Friday, April 30, 2010
Last week, the district court in Montana held a four-day bench trial, during which Coach Potera-Haskins testified in support of her allegations. The former men's basketball coach and an associate athletic department officials also testified "they knew of no instances when administrators meddled in the activities of men's coaches" to the degree Fields had micromanaged Potera-Haskins. Her former assistant coach testified that the coach had not mistreated players, as the athletic department claimed as the basis for her termination.
The judge -- who had prior to trial ruled that Potera-Haskins could not recover any monetary damages (because MSU already paid Potera-Haskins for terminating her employment, pursuant to the liquidated damages clause in her employment contract) and refused to give her a jury trial -- is not expected to make a ruling on MSU's liability and Potera-Haskins's eligibility for injunctive relief such as reinstatement for at least two months.
Thursday, April 29, 2010
One of those filing a lawsuit, recruit Melia Blakely, has signed a letter of intent with University of South Carolina.
Current team members are still working with lawyer on Title IX compliance issues.
I suspect will we hear more eventually on this issue.
The Eleventh Circuit analyzed the following elements for institutional liability for harassment under Title IX: whether an appropriate official had notice of harassment, whether the substance of that notice was sufficient to alert the school district of the harassment against the plaintiff, and whether the school district responded to that notice with deliberate indifference. First, the court held that the principal, who had received earlier complaints about the teacher in question, was an appropriate person to receive notice because he had been vested authority by the school board to take corrective action in response to sexual harassment complaints. Though the court acknowledged that this element will necessarily require a case-specific inquiry, as officials roles may vary among school districts, its reasoning suggests that notice to school principals will usually be sufficient.
Next, the court decided that the prior complaints against Hoever put the principal on notice of the sexual harassment he committed against the plaintiff. The district court suggested they were not, because prior complaints involved less severe conduct than Hoever's violent assault on the plaintiff. But relying on its earlier decision in Williams v. University of Georgia, the appellate court acknowledged that notice of prior instances of sexual harassment may be sufficient to warn officials of a later sexual assault. In Williams, the Eleventh Circuit held that school officials had notice that one of its students, a football player, had sexually harassed women at his prior institution, and the court reasoned that this constituted actual notice of the student's later rape against the plaintiff in that case.
Finally, the court determined that the principal responded to those earlier charges--specifically, the second one--with deliberate indifference. The district court had decided this element in the school district's favor based on evidence that the principal had confronted the teacher, taken statements of the students involved, and reported the incidents to the appropriate official on the school board. Moreover, in response to the first complaint, the school district placed the teacher on administrative leave while it conducted an investigation, and eventually determined that there was not enough evidence to warranted further discipline against the teacher.
The appellate court's analysis of deliberate indifference focused on the principal's response to the second charge of harassment. Even though the earlier investigation had been inconclusive, the fact of an earlier charge meant that the principal should have responded to the second charge more vigorously rather than less. But in response to the second charge, the principal did not conduct an investigation at all; he merely took the student's and the teacher's statement. And "most unreasonably," when he reported the complaint it to the school board, he did not indicate that the complaint was against a teacher who had been investigated already for sexual harassment. The principal then capped off this lackluster response by giving Hoever a satisfactory performance evaluation, and resigned without leaving any indication for the next principal that Hoever posed a risk of sexual harassment or assault. This, in the Eleventh Circuit's mind, constituted deliberate indifference.
This opinion provides important guidance to lower courts on all three elements discussed, but particular the deliberate indifference standard. As the lower court's decision in this case demonstrates, sometimes courts reason that any response at all by a school official is sufficient to overcome a claim of deliberately indifferent. The Eleventh Circuit has appropriately instructed the courts in its circuit to look at the school's response in the context of an emerging pattern of complaints.
Decision: Doe v. School Bd. of Broward County, 2010 WL 1655918 (11th Cir., Apr. 27, 2010)
Wednesday, April 28, 2010
This reversal of Title IX policy, while narrow, is an important sign of the Obama Administration's support for civil rights. It follows an announcement by the current Secretary of Education, Arne Duncan, that the agency will open investigations in 32 school districts and will look closely to see whether educational entities at all levels are complying with civil rights laws such as Title IX.
