Colorado making progress

As part of University of Colorado's settlement of a sexual harassment lawsuit with two former students, the university hired lawyer, law professor, and Title IX expert Nancy Hogshead-Makar to review existing gender discrimination and sexual harassment policies and recommend new ones.
Hogshead-Makar released a report a few weeks ago citing considerable progress on the part of the university in many areas of gender discrimination and sexual harassment policy.
A few things left to work on include:

• more refined policies on student pregnancy and parenting
• implementing the recommendations from the Sexual Assault-Sexual Harassment (SASH) Task Force's Gender Violence Prevention Plan
• more efforts at prevention
• and finally a consolidated policy that elucidates all the university's discrimination and sexual harassment policies and prevention efforts

A copy of the report can be retrieved via the above link.

Former Hawaii AD sues

University of Hawaii-Hilo administrators have been named in a recent lawsuit filed by former athletic director Kathleen McNally who is alleging both racial and gender discrimination. We have not seen an intersectional complaint in a while, though how much credence a court will give the racial claim remains to be seen, especially because the evidence seems to border on hearsay. (McNally, who identifies as a white female, once heard an administrator say that the AD should be a Japanese male.)
But in a pattern all too familiar to us, McNally, who served from 2002-2008 when she was placed on administrative leave and told not to be in contact with her staff, had excellent performance evaluations but repeatedly complained about gender inequities within the department especially lack of funding. McNally feels she was blamed for the $500,000 athletic department budget deficit in 2008 when all she was trying to do was remedy historical discrimination against women's athletics. Her complaint also says she was perceived as being too aggressive in her promotion of women's athletics.

Professor Settles Discrimination Case Against Penn State

Penn State and a former assistant professor have reached a settlement to terminate the professor's lawsuit alleging that she was not promoted due to discrimination on the basis of her sexual orientation. The plaintiff, Constance Matthews, had applied for promotion and tenure in 2004, after serving as an assistant professor in the College of Education since 1998. But the promotion and tenure committee denied her application, apparently due to concerns with her research, which focused on lesbian and gay issues. Matthews sued, arguing that the denial was motivated by discrimination because she deserved tenure on the basis of the quality of her research and service to the university.

Today it's reported that Matthews will drop her suit against Penn State. However, the terms of the agreement are sealed, and neither side is sharing any information.

If this sounds familiar, it's because it's not the first time we've blogged about a confidential settlement in a lawsuit raising sexual orientation discrimination claims against Penn State. Former basketball player Jennifer Harris's case, which challenged her dismissal from the team on the basis of her sexual orientation, ended similarly. In fact, Matthews's own lawyers recognized that Harris's case might help them establish a pattern of discrimination at the university level, and were able to convince a judge to let them subpoena materials about that case notwithstanding the confidentiality agreement between Harris and Penn State.

Cases often settle before a judge or jury can examine the facts, and that sometimes parties can negotiate more favorable settlements in exchange for agreeing to keep the terms confidential. But I still can't shake the feeling that something is amiss in the Happy Valley and the disappointment in another missed opportunity to expose possible discriminatory practices.

Update 8/26: this post was amended to correct an error that was brought to my attention by a reader. I had posted that Matthews's lawyers were unsuccessful (referring to this prior post) in their efforts to expose discovery materials from the Harris case, when in fact, they did prevail in a motion for reconsideration. I regret the error, especially in light of my co-blogger's post about the judge's reversal of his initial decision!) The materials Matthews's lawyers were able to subpoena from Portland and Penn State remain confidential, so it is impossible to speculate on the extent to which they factored in to the settlement negotiations between Matthews and the university.

NYCLU Files Lawsuit Over Anti-Gay Bullying

The New York Civil Liberties Union recently filed suit against the Mohawk Central School District, claiming it is liable under Title IX to a student, J.L., for failing to protect him student from bullying and harassment resulting from his sexual orientation and gender nonconformity. J.L., an openly-gay ninth grader at Jarvis High School, alleges that was subject to pervasive and ongoing verbal harassment by other students who repeatedly called him “pussy,” “faggot,” “queer,” “homo,” “cocksucker,” and “bitch." Students also allegedly threw food at him, tripped him and vandalized his property. One student shoved J.L. down the stairs causing him to sprain his ankle. J.L. alleges that he received numerous threats, including by one student who had brought a knife to school and threatened to stab J.L. and string his “faggot ass” up from the flagpole -- a threat that scared J.L. enough to leave school. Even J.L.'s science teacher participated in this abuse, telling him to be ashamed of his sexual orientation and that he should "hate himself every day until he changed."

