Lower Court Dismisses Former AD's Case Against Lafayette College

Eve Atkinson sued Lafayette College in 2001, arguing that the college terminated her from the athletic director position, which she had held since 1989, in retaliation for her advocacy on behalf of women's athletics and Title IX. A federal court initially dismissed her lawsuit on the grounds that Title IX's private right of action did not cover retaliation claims. Her appeal was stayed pending the Supreme Court's eventual decision in Jackson v. Birmingham Board of Education allowing for private enforcement of Title IX retaliation claims, so the Third Circuit reversed the lower court's decision and reinstated Atkinson's case. Lafayette then moved for summary judgment, arguing that Atkinson did not allege sufficient evidence to support a retaliation claim. Earlier this month, the district court agreed, and again dismissed Atkinson's case against the college.

In particular, the district court determined that Atkinson had not sufficiently alleged that she engaged in protected conduct, the first element of a retaliation claim, because all of her advocacy for gender equity advocacy was done in her capacity as Athletic Director. However, I believe that in requiring a Title IX retaliation plaintiff to be targetted for conduct outside her job duties in order to receive the protection of law, the district court imposes a new and unwarranted requirement that is inconsistent with other Title IX retaliation decisions, including Jackson. Moreover, if it is the case that the college terminated her because of her Title IX advocacy (the district court thinks Atkinson's fails on this element as well) then it should not matter at all whether she was acting against or in accord with her role as the athletic director. I hope that an appeal gives the Third Circuit an opportunity to clarify this legal issue.

Decision: Atkinson v. Lafayette College, 2009 WL 2949295 (E.D. Pa. 2009).

Law Review Article Addresses Sexual Harassment in Athletics

The current issue of the Virginia Sports and Entertainment Law Journal contains new scholarship by the prolific Title IX expert Diane Heckman, which addresses Title IX sexual harassment cases in the athletic context. Heckman first provides overview about the legal standard for an institution's sexual harassment liability and also explores the unique power dynamic between coaches (particularly, male coaches) and student athletes (particularly, female athletes) that can create sexualized environment rife for harassment. She then profiles all of the cases filed against college and other educational institutions charging liability for harassment committed or facilitated by athletic department employees, . Among others, she examines a number of cases we've blogged about here, including Jennings v. University of North Carolina, Williams v. University of Georgia, and Simpson v. University of Colorado. Noting that these cases (and others) produced settlements that collectively cost public universities millions of dollars, Heckman concludes that the court rulings in these cases "underscore the judiciary's clear intolerance of Title IX sexual harassment on the playing fields and should be a wake up call for all intercollegiate and interscholastic athletic departments to get the athletic houses in order."

Citation: Diane Heckman, Title IX and Sexual Harassment Claims Involving Educational Athletic Department Employees and Student Athletes in the Twenty-First Century, 8 Va. Sports & Entertainment L.J. 223 (2009).

Will Maryland be the next to cut sports?

Hopefully not, says athletic director Deborah Yow. But despite early predictions that the recession is over, the University of Maryland is exploring all scenarios that would enable to survive the current economic crisis.
A recent report has outlined possibilities for keeping the department financially stable enough while remaining successful throughout the coming years of potential hardship. The report includes suggestions for increasing revenues--always the first, through arguably most difficult, task. It is also one that includes reducing expenses. A second option is to scale back on select sports. And the final is the elimination of teams.
But with 27 teams--5 more than the ACC average--the "last resort" option is definitely a possibility if options one and two do not produce the intended results.
The report commented on Maryland's commitment to gender equity. No details on how that commitment might manifest in the above options. But we have to remember that, in Title IX circles, the Maryland athletic department is most (in)famous for making competitive cheerleading an intercollegiate sport despite the fact that it is not an NCAA-recognized sport. And despite the fact that there were other viable women's club teams that could have been elevated to varsity status.
We will have to wait to see how Maryland does both in managing its economic woes and meeting gender equity requirements.

