Delaware State Invokes Prong 2, Cheerleading in Defense

Delaware State University is reportedly defending its decision to cut the women's equestrian team by claiming it nevertheless complies with prong two: the compliance test that requires a university to show a history and continuing practice of expanding women's athletics. The problem with DSU's prong two argument is that all courts that have considered whether cuts to women's teams violate Title IX have recognized that cutting a viable women's team necessarily violates prong two: reducing opportunities

This is the tradeoff for the flexibility prong two provides in the first place: schools don't have to achieve proportionality (prong 1) or full accommodation of interests (prong 3) overnight; they will not violate the law if they are working towards those goals by program expansion. But this flexibility is not boundless: it does not allow a university to stall (hence, "continuing" practice) and it does not allow a university to backslide by cutting a viable women's program. Rather, as the First Circuit said in Cohen v. Brown, it requires a university to "march uninterruptedly in the direction of equal athletic opportunity." More recently, the district court in Connecticut articulated an identical interpretation of prong two when it held that Quinnipiac University necessarily did not show a history and continuing practice of program expansion after it cut its viable women's volleyball team: "That is because, by eliminating a women’s team while there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender – women."

Coincidentally, it looks like the court's prong two interpretation is not the only reason to compare DSU's case to Quinnipiac's. DSU's second defense of its decision to cut equestrian is the announcement of plans to add a competitive cheer team. However, this does not change a court's likely outcome on the prong 2 question. As long as one sex (here, women) are underrepresented in athletics, prong 2 compliance means the University has to keep its viable programs AND add new ones. Cutting-and-adding does not count.

A second issue is whether adding cheer put the university in compliance with prong 1. If so the prong 2 argument is not necessary. But putting aside the obvious argument that DSU should not be able to count cheer opportunities that don't yet exist, there is no way DSU will satisfy prong 1 by adding cheer. The disparity between the percentage of women students and women's athletic opportunities is so severe that by my calculation, DSU would have to add 156 cheer athletes-- more than doubling the current number of women's athletic opportunities -- to comply with prong 1. Surely this is not what DSU is planning. If it is, it's got other problems, as courts have started to crack down on universities that manipulate prong 1 calculation by padding the rosters of women's teams.

In sum, I continue to predict that this case will resolve quickly and in favor of the present and recruited equestrians who have filed suit against DSU.

Texas textbooks and Title IX

The recent changes to social studies curriculum in Texas will result in textbooks that talk about the "unintended consequences" of Title IX (and the Great Society, and affirmative action). The issue, of course, is that changes in Texas are likely to mean changes to textbooks used all over the country because of the large number of textbooks the state purchases. Textbook publishers have to go before the Texas Board of Education, which approved 100 amendments (including the above) to the social studies curriculum, to show them drafts of their textbooks.
I am sure there are many happy anti-IXers since the news about the Texas conservatives efforts at reeducation broke a couple of weeks ago.
The possible good news is that in this digital age, there is the possibility of textbook companies customizing textbooks. But this would require, at the least, diligence on the part of school committees and state education boards in examining the materials. No word on whether these customized texts would cost more.

Breaking news: Settlement in NY bullying case

In January, the federal justice department intervened in a Title IX case in Mohawk, NY involving a male teenager who has been bullied for allegedly acting too effeminate. The justice department agreed that Title IX offered protection against discrimination based on gender expression.
And according to an NPR blog, the case has settled with the Mohawk school district agreeing to pay the plaintiff, referred to only as Jacob, $50,000, as well as cover all legal fees and the cost of therapy and provide anti-discrimination training to employees (teachers and administrators were either indifferent, complicit, or part of the bullying). This settlement deal is similar to the one we reported on not too long ago.
Thus the settlement is not surprising, though at the time we reported on the potential terms it appeared negotiations had stalled somewhat.
I would like to think that the large jury award to a bullying victim in Michigan earlier this month was influential.

School Principal May Be Individually Liable for Teacher's Abuse

A recent Seventh Circuit decision addressed an elementary school principal's potential liability for a music teacher's sexual abuse of students. The students sued the school, the principal and the teacher on several theories of liability, including Title IX, constitutional violations, and state law claims. While the Title IX claims against the school and the state law claims against the teacher are set for trial, the principal moved to dismiss the claims that she had violated the plaintiffs' constitutional rights to equal protection and due process, arguing that she was protected from liability under the doctrine of qualified immunity.

