We probably will not be blogging about every school that adds sand volleyball, the NCAA's latest addition to the NCAA's emerging sport list.
But I was intrigued by the brief article about Florida State's decision to add sand volleyball to its roster; largely because there seemed to be some misinformation. And thus it offered me an opportunity to look a little deeper into sand volleyball.
First, the article by Florida Today (an online news site), stated that sand volleyball is the NCAA's "number one emerging sport." Not sure what they mean by number one. I know that the decision to add sand volleyball to the list was, in part, a result of the growth of the sport. But I haven't seen anything that states it is the fastest growing. Also note that women's wrestling has also been growing and that hasn't quite made the list at all yet. (Erin can better speak to this as she attended the NCAA's Gender Equity Conference.)
Anyway, looking at the NCAA website, it does not appear that the emerging sports have, in any way, been ranked, so why sand volleyball is claimed as number one is odd. It has been the most recent emerging sport but that does not make it "number one."
Second, the article stated that play would begin at FSU in fall 2011. And though that is not untrue, spring will be the traditional season for sand volleyball. Only (up to) four contests will be allowed to be scheduled in the non-traditional season.
And third, the article stated that "team members will be separate from the current women's volleyball program, and the team will require an additional coach." I think many concerns still exist about how separate the teams will be and whether the current indoor coach may be hired as the sand coach as well.
And since I was looking into it, I decided to go straight to the source. Here is the NCAA's page on sand volleyball which provides info on start-up costs, facility, scholarship, and coaching requirements.
Thursday, May 27, 2010
Wednesday, May 26, 2010
Softball facility improvement forthcoming in NC
It does not appear that we blogged about the complaint filed with OCR in 2009 out of Richmond County in North Carolina. But the allegations of disparities in the treatment of women's athletics, specifically softball, are currently being investigated. And Richmond Senior High School has promised to improve the facilities--to make them comparable to baseball's facilities.
This is not especially ground-breaking (well except when they actually break new ground on the new facility!). We have been blogging about softball facilities pretty much since we started this blog. And there has been great success in proving disparity by comparing the treatment of softball teams to baseball teams even though Title IX does not mandate such a one-to-one comparison. [Part of the complaint though alleges that the football team gets priority on the practice field.]
But I liked this particular article for a few reasons.
First, we got the list of facility issues: lights (which every other school has apparently), dugouts, locker room facilities, and concession stands.
Also we are reminded of another Title IX compliance issue that does not get a lot of attention: publicity. It appears that boys' games are advertised on a local radio station.
And finally, the Richmond County Daily Journal has filed a Freedom of Information Act request seeking copies of the complaints from the school district and the Department of Education. Nice to see a newspaper making a concerted effort to get all the facts.
This is not especially ground-breaking (well except when they actually break new ground on the new facility!). We have been blogging about softball facilities pretty much since we started this blog. And there has been great success in proving disparity by comparing the treatment of softball teams to baseball teams even though Title IX does not mandate such a one-to-one comparison. [Part of the complaint though alleges that the football team gets priority on the practice field.]
But I liked this particular article for a few reasons.
First, we got the list of facility issues: lights (which every other school has apparently), dugouts, locker room facilities, and concession stands.
Also we are reminded of another Title IX compliance issue that does not get a lot of attention: publicity. It appears that boys' games are advertised on a local radio station.
And finally, the Richmond County Daily Journal has filed a Freedom of Information Act request seeking copies of the complaints from the school district and the Department of Education. Nice to see a newspaper making a concerted effort to get all the facts.
Tuesday, May 25, 2010
Quinnipiac Plaintiffs Certified as Class Action
A district court judge in Connecticut ruled last week granted class action status to a lawsuit filed by Quinnipiac volleyball players who are suing for a permanent injunction against Title IX violations that would result from the university's decision to terminate their team. The plaintiffs (the volleyball players) petitioned for a class action certification, which would allow them to represent:
Class actions are fairly common in Title IX cases. Cohen v. Brown was a class action, as was the female wrestlers' case against UC Davis and the female athletes' case against Slippery Rock (to name a couple). Class action posture helps ensure that the plaintiff's claims for prospective relief (such as a permanent injunction like the Quinnipiac players are seeking) doesn't become moot when the named plaintiffs graduate.
