Monday, November 30, 2009
Landau may be a bombastic nudnik, but he is playing an important role in the fight for gender equality in Pennsylvania athletics. There are other rogue enforcers like Landau out there, but hopefully the Times' choice to profile Landau will inspire a few more.
Saturday, November 28, 2009
Not too much is happening, apparently. There's a meeting later this month to discuss the situation and the superintendent says he is working on it, and is hopeful there will be a temporary solution by the time the spring season rolls around.
In other words, not much is happening. (And I have doubts about whether anything will happen by spring given the tone I am reading in the superintendent's comments.) And I usually do not bother to report on articles which really tell me very little, except this one I found blog-worthy for two reasons.
First, the above mentioned lack of movement. It seems the ACLU's letter to the district did not shake them that much. Perhaps if someone files an OCR complaint which would subject the entire athletic program to an investigation that would get them moving. They should be grateful it is only the softball team that is complaining right now.
Second, the article spent very little time on the actual softball issues. When the writer started talking about the comparisons to the baseball facilities which have themselves been erratic due to construction, he never went back to the issues with the softball fields. It became an article about renovations to other facilities including all the football repairs that need to be done. In other words, it became a discussion, in some ways, of the economy and lack of funds but it was also about how the boys' facilities would cost a lot of repair/renovate. This kind of framework makes me wonder just how much is going to be done to improve the girls' softball field come April. Hope I am wrong.
Monday, November 16, 2009
Coach Tyler Murray seems to be a brave person to take on football in Alabama but her version of the facts is pretty compelling. OCR has already done its site visitation so a report is likely forthcoming.
Murray says that her team does not have access to the same kinds of facilities as the football team nor have they received the same portion of donations to the athletic department. The weights her team (and others worked out on) were removed from the weight room they used. They spent most of their season working out in hallways and the shower area. She alleges that 40 percent of the equipment was damaged because of the move which resulted in some of the pieces being put outside where they rusted. And when her players tried to use the weight room the football team uses, they were kicked out, she said.
After the complaint was filed, the high school converted an art room into a weight room.
Murray also noted that football coaches get paid more than other coaches. The response to this complaint was that this is a nationwide trend. Not exactly a compelling retort.
Her issues have been with her athletic director who, not coincidentally, is also the football coach. He will not comment on the complaint, only saying that he is in compliance. Murray said she had accepted that she and her team gets less, but that her tipping point was when what she had began being taken away from her.
Interestingly, the quotations from the superintendent's statement refers to the law as "Title Nine." This worries me a little. But I am looking forward to hearing what OCR found during its September visit.
Friday, November 13, 2009
It apparently has good reasons. The home team's field is grass which is not as desirable as the turf most other schools are playing on these days. That makes scheduling home games more difficult. Installation of turf would cost an estimated half a million dollars. Also, it appears that field hockey is not very popular in the region. There are not even enough teams in the area to comprise a conference.
Good reasons. But Catawba has a little problem with the numbers. Women comprise just over half of the undergraduate population at the school (52 percent). But they receive only 34 percent of the athletic opportunities. With the cutting of field hockey this percentage drops to 30. It is entirely possible that there are plans to add a women's sport immediately--but that was not mentioned in the articles I saw. It is also possible that the school has been adding women's sports continually and thus has a history of expanding its women's program. But this seems doubtful if women still only receive 30+ percent of the opportunities.
None of the coverage mentions players' reactions. But if they are pissed, which I imagine they are, they might consider calling a lawyer.
Thursday, November 12, 2009
According to a source the proposed terms included moving some girls' basketball games and practices to an off-site gym (which I assume is a better facility though this facility is never explained) and designate girls' locker rooms at this site as well. Eventually all girls' games would be played at the site.
Samuel Schiller, lawyer for the two parents, said he did not know why the board turned down the settlement. The superintendent only said they did not feel it was in the best interest of the district or the two girls. [Well it's actually supposed to be in the best interest of the girls' program generally--not just the two girls (and their parents) who sparked the lawsuit.]
Schiller was also, as we mentioned in a previous post about the Canton lawsuit, the lawyer for a similar case in Lewiston, IL. As Schiller mentions about Canton's refusal to accept the terms of mediation, continuing mediation and preparation for trial will only cost the district more money. It was recently revealed that the Lewiston case cost the district $102,000. The district tax levy was raised to cover the costs of that lawsuit (which ended in a settlement).
The school board is not set to take up the Canton lawsuit anytime soon. We may be into 2010 before we hear more about this case.
Wednesday, November 11, 2009
The people at Bitch magazine found Schmitt's piece compelling and blogged about it and Title IX more generally. Anna Clark included excerpts from the American Prospect piece in which we see Schmitt, an admitted sport outsider, appreciate the effects of the social change that occured in the 1970s: his daughter is now a catcher on her Little League team. This point of view--the outsider--is particularly interesting, and somewhat unique, in the discourse on girls' sports and the role of fathers. Clark cites some of this research as well: that fathers with sport-playing daughters can be vehicles for support of girls' sports. (A view I have certain issues with--but we'll save that for another time.)