Qualified immunity shields government officials (including public school officials) from individual liability. However, it does not apply when the official is charged with violating the plaintiffs' clearly established constitutional rights. If the substance of the plaintiff's legal argument presents a close call under constitutional law, the official is protected and the lawsuit is dismissed. But if the plaintiff's legal argument is clear winner under constitutional law, then the official is not protected, and the lawsuit may proceed so that the plaintiff can try to prove the facts of her case.

In this case, the Seventh Circuit acknowledged that sexual abuse may violate a student's rights under the Constitution's Equal Protection clause. Moreover, it was "clearly established" at the time of the events giving rise to this case that a supervisor could be liable for condoning, covering up, or turning a blind eye to the abusive conduct of a supervisee. The court agreed with the principal that recent Supreme Court decision, Iqbal v. Ashcroft, requires plaintiffs to allow allege the supervisor's discriminatory intent in such cases. However, In addition, a supervisor charged with violating the Equal Protection Clause for such conduct or indifference must to do with the intent to discriminate. But the court thought that a jury could infer from evidence that the principal helped cover up the teacher's molestation that the principal also had a purpose of discriminating against the girls based on their sex. The court therefore refused to dismiss the equal protection claims against the principal.

The court also held that qualified immunity would not shield the principal from the plaintiff's due process claims. Under the due process clause, citizens have a protected liberty interest in their right to bodily integrity -- a right that is impaired when one is physically molested by a state-employed teacher. The court considered it "clearly established" law at the time of the events in this case that a principal whose own conduct creates or exacerbates the risk that a student will be molested violates the due process clause. As noted, the plaintiffs allege that the principal actively covered up abuse, exacerbating the risk to the students. Therefore, this claim was also outside the scope of the principal's qualified immunity defense, and the principal's liability will also be decided at trial.

Decision is: T.E. v. Grindle, 2010 WL 938047 (7th Cir. Mar. 17, 2010).

NYT Examines Violence In Women's College Sports

In recent months, college sport has seen several high profile instances of violence by female athletes, from New Mexico soccer player Elizabeth Lambert pulling an opponent down by her ponytail to Baylor's Brittany Griner currently serving a two-game suspension for punching another basketball player. In Sunday's New York Times, reporter Jere Longman looks at these instances and others, and asks "what is going on?" Has violence increased with the rising stakes and pressure in women's sports, as women emulate the behavior of men to be taken seriously as athletes? Or is it just our perception that has changed -- manipulated both by the growth of the media and the 24/7 news cycle, and by the fact that instances of violence in women's sports are reported against a backdrop of minuscule coverage of women's sports generally?

Longman turned to several sports experts to help answer that question, including none other than my co-blogger Kris, who suggested that the media's fixation on violence in women's sport could be related to backlash against Title IX. The perception of violence in women' sport lends support to who criticize Title IX and seek its repeal when it (like ACL tears) is framed as a problem caused or triggered by the law. This framing ignores the prevalence of violent acts in college men's sports, and as Kris says in the article, misses the opportunity to examine the problem as a non-gender-specific one. Violence shouldn't be tolerated in college sports, men's or women's. The solution to the problem of violence in women's sport isn't to stop advocating for women's equality in sport, but to change the college sports culture that pressures student-athletes to commit acts of violence or that valorizes it rather than condemning it as, in Kris's words, "third grade behavior."

Nice job, Kris -- way to represent the Title IX Blog!

University of North Florida cuts swimming and diving

The University of North Florida in Jacksonville, citing financial constraints, conference affiliation, and facilities, announced earlier this week that it will cut its women's swimming and diving team. There was no mention of any plans to add a different women's sport. Right now UNF meets the proportionality prong but cutting the swim team puts it in dangerous territory. Based on numbers from the 2008-2009 season cutting women's swimming places the percentage of opportunities afforded to women at just below 50 percent. Female students comprise (again as of 2008-09) 57 percent of the undergraduate population.
If UNF does not have plans to add a women's team, and the current numbers are similar to last year's, members of the swim team may have a case that the university is not providing equitable opportunities for female student-athletes.

One way or another?