Next up in the Quinnipiac litigation is the bench trial, scheduled to begin on June 20.
The judge's order can be found at 2010 WL 2017773 (D. Conn. May 20, 2010)
a class of all present, prospective, and future female students who are harmed by and want to end [Quinnipiac University's] sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They also file this action on behalf of females who are deterred from enrolling at [Quinnipiac] because of the sex discrimination in its athletic program, including its failure to offer the varsity sports in which they want to participate (despite [Quinnipiac's] failure to provide equal athletic participation opportunities to females).To grant the plaintiff's motion to certify a class, the judge had to find that the class members were ascertainable (which is not the same as ascertained), too numerous to file as individual plaintiffs, must be similarly affected by the legal questions raised in the case, and that class members interests will be adequately represented by the named plaintiffs. Not surprisingly, the judge found that the Quinnipiac plaintiffs satisfied this standard.
Class actions are fairly common in Title IX cases. Cohen v. Brown was a class action, as was the female wrestlers' case against UC Davis and the female athletes' case against Slippery Rock (to name a couple). Class action posture helps ensure that the plaintiff's claims for prospective relief (such as a permanent injunction like the Quinnipiac players are seeking) doesn't become moot when the named plaintiffs graduate.
Next up in the Quinnipiac litigation is the bench trial, scheduled to begin on June 20.
The judge's order can be found at 2010 WL 2017773 (D. Conn. May 20, 2010)
Monday, May 24, 2010
Are Flag Football Opportunities Equal Opportunities?
Recently, the New York Times profiled the increasing popularity of flag football as a high school sport for girls, particularly in Florida. In trying to examine this trend, the article managed to add controversy by sensationalizing the positions of some women's sports advocates and casting them as the mean, feminist foils to good wholesome fun.
Flag football for girls is controversial in Florida for the same reason competitive cheer is controversial. When schools count activities like sideline cheer or flag football as athletic opportunities, it reduces resources and legal incentive to add other athletic opportunities for girls, opportunities that would give girls who want it similar access to college or life-long play. Nobody is knocking flag football (or cheer for that matter) as a valid and valuable activity. But it is relevant to ask what responsibilities sports organizations have to act in a coordinated fashion when deciding to adopt an undeveloped sport. Women' sports advocates are only questioning the sports organization’s obligations to provide boys and girls with the same types of experiences, particularly when both boys’ and girls’ opportunities are so constricted.
In a letter printed in yesterday's Times, the Women's Sports Foundation's Director of Advocacy, Nancy Hogshead-Makar, tries to set the record straight. I say "tries" because the paper edited her letter to obscure its main point: Hogshead-Makar doesn't object to flag football itself, but to the Florida High School Athletic Association's strategy of discouraging more traditional, competitive, (and perhaps tellingly, more expensive) sports for girls like crew, water polo, lacrosse, and archery by offering them easier, cheaper, but less comparable alternatives in the form of flag football (and cheer). The fact that the FHSAA is promoting flag football (as opposed to other emerging sports on NCAA's horizons) without putting in the work to support the sport's infrastructure -- governance and promotion outside of Florida's high schools -- further suggests that the association cares more about helping schools find a quick fix to major Title IX compliance problems than trying to truly equalize opportunities for Florida's girls.
Flag football for girls is controversial in Florida for the same reason competitive cheer is controversial. When schools count activities like sideline cheer or flag football as athletic opportunities, it reduces resources and legal incentive to add other athletic opportunities for girls, opportunities that would give girls who want it similar access to college or life-long play. Nobody is knocking flag football (or cheer for that matter) as a valid and valuable activity. But it is relevant to ask what responsibilities sports organizations have to act in a coordinated fashion when deciding to adopt an undeveloped sport. Women' sports advocates are only questioning the sports organization’s obligations to provide boys and girls with the same types of experiences, particularly when both boys’ and girls’ opportunities are so constricted.
