Some Say Delaware State Equestrian Is Safer After Cheerleading Ruling

This article in Delaware Online suggests that the recent Quinnipiac ruling about the Title IX status of competitive cheer will make it harder for Delaware State to prove that its decision to terminate equestrian did not violate the law.

Actually, I don't think the ruling will have much legal effect at all. Unlike at Quinnipiac, Delaware State's proposed opportunities in cheerleading do not even come close to closing the proportionality gap. Its argument that adding cheer demonstrated prong 2 compliance was never a viable argument, in my opinion. No court has interpreted "history and continuing practice of expanding opportunities for the underrepresented sex" to be satisfied by a school that cuts a viable women's team.

But either way, some are now predicting that Delaware State is now more likely to cancel its plans to end its equestrian program.

Interestingly, the article provided a little insight into why Delaware State, an HBCU, has an equestrian team in the first place:

Many see the equestrian legal troubles as an unfortunate legacy of former president Allen Sessoms' administration. In 2005, a faculty steering committee, chaired by Hoff, recommended field as a better way to expand sports for females, but Sessoms later sold the group on equestrian.

The sport has proven to be more expensive than expected, costing close to $600,000 per year.

"Of greatest concern to DSU is the fact that so little of this money goes to student welfare," DSU lawyers said in court documents. "On the contrary, most of the expenses are for the housing and care of the horses."

Daniel, the Title IX consultant, said he would have advised against a school like DSU starting equestrian. Charlie Wilson, president of DSU's faculty senate, said he and other faculty found the creation of the team "curious" and regarded it as a "pet thing" of Sessoms' administration.

Globe Profiles Stevenson's Study on Title IX's Beneficial Effect

We blogged about this last December, but today's Boston Globe has a profile of Professor Betsey Stevenson's research on causal effects of athletic participation on girls' educational and professional attainment.

An excerpt:

[N]ow, for the first time, new research has begun to document a measurable benefit to girls playing sports, sweeping away any fuzzy, feel-good reasons why girls athletics matter and showing that sports can truly change the lives of the young women who get the opportunity to win, lose, and just play. A study released earlier this year, examining the impact of Title IX, the federal law that opened the door for greater sports opportunities for girls, offers hard evidence that playing sports leads to greater educational and employment opportunities. Most notably, it found that up to 40 percent of the overall rise in employment of young women in recent decades can be attributed to the increased opportunity to play ball.

The findings are significant for one key reason: They take the conversation about sports out of the realm of abstraction and into the world of clear benefit. It has long been speculated that sports can teach young people qualities of character, or life lessons, that they might not learn otherwise, but now there is evidence that the games can be transformative — not only to the participants, but also to the workforce and even the country at large.

Indiana case switches hands

A mother of a female basketball player at Franklin County High School in Indiana has filed a Title IX lawsuit on behalf of her daughter alleging a disparity in the scheduling of boys' and girls' basketball games.
If this case sounds strangely familiar--well, it is.
Tammy Hurley filed the suit, the same one filed by Amber Parker, on Monday because it appears that Parker and her family are moving to Massachusetts thus making their case moot. So Hurley has stepped in to ensure that the issues are addressed. Hurley's case is currently assigned to a different judge, but her lawyer is working on getting it moved to Judge William Lawrence who currently is handling Parker's case.

Quinnipiac Volleyball Players Win Title IX Decision

Today Judge Stefan Underhill granted Quinnipiac University volleyball players an injunction that will allow the team to exist through the 2010-11 season. In reaching this decision, the judge determined that Quinnipiac's decision to terminate the volleyball team violated Title IX because it resulted in inequitable number of athletic opportunities for women. Quinnipiac argued in its defense that it satisfied the proportionality test (offering the same percentage of athletic opportunities to women as matches their representation in the student body) even after cutting volleyball, in part because of Quinnipiac's addition of 30 additional athletic opportunities in the sport of competitive cheer, brought the school into proportionality.

But today, Judge Underhill agreed with the plaintiffs that these opportunities should not have been counted, since competitive cheer is sufficiently different from other varsity athletic opportunities at Quinnipiac. The biggest difference is that the competitive cheer team does not have a schedule that "reflects varsity abilities" -- as demonstrated by comparison to other Quinnipiac teams. No other varsity team at Quinnipiac competes predominantly against other school's club teams and non-scholastic teams, as the competitive cheer team does. No other varsity team competed under different sets of rules, depending on the opponent. All other varsity teams had to qualify for a championship via a progressive playoff, while the national championship in which Quinnipiac cheer competed (NCA Nationals) was open to all squads -- including sideline squads whose only competition for the year was Nationals. No other varsity team was evaluated, in part, by a nonathletic factor such as the 45 second "spirit" segment at Nationals, in which teams are judged by crowd reaction and use of props.

The judge's ruling does not foreclose that changes in cheer over time could lead to a different result in the future. However, the court's reasoning does call into question any school that is currently relying on competitive cheer to demonstrate compliance with Title IX. That is, the court's reasoning applies as well to other varsity cheerleading schools (Maryland, Oregon, Baylor, and a couple of others) as it does to Quinnipiac, should those schools' reject a women's club team's petition for varsity status, or, like Quinnipiac, decide to cut a viable women's team.