Despite the fact that J.L.'s father called or met with the principal no fewer than 14 times, the complaint maintains that the principal failed to respond to the harassment and bullying J.L. was facing. He did not investigate or bring disciplinary actions against any of J.L.'s harassers, respond once that "boys will be boys." On another occasion, the complaint maintains, he told J.L.'s father that it was not his job to "cater to homosexuals." He advised J.L.'s father to consider home schooling and to go to the police instead, rather than to take measures to protect J.L. within the walls of Jarvis High. He refused even to consider a request to change J.L.'s schedule to avoid his primary harassers, and failed to uphold promises to allow J.L. to possess a cell phone on school grounds and to have access to a "safe room." As a result of the principal's indifference to J.L.'s harassment, J.L.'s grades and attendance suffered; he also endured physical injury and emotional distress.

The complaint pleads all of the elements that a plaintiff must prove for a district to be liable for damages under Title IX for peer harassment: the harassment was severe, pervasive, and motivated by the student's sex (particularly, his gender nonconforming appearance and behavior); the principal, an appropriate school official, had notice of the harassment and failed to respond at all; and J.L.'s educational opportunity was impaired. I predict that the case will end quickly with a favorable settlement to J.L.

New angle in Title IX bullying case

In Pittsburgh, PA a mother is suing the school district and school officials for failing to take action when her daughter was being bullied about her weight. Despite complaints to officials and attempted interventions by other students, the bullying of the 6th-grader continued and the girl developed anorexia for which she entered a treatment facility in 2008. She is now attending private school.
The bullying aspect is not new. The anorexia as a result is what has made this story a little more attention-grabbing. With groups such as the National Eating Disorders Association and eating disorder experts giving their opinion on the situation, we forget that the specific result--the eating disorder--is not what is really at issue. So while many are hesitant to say that bullying directly leads to anorexia, it is actually an issue the courts will not have to address. After all bullying has a lot of negative manifestations as we have seen in cases of the bullying of gay or suspected gay students. Self-esteem issues, drop in academic performance, suicide attempts, and perhaps even eating disorders or at least disordered eating have manifested in these students. And while these things may be presented as evidence of the severity of the bullying, what is at issue, as Duquesne law professor Bruce Ledewitz notes is whether the bullying and the failure to prevent it resulted in the loss of an educational opportunity for the student.
And that is what a judge will examine when (or if) the case goes to court.

School District Will Pay $25K to Settle Gay Harassment Suit

The Anoka-Hennepin School District in Minnesota recently agreed to a $25,000 settlement in response to a student's claims that he was verbally harassed by two of his teachers because they believed he was gay (additional press is here and here). According to a report by the Minnesota Human Rights Commission, which investigated the claims, a teacher named Diane Cleveland "singled him out on nearly a daily basis by making jokes, comments and innuendos about her perception of his sexual orientation" -- for example, that the student's "fence swings both ways," and that he had a "thing for older men." The second teacher, Walter Filson "would repeat, add his own jokes, and allow other students in the class to joke about the boy's perceived sexual orientation." The Commission also found that district did little to curb the harassment even after the student's mother complained. Filson was not removed from the classroom even after the district confirmed his participation, while Cleveland was only reassigned for a week and completed only 1 day of her assignment to work on curriculum development and "reflect on equality and diversity in the classroom." The student ended up transferring to another district, 25 miles from his home.

Dillard adding sports

Part of the Gulf Coast Athletic Conference, Dillard University in Louisiana is adding three sports in the coming academic year. No word on why, but the athletic director announced earlier this month that softball and men's and women's track and field and cross country will become part of the school's intercollegiate sport offerings. The additions will actually more than double what they have now. The only men's sport is basketball, which the women also play. There is also women's volleyball. Interestingly, the gender breakdown at Dillard is quite skewed toward women. They comprise 70 percent of the undergraduate population and currently receive 55 percent of the athletic opportunities.
The New Orleans university competes against other southern schools including Loyola and Xavier.

Dep't of Ed Says Schools Potentially Liable for Cyber-Harassment

The Department of Education addressed for the first time whether schools could violate Title IX by failing to respond appropriately to sexual harassment on-line, according to advocacy group Security On Campus.