Movie review: License to Thrive

The people at Women Makes Movies very kindly sent us a copy of License to Thrive: Title IX at 35. Despite our best intentions, we had not been able to catch a viewing of it when the documentary was making the rounds in New England last year.
A lot of interesting stories and facts within the 48-minute movie by Harvard alum Theresa Moore. I was particularly struck by the story of the creation of Yale University's endowment for women's athletics that was started by former Yale athletes who attended Yale in the 70s. The fascinating part of the story is that over 50 percent of the donors--all women--had never given to Yale before. Alumnae usually give because they value and remember fondly their college experience. The first-time donor status seems to suggest that many of these women may have a certain ambivalence about their time as female students at the historically male university (Yale began admitting women to the undergraduate colleges in 1969). But their athletic experience must have been one of the most positive ones because the endowment organizers met their initial fundraising goal of $100,000 in a matter of minutes. And it continues to thrive.
The movie, overall, had two major strengths. The first was its attention to areas other than athletics. And related to this was the history of the legislation provided by Bernice Sandler "the godmother of Title IX," Senator Birch Bayh, and the daughter of Hawaii Congressperson Patsy Mink who spoke about her mother's history and her role in Title IX.
The former is an important point to make, especially as the debate over access to science and technology fields grows more heated. But the way in which the movie made this point was confusing. In a segment that was rather abruptly introduced about a program that introduces girls to filmmaking and in another about a local Massachusetts program that encourages girls in science and math, we see the value of exposing girls to these fields. But these programs are not run by the schools (though some do use school facilities). So while they are about education, they are not directly related to Title IX. They do, hopefully, engender social change. So when some of these girls go to high school and college and if they find their access to these programs is limited, they can use Title IX to remedy any gender-based disparities.
The same is true of the White House Project featured in the movie. A great program; certainly one that educates about civic engagement and our government--but not really related to Title IX. We applaud these programs and the attention being given to them. But we worry that they further confuse people about what exactly Title IX does.
Also potentially confusing was the explanation of the ever-controversial 3-prong test (which was given a lot of attention from both sides of the debate). First, the film reversed prongs 1 and 3. And the movie suggested that compliance with Title IX is met when one of the prongs is satisfied. This is a mistake we see all the time, including in the introduction to historian Susan Ware's recent primer Title IX, which otherwise does a good job pulling together historical documents related to the legislation.
The reason we keep pointing out this confusion is because to believe that Title IX is only about opportunities impedes thorough examinations of the quality of the opportunity; from access to quality coaching and facilities to the amount of per diem and travel conditions. The complaints and lawsuits about softball fields and practice gyms are only viable because Title IX is about more than numbers of female versus male athletes--it is about treatment of said athletes.
One final point about License to Thrive. We were pleased to see many representations of women and girls of color; to see programs targeted at these girls. But we were disappointed that there was no discussion of the different experiences these girls have. One of the problems we have seen with Title IX's implementation is that it is has largely benefited--or disproportionately benefited white, middle-class girls.
We realize that there is a lot to cover--especially in less than hour. And we truly appreciated the efforts of the filmmaker to fill in the gaps and raise awareness of often overlooked facets of the legislation.

ACLU Challenges Sex Segregation in Louisiana School

On behalf of parents of students at Rene A. Rost Middle School in Kaplan, Louisiana, the ACLU has sued the Vermilion Parish School District to challenge the sex-segregated classes there. According to the complaint, the district announced to parents over the summer that their children would be enrolled in sex-segregated classes. When parents who objected pointed out that that mandatory segregation was in violation of law, the district responded that it would replace it with a voluntary plan. However, under the voluntary plan, parents' only option for a coeducational environment was special needs classes (which were, apparently, full). The parents and the ACLU argue that this is still in effect mandatory segregation, as the coed option is not comparable to the single sex classes. They also argue that the single sex classes are not equal to each other, as the plan requires teachers to use different methods for boys and girls such as selecting books that "appeal to boys" for their classes and books that "appeal to girls" for their classes. The complaint maintains that the separate tracks "represent exactly the sort of sex stereotyping and discrimination that Title IX and the Fourteenth Amendment seek to prevent."

The ACLU challenged a similar comprehensive sex segregation at an Alabama middle school last year. The school district ended up agreeing to re-integrate its classrooms and to give the ACLU advance notice of future plans to experiment with single-sex education.

Law Review Article Addresses School Violence

In the current issue of the Journal of College and University Law, Georgetown Law Center's Nancy Cantalupo examines the interrelatedness of peer sexual violence and other, more rare forms of school violence such as mass shootings. She argues that schools should address both types of violence with a victim-centered approach that encourages reporting. Among other reforms, Dean Cantalupo argues that schools should abandon the prosecutorial model for responding to peer sexual violence, which she argues no only deters reporting but can put an institution at greater risk for liability under Title IX and other laws. A victim-centered approach to peer sexual violence can contribute to a climate of safety on campus and in particular ways help prevent more extraordinary violence. Cantalupo explains:

Paying attention to the needs of victims gets away from focusing exclusively on the potential shooter and from the impossible task of predicting who is a shooter and who isn't prior to a shooting. Instead, paying attention to victims' needs focuses the institution on what the student has already done, not what he might do, and on the impact those actions have had on others. If Virginia Tech had taken more seriously the effect of Seung-Hui Cho's behavior in class on the other students, some of whom stopped attending class for fear of Cho, or if it had stopped his classmates from laughing at and telling Cho to “go back to China” when he read aloud in class, would Cho have slipped through the cracks as he did? While it is impossible to say for sure, it may be that if the institution had paid attention to either victim/victims, Cho would more likely have been caught in the campus safety-net.

