NAGWS Produces Title IX DVD

The National Association of Girls and Women and Sport recently produced a new Title IX DVD resource in conjunction with Bowling Green State University and WBGS-PBS. Title IX: Implications for Women in Sport and Education is a 3-discs documentary that provides a comprehensive overview of history and contemporary issues related to Title IX. It describes participation in and governance of women's sport prior to Title IX's mandate for equitable opportunities and treatment of women's teams, the role of Title IX in expanding athletic opportunities for women, and political and legal efforts to weaken Title IX. Moreover, it is not shy about discuss collateral and unintended effects of Title IX, such as its more limited success in expanding opportunities for women of color, the decrease in female leadership in coaching and administration, and the perception that Title IX is harmful to men's sports.

The program is well suited to classroom instruction, as it is broken down thematically into 14 chapters that are suitable for classroom viewing. Each chapter ends with discussion questions to help students focus on and retain relevant information.

You -- or your library! -- can order your own copy here.

"To Lynch a Child"

Via Feminist Law Profs, I learned that Professor Michael Higdon of Tennessee has posted a working paper called "To Lynch a Child: Bullying and Gender Nonconformity in Our Nation's Schools." Below is the abstract, and here is a link to the full article.

In January 2010, a 9-year old boy named Montana Lance hung himself in a bathroom at the Texas elementary school he attended. Although certainly shocking, such acts are unfortunately becoming less and less unusual. In fact, the suicide of Montana Lance is very reminiscent of what happened in April 2009 when two 11-year-old boys, one in Massachusetts and one in Georgia, likewise committed suicide just days apart. What would cause these children to end their lives? The answer in each case is the same: all three suffered extreme levels of victimization at the hands of school bullies—bullying that others have described as involving “relentless homophobic taunts.” And, as we can see from the fate of these three little boys, this form of harassment was obviously very traumatic.

In this article, I look at the growing problem of school bullying in America today. Now, almost all children are teased and most will even face at least some form of bullying during their childhood. However, studies reveal that some children will unfortunately become chronic victims of school bullying. Chief among that group are those children whose gender expression is at odds with what society considers “appropriate.” As my article explores, the gender stereotypes that exist within our society are frequently to blame for the more extreme levels of bullying currently being carried out in our nation’s schools. And the impact this bullying has on its victims is staggering. Earlier I mentioned three children who took their own lives as a result of bullying. These are but three examples of those who have lost their lives to gender-based bullying. However, there are countless other victims who, although not paying with their lives, are nonetheless paying dearly in other ways. Specifically, the psychological literature on the emotional impacts that befall these chronic victims of bullying reveals a whole host of resulting problems—debilitating consequences that can last a lifetime.

As a result, my article argues that bullying on the basis of gender non-conformity is, in essence, a form of lynching. First, both are driven by unwritten social codes—in one instance, white supremacy; in the other, gender stereotypes. Second, both are carried out by perpetrators who do not act in isolation but with the support and sometimes involvement of the larger community. As I explain, one of the reasons gender-based bullying is so frequent is the degree to which peers and school administrators ignore such behavior and, in some instances, even become active participants. Third, both result in extreme harm—lynching, in its most basic form, resulted in dead bodies; however, a lynching need not be defined so narrowly. In the case of segregation, for example, we had living children with “lynched” spirits. As one commentator describes, “these children . . . were truly lynched spiritually, emotionally, and mentally.” As noted above, and as discussed quite extensively in my article, chronic bullying on the basis of gender stereotypes carries similar results. Finally, both lynching and gender-based bullying achieve maximum effectiveness by the way in which they generate fear in others. The clear message of both is the same: obey the “code” or become the next victim.

Although other scholars have addressed the topic of bullying, none have taken the approach that it is 1) heavily based on gender stereotypes and 2) as such, is in essence a form of lynching given the extreme harms it can cause. As a result, many articles propose remedies that focus more on the need for greater legal intervention. I argue that, first, only by recognizing this form of bullying for what it is—a form of lynching—can we even attempt to craft a solution to the problem. Second, given the degree to which social norms relating to gender animate this form of bullying, legal solutions alone will be inadequate absent some means of changing society’s adherence to these rigid and unforgiving stereotypes. Accordingly, I conclude by discussing ways in which litigation, legislation and education can work together to help try and effectuate some form of social change.

Litigation Updates

Here is a roundup of recent developments in ongoing Title IX cases that we've blogged about before.