The agency was adjudicating charges that Hofstra University did not adequately protect a female student from sexual assault that followed a barrage of sexual harassing comments about her on a now-defunct gossip website called Juicy Campus. Though the agency did not find sufficient facts to determine that Hofstra was deliberately indifferent to the harassment the student was facing, it did emphasize that schools have the same responsibility to respond to internet harassment as it does to harassment that is spoken or posted on the physical campus.

This clarification puts universities on notice that indifference to online harassment could result in liability under Title IX.

More details on the status of sand volleyball

So not too long ago we got wind that sand volleyball was not a shoo-in for emerging sport status; that there were some concerns. But we didn't get a lot of information about the situation. Then I read a piece by Graham Watson at ESPN.com where it seemed that sand volleyball was a go. In email correspondence with her, she told me that things were proceeding as planned, but that were a few details to be ironed out.
Now I have read that a second vote as to whether to approve sand volleyball for the NCAA's emerging sport designation will be taken in January. The second vote (the first was in April) is because there are issues over what exactly sand volleyball will look like--as in will it just be an additional season of indoor volleyball similar to indoor/outdoor track. And whether this is desirable. Also schools with indoor volleyball are concerned that they will lose recruits if they do not or cannot add sand volleyball.
In other words, stay tuned.
My concern, which I could not find echoed anywhere, is over sand volleyball as a revenue producer. Some believe the sport could quickly become a revenue-generating sport. And I think we all know how they intend to get those dollars--all we have to do is look at how sand volleyball and its female athletes are promoted at the Olympic and professional levels.

Christine Brennan: Title IX Not to Blame for "Poor Decision-Making of Athletic Directors"

Christine Brennan, sports reporter and columnist for USA Today, was recently interviewed by Real Clear Sports. Brennan's consistent support and advocacy for Title IX was reflected, in particular, in her explanation for why Title IX is not to blame for cuts to men's athletics.

RCS: Title IX, for which you've among the strongest advocates, remains a controversial topic. Is it unreasonable for critics to believe that Title IX could evolve so that it continues to encourages women to participate in sports, while also recognizing that a higher percentage of men are passionate about sports?

Brennan: I think Title IX has been a very good law. I think you could make a case that it's the most important law in our country over the last 40 years. A lot of people would argue for Roe v. Wade, which was a Supreme Court decision, not a law per se, but I think the important point is the way women are being empowered through sports, and the major role women are going to play in politics and corporate life and all facets of leadership in our country and the world, due to the lessons they learned on the playing fields due to Title IX. They are learning about winning and losing at a young age, learning about teamwork and sportsmanship. Whatever that girl you see in the kitchen each morning is going to become -- a mother, a doctor, a lawyer, etc. -- she will be better at it because she played sports. Obviously, I'm a big fan of Title IX. I personally feel it's been a very good law, but I totally understand those groups that are very concerned about what they would call the "unintended consequences" of Title IX.

I'd rather look at the choices and decisions made by athletic directors. Title IX has been the law of the land for 37 years, and athletic directors have had 37 years to implement it, but for quite a few of those years, some athletic directors must have thought it was a recommendation, not a law. So when women athletes or their parents saw blatant inequality and found nothing being done about it, some went to court. And they won every time. So the ADs then had to slash and burn the so-called men's minor sports, or men's Olympic sports, and no one wants that. That is just heart breaking, when the men's golf team, or the men's swimming team, or men's track and field or wrestling is eliminated. But I don't think we can blame a great law for the poor decision-making of athletic directors who somehow didn't understand that Title IX meant it was time to get working to create opportunities for women as well as for men.

That said, most schools are not cutting men's sports and have found a balance and are working towards compliance with a law that is extremely popular with all Americans, not only girls and women, but also especially with the fathers of athletic daughters. One of those fathers happens to be the new President of the United States. President Obama and his administration have made it crystal clear that they're big fans of Title IX and that they are going to work to strengthen the law, not weaken it. This clearly is a law that's here to stay.

Title IX Blogger Responds to Hawaii Coach's Use of Homophobic Slurs

A shout-out to my co-blogger Kris, who has an excellent essay at Inside Higher Ed on the fallout from the University of Hawaii football coach's use of "faggot" to belittle an opposing team. While not directly a Title IX matter, the coach's comments reflect the hegemonic masculinity in which athletic department culture -- in particular football culture, as Kris points out -- is deeply entrenched.