In a letter printed in yesterday's Times, the Women's Sports Foundation's Director of Advocacy, Nancy Hogshead-Makar, tries to set the record straight. I say "tries" because the paper edited her letter to obscure its main point: Hogshead-Makar doesn't object to flag football itself, but to the Florida High School Athletic Association's strategy of discouraging more traditional, competitive, (and perhaps tellingly, more expensive) sports for girls like crew, water polo, lacrosse, and archery by offering them easier, cheaper, but less comparable alternatives in the form of flag football (and cheer). The fact that the FHSAA is promoting flag football (as opposed to other emerging sports on NCAA's horizons) without putting in the work to support the sport's infrastructure -- governance and promotion outside of Florida's high schools -- further suggests that the association cares more about helping schools find a quick fix to major Title IX compliance problems than trying to truly equalize opportunities for Florida's girls.
Friday, May 07, 2010
Judge Dismisses Heterosexual Bias Case
Last year, a former player for the Central Michigan State women's basketball team sued her coach, the university, and other university officials, challenging the coach's decision to revoke her scholarship and the athletic department's affirmation of that decision. Plaintiff Brooke Heike's primary complaint was that the coach's decision was motivated by discrimination against her as a white, straight player. You may recall that we were skeptical that Heike would prevail, due to the meager basis for her claim that the coach's decision was motivated by discrimination.
Indeed, I read yesterday on Pat Griffin's blog that the federal district court judge has dismissed the Heike's case in full. She had filed a total of nine counts, and asserted many of them against the coach, Sue Guevara, the university, the athletic director and other athletic department officials. So the dismissal of this case has been occurring in piecemeal fashion since last fall.
First, in September, the court dismissed Heike's claims against the university, which included claims that the revocation of her scholarship violated her constitutional rights to due process and equal protection. Specifically, the claims against the university were barred by the doctrine of sovereign immunity, which says you can't sue the government without its consent. While Congress has abrogated state sovereign immunity from liability under civil rights statutes, the plaintiff did not argue that CMU violated Title IX or any other federal statute. For similar reasons, the court dismissed these claims as asserted against the individual defendants. However, the order only covered Heike's claims that the individuals could be liable for money damages; the court did not dismiss her claims for prospective relief at that time.
In November, the court dismissed the plaintiff's defamation claims against athletic department officials, as well as claims that they were negligence in hiring and supervision of Guevara. This was followed, in February, by dismissal of Heike's claims that Guevara defamed her by presenting false and damaging statements about her. The court reasoned that defamation did not apply to these statements, which were made to the committee considering Heike's appeal of Guevara's decision to revoke her scholarship, because Heike consented to the statements by filing her appeal.
This week's order addressed plaintiff's claims for prospective relief against individual defendants under federal constitutional law, a context that required the court to address the sufficiency of Heike's allegations of discrimination. First, the court found that Heike's only allegations in support of her race discrimination claim -- her a interpretation that Guevara's statement that Heike was not "her type of player" -- did not qualify as an allegation that Guevara was motivated by race, even considered in the context of Heike's other allegations that Guevara preferred players who were "thug" and "ghetto." (Seriously? Those are Heike's allegations and she's charging someone else with race discrimination?) Nor did Heike allege race discrimination by contrasting the coach's treatment of her to that of black players with similar playing statistics. None of the players Heike selected for this comparison, who had all retained their scholarships, were similarly situated to Heike because they had positive attitudes and fostered good team chemistry, while Guevara terminated Heike because she had a negative attitude and caused problems for the team.
Heike's other discrimination claims, based on her sexual orientation, was subject to less scrutiny than her race discrimination claims because because sexual orientation is not a protected characteristic under federal constitutional law. The court required Heike to show that Guevara's decision to terminate her scholarship was motivated by animus or bias. Heike's allegations that the coach encouraged her to toughen up and told her not to wear makeup did not satisfy this high standard.
