Settlement forthcoming in Canton case

After turning down a settlement deal earlier this year, it seems the Canton School District in Illinois has reached an agreement with the plaintiffs. But no one is saying what that deal is--at least not until January 20, 2010 when it will be announced at a school board meeting. The deal was scheduled to be revealed last week, but on the advice of a district lawyer, the board held the announcement.
As a reminder, here are a few of the allegations from the original complaint filed in May 2009:

• football and boys' basketball have better sound systems
• the band, cheerleaders and other spirit squads attend boys' games, but not girls
• district funding is not equitably distributed
• and that there are inequities in equipment and locker rooms.

Wisconsin School District Will Offer Girls Hockey

Earlier this year, high school freshman Morgan Hollowell and her father sued the Elmbrook School District in Wisconsin, challenging the district's decision to exclude girls from the hockey cooperative it is joining with another school district. Elmbrook officials cited low interest among girls as its reason for leaving them out of the plan.

It was recently reported in Athletic Business that in response to the pressure from the lawsuit, the school district has reversed its plan and will now enter into a similar cooperative for girls hockey. Though I could find no details about existing athletic opportunities in Elmbrook, unless athletic opportunities are roughly proportionate to the gender breakdown of the student body, under Title IX's three prong test, the district can't ignore unmet interest and ability among the underrepresented sex. While this aspect of the law would not require a school district to form a team when only a small number of girls (the article said 3) is interested in the sport, a different standard arguably applies when the decision isn't to form a team, but to join a cooperatives with other districts. It seems to me that the very fact Elmbrook was joining a cooperative suggests that there were not enough male hockey players at either or both of Elmbrook's high schools to field a team either. If the school district is going to accommodate boys' interests in that manner, it should similarly accommodate girls'.

Slippery Rock settles--again

The gender equity case against Slippery Rock University that started in 2006 and was reopened last spring when some felt SRU was not meeting the settlement's requirements has settled again. The university has promised to improve the softball stadium, commit $300,000 more than in the original settlement toward improving women's athletics, and provide Title IX training for athletes, coaches, and administrators in the athletic department.
The re-settlement brings up a few interesting issues. First, SRU president Dr. Robert Smith said that it was easy to sign the settlement because everyone was working toward the same goal. But I have my doubts about the level of sincerity in this statement. He defended the poor quality of the new softball seating and the layout of said stadium which blocked certain views of the field for fans noting that he didn't think Title IX applied to the quality of the fans' experience. True. But fans in the stands affects the quality of the athletes' experience and nice facilities in which fans can see the entire field of play help get fans in the stands. There seems to be an underlying assumption that female athletes play purely for the love of the sport; that they could play in an empty stadium and still love the game. And maybe they could; but everyone likes fans. Additionally, the alleged inferior quality of the softball stadium, as compared to the baseball facilities, illustrates the argument plaintiffs used to reopen the case: that SRU remains a little weak in its commitment to gender equity. I don't know how administrators can claim they created a first-class facility when it does not equal the quality of its first-class baseball facility. Such a statement would seem to indicate that there are different standards for the men and women.
And second, Dr. Smith discussed the university's adherence to Title IX noting that they have been in compliance with prong one for two years. Women receive 56 percent of the athletic opportunities; a percentage equal to their representation in the undergraduate student body. While we applaud this change since the 2006 settlement, it provides a good opportunity to reiterate that Title IX compliance is not only about number of opportunities. An institution might meeting that one requirement of Title IX but failing miserably in providing things like quality coaching, quality competition, access to facilities, etc. While SRU does not appear to be failing miserably, we were pleased to see them sign this new settlement and recommit themselves to gender equity in their athletic department.