Overall, Title IX's future looks bright, but areas for progress yet remain. Women still receive disproportionately fewer playing opportunities, fewer scholarships, coaches who are paid less, and lower budgets, despite more than a decade of active Title IX enforcement and litigation. This policy reversal is a hopeful sign that we can expect further progress – instead of retrenchment – in the crucial area of ensuring that female and male athletes are given equal opportunity.
Tuesday, April 27, 2010
Here are some highlights from Assistant Secretary Ali's speech:
- In response to those who have complained about the past administration's "slippage" in enforcement of Title IX, Ali promised, "those days are over." Ali reports that her staff is "happy to be doing civil rights again."
- A wave of vigorous enforcement is already underway. OCR is being more responsive to complaints that are filed, and is planning to launch a number of investigations of its own in the next couple of months.
- Specifically, OCR is planning to kick off 12 investigations of colleges, universities, or secondary schools by fiscal-year's end, half of these addressing athletics issues and the other half addressing sex discrimination in other aspects of the institution.
- OCR's enforcement priorities in athletics relate to participation rates, financial aid, and the "laundry list" of factors used to determine if men's and women's athletic programs are receiving comparable treatment. The agency will target institutions with reported disparities (such as lack of proportionality, expenditures that favor men's athletics and men's scholarships) and will use the investigation phase to determine if those disparities are the result of discrimination.
- OCR will also be examining institutions' compliance with existing monitoring agreements-- making sure that schools are doing what they said they would do in response to a complaint brought against them.
- When it comes to enforcement remedies, "we will use all the tools at our disposal, including withholding of federal funds" if necessary to attain compliance.
- Ali mentioned that OCR is also working on other issues, such as STEM education, bullying and harassment, and pregnancy. Regarding pregnancy, the agency plans to release a brochure --possibly a precursor to official guidance -- by fall.
- Is OCR not responding to inquiries and complaints in a prompt and sufficient manner? The Assistant Secretary said, "email me: firstname.lastname@example.org."
Monday, April 26, 2010
We are very happy to have her filling this very important role within the organization and we wish her luck!
Sunday, April 25, 2010
One of the topics that has been addressed so far is Equity in Athletics Disclosure Act (EADA) reporting. Today's presentation highlighted some very important differences between gender equity disclosures that colleges and universities make to the government under the EADA and gender equity disclosures they make to the NCAA. Because EADA data is public (NCAA's is not), I rely on EADA data all the time as the starting point of an analysis of an institution's compliance with Title IX. However, as today's session highlighted, there are many reasons why EADA may not be providing as clear a picture on maters of compliance as we sometimes like to think. Here are some things that I learned today that will cause me to take EADA data with extra grains of salt from now on.
- Male Practice Players Included in Counts for Women's Teams: EADA instructions on what counts as a participation opportunity encourage institutions to include male practice players in their total count of how many athletes are on a given team. There is the expectation that an institution will explain in the "comments" section of the disclosure form whether and how many athletes that are included in the count are male practice players, but universities don't always (a) include the practice players and (b) address it in the comments. So, we don't always know if the total number of opportunities in women's athletics programs includes some men.
- Competitive Cheer Can Be Counted: OCR has told institutions that competitive cheer can be counted in the total count for women's opportunities, as long as the institution has a letter of approval from OCR. The approval requirement is a good idea -- as long as institutions are complying with it -- because OCR can make sure that institutions aren't trying to count sideline cheer or competitive programs that are not being treated like other athletic teams.
- Allocated and Generated Revenue: Here's one we already knew, but I'm happy to have the opportunity to grouse about it again. OCR lets institutions report allocated revenue, i.e., money received from the institution itself, in addition to revenue generated from gate receipts, camps, and other sources. In fact, OCR requires the reported expenses and revenues to match. This is problematic because it allows institutions to send the misleading impression that athletic departments or certain programs are self-funding. It also normalizes the expectation that they are. In fact, colleges and universities ought to subsidize athletic opportunities, which, after all, are supposed to be educational opportunities. But there ought to be transparency about it.