Interestingly, Heike did not argue that these statements constituted gender discrimination.
If she had, this would have subjected Guevara's alleged statements to heightened scrutiny, and could have also allowed Heike to pursue a Title IX claim. Not that Heike would have necessarily succeeded on a gender discrimination theory, but it would have produced additional analysis. Specifically, analysis of the legal question whether sex discrimination includes discrimination based on gender-conforming behavior, as well as factual questions about whether Guevara revoked her scholarship for reasons to do with gender rather than her performance and attitude.
Heike could appeal the court's decision, though I would be surprised if she kept fighting. The district court readily dismissed all of Heike's claims that could have been remedied with money damages. The only claims that required the court to do any heavy lifting were those that could only be remedied by prospective relief. I doubt that Heike would be motivated to fight on by the hopes of obtaining order prohibiting CMU and its officials from engaging in discrimination in the future. Moreover, it is too late to add another claim such as one alleging gender discrimination in violation of Title IX or the Equal Protection clause.
Indeed, I read yesterday on Pat Griffin's blog that the federal district court judge has dismissed the Heike's case in full. She had filed a total of nine counts, and asserted many of them against the coach, Sue Guevara, the university, the athletic director and other athletic department officials. So the dismissal of this case has been occurring in piecemeal fashion since last fall.
First, in September, the court dismissed Heike's claims against the university, which included claims that the revocation of her scholarship violated her constitutional rights to due process and equal protection. Specifically, the claims against the university were barred by the doctrine of sovereign immunity, which says you can't sue the government without its consent. While Congress has abrogated state sovereign immunity from liability under civil rights statutes, the plaintiff did not argue that CMU violated Title IX or any other federal statute. For similar reasons, the court dismissed these claims as asserted against the individual defendants. However, the order only covered Heike's claims that the individuals could be liable for money damages; the court did not dismiss her claims for prospective relief at that time.
In November, the court dismissed the plaintiff's defamation claims against athletic department officials, as well as claims that they were negligence in hiring and supervision of Guevara. This was followed, in February, by dismissal of Heike's claims that Guevara defamed her by presenting false and damaging statements about her. The court reasoned that defamation did not apply to these statements, which were made to the committee considering Heike's appeal of Guevara's decision to revoke her scholarship, because Heike consented to the statements by filing her appeal.
This week's order addressed plaintiff's claims for prospective relief against individual defendants under federal constitutional law, a context that required the court to address the sufficiency of Heike's allegations of discrimination. First, the court found that Heike's only allegations in support of her race discrimination claim -- her a interpretation that Guevara's statement that Heike was not "her type of player" -- did not qualify as an allegation that Guevara was motivated by race, even considered in the context of Heike's other allegations that Guevara preferred players who were "thug" and "ghetto." (Seriously? Those are Heike's allegations and she's charging someone else with race discrimination?) Nor did Heike allege race discrimination by contrasting the coach's treatment of her to that of black players with similar playing statistics. None of the players Heike selected for this comparison, who had all retained their scholarships, were similarly situated to Heike because they had positive attitudes and fostered good team chemistry, while Guevara terminated Heike because she had a negative attitude and caused problems for the team.
Heike's other discrimination claims, based on her sexual orientation, was subject to less scrutiny than her race discrimination claims because because sexual orientation is not a protected characteristic under federal constitutional law. The court required Heike to show that Guevara's decision to terminate her scholarship was motivated by animus or bias. Heike's allegations that the coach encouraged her to toughen up and told her not to wear makeup did not satisfy this high standard.
Interestingly, Heike did not argue that these statements constituted gender discrimination.
If she had, this would have subjected Guevara's alleged statements to heightened scrutiny, and could have also allowed Heike to pursue a Title IX claim. Not that Heike would have necessarily succeeded on a gender discrimination theory, but it would have produced additional analysis. Specifically, analysis of the legal question whether sex discrimination includes discrimination based on gender-conforming behavior, as well as factual questions about whether Guevara revoked her scholarship for reasons to do with gender rather than her performance and attitude.