We're sorry to see you go

It is with great amount of sadness that we report, to those who do not yet know, that the Women's Sports Foundation has decided to eliminate the It Takes a Team initiative to eliminate homophobia in sports. Run by Dr. Pat Griffin for the past five years, WSF cited budget woes as the reason behind the decision which will result in the end of the program at the end of January.
We at the Title IX Blog have been very grateful for the opportunity to see Dr. Griffin and the efforts of It Takes a Team in action. Its demise is a huge loss and certainly leaves a gap in the education of athletes and those involved in athletics around issues of sexuality and gender identity.
Dr. Griffin has posted about the cut on her blog--which she will keep writing. She does plan on continuing her work in some form. And we offer her any support we can in whatever her future plans are.

Spirit as Sport

Last week the New Mexico Activities Association member-institutions voted to make spirit (cheerleading and dance) a sport. Officials quoted in the news reports about the vote were pretty clear that the primary purpose of this change was to help schools attain compliance with Title IX's proportionality prong. For example, one high school official stated, "Cheer and dance at Silver High has about 50 students, and we can get these to be athletes. That would definitely help us with our participation numbers for girls." This quote seems to typify the officials' concerns -- not whether spirit activities really are (or can become) athletic in nature, only that they count as such. For another example, consider the official who, in acknowledging that unlike other sports, cheer currently has no competitions other than the state tournament, expressed only "hope" that the NMAA "can work on adding something like that in the mix."

Speaking of hope, I hope NMAA plans to ensure that its cheerleading is sport in more than name only. Otherwise, its member institutions could still have legal trouble if they rely on proportionality to comply with Title IX, and rely on cheer participation to get acheive proportionality. The Office for Civil Rights does not defer to high schools or high school athletic associations' labels of what is a sport -- OCR actually compares whether the activity is being treated comparably to other athletic opportunities. For example, I recently read a decision letter issued by OCR following its investigation of Tukwila School District in Washington. OCR refused to count cheerleading as athletic opportunities, even though the Washington Interscholastic Activities Association allows its member institutions to offer cheerleading as a sport. OCR compared cheerleading program at Tukwila's Foster High School to athletic programs, and determined that cheer not comparable. Relevant differences included the fact that cheerleaders, but not athletes, had to pay ($600) to participate, cheerleading's mission statement focused on performance and spirit raising and did not mention competition, and the squad does not compete in league competition and has limited competitive opportunities.

Hopefully schools in New Mexico will see the NMAA's decision as an opportunity not just to change the label of cheerleading from activity to sport, but to ensure that cheerleading called sport actually functions and is treated like a sport. If schools don't, OCR will.

Sexual harassment in the digital age

I have to admit that the first time I heard of sexting (the sending of sexually suggestive--or explicit!--text messages) was on Glee a few weeks ago. The subject was treated with the amount of levity that is appropriate for the show, but apparently sexting is not always very gleeful for those involved.
In fact, it often leads to harassment and in two cases in the past year has resulted in the suicides of two teenage girls. The article linked above does a very good job of outlining the harassment involved and potential remedy under Title IX, including the criteria established by the Supreme Court in 1999.
The parents of one of girls is indeed suing the school for failure to remedy the harassment their daughter experienced after sending a text containing a nude photo of herself to her then boyfriend. The article out of a Cincinnati paper makes no mention of Title IX, though I assume the law is a factor given that the case was dismissed from state court in order to move it to federal court.
In this case, the school was made aware of the harassment, so it seems fairly straightforward--at least given when I have read of the case to this point. But in this digital age, I wonder both how much harassment is going on that officials never become aware of because they do not even have an opportunity to see it, (though previous harassment cases have indicated that some people fail to see what it happening right in front of them) and also whether we may see a sort of "they asked for it" defense when it comes to sexting. It may not be as blatant as in past times (and present!) when women who have been raped or assaulted have been subject to questions about their moral character, behavior, and sartorial choices, but I would not be surprised to see it emerge in cases of sexting when girls are sending messages and photos and thus assumed to be willing participants in the process.
And finally, does this new medium create more harassment and/or even greater under reporting of harassment?
I see many issues arising from such cases. It will be interesting to see both how schools and the courts address them.