- Start-up Costs Excluded. OCR does not require institutions to report expenditures made for a given team prior to actually adding the team. This could allow universities to hide or underreport the true cost of a program.
- Harmony with NCAA Reporting. Reporting would likely be more accurate if institutions did not have to prepare one set of numbers for the NCAA and another for the EADA purposes. It would be favorable for OCR to harmonize its requirements with the NCAA's for that reason as well.
More posts from Oak Brook to follow!
Friday, April 23, 2010
Because St. John Vianney High School is a private school that does not receive federal funds, it is outside the scope of Title IX. Therefore, the court reasoned, Kommendant's complaint to OCR about inequitable treatment of the girls' softball team is not entitled to protection from retaliation under NJ law. This reasoning highlights an important distinction between federal retaliation law, including that of Title IX, and comparable doctrines under state law. Under Title IX, an employee is protected from retaliation if employee reasonably believed that he was complaining about a violation of law. Under state law, at least in New Jersey, the employee only gets protection for complaining about actual violations of law. Whether Kommendant reasonably believed Title IX applied to St. John's or not, he is not protected under state law for complaining about Title IX violations.
I think that protecting employee's reasonable belief, as Title IX does, is superior to the state's more rigid approach. Employees will rarely be certain that their complaint addresses actual violations of law, and will likely be deterred by the threat of retaliation against speaking out against perceived violations of law.
Decision is: Kommendant v. Diocese of Trenton, 2010 WL 1526262 (Apr. 13, 2o1o, N.J. Super. Ct. App. Div.)
Thursday, April 22, 2010
McCollum actually ended her time at the school in December and was apparently in labor when the news of the OCR investigation was made public.
The National Women's Law Center, which represented McCollum, was disappointed in the finding, believing that the school district did handle the situation poorly. But McCollum's lawyer, Lara Kauffman, was looking to the bright side of things by noting the attention this complaint received. It will make schools more aware of their legal (and ethical, I would add) obligations to pregnant students, she said.
McCollum could appeal OCR's ruling, but there is no indication that she will do so. Also, no lawsuit has been filed in this case.
Rather, the revision clarified that the various Title IX compliance prongs -- including, prong two, which was UC Davis's professed means of compliance -- measure athletic opportunities, not number of athletes. Thus, UC Davis may count opportunities added in sports like indoor track in its argument that it has historically and continuously added opportunities for the underrepresented sex (as prong 2 requires), even if some of the participants who benefited from the new team already participated in outdoor track. However, even counting the indoor track opportunities, UC Davis still did not meet the prong 2 standard, since it only added opportunities for women between 1996 and 2000. Thus, UC Davis could not satisfy any of the three prongs after it eliminated opportunities for women in wrestling.
Revised decision is: Mansourian v. Regents of the Univ. of Ca., 2010 WL 1542502 (9th Cir, Apr. 20, 2010).
Wednesday, April 21, 2010
Here is a round-up of coverage:
From McClatchy Newspapers was coverage that focused on George Washington University where Joe Biden made the announcement. There were quotes from a women's studies professor about gender bias in measuring interest. Also interviewed was Eleanor Smeal of the Feminist Majority Foundation who said that the survey method resulted in schools shutting down some women's programs. Not sure which programs these were. We never heard of such a situation and given that when a school cuts a viable women's program it is hard to argue that there is no interest in that sport. It is possible that the survey method prevented that addition of new women's sports.
The Chronicle of Higher Education had a post about Joe Biden's support of Title IX and women's sports generally (Biden was at the women's Final Four a few weeks ago). Biden was, apparently, quite effusive in his praise of the athletic women in his life.
WaPo briefly noted the opposition to the announcement by the College Sports Council who, according to a spokesperson, feel this is a "step backwards in terms of fairness."
More thoughts on the repeal from CSC were reported in Business Week which also printed comments from NY representative Louise Slaughter who is part of the push behind legislation to mandate reporting on gender equity in high school athletics departments.