A panel on gender equity and intercollegiate sports held at Vanderbilt University Law School yesterday brought out a Title IX founder, a realist, and a wrestling coach.
According to the AP coverage, the panel discussion focused on "whether the law requiring gender equity in college sports needs to be reformed or is simply being misinterpreted."
I choose C) None of the above. I am not sure why this paradigm is being perpetuated. [Note also that the AP writer is narrow in her description of the law which applies to all aspects of all educational institutions.]
Birch Bayh, former senator from Indiana, and the man who helped write the legislation and get it passed, still believed in the power and potential of Title IX and pointed out to the wrestling coach who cried reverse discrimination, that the greatest loss of wrestling programs occurred in the 1980s when the law was not being enforced and that the sport has seen recent growth in the intercollegiate ranks.
But it was Vanderbilt's Vice Chancellor David Williams who spoke the words no one wants to hear: the problem is football. A woman in the crowd suggested cutting down the number of scholarships football receives to 50. But Williams, noting the big business that is football (and men's basketball), said it would be very hard for any one school to make that decision in the current climate of TV deals and sponsorship packages.
It is clear that something needs to change, but it's much bigger than Title IX.

White female athletes, black male athletes and Title IX

University of Georgia professor Dr. Billy Hawkins has a new book out about the black athletes and intercollegiate sports. It appears, from this press release, that a majority of the book. The New Plantation, focuses on the young men in revenue-producing sports, primarily football and basketball. He compares the intercollegiate system and the role of black male athletes in it to the plantation system in the US pre-Civil War.
Hawkins does touch on black female athletes and Title IX in his book, making a very important observation about how Title IX has not produced more opportunities for black women in the way it has for white women. This is not a new observation, but the way he frames it is:
"Since Title IX has provided very limited opportunity for black females, but additional opportunities for white women to compete and black male athletes make up the greater percentage of the revenue-generating sports that contribute to athletic departments' revenue, and thus their ability to support these additional sports, a recurring historical relationship between the white female and the black male has been resurrected."
I take some issue with the way Hawkins phrases this given that I do not view the new opportunities for women as "additional sports": add-ons or extras. Also, note that many of these revenue-generating sports are not generating enough to even support themselves, let alone other sports. But the relationship remains an interesting one. Opportunities added to achieve or work towards equity are often done because of the large roster size of football, one of the sports Hawkins focuses. And, as Hawkins and others have pointed out, the majority of these added opportunities go to white women.

Judge Holds Hawaii HS Softball Field Violates Title IX

Yesterday a federal district court judge in Hawaii ruled in favor of the girls' softball team at Baldwin High School, in Maui County, who had sued the county and the state board of education over the condition of the softball field. According to the press, the judge held that the "obvious disparity" in quality between the boys' baseball field, of "near semi-professional" quality, and the girls' softball field, which is not regulation size, a mile from campus, and dangerously strewn with rocks and stones, violated Title IX, and ordered the state and county to make improvements to the field where the softball team used to play before being relocated to the county-owned field.

While I applaud the decision for recognizing and ordering remediation for the disparate playing conditions, I don't understand why the judge has held the county partially responsible for ensuring equality between the fields. Hawaii has a statewide school district rather than local districts, so that explains why the state board of education is the educational institution on the hook for violations of Title IX. But it seems (from this article) that the board has made arrangements for softball to play on a county field rather than provide a field on school grounds. The board is surely liable for opting to use a county-owned softball field whose quality does not measure up to the baseball field, but this arrangement does not turn the county into an educational institution with an obligation to comply with Title IX. I'm guessing we haven't heard the last chapter in this case; most local governments are strapped for cash these days, so I think the county is likely to appeal.

Indiana scheduling case moving forward

The case brought by former basketball coach Amber Parker, on behalf of her daughters, against the Indiana High School Athletic Association and Franklin County schools is moving forward. A federal district court decided the case would proceed to trial. But the defendants are still waiting on a motion they filed that argues the case violates the 11th amendment. [I'm pretty sure that's not going to work out for them, but I am not the legal expert.]

Last we had heard about the case, Parker was looking for a lawyer. She appears to have found one and is set to make the IHSAA take responsibility for their history of discriminatory scheduling.

The US men will not win the World Cup...