Study Uses Title IX to Show Effect of Athletic Participation on Educational Attainment

Via Gregg Easterbrook's recent column at ESPN.com, which criticizes college athletics for failing to seriously incorporate an academic mission, I learned of this forthcoming article by Wharton School professor Betsey Stevenson (draft here), which studies the effect of athletic participation on educational and professional attainment. Stevenson uses the early years of Title IX to simulate a laboratory designed to test for the causal relationship between athletics and academics and avoid the problem of selection effects that is typical of such studies. (Selection effects means that the merely correlating athletic participation and educational attainment doesn't tell you whether one influences the other, or whether it just happens to be that the same kids who already do well in school are those who have the self-confidence, parental support, lifestyle, or whatever, that makes them select into sports.)

Between 1972 and 1978, the rates of girls' participation in high school athletics rose from 1-in-27 generally, to 1-in-4. She then measured other outcomes, such as college attendance and employment, for women who would have been in high school during that time. By comparing those outcomes to those for boys, whose athletic participation rates held constant during the same time, she demonstrated that athletic participation contributed to, rather than just merely correlated with, those outcomes. Specifically, she concludes that every 10% increase in girls' athletic participation lead to a 1% increase in college attendance, and a 1-2% increase in women's participation in the work force.

Stevenson's research, forthcoming in the Review of Economics and Statistics, thus provides support for continuing to expand athletic opportunities for girls as well as boys. It also supports Easterbrook's conclusion that college athletic departments should be promoting -- rather than undermining -- the benefits of sports participation in the classroom.

UNCC decides to add football

The trustees at the University of North Carolina Charlotte have decided to go forward with the plan to add a football team. The team will make its debut in 2013.
This is also a good time to mention that Hofstra University cut its team last week, shortly after Northeastern University announced it was cutting its team due to the expenses associated with the team and the inability to properly upgrade facilities.
And in the wake of these two announcements there was a fair amount of desperate "football is dying" talk.
But it seems UNCC has granted some people's holiday wishes and brought peace on earth to football-loving folks.
It will not be a cheap endeavor, however. The stadium will cost $40.5 million and the student body is slated to bear most of the financial burden with fees predicted to be raised by $320 over the course of the next few years. This number could go down, according to the Chancellor, if private donations increase. Of course, by this logic, they could also go up if donations go down. I mean they say the recession is over, but...
It was not an uncontroversial decision as you might imagine--especially because of the above-mentioned economic uncertainty. But it had many proponents as well.
The decision is not final final yet. It has to be approved by the Board of Governors in February.

Invitational in DC to focus on athletics and equity

We can tell there has been the proverbial changing of the guard in Washington in many ways including the upcoming and inaugural Title IX Holiday Invitational and Conference Classic. Part of its goal is to "celebrate the fact that the Nation’s Capitol is focusing on raising gender equity and program parity with national norms and best practices."
The conference part of the program is on Sunday, December 27. Registration for adults is $15 and only $2.50 for students with IDs. The conference is being facilitated by Phyllis Lerner, a Title IX educator and public policy expert.
The basketball tournament runs from the 28th until the 30th and features some of the best girls' basketball teams in their respective states.
According to the website, the goals of the conference and invitational are to :

Showcase: the academic and athletic accomplishments of our visiting state champions;
Increase: awareness of, interest in and access to the benefits of school based team sports from the elementary to post secondary level;
Educate: parents, players, coaches, administrators and legislators about the need for increased Title IX awareness and compliance.
Learn: about the tools and techniques used to attract and produce academic and athletic champions (national norms and best practices).
Empower: female student athletes, coaches and parents to advocate for program parity and Title IX compliance.

Article Examines Shortcomings in Title IX's Pregnancy Regulations

An article in the latest edition of the Indiana Law Review examines, criticizes, and offers suggestions for improvement to the regulatory provisions that ensure Title IX's protections extend to pregnant students. Author Kendra Fershee, a law professor at UND, first describes and provides historical context for the regulations' main components. First, they ensure pregnant students have the right to stay in school, which is important in light of the historical, pervasive practice of expelling pregnant students. They also provide that pregnant students have the right to choose whether to attend an alternative program during their pregnancy, a provision that counters the practice of hiding pregnant students away in alternative programs. Last, the regulations require that schools offer pregnant students an education equal in quality to that received by their peers, as many then-existing education programs for pregnant students had a limited focus on life skills.