Heike could appeal the court's decision, though I would be surprised if she kept fighting. The district court readily dismissed all of Heike's claims that could have been remedied with money damages. The only claims that required the court to do any heavy lifting were those that could only be remedied by prospective relief. I doubt that Heike would be motivated to fight on by the hopes of obtaining order prohibiting CMU and its officials from engaging in discrimination in the future. Moreover, it is too late to add another claim such as one alleging gender discrimination in violation of Title IX or the Equal Protection clause.
Thursday, May 06, 2010
OCR and Kansas Reach Agreement Over Title IX Complaint
According to news reports, the University of Kansas and the Office of Civil Right have agreed that KU will document its Title IX compliance, in resolution to a complaint that KU violates Title IX by discriminating against men in the distribution of athletic opportunities. As we have mentioned, KU is one of the rare schools where the percentage of female athletic opportunities is greater than the percentage of women in the student body. (How much of a disparity is not entirely clear to me. The article cited here says there is a 5 percentage point disparity, while my calculations today based on 2008-2009 EADA reports shows a disparity of less than 2 percentage points, and my earlier blog post, presumably based on earlier EADA data, suggested that the disparity was 4 percentage points. As we have recently noted, EADA data is not always accurate.)
While the agreement between KU and OCR will resolve the complaint, the agreement does not suggest that KU currently is not in compliance with the proportionality prong, KU's chosen method of compliance. Rather, it requires KU to demonstrate compliance by taking the following steps: assess its participation rates and enrollment rates for men and women (by March 2011), submit a plan to demonstrate it is in compliance with the proportionality prong (by April 2011), and follow up with documentation it is in full compliance (by December 2011).
The men's swim club, on whose behalf the complaint was filed, hopes that KU's compliance plan includes adding men's varsity swimming back. But because KU is so close to proportionality already, it seems like it could demonstrate compliance by making minor adjustments to men's and women's athletic rosters, without adding a team. Depending on the numbers KU uses as the basis for its compliance plan, it could be that adding an entire men's team would swing the balance too far the other way.
News of this agreement also raises the question of what exactly it means that KU pledges to demonstrate compliance with the proportionality prong? Is exact proportionality required? Clearly, OCR thinks the existing disparity (whether it be 2, 4, or 5 percentage points) is not an example of substantial proportionality, otherwise this agreement would not have been necessarily. In fact, OCR has indicated in earlier policy documents (the 1996 Clarification) that proportionality compliance requires either an exact match in the percentage of students of each sex and the percentage of athletic opportunities for each sex, or minor (1 or 2 percentage point) disparities caused by fluctuation in enrollment. Perhaps OCR is using KU's case as an example to dispel the common misunderstanding that schools can demonstrate compliance with the proportionality prong as long as they are within 5 percentage points. I hope this is the case, though it is interesting to me that the mythical 5 percentage point rule is usually used to justify athletic imbalances that negatively affect women. Now that men are underrepresented, a stricter proportionality rule comes into play.
While the agreement between KU and OCR will resolve the complaint, the agreement does not suggest that KU currently is not in compliance with the proportionality prong, KU's chosen method of compliance. Rather, it requires KU to demonstrate compliance by taking the following steps: assess its participation rates and enrollment rates for men and women (by March 2011), submit a plan to demonstrate it is in compliance with the proportionality prong (by April 2011), and follow up with documentation it is in full compliance (by December 2011).
The men's swim club, on whose behalf the complaint was filed, hopes that KU's compliance plan includes adding men's varsity swimming back. But because KU is so close to proportionality already, it seems like it could demonstrate compliance by making minor adjustments to men's and women's athletic rosters, without adding a team. Depending on the numbers KU uses as the basis for its compliance plan, it could be that adding an entire men's team would swing the balance too far the other way.