• Potential settlement in J.L. v. Mohawk Central School District. This is the gay bullying case in upstate New York, that was filed by the ACLU last summer and in which the Department of Justice recently intervened on the side of the plaintiff. News reports suggest that the parties recently considered a settlement agreement that would have provided $50,000 to the plaintiff, $25,000 to the ACLU, district-wide training on appropriate responses to anti-gay harassment, and payment to cover the plaintiff's continued therapy. However, this agreement was never signed off upon and the parties have "moved beyond" this particular draft, according to school district's attorney quoted in the article. The article suggests that the draft settlement is evidence that the parties are at least considering settlement, as well as the general topics on the negotiation table.

• Hearing in Doe v. Vermilion Parish School Board. Last fall we blogged about the ACLU's challenge to the sex-segregated classes in Rene Rost Middle School under the Constitution and Title IX. On Thursday, the federal district court in Louisiana heard arguments in support of the plaintiffs' motion for a preliminary injunction, which would halt single sex education while the judge considered the merits of the case. An ACLU attorney recently posted this summary and analysis of the case at the Huffington Post blog.
  

• Denial of defendant's motion to dismiss Mary V. v. Pittsburgh Public Schools. This is the case that made news last summer because the plaintiff alleged that the school failed to protect her daughter from bullying that was so severe, it contributed to psychological harm, including anorexia. Judge Ambrose (who Title IX fans may remember from the Slippery Rock litigation) determined that the plaintiff's case could go forward because she had adequately plead all of the elements of a Title IX peer harassment case. In particular, that the harassment was motivated by the victim's sex (in particular, her "developing adult female figure"), that plaintiff and her daughter had met with school officials about the harassment, thus providing actual notice, that the school district's response was inadequate to amount to deliberate indifference, and that the harassment occurred on a daily basis and throughout the day, and thus was severe and pervasive. This decision paves the way for litigation to continue. Next steps may include discovery, additional dispositive motions, trial, or in the alternative, settlement. The decision on the motion can be found at 2010 W.L. 562909 (W.D. Pa. Feb. 17, 2010).
  

New report findings on college sexual assault

The Center for Public Integrity released a report this week about the judicial proceedings and consequences for accused sexual assault perpetrators on college and university campuses. Not surprisingly, the group found that the consequences alleged assailants face are minimal. Expulsion is rare and only done in the cases when the judicial board believes that he or she poses an ongoing threat. Such judicial boards admit that their goal is not punishment but rather education. But even this re-education seems minimal and as we have documented in several of the sexual assault cases we have covered, the institution often takes very few steps to minimize the emotional and potential physical distress to the victim. This leaves alleged victims having to deal with on-campus encounters with both the perpetrator and other unsympathetic parties. While the alleged assailant may receive a suspension, it is often the victim who will leave the school permanently.
Schools seem betwixt and between about these issues. They clearly are not serving their students well with this quasi justice system. And they would rather not be dealing with these issues at all. But the criminal justice system is not the most conducive place for dealing with on-campus sexual assault crimes either. Cases frequently are not strong enough for prosecutors to take on.
So it seems that neither the institutions they attend nor the justice system they have access to are serving these (mostly) female students well--or (barely) at all.

Virginia Schools Consider Competitive Cheer

A school superintendent in Virginia is urging his district and others in his region to consider altering cheerleading so that the opportunities it provides count as as athletic opportunities under Title IX. Girls receive proportionately fewer athletic opportunities in Superintendent Nichols' Chesapeake Public Schools, and he and others support counting cheer as a sport as a way to "close the gap." While the Virginia High School League recognizes cheer and sponsors district, regional, and a statewide tournament, participants don't count as athletes under Title IX because they exist primarily to support other teams from the sideline, rather than to compete in their own right. Nichols and others have begun to discuss whether it is feasible to add a regular season of competition for competitive cheer, and whether schools would have to offer separate competitive and sideline squads. Such a move would encounter many obstacles, including logistics, cost, and preferences of the participants themselves. So it is unknown whether changes to cheerleading are on the horizon. However it turns out, I commend Chesapeake and the other districts looking into competitive cheer for acknowledging that to count it as a sport, it has to actually be (or become) a sport that is focused primarily on competition. But if that transition is not possible, or the preference of the cheerleaders, I also hope that Superintendent Nichols continues to consider adding other sports to "close the gap."

Parents Make Equal Treatment Claim Against School District

Parents have sued the Coffee County, Tennessee school district in federal court, alleging that Central High School discriminates against their daughters, female soccer players, by failing to provide equal treatment to girls' sports. Specifically, the lawsuit alleges disparities in funding that result in members of the girls' soccer team having to raise funds for the same equipment and supplies that are provided to the boys' team. The lawsuit also alleges that girls' teams have less access to facilities for competition, practice and locker rooms.

