: what is verifiable, what might have been misconstrued, etc. So it will be nice to be able to read Facebook updates on the case next to news accounts.
Tuesday, June 16, 2009
Court Sides With School District in Cyber-Harassment Case
Recently a federal district court in New York dismissed a case against the Hastings-on-Hudson Union Free School District on grounds that the plaintiff's allegation that she had been sexually harassed by another student via email did not constitute violation of Title IX or other law.
Over the course of ten days in March of 2005, S.S., the plaintiff, a female student then in ninth grade, received three harassing emails that had apparently come from a male classmate, M.X. M.X. used the email account provided by the school to send the emails, and sent them to S.S.'s school-sponsored account. The actual language of the email is included in the opinion, but suffice it to say, they referenced S.S.'s weight, requested that she reveal her private parts to him, and declared his intention to engage in intercourse and other sexual acts with her.
The assistant principal investigated the emails after learning of them though the guidance counselor and the technology director. M.X. denied sending them, suggesting they had been sent from his account by another student to whom he had given his password. Unable to prove that M.X. sent emails (in part because school officials waited too long to check the network systems log, which only stored the relevant information seven days) the school disabled his network account as punishment for sharing his password.
In her lawsuit, S.S. argued that the school's response constituted deliberate indifference to severe and pervasive sexual harassment, a violation of Title IX. Though the court agreed that a jury could find that the district responded with deliberate indifference, it disagreed that the emails were "severe and pervasive." The court compared the emails to "simple acts of teasing" held to be outside the realm of Title IX liability, and contrasted them to cases where school district liability was based on more numerous, frequent incidents of verbal harassment or incidents that involved some offensive physical contact. For similar reason, the court denied S.S.'s constitutional claims as well.
Decision: Saurhaft v. Bd. of Educ., Hastings-on-Hudson Union Free School Dist., 2009 WL 1576467 (S.D.N.Y. June 2, 2009).
Over the course of ten days in March of 2005, S.S., the plaintiff, a female student then in ninth grade, received three harassing emails that had apparently come from a male classmate, M.X. M.X. used the email account provided by the school to send the emails, and sent them to S.S.'s school-sponsored account. The actual language of the email is included in the opinion, but suffice it to say, they referenced S.S.'s weight, requested that she reveal her private parts to him, and declared his intention to engage in intercourse and other sexual acts with her.
The assistant principal investigated the emails after learning of them though the guidance counselor and the technology director. M.X. denied sending them, suggesting they had been sent from his account by another student to whom he had given his password. Unable to prove that M.X. sent emails (in part because school officials waited too long to check the network systems log, which only stored the relevant information seven days) the school disabled his network account as punishment for sharing his password.
In her lawsuit, S.S. argued that the school's response constituted deliberate indifference to severe and pervasive sexual harassment, a violation of Title IX. Though the court agreed that a jury could find that the district responded with deliberate indifference, it disagreed that the emails were "severe and pervasive." The court compared the emails to "simple acts of teasing" held to be outside the realm of Title IX liability, and contrasted them to cases where school district liability was based on more numerous, frequent incidents of verbal harassment or incidents that involved some offensive physical contact. For similar reason, the court denied S.S.'s constitutional claims as well.
Decision: Saurhaft v. Bd. of Educ., Hastings-on-Hudson Union Free School Dist., 2009 WL 1576467 (S.D.N.Y. June 2, 2009).
Monday, June 15, 2009
The not-so-far-reaching effects of equity in sports
Frequently overlooked when we make statements such as "girls have benefited from Title IX" or "the growth of high school girls in sports has been X-fold since the passage of Title IX" is the fact that "girls" is not a nice, neat category. "Girls" is actually quite complex. And as much as we support gender equity laws, we need to remember that relying solely on the category of gender to judge equity and opportunity is not sufficient.
Yesterday's NYT article on the sporting lives of urban girls, specifically NYC girls, is an important reminder of how class, race, and ethnicity affect access to opportunities.
The article does a great job explaining the realities faced by many middle and high school-age girls who are ethnic and racial minorities in the US. It tells some of their stories as well as those of administrators and coaches who try to balance the needs of their teams (the article focuses on basketball) with the needs of the student-athletes--and primarily the needs of players' families who often rely on these young girls for child care and other domestic duties.
And, of course, we also get the bigger picture in the form of statistics and various sociological studies.