From Christine Brennan, quotes from Marcia Greenberger of the National Women's Law Center and from Julie Foudy who was part of the committee then-President Bush assembled to look at Title IX. [Foudy and fellow committee member Donna de Varona filed their own minority report to counter the recommendations from the committee that would have further weakened Title IX if they had been implemented.] Brennan also includes, as many columns and articles have, the piece of the speech from Biden in which he says "what we're doing here today is ensuring equal opportunity in athletics, and allowing women to realize their potential--so this nation can realize its potential."
Not to pick nits or diminish the impact of this good news, but "allowing women" is a little problematic (remember Nike's "if you let me play" campaign??) and the nationalist rhetoric though brief was still a little irksome.
A video of (pieces of) Biden's announcement can be found at CNN.com. You can also see the gathering of women behind him which included Girl Scouts (not sure what Girls Scouts have to do with Title IX but...), members of the US Women's National Hockey team, and Joy Cheek of Duke who was recently drafted into the WNBA and introduced Biden, for whom she served as an intern.
Tuesday, April 20, 2010
The use of surveys will continue, but they will not be allowed to be the sole factor in assessing interest and non-responses will not automatically be read as lack of interest.
The official announcement will be made this afternoon, but the news has already generated national headlines with stories in the as-linked-above NYT article, the AP, and a snippet on NPR's Morning Edition.
If there is further information after this afternoon's announcement we will be sure to report on it.
Monday, April 19, 2010
Meanwhile, the same article reports that private enforcement is also getting a boost from lawyers Nancy Hogshead-Makar and Kristen Galles, who are channeling their expertise on Title IX into a new organization called the Legal Institute for Gender Equity in Athletics. Their organization will provide support to lawyers who are bringing cases against institutions in violation of Title IX, offering sample pleadings and other litigation resources, as well as victims looking a referral. Just judging by the number of inquiries this blog receives from lawyers and victims seeking assistance, Galles and Hogshead-Makar are stepping up to fill a real need. We look forward to blogging about the project more as it gets off the ground.
Saturday, April 17, 2010
The expected savings is $5 million over five years. But the fiscal restructuring plan in the athletic department will eliminate its $1 million+ deficit and make it fiscally solvent in 3-5 years.
Of course Title IX was one factor in deciding which teams to cut. If you read the news that came directly from Davis you will see that the cuts affect 73 female student-athletes and 80 male student-athletes. If you read the news that came from the AP and was re-posted on ESPN, you will read that three men's sports got cut and one women's sport was cut. In other words, it looks like men are bearing the overwhelming brunt of the cuts, which is not the case.
Davis is required, as are all University of California system schools because of a previous Title IX settlement, to maintain proportional opportunities within 5 percentage points. It currently does so and thus cuts would not--and did not as we see--disproportionately one gender.
Friday, April 16, 2010
In 2007, Selenia Wilborn was the only woman in her class in the Tractor-Trailer Truck Driving Program operated by a community college consortium in Alabama. Even though Wilborn was deemed a qualified for the program by the administrator in charge of admissions, her instructor initially refused to accept her to the program due to his belief that women should "be at home making babies." Eventually when two other students dropped out, Wilborn was added in order to the fill the class. But the instructor targeted Wilborn from day one, making sexual jokes in her presence and finding opportunities to touch her. Another instructor participated in the harassment as well, including by allowing a pornographic film to be shown in class. Wilborn reported the harassment to program administrators after the first time it happened; the next day in class, the instructor told the students that if they had problems with the class, they needed to be keep them in the class. Wilborn continued to report her instructors' harassing conduct to the administration, but to no avail. Later, an instructor failed Wilborn on her road test, faulting her for stalling the truck after he grabbed the gear shift out of her hand. He called her "dumbass" and reiterated his position that women should have babies instead of drive trucks. Rather than retake the test, Wilborn quit the program. It was clear to her at that point that the instructors were doing everything they could to keep her from getting her license.