...and it's all Title IX's fault. Well it is if you believe this guy who blames Title IX for the demise of men's soccer programs at the intercollegiate level thus depleting the pool of national team members.
He does cite other issues such as the lack of popularity in the United States where more than a handful of other sports have considerable national attention. And just because people--American people--get excited about soccer during the World Cup--does not mean we need to blame gender equity for the lack of attention in the intervening years. After all we get mildly excited about esoteric winter sports like luge and curling every four years, too.
And it should be noted that the lack of national popularity is part of the reason that colleges do, when they feel they must make cuts, scratch soccer from its list of men's varsity sports. Or it's the reason why it never exists in the first place. I do agree that the popularity of youth soccer would seem to suggest that it should be more prevalent in college. But again, if it's not there already and student-athletes are set on playing sports in college, they will switch sports or specialize in something other than soccer. I believe it's been said before here, but if football teams would just give up 20-25 roster spots (which would bring their roster down to just under 100 players), schools could field a men's soccer team.
The columnist argues that the women's national team "swaggers" into international events and frequently finds itself on the podium. But let's note that even though Title IX likely contributed to this success on the international stage, it is not as if the women's team has the national popularity of the men's game. Female soccer players struggle to make a living playing their sport after college. They can go overseas, but there are far more opportunities for men in Europe. In the US, one professional league, the WUSA, folded even though it was created on the heels of US World Cup excitement. And the current league, the WPL, is staying small and already has seen one team fold as it begins its second year.
So the US men may not perform as well internationally, but they still get more national attention and opportunities as professional players.
That's a gender equity issue that does not get discussed.

Cuts forthcoming at Davis

Due to a major budget shortfall this year, the UC Davis athletic department has been asked to cut $1.79 million from the department budget next year. The school has given the department control over how to cut its budget, but it's a nearly foregone conclusion that some sports will have to be cut. Davis, a DI institution, fields 27 varsity sports right now. While it will be an unfortunate situation for the cut teams and the affected student-athletes, Davis's 27-team department is far larger than its peer institutions in the Big West, which average just over 18 teams. Being forced to pare down athletic offerings because the bad economy, which has hit California schools particularly hard, is never a good situation. But even the athletic director is calling the potential cuts "right-sizing" and not downsizing. Cuts now will hopefully lead to a stronger, more fiscally responsible, department down the road.

Second Lawsuit Filed Against Delaware State

Fifteen members of the recently-terminated Delaware State equestrian team have filed suit in federal court, challenging the school's decision to cut their team as a violation of Title IX. The Women's Law Project and Flaster Greenburg, a Philadelphia-based law firm. The attorneys expect a hearing on their motion for preliminary injunction sometime next month.

DSU already faces a similar lawsuit, filed by an incoming student who had signed a letter of intent to join the team.

As I have mentioned before, this should be an easy victory for the equestrians. DSU does not satisfy the proportionality prong, so it cannot cut a viable women's team without violating the other two alternatives for compliance, which require either program expansion or satisfying the interests and abilities of the underrepresented sex.

Ohio School District Decides Location for Softball Field

Here is a brief update from Chillicothe, Ohio, where the school district has been struggling for months to resolve disparities in its facilities for softball and baseball. Last fall, the ACLU notified the school district via letter that the lack of a permanent softball facility was discrimination in likely violation of Title IX. In response, the district spent several months considering a variety of possible solutions, and recently announced its decision to construct a permanent softball facility on the site of one of its elementary schools in time for the 2011 season.

Now the district will have to figure out how to fund the project, which will likely cost in the hundreds of thousands of dollars. The article mentions that the softball team itself is fundraising and working to line up volunteers, which is commendable. From an equity standpoint, though, those efforts also raise the question of whether other teams must raise funds for the construction or operating costs of their facilities.

The location of the softball field -- 2 miles away from the high school, according to my research on Google maps -- also raises some equity questions. For reasons not explained by the article, the district did not consider a permanent softball field on the high school campus, where the baseball field is located. (The article only says that the board considered, but rejected, plans to put a temporary softball field there.) I wonder if the district is planning to provide transportation to the field. Assuming other teams do not have playing and practice facilities that are located off campus, it could be inequitable to the softball players if they are the only team to have to make their own arrangements to get to their practice and playing facility.

Point Loma Nazarene University Cuts Four Teams

Point Loma Nazarene University in San Diego announced last week that this year would be the last for four of its sports teams: men's golf, men's track, men's cross country, and women's softball. PLNU reportedly explained the cuts as necessary to achieve compliance with Title IX.

This explanation seems to make softball the scapegoat for the cuts. For 29 years, the university had an arrangement with the city to use city land at Sunset Cliffs Natural Park for the team's former softball field. But the city voted in 2005 to return the land to its natural state as part of its master plan, causing the university to put its softball team off campus this year. No men's teams must play off campus, so an anonymous complaint filed with the Office for Civil Rights apparently alleged that this disparity constituted unequal treatment in violation of Title IX.

The complaint is believed to have triggered the university's decision to cut teams, as evidenced by students who believed that the complaint "backfired" on the women's softball team. "We’d rather play in unfair circumstances than have the team completely done away with," said one student quoted in the article linked above.