Yesterday's NYT article on the sporting lives of urban girls, specifically NYC girls, is an important reminder of how class, race, and ethnicity affect access to opportunities.
The article does a great job explaining the realities faced by many middle and high school-age girls who are ethnic and racial minorities in the US. It tells some of their stories as well as those of administrators and coaches who try to balance the needs of their teams (the article focuses on basketball) with the needs of the student-athletes--and primarily the needs of players' families who often rely on these young girls for child care and other domestic duties.
And, of course, we also get the bigger picture in the form of statistics and various sociological studies.
Saturday, June 13, 2009
Never mind
The negotiations between the Florida High School Athletic Association and Florida Parents for Athletic Equity, which is being represented by Nancy Hogshead-Makar, have apparently broken down because the announcement that was expected Friday never happened. Early reports, that we reported here, said that FHSAA would offer two options regarding reduction of interscholastic athletic conferences that would not disproportionately affect girls.
Also, apparently, Roger Dearing, director of the FHSAA, was ready to rescind altogether the whole plan to reduce contests.
Hogshead-Makar said she did not what happened. Dearing could not be reached for comment and is on vacation next week. Hogshead-Makar is still giving FHSAA until Monday, as originally agreed, to address the issue. She also has said she will not file a lawsuit if FHSAA calls an emergency meeting for June 26 or before.
Also, apparently, Roger Dearing, director of the FHSAA, was ready to rescind altogether the whole plan to reduce contests.
Hogshead-Makar said she did not what happened. Dearing could not be reached for comment and is on vacation next week. Hogshead-Makar is still giving FHSAA until Monday, as originally agreed, to address the issue. She also has said she will not file a lawsuit if FHSAA calls an emergency meeting for June 26 or before.
Friday, June 12, 2009
Mediation in QU case
Judge Stefan Underhill, who ordered the injunction on the Quinnipiac Title IX/volleyball case recently, has sent the case to a magistrate judge for mediation talks. No word here on what next week's talks will address, but both sides made the request to the district court. My guess as to likely topics: how QU counts and reports its number of participants; cheerleading as a sport; equitable treatment of the men's and women's program(s).
Thursday, June 11, 2009
Potential resolution in Florida interscholastic athletics
After being given a 10-day window to come up with an equitable solution to cutting sports contests, the Florida High School Athletic Association will announce two options for schools. In April FHSAA said it would cut all varsity contests by 20 percent--except football. The football exemption disproportionately affects girls and Title IX advocate/scholar and lawyer Nancy Hogshead-Makar along with a group of parents said they would file a lawsuit unless the organization addressed the inequity immediately.
FHSAA listened and will announce tomorrow that schools can either cut football contests by the same 20 percent or retain the number of contests for certain girls' sports (basketball, volleyball, softball, and soccer are the ones that have been mentioned). In other words, if there are 55 boys on a football team and a school elects to keep a full schedule, it must keep a full schedule for 55 girls--whether those girls are on one 55-person squad or a combination of 2 or 3 teams.
I have seen two articles on this solution. One does not have a comment by Hogshead-Makar and the second quotes her as being displeased by the solution--but it does not explain why.
I suspect there are more issues here and sides of stories that are missing. For example, the issue of "competitive" cheerleading was raised but I am not sure it has been resolved. I suspect we will know more when the official announcement is made.
FHSAA listened and will announce tomorrow that schools can either cut football contests by the same 20 percent or retain the number of contests for certain girls' sports (basketball, volleyball, softball, and soccer are the ones that have been mentioned). In other words, if there are 55 boys on a football team and a school elects to keep a full schedule, it must keep a full schedule for 55 girls--whether those girls are on one 55-person squad or a combination of 2 or 3 teams.
I have seen two articles on this solution. One does not have a comment by Hogshead-Makar and the second quotes her as being displeased by the solution--but it does not explain why.
I suspect there are more issues here and sides of stories that are missing. For example, the issue of "competitive" cheerleading was raised but I am not sure it has been resolved. I suspect we will know more when the official announcement is made.
Lawsuit Filed Against Canton School District
Students and parents in Canton, Illinois, have sued School District No. 66 over alleged Title IX violations. Their complaint maintains that the district discriminates against girls' athletics in the scheduling practice times and times, and by providing equipment -- like sound systems -- and facilities -- such as locker rooms -- that are inferior to those provided for boys' athletics. Additionally, the plaintiffs charge that the district discriminates in the support and publicity for girls games by deploying the band, cheerleaders, and pompom squad to boys' games but not girls' games.