Wilborn sued the community college that administers the program, alleging that the harassment she faced violated Title IX and other laws (including Title VII, on the theory that the truck driving program acted as an employment agency due to its role in placing students in truck driving jobs). A federal court recently decided that the Title IX claims based on sexual harassment survived the college's motion for summary judgment. The court agreed that a jury could find that Wilborn had directed her complaints to the appropriate administrator, who while lacking supervisory authority over Wilborn's instructors, was nevertheless the administrator authorized to receive students' grievances. The fact that this administrator took no action in response to Wilborn's complaints clearly satisfies the deliberate indifference standard.
However, even though the court allowed Wilborn's sexual harassment claim to proceed, it did grant the defendant's motion for summary judgment on her Title IX claims for direct discrimination and retaliation. The court reasoned that both claims were precluded by Wilborn's decision to quit the program, rather then get kicked out. I disagree with the court here. I think that Wilborn sufficiently alleged that she was essentially forced out -- a constructive discharge, to borrow from employment law. Setting aside the harassment, which is covered by her other claim, Wilborn seems to argue that the road test was not administered fairly due to her sex. That should have been enough to predicate a claim for sex discrimination or retaliation for reporting harassment by the instructors.
Fortunately, Title IX may provide Wilborn some relief in the form of a damages award or settlement on her sexual harassment claim. If that happens, this truck driving program and other vocational programs will have stronger motivation to institute and enforce policies to curtail discrimination and harassment. Meanwhile, however, the case offers an explanation for why there are so few female truck drivers.
Decision: Wilborn v. Southern Union State Community College, 2010 WL 1294131(M.D.Ala. Mar 30, 2010.
Wednesday, April 14, 2010
In order to bring all nine schools into compliance with Prong 1, a total of 784 opportunities for girls would have to be added. Whether the district will choose to head towards proportionality or opt for prong three compliance is not known. An action plan is forthcoming that will address the many, many issues in Pittsburgh.
WLC's post reminds us the compliance is not just about the number of opportunities to play but about uniforms (which girls' teams are short on), scheduling of practice and game times (also an issue), access to medical support/athletic trainers (there is ONE athletic trainer for three schools--a problem for every student-athlete), and the number and quality of coaches (again--also an issue affecting girls' teams disproportionately).
I am sure we will be hearing more about Pittsburgh as they work to remedy these problems.
Tuesday, April 13, 2010
Decision: R.S. v. Bd. of Educ. of the Hasting-on-Hudson Union Free Sch. Dist., 2010 WL 1407359 (2d Cir. Apr. 9, 2010)
Monday, April 12, 2010
Peg Pennepacker was the leading consultant on the project and she spoke about some of the findings, the most notable of which, the committee believes, is the lack of self-esteem among Pittsburgh students because of the lack of good athletics programs and opportunities. In addition to the lack of support of interscholastic athletics in Pittsburgh, the opportunities for girls in the schools is "far below" the national average in part because schools have not been proactive in expanding the opportunities for girls.
Recommendations from Pennepacker include:
- the development of a strategic plan of action, which would include a timetable, to expand opportunities for girls.
- oversight of booster clubs.
- the appointment of a Title IX compliance officer.
Saturday, April 10, 2010
But it appears school administrators have changed their minds. Apparently they realized that cutting the team would have an effect on gender equity in the athletics department.
I am having a couple of "nanny, nanny poo-poo" (childish, I know) moments with this news. First because it took me less than five minutes to figure out that cutting the team would likely affect the department's proportionately. And I had to go to a website to find the relevant data. I assume UNF has it, along with a calculator, at the ready. It makes me wonder whether schools are just going to cut women's sports and wait to see if they get caught.
And second, Swimming World magazine (online) reported on the reinstatement. Some in the swimming community, including this particular publication, have been a little harsh on Title IX and blamed the legislation for loss of swimming and diving programs. Let's note that Title IX has saved the UNF program.