Title IX regulations require schools to equitably support male and female athletic programs, including in the allocation of facilities, equipment, locker rooms, and other factors. The regulations do not, however, require equity within a particular sport. Thus, disparities between boys' and girls' soccer do not violate Title IX if girls' teams in other sports receive more favorable treatment. But, if the disparities between boys and girls' soccer programs are indicative of the athletic program as a whole, the district may be liable.

Delaware State sued over equestion cut

As Erin subtly foreshadowed last month in her post about Delaware State cutting men's tennis and women's equestrian because of budget issues, a lawsuit has been filed. It is not by a current member of the equestrian team but by a Canadian who signed a letter of intent to ride for DSU next year. She found out the program had been cut via Facebook. More to follow, I am sure.

Cal State Bakersfield cutting four sports

California State University Bakersfield announced yesterday that due to budget shortfalls it will cut four varsity sports: men's and women's golf, women's tennis, and men's wrestling. The decision was based on CSUB's desire to remain a DI institution (which means they have to maintain at least 6 men's sports and 9 women's sports) and to eventually enter the Big West Conference which requires member schools to have certain sports such as volleyball and softball and baseball. The school is also bound by a court settlement (that applies to all the Cal State system schools) to maintain proportional gender equity in its athletics program. Currently CSUB is 65 percent female undergrads and 35 percent male undergrads.

Professors Survive Summary Judgment on Employment Discrimination Claim

Today a federal court in Ohio paved the way for trial in an employment discrimination case filed by two female former professors at Xavier University. The plaintiffs alleged that they were terminated from Xavier University because of their sex and age and in retaliation for filing a complaint against the department chair. In support of their sex discrimination claim, the plaintiffs alleged that while they were terminated, a male professor who had supported and collaborated with them in their complaint against the chair, was not. The federal court denied the Xavier's motion for summary judgment on their discrimination and retaliation claims (and the plaintiffs' attempt to win on the retaliation claim on summary judgment) after determining that a jury could find in their favor. The plaintiffs' Equal Pay Act claim will also proceed to trial so that a jury can determine in fact whether the plaintiffs were paid less than other faculty members for discriminatory reasons.

Decision: Finch v. Xavier University (S.D. Ohio, Feb. 10, 2010).

UC Davis case reinstated on appeal

Erin wished in May 2008 that the three plaintiffs in the UC Davis wrestling case would appeal the decision of the lower court to dismiss the lawsuit in which the student-athletes allege Title IX violations after the school eliminated their opportunity to wrestle.
And this week her wish came true. The 9th Circuit Court of Appeals reinstated the lawsuit* after disagreeing with the lower court's rationale that the students had to inform their institution of the discrimination first. But as Erin pointed out in her analysis of the case, this standard, established by SCOTUS's decision in Gebser, a sexual harassment case, isn't really applicable in the case of athletics. An institution, as it restructures and makes decisions about how to distribute monies and opportunities, should be well aware of doing so equitably. After all, every school has its own Title IX compliance officer and is called upon by the NCAA on a regular basis to provide evidence of gender equity.
UC Davis lawyers were not surprised by the court's decision, but they note that since the time of the lawsuit the school (in accordance with a subsequent settlement) has moved closer to proportionality and now, they say, are within 3 percentage points. According to the settlement, the school must be within 1.5 percent in 10 years. How these recent efforts to provide equitable opportunities factor into the renewed lawsuit remains to be seen.


* In this article from the AP and reprinted in the LA Times, the writer refers to Title IX as "the so-called Title IX law." What is the implication here? That it's not really a law? Is the writer referring to the fact that it was renamed to honor Patsy Mink? I don't see a lot of other laws being modified by "so-called." The so-called Civil Rights Act? Makes one wonder how he really feels about Title IX.

If you are on Facebook

Please check out the page Title IX Compliance: Know the Score.
It's aim is to inform parents, students, and other interested parties about Title IX compliance in high schools. It also tracks news of compliance cases in high schools.

Study Links Title IX and Health Benefits in Women

New research suggests that the nearly 600% increase in girls' sports participation following the passage of Title IX has contributed to health benefits for women. In the current issue of Evaluation Review, Robert Kaestner and Xin Xu report that "adult women who were affected by Title IX and had greater opportunity to participate in athletics while young had lower body mass index (BMI) and lower rates of obesity and reported being more physically active than women who were not afforded these opportunities." (The researchers also note that while the results were statistically significant, the effect size was small, which I'm told means that there's a modest trend toward improvement, rather than a major change.)

Citation: Robert Kaestner & Xin Xu, Title IX, Girls Sports, and Adult Female Activity and Weight, 34 Evaluation Rev. 52 (2010).

[thanks AG]