Canton is in the same county as Lewistown, whose school district settled a similar lawsuit in 2008, resulting in the upgrade of softball facilities there.
Canton is in the same county as Lewistown, whose school district settled a similar lawsuit in 2008, resulting in the upgrade of softball facilities there.
Wednesday, June 10, 2009
Softball for Weatherford?
New trustees are in place at Weatherford College in Texas and all are going forth with the agreement with OCR that states that the college will survey students and add a women's team if results deem it necessary. This article, though not stating if and when a survey will occur, does mention that on the agenda for an upcoming trustees' meeting is the addition of women's softball.
Some say that Weatherford was always planning on moving toward compliance even before the women's basketball coach filed a complaint with OCR. And some welcome the opportunity to prove their commitment to gender equity.
Some say that Weatherford was always planning on moving toward compliance even before the women's basketball coach filed a complaint with OCR. And some welcome the opportunity to prove their commitment to gender equity.
Tuesday, June 09, 2009
Cutting costs without cutting sports
In the wake of the Quinnipiac case, in which it seemed that the university somewhat spitefully cut men's track and field when it was told it had to retain women's volleyball, at least temporarily, in order to work out some Title IX issues, it is a good time to note that budgets cuts do not have to equal cutting teams.
In recent meetings held by the Pac-10, the conference is looking to cut costs by trimming a certain amount of fat in the form of hotels for players before home games and limiting the number of players and support staff travelling to away games.
And this article out of New York about local DI schools Hofstra and SUNY Stony Brook speaks of the various measures these schools are taking to deal with their budgets shortfalls while remaining competitive, remaining Title IX compliant (Stony Brook is adding scholarships, in fact), and keeping all their teams. These schools are looking for schools closer to home to add to their schedules. They are seeking tournaments that do not require extensive travel. Such plans to limit travel could also have the added bonus of helping student-athletes balance their schoolwork with their athletics.
In recent meetings held by the Pac-10, the conference is looking to cut costs by trimming a certain amount of fat in the form of hotels for players before home games and limiting the number of players and support staff travelling to away games.
And this article out of New York about local DI schools Hofstra and SUNY Stony Brook speaks of the various measures these schools are taking to deal with their budgets shortfalls while remaining competitive, remaining Title IX compliant (Stony Brook is adding scholarships, in fact), and keeping all their teams. These schools are looking for schools closer to home to add to their schedules. They are seeking tournaments that do not require extensive travel. Such plans to limit travel could also have the added bonus of helping student-athletes balance their schoolwork with their athletics.
Saturday, June 06, 2009
Florida cutting high school contests
In a cost-reducing effort, the Florida High School Athletic Association came up with and initially approved a plan to cut back the number of games teams play during a season; 20 percent across the board. Except for football.
You would be right if you too thought that wasn't actually going to fly. But even when threatened by lawsuits when he said the school board would not reconsider the decision until the fall (keeping the cuts intact), FHSAA head Roger Dearing did not blink--at first.
But apparently he is blinking now. The Florida Parents for Athletic Equity and Title IX advocate and law professor Nancy Hogshead-Makar, who calls Florida home, may have made him a little nervous. The parents' group and Hogshead-Makar vowed to file litigation if decision was not reconsidered. But after consulting with Dearing, Hogshead-Makar has said there is a plan in the works. FHSAA gets a 10-day reprieve from a lawsuit in exchange for a plan that would save an equitable number of girls' sporting contests (equitable to the number of football-playing boys that will benefit from their no-cut status). Additionally, the issue of cheerleading as a sport will be considered. Florida sanctions cheerleading as a sport and they count it in their Title IX compliance.
I am interested to see what FHSAA comes up with--especially in regard to cheerleading, this summer's hot topic, apparently.
You would be right if you too thought that wasn't actually going to fly. But even when threatened by lawsuits when he said the school board would not reconsider the decision until the fall (keeping the cuts intact), FHSAA head Roger Dearing did not blink--at first.