The article is available for download on SSRN. Here is the citation:
Nancy Cantalupo, Campus Violence: Understanding the Ordinary Through the Extraordinary, 35 J. College & Univ. L. 613 (2009).

Myles Brand, 1942-2009

Sadly, NCAA president Myles Brand died yesterday of pancreatic cancer. Christine Brennan has a nice tribute to him. Brand will hopefully be remembered for ensuring academic standards and civil and gender rights in intercollegiate athletics. He pressured schools to get rid of their Native American mascots and recently Brand publicly stated that Title IX should not be blamed--in these tough economic times--for cuts to men's sports.
We will miss his tough stance on tough issues and hope he has set a precedent for his successors.

California HS Improves Softball Field After Title IX Complaint

A reader sent me this good news out of California: the Torrance Unified School District has improved the softball fields at West High School after a Title IX complaint filed last fall cited the district with 20 possible violations. The district settled to avoid litigation, and to its credit, moved quickly to install new fields, electronic scoreboards, and spectator bleachers in time for the beginning of the 2010 season -- a total cost of $40,000. But the district gets no credit for needing to be prompted by legal action to prompted into action in the first place. It's neither fair, moral, or safe to require the J.V. softball team to play on a dangerous, dirtless infield and in an outfield that doubles as a practice field for boys in other sports, or to give boys teams favored treatment in terms of fundraising opportunities, field maintenance, and scheduling, as the complaint had also alleged. Moreover, the fact that the settlement also required the district to pay the plaintiffs' lawyers at the California Women's Law Center helps underscore the point that discrimination doesn't pay.

Thanks, C. Vivian Stringer

New Hall of Fame inductee C. Vivian Stringer gave a big shoutout to Title IX during her speech at the Basketball Hall of Fame Enshrinement Ceremony on Friday evening. All the clips I have seen of the speech--including the ones on ESPN!--use the portion of her speech where she thanks the existence of Title IX for giving girls sport options besides sideline cheering for the boys.

ACLU, School District Settle Harassment and Discrimination Case

The Newport-Mesa School District in Orange County, California, has agreed to implement harassment and discrimination training for its students and staff, in settlement of a lawsuit filed by the ACLU. As we noted last March, the ACLU sued the school district on behalf of a former student of Corona del Mar High School, who alleged that school officials did not respond adequately when three football players harassed her and threatened her with rape. These threats apparently related to the student's role in the drama club's intended production of Rent, which the principal canceled (but later reinstated) due to the concerns about the show's gay and AIDS-related content.

Under the settlement terms, students and teachers will receive four hours of training, conducted by the Anti-Defamation League, about what constitutes harassment and how it harms people. District officials will receive 8 hours of training. A district spokesperson believes that the training "will raise awareness for staff and students and will contribute to an overall positive environment at Corona del Mar High School." The student plaintiff, Hail Ketchum, also praised the outcome, saying "no one else will have to go through what I went through."

CVS in the HOF

C. Vivian Stringer, head coach of the Rutgers women's basketball team, will be inducted tomorrow into the Basketball Hall of Fame (right here in Springfield). We here at the Title IX Blog have much respect and admiration for Coach Stringer, and we are thrilled to see her recognized alongside Michael Jordan, John Stockton, David Robinson, and Jerry Sloan, the other inductees.

Stringer's coaching career has spanned the lifetime of Title IX; she began her first head coaching job at Cheyney State, a small, historically black college in Pennsylvania, in 1972, the same year Congress passed the law prohibiting sex discrimination in federally funded schools. Since that time, Coach Stringer has amassed of the best records in women's basketball, with over 800 career wins, as well as the distinction of being the first coach to to reach the NCAA final four with three different teams (Rutgers in 2000 and 2007, University of Iowa in 1993, and Cheyney State in 1982). In the wake of Don Imus's racist and misogynistic comments about her team, Stringer's strength and poise, and that which she showcased in her players, successfully challenged the streoetypes that Imus had espoused.

Over the course of her long career, Coach Stringer has inspired players, elevated the game of women's basketball, and cultivated widespread respect and recognition for women's athletics and female athletes. For this, C. Vivian Stinger is most deserving of the recognition she will receive through enshrinement in the Hall of Fame.