After adjusting Quinnipiac's proportionality calculation to exclude 30 opportunities in competitive cheer, as well as 11 opportunities in women's track (who the judge said should not have been counted because they were injured, and/or red-shirted), the judge calculated a 3.62 percentage difference between the percentage of athletic opportunities for women (58.25) and the percentage of women in the student body (61.87). The judge then determined that this difference was not "substantial proportionality" necessary for compliance with prong 1. This aspect of the decision is highly significant, as it is, to my knowledge, the lowest percentage that has been deemed outside the realm of substantial proportionality, and it dispels the myth-rumor that anything within 5 percentage points is OK. The judge reasoned that 3.62 percentage points actually amounts to 38 female athletes -- more than the size of any of Quinnipiac's existing women's teams. In that context, 3.62 is not substantial proportionality.

Overall, the 95-page decision was a win for the volleyball team (who gets to play another year) and a win for Title IX, because it protects against the possible manipulation of gender equity statistics by labeling as sport existing women's noncompetitive activities. The judge also expressed skepticism about Quinnipiac's triple counting of women's opportunities in cross country and and indoor and outdoor track, given the track team's status as a "mere adjunct" of cross country (though ultimately found insufficient evidence to discount Quinnipiac's figures any further on these grounds). But this aspect of the decision, like the decision overall, puts schools on notice that athletic opportunities for women must be actual and not illusory.

UNF adds women's golf

Remember when University of North Florida announced it was cutting its women's swimming and diving team? And then it fairly quickly reinstated the team? Yeah, I had to look it up, too.
Well it looks like UNF is going even further and adding women's golf to its list of intercollegiate sports. The team will begin competition in 2012.
No mention at all of the previous flirtation with cuts. The addition of golf makes sense when considering conference affiliation. Every other Sun Conference school fields a women's golf team.
The addition of this team brings UNF's total teams to 18. Again, no word on whether this addition is a precursor to cuts in the future. When UNF made its original announcement conference affiliation was one of the reasons for the cut.

Clark College Ex-Coach Awarded $545,000 in Retaliation Case

Another coach has won damages in a Title IX retaliation case. Trev Kiser, formerly the women's basketball coach at Clark College in Vancouver, Washington, was awarded a $545,000 verdict (plus attorneys fees) in a case that claimed he was wrongfully terminated in retaliation for complaining about inequitable treatment of the women's basketball team.

In 2008, we blogged about the appellate court decision that reinstated his case after determining that Kiser had presented enough evidence of the athletic director's retaliatory motive to cast doubt on the college's argument that Kiser had been fired for mismanaging funds. (Apparently, there was little dispute that the AD actually threatened to fire him if he didn't stop making Title IX complaints.)

The award included $180,000 for back pay, $150,000 in lost future earnings, and $215,000 for emotional distress.

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Petition for data collection in high schools

As we have noted previously, there is a bill currently in the US House of Representatives that calls for the collection of data about gender equity in athletics in high schools--similar to that collected by the Department of Education. If you would like to urge Congress to pass the High School Athletics Accountability Act, you can go here and sign the petition. Your email address is required but will not be displayed. You can also choose not to have your name displayed.

Sure it'd be nice to keep all the sports...

In a recent hearing in California, a state senator strongly questioned the folks at UC Davis over their recent decision to cut four intercollegiate athletic teams. Senator Dean Florez, who serves on the senate's Select Committee on Gender Discrimination and Title IX Implementation (out of curiously, do other states have such a committee?), feared that the cuts were not bringing Davis any closer to proportionality. Davis, prior to these cuts, faced a lawsuit brought by several female students who played club sports. They argued that Davis was not providing enough opportunities in athletics for female students. The settlement in that case binds Davis to achieving proportionality within +/- 1.5 percentage points within ten years.*
This could be part of Senator's Florez's concern. And I am glad that state legislators are paying attention to achieving equity (though not surprised given how much money Title IX lawsuits have cost the state of California in the past few years). But if I was a state senator in California (and hadn't already resigned in utter frustration), I wouldn't be giving UC Davis a hard time over cuts that they--given the current economic reality--had to make. The athletic department had to cut over $2 million from its budget. You cannot do that by simply reducing athlete per diems or limiting travel budgets.
It's a very...nuanced situation. Because according to the math Erin and I just did based on EADA data, Davis is indeed moving closer to proportionality. Taking into account the opportunities lost from these recent cuts, the percentage of women's opportunities is at 52. The undergraduate population is 56 percent women. The 4 percent difference represents 14 opportunities--if we were shooting for exact proportionality (we didn't calculate the 1.5). This is better than the 22 opportunity disparity that existed prior to the cuts.
But what exactly was Senator Florez getting at? That no cuts should have been made? That seems like an impossible situation at this point. Given that programs, faculty, administrative support at California schools are being and have been cut it would seem kind of...well wrong...to exempt athletics. The Title IX Blog has many friends and colleagues in California who are taking furloughs left and right. And though they are sport-minded people, it's not fair to ask some to sacrifice a lot and exempt others.
So then is Senator Florez saying that Davis should have cut only men's sports? Maybe. It is still possible for the crew team to bring a lawsuit against the school because they have not complied, at this point, with any of the three prongs. Would Davis itself be in a "safe harbor" (a term usually used by anti-IXers to discuss proportionality, in a negative way) because they have ten years to reach 1.5 percent proportionality? I don't know. It would be interesting to see how a court interpreted the previous settlement in light of the current situation. I am skeptical that such a move will occur given that Davis is so close to proportionality even with the cuts--something I assume they carefully calculated themselves--and that they are indeed bound by an existing settlement to make progress. It is unfortunate--as it always is--that "progress" has come in the form of cutting teams.