Unfortunately, Professor Fershee explains, the generality and vagueness of the regulations contributes to lack of regulatory oversight and enforcements that allows pregnancy discrimination to persist. She argues that the Department of Education should strengthen the regulations in a number of ways. First, the regulations should provide a mechanism for gathering information about pregnancy in schools and schools' efforts to comply with Title IX. She suggests that thee regulations should require schools to keep and report statistics on the number of pregnant students, dropout rates, transfer rates to alternative programs, and graduation rates. She also recommends that the Department devise an fast-track process for investigating claims of pregnancy discrimination, which would promote enforcement by taking into account the temporary nature of the condition of pregnancy and discrimination resulting from it. Finally, Professor Fershee recommends that the Department conduct routine reviews of schools' policies, practices, that it publish and enforce educational standards to ensure the equity and quality of alternative programs, and that it provide guidelines to school officials on counseling pregnant students.

Citation: Kendra Fershee, Hollow Promises for Pregnant Students: How the Regulations Governing Title IX Fail to Prevent Pregnancy Discrimination in School, 43 Indiana L. Rev. 79 (2009).

Title IX in the comics

A few summers ago I spent some time hanging out in the archives at Radcliffe College looking at the papers from the Women's Equity Action League, a group that was instrumental in fighting for the passage and enforcement of Title IX in the 1970s and 80s.
I was surprised, but pleased, to see several Peanuts cartoons included in WEAL's files and on some of their educational materials on girls in sports. (I am ignoring here the likely copyright violations.)
Turns out Charles Schultz was a strong supporter of Title IX and girls in sport. And the latest collection of his strips illustrates (pun intended) that. It is a collection of the comics from 1973 thru 1974 and includes a very nice introduction by his friend Billie Jean King. Schultz and BJK bonded over Title IX and Schultz would even drop BJK's name in his strips from time to time. (It was a sign that they needed to touch base.)
So if you are a Peanuts fan, check it out.

The older generation

I saw this piece from WBUR, one of Boston's NPR affiliates, and thought I would post it as a kind of tribute to all the older athletic women in my life with whom I have had the privilege and pleasure of cycling, and playing softball, tennis, and golf with and as well as just hangin' with.

And because when I was at the Gay Games in Chicago a few years ago I watched some of the 60+ women's b-ball tournament and was really inspired. So I think more people should know that older women are active and actively creating their own sporting opportunities. Many may not have benefited directly from Title IX, but they certainly are advocating on their own and others' behalf in the spirit of Title IX.

Harassment cases roundup

Here is a roundup of recent judicial decisions in Title IX harassment cases:

• Dominican College in Blauvelt, New York, was unsuccessful in its motion to dismiss a claim alleging that the College's response to charges that one of its students had raped another student, the plaintiff's daughter, who later committed suicide, violated Title IX. The court held that a jury could find that the College's decision to defer the matter entirely to police constituted "deliberate indifference" for liability under Title IX. McGrath v. Dominican College, 2009 WL 4249122 (S.D.N.Y. Nov. 25, 2009).

• A federal judge in South Carolina dismissed a plaintiff's claim against Charleston College that it failed to protect her from sexual harassment by a professor. Specifically, there were no allegations suggesting that college officials knew about the harassment while it was going on, or that they knew about any past incidents of harassment committed by the professor. Once the college found out about the harassment, it took action against the professor, immediately conducting an investigation and eventually disharging him from his tenured position. Ray v. Bowers, 2009 WL 4111576 (D.S.C. Nov. 23, 2009).