What is interesting is that Schmitt identifies not as a Little League Dad but as a Title IX Dad. Title IX dads seem to understand the social change aspect of the legislation and see the broader issues. Sport dads who support Title IX are probably a little more narrow in their vision of the legislation. They see what it does for their individual daughters. We should not forget the father in Nevada who made Title IX claims when the high school athletic association attempted to move girls' soccer to its traditional season (fall) which would have put his own daughter in the awkward position of having to choose between soccer and volleyball. He was not a Title IX dad. [Not all sport dads are like this, of course.]
Clark gives us a shout-out to us and for that we are thankful. [She thinks we're fascinating--well the blog at least!] But we wouldn't be the responsible bloggers we strive to be if we didn't make one little correction to Clark's connection between Title IX and Little League. The Little League lawsuit was not a direct result of the passage of Title IX because Little League, Inc is not subject to Title IX. Certainly the passage and the lawsuit were part of the overall climate that engendered more support of girls' and women's access to sport in the 1970s.
And the women of NOW--who were integral in the lawsuit--were actually not the first to make the connection between Title IX and sports. Women's sports advocates saw the possibilities the legislation offered for increasing funding of and opportunities in women's sports in educational institutions almost immediately.
Tuesday, November 10, 2009
Lapchick calls for what he believed Brand would seek in a pool of candidates for his replacement: diversity. Because the essay is not widely available, I am going to excerpt pieces of it here.
This is not to say that I hope that the NCAA will choose an African-American, Hispanic, Asian or American Indian president, or a female one, but I hope it will include the best pool of candidates, including people of color and women.
This would be a tribute to Myles Brand and an important statement to our student athletes on campus, and especially to the student athletes of color in revenue-producing sports.
The racial composition of conference and athletic department leaders does not reflect the diversity of our student athletes. In addition to having this process be inclusive from start to finish, we also encourage those on college campuses to hold open hiring practices for coaches, athletic directors and other important positions in college sport. The current racial makeup of those positions of leadership tells a one-sided story (see chart). Thus, a diverse pool of candidates for the new NCAA president would be extremely important.
Lapchick also endorses someone for the position, though. He believes Bernard Franklin, currently the executive vice-president of the NCAA is an excellent candidate to take over and continue Myles Brand's vision. Franklin is notable for being the go-to person in the organization on the NCAA's Native American mascot policies.
Other than Lapchick's endorsement of Franklin, I myself have not heard many other rumblings about potential or desirable candidates.
[many thanks for JB for sending me the editorial]
Monday, November 09, 2009
Last week, this litigation reportedly settled for $300,000. Fresno State admits no culpability but stated that it settled to avoid more lengthy and costly litigation. This statement refers, of course, to the five other lawsuits filed by former female coaches and employees of the athletic department, for which Fresno State has had to pay more than $16 million.
Saturday, November 07, 2009
According to data submitted by the University and publicly available on the Department of Education's website, Kansas is a rare example of a university at which men are statistically underrepresented in athletics. The gender breakdown of the student body is very close to 50/50. Yet men receive only 46% of the athletic opportunities. Even though Kansas has a large-roster football team, it only offers a limited number of additional opportunities to men, in sports of track, golf, baseball and basketball. Women have opportunities in basketball, track, golf rowing, soccer, softball, swimming and diving, tennis and volleyball. Two issues will confront OCR in investigating whether this disparity violates the proportionality prong. First, whether Kansas is accurately counting athletic opportunities, as sometimes schools engage in roster management techniques that end up counting less-than-genuine opportunities or engage in tricks like adding students onto the roster after their official numbers are turned in. Assuming that Kansas's reported numbers are accurate, OCR will then have to figure out whether a 4 percentage point disparity is close enough for "substantial proportionality" required by the test. There is no bright-line test, but OCR has in the past accepted that five percentage point difference between the percentage of female students and the percentage of female student athletes still constituted substantial proportionality. The fact that this case involves underrepresented male athletes should itself make no difference to OCR's decision to rely on that particular benchmark.
The other interesting issue OCR's resolution of this complaint would have to address is whether failing to add a team in 73 years is tantamount to failing to add opportunities for men. Generally, football program rosters have been steadily increasing, and this could constitute evidence of a history and continuing practice of expanding opportunities for the underrepresented sex. Moreover, if men became the underrepresented sex at Kansas only recently, OCR may determine that this prong does not (or not yet?) apply.
In sum, OCR has the opportunity to address many questions about the three-prong test that have only been theoretical possibilities; namely, how the three-prong test applies when the balance of opportunities tips towards women.