Same-sex classrooms in South Carolina

We have blogged about same-sex classrooms in public schools previously and this article out of Greenville, SC does not appear to say anything new about the situation. It is a quite balanced piece that uses narratives from same-sex classroom teachers and parents as well as research and testimony from educational researchers. Again, it is a lot of the same things we have heard: some students do well in this environment, some test scores are up, most of the same-sex classrooms reify gender stereotypes, the research on the success of these spaces is suspect.
What prompted this posting was the picture attached to the article. It shows boys in a "dukes up" pose. The teacher who appears to be a woman is in a similar pose but we only see her arms.
The article contains numerous descriptions about classroom decorations (the boys have sports paraphernalia and the girls have gingham and flower pots) and behaviors (the boys get to stand on chairs and recite spelling lists and jump around between lessons). All these things are worrisome in themselves. But why are schools teaching boys to box? And why was this activity missing from the text of the article?
Proponents of sex-segregated classrooms counter naysayers who worry about the lack of mixed gender socialization saying that girls and boys can socialize during recess and lunch and before and after school. But what kind of socialization occurs when boys are raising their fists and girls are planting flowers?

New Book Examines Challenges Facing Women Coaches

In her new (2009) book, Gender Games: Why Women Coaches Are Losing the Field, author Christina Cruz examines gendered dynamic of college athletic departments and the tensions that it creates for female coaches. These tensions, which Cruz labels "micro-competitions" likely explain why the percentage of coaches who are female has diminished from over 90% to 43% in the last thirty years. In presenting the narratives of five successful female coaches, Cruz uncovers numerous examples of micro-competitions, many of which the coach is powerless to win, that affect coaches' self-efficacy in aspects of the job outside of the role of coaching itself. The narratives provide examples of coaches negotiating between on-court and off-court personas, their efforts to satisfy athletic department and cultural expectations that are often in conflict, and the toll of working with and for unsupportive or hostile male colleagues. An overall finding is that "male-centered environments cause the coaches to pit themselves against patriarchal forces that promote male power over women and perpetuate preexisting gender regimes. This atmosphere leaves these female coaches vulnerable to self deprecation."

I really appreciate that Cruz then translates her findings into advice for both coaches, on the one hand, and athletic administrators and other "gatekeepers of power" on the other. She encourages female coaches to work together to help reposition those who are "at the margins" closer to the center of power. She encourages them to be aware of and to challenge men's "status
seeking games" and to stand up and challenge those who bully and harass women. Then she implores administrators to guard against inappropriate and oppressive behavior by staff, to create space for all to give input without being dominated by some, to assist coaches in achieving their goals, and to facilitate mentoring and professional development. It is hard to write a prescription to address entrenched cultural stereotypes and biases, many of which are subtle and easy to overlook ("micro") on an individual basis. Cruz's book does a good job not only shedding light on the nuances of the problem, but in addressing the problem in a coordinated and comprehensive way.

Study Finds Correllation Between Sexist Team Names and Women's Athletic Opportunities

A recent article (well, 2008, but it only just now came across my radar) in the journal Sociology of Education examines team nicknames in college and university athletics and suggests that schools that use sexist nomenclature to distinguish their women's teams are also likely to offer disproportionately fewer athletic opportunities to women.

Author Cynthia Fabrizio Pelak focused on colleges and universities in 9 southern states, and found that almost 70% of the employed what she coded as a sexist naming practice. Most of these consisted of the "Lady" prefix, which Pelak explains, is sexist because it connotes "propriety and correct behavior" and "'imparts a tone of frivolity and lightness to the strivings and accomplishments of women.'" In sum, nearly 60% of the 249-school sample used "Lady" to identify it's women's teams (Pelak focused on basketball), while another ~10% used other naming practices Pelak also coded as sexist (e.g., using a male nickname as a false generic -- as in "Bulls" and "Rams" -- or using a feminine suffix -- as in "Eaglette" or "Tigerette"). She then determined that schools with sexist naming practices were more likely to have offer disproportionately fewer athletic opportunities to female athletes. This finding demonstrates how "sexist language practices reflect and reconstruct unequal power relations between men and women." While not being directly causative of discrimination against female athletes, sexist naming "contributes to an institutional gender-equity climate that constructs women students as second-class athletes and treats men students as the rightful recipients of greater opportunities and resources in athletics."

Another component of Pelak's study was to identify characteristics of a school that are most predictive of whether they would employ sexist naming practices. The most predictive characteristic she found was whether the school was a historically black college or university (HBCU). The odds that an HBCU used sexist naming practices were 16.5 times that of a non-HBCU using a sexist name. Pelak proposes that the prevalence of "Lady" teams among HBCUs can be explained as an effort to "promote an image of black women as respectable, virtuous and sexually honorable" in resistance to negative stereotypes about black femininity. It is possible then, she suggests, that "marking black women athletes as ladies may be understood not as sexist, but rather, as part of a racial uplift project for African American women."

Citation: Cythia Fabrizio Pelak, The Relationship Between Sexist Naming Practices and Athletic Opportunities at Colleges and Universities in the Southern United States, 81 Sociology of Education 189 (2008).