• A plaintiff's complaint based on a high school gym teacher's harassment of cheerleader, survived the Clarksville Montgomery County School System's motion to dismiss. The judge held that the plaintiff sufficiently alleged that the principal had adequate notice of the teacher's inappropriate relationship with another cheerleader, and his failure to respond to that incident put the plaintiff at risk. Doe v. Farmer, 2009 WL 3768906 (M.D. Tenn. Nov. 9, 2009).

• A male student, who had been sanctioned after the university found he had sexually assaulted a female student, sued the University, arguing that the disciplinary procedures and sactions were discriminatory on the basis of sex under Title IX. A federal court dismissed this claim, holding that the plaintiff's did not allege that the university's investigation or sanction were motivated by bias against the plaintiff on the basis of his sex. Doe v. University of the South, 2009 WL 3297288 (E.D. Tenn., Oct. 10, 2009).

Mesa Coach Wins Damages in Retaliation Case

A jury in San Diego Superior Court found that Mesa Community College retaliated against former basketball coach when it terminated her position for speaking out against inequities in women's athletics, in violation of Title IX. Lorri Sulpizio's complaints had triggered an investigation by the Office for Civil Rights, which lead to an agreement by the college to remedy disparities in support and resources between men's and women's teams.

However, the jury did not find that the college discriminated against her directly on the basis of sex and sexual orientation, as she had alleged. This is not entirely surprising to me, given how hard it is for discrimination plaintiffs to successfully prove that an employer was motivated by bias. I did not witness the trial, but I am guessing the jury heard evidence that athletic director Dave Evans fired Sulpizio and her partner Cathy Bass, an assistant coach, soon after having been identified in a local news story as domestic partners. But the timing alone does not demonstrate that Evans acted with bias. The jury may have also may have heard testimony that suggested Evans had in the past asked questions and made derogatory statements about the sexual orientation of Sulpizio, given that these allegations are contained in the complaint as well. However, the jury could have found this evidence insufficient to support a conclusion that Evans was biased at the moment he fired his lesbian coaches. I think that the jury's finding that the college retaliated but did not directly discriminate against Sulpizio suggests that a retaliatory mindset may be an easier one to prove, given that it is response to the plaintiff's demonstrable conduct, i.e., complaining, whereas direct discrimination requires a link between the response and the plaintiff's membership in a particular group.

The jury awarded her $28,000 in damages. Attorneys fees and costs are not included in this award. While this award seems paltry in comparison to the million dollar jury verdicts in retaliation cases against Fresno State in recent years, the difference does not so much reflect a lesser culpability of Mesa than it does the degree of economic harm to Sulpizio that the retaliation caused; $28,000 is the equivalent of a year of Sulpizio's salary.

ESPN Profiles Case of Pregnancy Discrimination in High School Sports

Via Womenstake (among other blogs) I learned that ESPN recently profiled a case of discrimination against a pregnant high school athlete in an episode of Outside the Lines. Mackenzie McCollum was a star setter on her high school volleyball team in Fort Worth, Texas, until. But when the school officials learned that Mackenzie is pregnant (from the parent of a teammate in whom Mackenzie had confided), they refused to let her play until she secured clearance from a doctor, citing a district policy. Her coach subsequently informed her team that she was pregnant, in violation of student privacy law. After Mackenzie produced a doctor's note clearing her to play, her coach was forced to let her back on the team, but he cut her playing time in half. Mackenzie and her mother believe that the district selectively applied the policy, and that the coach outed her reduced her playing time, in discrimination against her and in attempt to shame her because of her pregnancy.

Mackenzie's mother filed a complaint with the Department of Education's Office for Civil Rights, charging the Fort Worth school district with violating Title IX. An investigation is now underway. Mackenzie is also represented by the National Center for Women's Rights, who via its Womenstake blog add to the story that Mackenzie's missed playing not only caused her emotional anguish, but reduced her opportunity to impress college recruiters and compete for scholarships. NWLC also points out that discrimination against pregnant students (not just athletes) is common, and few people realize that it is prohibited by Title IX. In fact, it seems to me that the only time there is public pressure to comply with this aspect of the law is when ESPN runs an OTL special on it!