*Note that I was wrong--yes, I was wrong!--in an earlier post dated April 17 about UC Davis having to maintain 5 percent proportionality as a result of a lawsuit from the 1980s. Only institutions in the California State System (i.e. Cal State Riverside, Cal State Fresno) are bound by that ruling.

Inside Higher Ed takes notice

Erin's recent publication in the Duke Journal of Gender Law and Policy got the attention of the editors at Inside Higher Ed. They published a synopsis of her article on the Title IX whistleblower cases, the impact of the high success rate of the cases brought by coaches and administrators who take issue with the ways in which athletic departments are (or are not) enacting gender equity, and even talked to Eric Pearson, chairperson of the College Sports Council, a group with whom we "Title IX lemmings" (a term used to describe me recently--NOT by Pearson) usually butt heads. But Pearson is all for protection against discrimination and notes the difficulty coaches have speaking out against their respective administrations.
If you want the highlights, check out the column. If you want the whole thing and don't have access to the DJGLP, email Erin about getting a copy of her article.
Good work, Erin!

Diablo Valley College to Reinstate Teams

Diablo Valley College (Pleasant Hill, California) will reinstate the men's and women's cross country, track and tennis teams cut four months ago, in settlement of a threatened investigation and review by the Office of Civil Rights. The two-year college, which has 52% male enrollment that receives s 61% of athletic participation opportunities, cut an equal number of men's and women's teams, in order to "try to remove discussion of gender equality," according to an official of the Conta Costa Community College District, which operates DVC. After the coaches of the terminated teams filed a complaint with OCR, the government announced plans to investigate, which lead to DVC's decision to reinstate the teams.

I am kind of amazed that college administrators assumed that cutting an equal number of men's and women's teams would neutralize any Title IX concerns. They clearly did not look at the law, the regulations, or any court decision in a case involving cuts, or else they would know that is a violation of Title IX to cut a viable team of underrepresented sex. I guess that whole post from the other day about Title IX "illiteracy" applies to administrators as well.

I am also amazed that DVC decided not to rehire the coaches who filed the complaint with OCR to coach their reinstated teams. One told Inside Higher Ed that he thinks this decision is clearly retaliation, and is pursuing remedies through his union. On the surface it sure does look that way. We'll be watching to see if the coaches file suit.

Coaches' Title IX Literacy Called Into Question

Coaches are sorely lacking foundational knowledge about Title IX, according to new, unpublished research profiled in this article in Athletic Business. The study's authors, Ellen Staurowsky of Ithaca College and Erianne Weight of Bowling Green, found that most coaches have received no formal Title IX training and instead rely largely on the media for their knowledge of the law. As a result, they are steeped in misperceptions or uncertainty about the law, which they view as the responsibility of administrators instead. Staurowsky gives two reasons why coaches as well should be literate in the basics of Title IX:

Number one, because they are advocates for their programs. If they don't have a strong understanding about Title IX, then they don't have the traction to be able to effect change within their administration or to even call their administration out when it is lethargic on Title IX issues. Number two, the enforcement scheme relies on every constituency to be aware of how Title IX works, from government officials to school administrators to coaches to athletes to parents. Back in the 1970s, female athletes were learning about Title IX from their coaches. That link has disappeared. So enforcement can't just come from the top down. It can't just come as a matter of presidential decree. It's got to come from the bottom up.

I've met many coaches who know Title IX inside and out, and I'll bet that the coaches I know who read this blog were either not among the 1100 coaches included in the study or are in the minority of those knowledgeable about the law. Because of these Title IX-savvy coaches, I know that Staurowsky is right about the power and potential of their advocacy when it comes to enforcement and teaching athletes about equality and advocacy. For example, the volleyball players in attendance at the Quinnipiac trial were following the lead of their coach, Robin Sparks, who by sitting at the plaintiff's table, conveyed to them the importance of standing up for equality. I also think about the Fresno State softball player I met a few years ago, who credited coach Margie Wright for role modeling the strength and bravery it takes to speak out against discrimination.

Because we need more examples like these, I hope that Staurowsky and Weight's study motivates more coaches to get educated about Title IX, and to pass it on.

And if it helps, we here at Title IX Blog have power points, will travel!