Friday, November 06, 2009
The article doesn't say what evidence the plaintiff put forth to demonstrate that her educational opportunities had been harmed. Presumably, given the sentiments of the jury (the article says they tried to read a statement excoriating the university, but the judge wouldn't let them) even if she had made a modest showing they would have accepted it as satisfying the element for liability. They could have then factored it their perception of only minor harm to their calculation of damages.
Jurors said they found for the UW, by a 10-2 vote, based on narrow legal ground, determining that the plaintiff's educational opportunities had not been sufficiently harmed by the university's handling of her complaint. She remained in school, kept a high grade-point average, and graduated.
When asked Thursday how the UW handled the case, one juror said: "You want a quote? Piss poorly."
Team and individual stats will be compiled during four compulsory stunting rounds, followed by each team's uniquely choreographed final routine judged for its degree of difficulty and the ability of its performers to "hit" their skills passes and limit their "bobbles."
"It's like floor routine in gymnastics but with 20 people on the floor — all synchronized," [University of Oregon Head Coach Felecia] Mulkey says. "It has some stunts in it that may look like cheerleading, but without any of the cheerleading stuff."
Six universities have competitive cheer teams: University of Maryland, University of Oregon (they are the ones who call it team stunt and gymnastics), Baylor, Fairmont State, Morgan State, and Quinnipiac. The NCAA does not currently offer a championship in competitive cheer, but cheer proponents hope to change that. If four more institutions create varsity programs, then NCAA could recognize it as an emerging sport as early as August 2011. As an emerging sport, it would then have 10 years add 40 varsity programs at NCAA member institutions for the NCAA to stage a championship.
The "emergence" of competitive cheer is supported by those who note the sport's popularity. Obstacles, however, include the fact that many universities are not in the economic position to add new teams, and AB also notes expressed concern about the sport's high injury rate. The article does not delve into another concern that competitive cheer programs raise, which is that athletic departments are adding them not to respond to interest and ability of their female student population, but as a cheap and easy way to achieve compliance with Title IX's proportionality prong. For one thing, cheer enjoys popularity as a co-ed sport. Kate Torgovnick's Cheer makes the point that in some non-varsity cheer programs (competitive-sideline hybrids) the co-ed squads are at the top of the cheer hierarchy. If the sport was truly being added in response to interest among the student body, it would include opportunities for men. Limiting the sport to women, on the other hand, suggests that adding cheer so they don't have to add other women's sports. Another reason for concern is that some schools (I'm thinking of Quinnipiac) propose cheer squads that have both larger rosters and smaller budgets than any other women's teams. That too suggests the possibility that a school's primary motive is to pad their numbers rather than offer meaningful athletic opportunities. Hopefully these points do not sound like criticism directed at competitive cheer. Rather, I think that they are concerns the sport, and the rest of women's athletics, should keep in mind as competitive cheer continues to gain ground.
Thursday, November 05, 2009
The case has tried before a jury in King County, Washington. The jury received the case yesterday and is deliberating today. At stake are damages up to $800,000.
(Via Ombuds Blog.)
Wednesday, November 04, 2009
The court's decision itself also warrants some analysis. The plaintiff, Eric Clausen, argued that he had complained that the National Geography Bee was biased against girls in North Dakota, pointing out that boys win 90% of the time. He further alleged that he was forced to resign as a result of his complaints. Yet the court found that he did not state a claim for retaliation because Clausen's complaints about the geography bee's bias was not itself discrimination under Title IX ("The Court finds as a matter of law that an alleged failure by females to win the national geography bee as often as males neither establishes nor supports a Title IX violation. Title IX neither guarantees nor suggests that females must win as often as males."). Thus, his complaints were not "protected activity" as required to establish a retaliation claim.
The court was right that Title IX's focus is on equal opportunity, rather than equal outcomes, and that the law does not "guarantee that females must win as often as males." However, there are two reasons why I think it concluded too quickly that Clausen did not engage in protected activity. First, retaliation law only requires that the plaintiff have a reasonable belief that the conduct or practice they are challenging constitutes unlawful discrimination. Thus, even though the court may be correct that the Geography Bee did not violate Title IX, the right question is whether Clausen reasonably believed that a 80-percentage-point gender gap in Geography Bee winners might be the result of unlawful discrimination.
This brings me to my second criticism of the court's conclusion that Clausen did not engage in protected activity. I think Clausen could have reasonably believed that the Geography Bee was unlawfully biased. Title IX's prohibition is not limited to intentional discrimination; the law also forbids practices that have an unintended discriminatory effect on a particular sex. For example, New York state used to award scholarships to high school students based on their SAT scores, a practice that unintentionally awarded more scholarship dollars to male students. A federal court ruled that this was discriminatory under Title IX, because there were other criteria the state could use that would provide as good or better measure of academic merit and would have a less discriminatory impact on female students. Sharif v. N.Y. State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Viewed as a possible case of disparate impact discrimination, it seems much more likely that Clausen's complaints about the National Geography Bee's tendency to favor male students were rooted in his reasonable belief that it reflected unlawful discrimination. Sometimes test questions -- either because of their content or their format -- unintentionally favor a particular group, and an extreme disparity reflected in the test results is usually the first sign to the testing entity of a potential bias. An employee who points this out and asks the testing entity to correct or at least examine the test for potential bias ought to be protected from reprisal.