Helpfully, the National Women's Law Center has a resource page with guidance for schools and students on how to accommodate, protect, and nurture students who are pregnant or parenting. The NCAA has also addressed the issue of pregnant student-athletes, and produced these additional resources found here.

Deford addresses cheerleading

When someone I rarely see says, when I sit down for a catching-up chat, "I heard something about Title IX recently," and ponders where he heard it, it means that I probably should have posted about Frank Deford's commentary last week on Morning Edition. Deford took up cheerleading as sport and its effects on Title IX. It did not seem to have a particular angle; it was not inspired (it seems) by any one events nor did he really say anything we have not heard before on this issue. But it obviously reaches more people than when the issues are presented in stories that we read on a regular basis such as the recent kerfluffle in Florida.
So in case you are keeping track of the pros and antis, Deford seems to be against counting cheerleading as a sport. Here is his commentary.

Fundraising at Issue in Complaint Against Oregon School District

The Office for Civil Rights is currently investigating an anonymous complaint against the Lebanon (Oregon) Community School District for sex discrimination in its athletics program. District officials told the local press that the complaint addresses the fact that the softball team does not have an all-weather batting facility like the baseball team, and that the boys' baseball team, but not the softball team, travels to Arizona for spring break. The district also stated that the baseball team "built its own batting cage" and "raised money on their own to take the trip" -- suggesting that it might be considering this a defense to Title IX liability. However, the source of funding will not likely absolve the district of obligations to provide equitable resources to girls and boys. Unless the trips or the facilities are entirely private and not part of the school athletics program (i.e., it just happens to be the case that the 2o guys on the same flight to Phoenix happen to also play for Lebanon High) then any funds raised by "the team" (read: the team's booster club) is considered a donation to the school. And while schools can accept donations and even use them for earmarked purposes, opportunities and resources still have to be equal. The school can either use other funds for equivalent perks for girls, or else decline the earmarked donation.

This seemingly harsh result is put in context by the fact that the baseball team can successfully raise funds because it is privileged to enjoy the support of parents and the community. Title IX does not require parents and communities to embrace girls' sports and help the softball team raise funds. But it does require that schools receiving federal funds do not reflect society's disparate preferences.

Is collegiate football dying?

Well if you listen to the commentary that has come with the announcement that Northeastern University has cut its football program you would think we were back in the early 1900s when football almost died a quick death due to concerns over morality and mortality.
The story on NESN (New England Sports Network) keeps running over and over. It starts with footage of Doug Flutie's Hail Mary pass 25 years ago when he was Boston College's quarterback and then shows footage of NU's women's hockey team (probably one of the few times women's ice hockey makes it to NESN) where the network found NU AD Peter Robie who made the announcement last week. But the whole story is framed around Boston football and how Boston University cut its football team (years and years ago) and now Northeastern is "following suit."
It is unfortunate when any sport gets cut--as we have noted time and time again. But the loss of NU football is not an augury or comment on the state of football. After all, as the NESN story noted, BU has done just fine since cutting its program. (I heard the other day that it offers the 2nd-most expensive undergraduate education in the country. So the lack of a football program has not hurt enrollment.)
When the story first broke, and before the panic attack, I looked at NU's numbers. The school has a 50/50 male/female undergraduate ratio and women receive 47 percent of athletic opportunities. So Title IX was not a factor in the cuts. It was truly a money issue, primarily over the cost of renovating facilities that would attract quality players in order to become competitive again.
But what I did notice was that with football gone, NU would--if it chooses to comply with prong one--be able to add a men's sport. They have women's swimming and diving already. They could add men's swimming and diving which is generally considered a lower cost sport (they already have the pool after all!). And at a time when many eastern schools are cutting men's swimming, it might make NU a popular destination. (Note that I do not know several important factors that would influence such a decision including the current state of the swimming facilities or what kind of competition exists in NU's conference or geographic area.)
In other words, the loss of NU's football program will sting for a little bit, but like BU did, NU will move on and likely improve the overall strength of its athletic department. And football is nowhere near dying.