More likely, however, is that the university's decision was about more than just Title IX compliance questions regarding the softball field. I believe that PLNU could have gotten OCR to resolve the complaint by agreeing to make plans for a permanent softball facility in the future. OCR would have retained jurisdiction and followed up some years down the road to make sure that a facility was coming along. This kind of flexibility is typical of the softball field cases we follow on this blog. Moreover, OCR's public position is that cutting teams is a disfavored solution. I have never seen the agency encourage a university to cut teams as a way to achieve compliance.

Therefore, I don't think that PNLU's decision to cut teams was just about the softball complaint. I think it's more likely that the athletic department had overextended itself financially and needed to pare down athletic offerings to stay within its budget. Because the school's athletic offerings already disproportionately favored men (male students received 50% of the athletic opportunities while constituting 40% of the student body), Title IX necessarily factored into the decision of which teams to cut, as the law says cuts can't fall more heavily on whichever sex has fewer opportunities to start with. But this is not the same thing as saying Title IX caused the cuts in the first place.

We are used to seeing the Title IX blame-game when universities cut teams. But this time it seems particularly egregious as a particular team has become the scapegoat for the demise of four teams including its own. PLNU should take the responsibility for the cuts off of its softball players and offer a real explanation for why can't continue to fund all of its teams in an equitable and adequate manner.

Monetary award for victim of bullying

Last year we reported that a case of harassment previously dismissed by the lower court in Michigan was reinstated by the Sixth Circuit Court of Appeals. And late last week a jury awarded Hudson Area Schools to pay the plaintiffs $800,000.
It's a very good result given the rising incidents of bullying in (and out of) schools. Our original post notes some of the horrific incidents experienced by the plaintiff throughout his school years. (He is now 19.) The report of the jury verdict glosses over some of the nastiness in favor of commenting on the significance of the monetary award. The jury clearly decided that even though the school addressed the individual acts of harassment against the victim (the judicial system helped too--one assailant plead guilty to criminal charges) they did nothing to stop the pattern of harassment against the plaintiff.
We shall have to wait to see how this verdict affects other cases, pending and future. I am especially interested in how potential large jury awards might rouse some educators from their state of indifference.

Student fees funding athletic departments

A while ago we mentioned that San Diego State University raised its student athletic fee by a fairly large percent in order to, among other things, add two women's sports.
This article notes that the raising of student fees, sometimes with student support, sometimes unilaterally, has become a trend as many college athletic departments struggle to balance their budgets.
It lists the schools that have employed the tactic and touches on the somewhat touchy subject of putting the burden of funding athletics on students.

Diving coach lawsuit moves to federal court

We blogged about the lawsuit filed by former Texas A&M diving coach Kevin Wright when he filed for wrongful termination in state court under a whistleblower protection statute in Texas. At that time we wondered whether there would also be a Title IX retaliation claim.
There is now--because Wright has moved his case to federal court. As a brief reminder, Wright, who had served 17 seasons as the diving coach, was terminated last September. He alleges that it was because he complained about Title IX violations.
Wright said that a diver was asked to lie about travel accommodations to an investigator examining gender equity within the department. Said diver heard a female swimmer actually lie in the interview. Wright complained about the inequitable travel arrangements. He also expressed concerns over potential recruiting violations.
The university, should this go to court, is likely to accuse Wright of anger management issues and potential sexual harassment of a fellow coach. The validity of these counter accusations is, of course, unknown.
No word on trial dates or negotiations.

Illinois School District Agrees to Equal Treatment for Girls Sports

We've blogged a few times about the Title IX lawsuit against Canton (Illinois) School District No. 66 (see here, here and here). The school district was charged the school with discriminating against girls' athletic teams in funding and support. The parties have reportedly entered into a settlement agreement that ensures girls' teams have equal access to practice facilities, lockers, and funding.

The plaintiffs had also claimed that the school district discriminated against girls teams by only deploying band and cheerleaders to boys games. The press I've read about the settlement agreement does not address this issue.

Cutting track, adding golf at Seton Hall

Seton Hall has decided to cut men's and women's track and field due to budget shortfalls. This academic year will be the last for the teams--four in total because of the indoor and outdoor seasons. When making the announcement last week, the school also announced that it will be adding women's golf. They need to do so in order to maintain the 14-team minimum required of all Division I schools. It was also mentioned that the addition of women's golf will make the school Title IX compliant.