Unfortunately for Clausen, even if he successfully appealed the court's conclusion that he engaged in protected activity, he would also have to surmount the court's conclusion that he did not sufficiently allege that he was forced to resign because of his advocacy for gender equity. Apparently there was evidence that he resigned for other reasons relating to business decisions made by the entity that he directed. I leave it to Clausen's lawyer to figure that one out.
Decision: Clausen v. National Geographic Society, Inc., 2009 WL 3271355 (D.N.D. Oct. 10, 2009).
Tuesday, November 03, 2009
The legal status of policies excluding boys from girls' sport has been covered in prior posts (see here and here). It would likely be upheld under Title IX's regulations governing separate teams, but Title IX is not the only source of nondiscrimination law applicable to this situation. In 1979, the Supreme Judicial Court in Massachusetts, for example, struck down a similar exclusionary policy for violating the state constitution's equal protection clause. The court's analysis addressed many of the same objections raised in Blake's case. The court was not persuaded by arguments about safety, because a policy excluding boys for safety reasons is based on generalizations about boys, and is not narrowly tailored to address safety concerns. Some boys are large and may pose a safety threat, but then again, so are some girls. Sex is not a perfect proxy for size; if you want to exclude people whose size poses a safety risk, exclude people based on size, not sex (see also a related prior post here).
The court in Massachusetts also rejected the argument that the policy was justified to preserve athletic opportunities for girls. Schools and conferences can figure out for themselves how to avoid discriminating against male field hockey players on the basis of their sex, and simultaneously offer balanced athletic opportunities for girls and boys. For example, if so many boys wanted to play field hockey that girls are losing out, the appropriate response is to add or reallocate athletic opportunities so that there are enough opportunities in field hockey to accommodate both sexes.
Interestingly, the Hartford Courant article points out that in Massachusetts, the number of boys playing field hockey is extremely low: 26 out of ~8000 players. Perhaps due to the low numbers, or perhaps because people have gotten used to it, the presence of male field hockey players is not very controversial any more. The article does not say whether Blake and family plan to challenge the CIAC's policy, but if they did, it would be interesting to see whether the reasoning of the Massachusetts court, or the experience of the CIAC's Massachusetts counterpart over the last 30 years, holds any sway.
Monday, November 02, 2009
This line of thinking is logically flawed, factually inaccurate, and steeped in stereotypes. First, no one is forcing colleges to lower their academic standards for male applicants. There is certainly no mandate that colleges admit men and women in equal numbers, just as there is no requirement that their student bodies are proportionate to the nation's racial demographics (imagine the uproar if that were so!) Colleges are afforded at least as much flexibility to consider sex in admissions as to consider race (the plus factor approach) and within constitutional limits, it is up to school how to incorporate academic standards and diversity into admissions decisions.
Second, Title IX is not the reason schools can't add men's sports -- the fact that men still have more athletic opportunities than women, both in absolute and relative terms, is the reason why schools can't add men's sports. Third, at least some colleges are adding men's sports -- we've blogged about it, see here, here, and here, e.g.! -- so even taking it out of the context of admissions, the suggestion that Title IX is preventing schools from expanding their men's athletic programs doesn't withstand scrutiny.
Fourth, the idea that colleges need to solve their admissions problem by adding sports for men operates from the annoyingly premise that it is more important to satisfy the athletic interests of men who are not, apparently, otherwise bound for college than it is to satisfy the women who are already there -- women are interested in sports too, and women have fewer athletic opportunities even though there are more of them in college!
Last, it sells men short; it suggests that they need to be tricked into applying to college by an admissions brochure with a lot of pictures of guys playing sports. To again use the race as an analogy, imagine the outrage if a government office expressed sympathy with colleges seeking to boost their racial diversity by adding athletic opportunities for minorities. Some would argue that such a plan exploits the minority student athletes and stigmatizes the minority student population in general by suggesting they otherwise would not be college bound. Some would argue that such a strategy provides clear evidence of the school's intent to promote athletics above academics. Others would argue that it's unfair to the white kids to limit their opportunities. All would be a little bit right.
It will be interesting to see what the Commission's inquiry reveals. Hopefully, it will steer clear of the misinformation and stereotypes discussed here.
UPDATE 11/3/09: More from today's Inside Higher Ed here; and Women's Sports Blog has a good take on it here.