Friday, April 09, 2010
It's not that I am not aware of the incident, but that the subsequent actions have been shrouded in secrecy from who did the bullying, who was suspended or expelled and if any school officials are being held responsible. On the last count, no charges have been made yet, which is why Title IX has not been mentioned--that I have seen--in any of the coverage. While numerous allegations have been made that teachers and administrators must have known, no investigation yet has confirmed or denied such allegations. I believe, though, such investigations and "conclusions" are forthcoming.
The whole thing makes me a little bit sad. Not just because a young woman took her own life, though that is indeed tragic. I am sad that this is likely to turn into a battle of responsibility between communities, parents, and school administrators. But bullying, severe bullying of the kind that leads to students missing school, transferring, and even hurting and killing themselves is not new.
I know this not because I have children, not because I am a K-12 teacher or administrator, but because I do this blog. And we report on just some of these cases--the ones in which legal action is taken. But none of these cases of children being bullied because they do not conform to gender norms--i.e. they are, or are accused of being gay--have garnered the kind of attention the Prince case has even though those cases have resulted recently in monetary settlements or jury awards.
I am NOT suggesting that the Prince case is not as serious as these others. After all, reports are that the bullying was very much gender based. Not because people thought she was gay or too masculine, but that they thought she was "loose."*
I am suggesting that had a nationwide discussion of bullying occurred before this case--like when 9-year old Montana Lance of Texas killed himself, or in April 2009 when boys in both Georgia and Massachusetts killed themselves--might have spurred a slightly more proactive stance against bullying all over the country, including South Hadley. All of these cases involved bullying based on perceived non-conformity to gender and sexuality norms.
In order to hold schools accountable for the harassment of students, lawyers need to prove there was "deliberate indifference" on the part of school administrators; that they knew harassment was occurring and did not take the appropriate steps to remedy it.
Guess what? Bullying is occurring everywhere and it is often, if not always, gender based. With the attention this most recent tragedy has received, I think every teacher and administrator should be on notice. At this moment failure to institute anti-bullying programs and immediately address potential bullying is indeed deliberate indifference.
* this was the best term I could come up with--far better than the other ones I have heard in reference to Prince.
Thursday, April 08, 2010
The decision was apparently made known to the judge in the case on Tuesday. But the extension is only for one year, according to university officials, who say the equestrian team will not continue any longer than that. Also, the initial lawsuit filed by a DSU equestrian recruit has reportedly been settled.
The university still contends that it is Title IX compliant--even if it dropped equestrian. But lawyers for the team (in a lawsuit separate from that of the recruit) still plan on pursuing their case against the university for lack of compliance
Friday, April 02, 2010
Olson is a former exec at Shutterfly and Leapfrog Enterprises. She lives in San Francisco and will be opening an office there though WSF headquarters remain in NY.
Olson was already a member of the WSF Board of Trustees serving as the Vice-President of Governance.
Critics--myself among them--argued that the Model Survey approach perpetuates existing disparities in athletic opportunities. For one thing, the Model Survey requires only women (or whichever is the underrepresented sex, but it's nearly always women) to prove their interest by enrolling first at a school that doesn't even offer the opportunity they are interested and able to undertake. Men do not have that burden, and are advantage by the likely reality that coaches and athletic administrators are actively recruiting interested and talented male athletes to the student body. Moreover interest and ability are constructed, in part, by the opportunities that are made available. When there are no opportunities, interest and ability remain stagnant. The Model Survey creates a vicious cycle, then, because the absence of interest and ability means the absence of opportunity.
It's not clear whether the U.S. Commission on Civil Rights endorsement of the Model Survey approach. The Commission is an unusual agency in that it does not have enforcement power, only the power to make recommendations and reports. For another, it is regarded as a body that is motivated by political considerations more so than independent, objective expertise. No surprisingly, the five commissioners (of 8) who endorsed the Model Survey recommendation (one of whom was technically an absention) were all appointed by President Bush. Another reason that the Commission's report is of questionable influence is that the Model Survey has a strong opponent in the NCAA, which has urged its member institutions not to rely on he Model Survey, for the reasons noted above. Like the Commission, the NCAA does not have enforcement authority with respect to Title IX. But it arguably has more name recognition and persuasive authority than this rather obscure commission.