But apparently he is blinking now. The Florida Parents for Athletic Equity and Title IX advocate and law professor Nancy Hogshead-Makar, who calls Florida home, may have made him a little nervous. The parents' group and Hogshead-Makar vowed to file litigation if decision was not reconsidered. But after consulting with Dearing, Hogshead-Makar has said there is a plan in the works. FHSAA gets a 10-day reprieve from a lawsuit in exchange for a plan that would save an equitable number of girls' sporting contests (equitable to the number of football-playing boys that will benefit from their no-cut status). Additionally, the issue of cheerleading as a sport will be considered. Florida sanctions cheerleading as a sport and they count it in their Title IX compliance.
I am interested to see what FHSAA comes up with--especially in regard to cheerleading, this summer's hot topic, apparently.
Thursday, June 04, 2009
Darien schools have some issues
Findings from the second (out of three) investigation in three years at the high school in Darien, Connecticut have found inequities that affect four girl's sports. Also revealed was that the three complaints have been filed by the same party whose identity was not made known.
The team from OCR found that four of the girls' teams have inadequate facilities. Gymnastics, which practices at the local YMCA, does not have locker rooms, has a small facility, and also (for some unnamed reason) only competes against one other team.
The softball field, now on campus, still have some issues including lack of dugouts and foul poles (must be tough for umps!).
There are disparities between the practice facilities of the boys' and girls' swimming and diving teams regarding access to the pools where the team competes and the ability to practice with the rest of the team (for divers).
The boys also had pre-season access to dry land conditioning facilities that the girls did not.
The school has agreed to the following improvements:
• For girls’ softball, the field will be cleaned up, construction debris and boulders will be removed, uneven holes will be filled, and the quality of infield and outfield will be made comparable to the boys’ field. Dugouts, bleachers and a bullpen area will also be installed to be “comparable to the boys’ baseball stadium.” All improvements must be completed during the 2009 season.
• For gymnastics, the girls must be assigned locker room space at the high school.
• For the swim team, the district must provide comparable practice time, conditioning equipment, and pre-season practice opportunities to the boys’ swim team.
• The district also agreed to provide locker space at the high school and “ensure that the practice facility and schedule for the girls’ swim team allows those swimmers who are also divers to practice and compete as both a swimmer and a diver.”
• The swim team changes must be in place no later than the beginning of the 2009-10 swim season.
• For girls’ lacrosse, the field must be lined by the start of the pre-season and regular season.
Also reported was that complaint number three, again filed by the same man, is going forward. It continues to address inequities between the swim teams as well as fundraising issues.
He is also concerned about the ability of OCR to enforce the terms of the agreement. He plans on heading to the Connecticut Commission on Human Rights and Opportunities if there are enforcement issues.
The team from OCR found that four of the girls' teams have inadequate facilities. Gymnastics, which practices at the local YMCA, does not have locker rooms, has a small facility, and also (for some unnamed reason) only competes against one other team.
The softball field, now on campus, still have some issues including lack of dugouts and foul poles (must be tough for umps!).
There are disparities between the practice facilities of the boys' and girls' swimming and diving teams regarding access to the pools where the team competes and the ability to practice with the rest of the team (for divers).
The boys also had pre-season access to dry land conditioning facilities that the girls did not.
The school has agreed to the following improvements:
• For girls’ softball, the field will be cleaned up, construction debris and boulders will be removed, uneven holes will be filled, and the quality of infield and outfield will be made comparable to the boys’ field. Dugouts, bleachers and a bullpen area will also be installed to be “comparable to the boys’ baseball stadium.” All improvements must be completed during the 2009 season.
• For gymnastics, the girls must be assigned locker room space at the high school.
• For the swim team, the district must provide comparable practice time, conditioning equipment, and pre-season practice opportunities to the boys’ swim team.
• The district also agreed to provide locker space at the high school and “ensure that the practice facility and schedule for the girls’ swim team allows those swimmers who are also divers to practice and compete as both a swimmer and a diver.”
• The swim team changes must be in place no later than the beginning of the 2009-10 swim season.
• For girls’ lacrosse, the field must be lined by the start of the pre-season and regular season.
Also reported was that complaint number three, again filed by the same man, is going forward. It continues to address inequities between the swim teams as well as fundraising issues.
He is also concerned about the ability of OCR to enforce the terms of the agreement. He plans on heading to the Connecticut Commission on Human Rights and Opportunities if there are enforcement issues.
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