News of this agreement also raises the question of what exactly it means that KU pledges to demonstrate compliance with the proportionality prong? Is exact proportionality required? Clearly, OCR thinks the existing disparity (whether it be 2, 4, or 5 percentage points) is not an example of substantial proportionality, otherwise this agreement would not have been necessarily. In fact, OCR has indicated in earlier policy documents (the 1996 Clarification) that proportionality compliance requires either an exact match in the percentage of students of each sex and the percentage of athletic opportunities for each sex, or minor (1 or 2 percentage point) disparities caused by fluctuation in enrollment. Perhaps OCR is using KU's case as an example to dispel the common misunderstanding that schools can demonstrate compliance with the proportionality prong as long as they are within 5 percentage points. I hope this is the case, though it is interesting to me that the mythical 5 percentage point rule is usually used to justify athletic imbalances that negatively affect women. Now that men are underrepresented, a stricter proportionality rule comes into play.
Monday, May 03, 2010
Question the parentheses
I, too, read the news that Orange County, North Carolina schools had been given a clean Title IX bill of health. This article from the Chapel Hill News goes so far as to say that any statistical disparities favored girls--but not the detriment of boys.
Notes the writer: "[girls'] coaches were paid more than coaches of boys' teams when compared to the proportion of students participating in athletics by sex (excluding football)." (emphasis added)
So this is a little confusing. Orange County clearly met one of the three prongs regarding equitable opportunities. But it was not necessarily proportionality. How does this affect our understanding of the above statement? (And as Erin noted, just because it seems that salaries are equitable, does not mean there was not discrimination against the one fired coach--the catalyst for this investigation.) And more importantly, why was football excluded from these calculations? And how many other statistics do not include football?
I haven't been able to find any answers yet, but would love to be enlightened.
Notes the writer: "[girls'] coaches were paid more than coaches of boys' teams when compared to the proportion of students participating in athletics by sex (excluding football)." (emphasis added)
So this is a little confusing. Orange County clearly met one of the three prongs regarding equitable opportunities. But it was not necessarily proportionality. How does this affect our understanding of the above statement? (And as Erin noted, just because it seems that salaries are equitable, does not mean there was not discrimination against the one fired coach--the catalyst for this investigation.) And more importantly, why was football excluded from these calculations? And how many other statistics do not include football?
I haven't been able to find any answers yet, but would love to be enlightened.
North Carolina High School Cleared of Title IX Charges
After school officials at Cedar Ridge High School in Orange County, N.C., decided to terminate the highly successful volleyball coach, Laurie Calder-Green, and replace her with a less experienced male coach, parents there filed a complaint with OCR, claiming that Orange County Schools discriminated against high school girls and their coaches by paying the coaches less, providing less qualified coaches and not working to recruit and retain their coaches. But after an 18 month investigation, OCR has determined that both county high school athletic programs comply with Title IX.
In its investigation report, OCR acknowledged that the "that the complainant disagrees with the district’s termination of a particular coach." But, it continued, "termination of one coach is an insufficient basis on which to find that the district has denied girls equitable opportunities with respect to coaching, and there is no other evidence that supports such a finding."
Notably, however, OCR's conclusion that the firing of this particular coach deny girls equal opportunities with respect to coaching does not address whether the school's decision to fire the coach was itself discrimination, either directly or in retaliation for voicing concerns about perceived discrimination. A lawsuit addressing such claims is certainly possible.
In its investigation report, OCR acknowledged that the "that the complainant disagrees with the district’s termination of a particular coach." But, it continued, "termination of one coach is an insufficient basis on which to find that the district has denied girls equitable opportunities with respect to coaching, and there is no other evidence that supports such a finding."
Notably, however, OCR's conclusion that the firing of this particular coach deny girls equal opportunities with respect to coaching does not address whether the school's decision to fire the coach was itself discrimination, either directly or in retaliation for voicing concerns about perceived discrimination. A lawsuit addressing such claims is certainly possible.
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