Another book for consideration

It must be book recommendation week here at the Title IX Blog. I think these are supposed to come at the beginning of the summer and not the beginning of fall when many of us are a little bit buried with back-to-school stuff and all those things we didn't get accomplished over the summer.
But this book is definitely at the top of my must-read list (note to Norton: I would be happy to review it here if I can get a copy!!). Delusions of Gender: How our Minds, Society and Neurosexism Create Difference by Dr. Cordelia Fine is her recently published manuscript about the construction of gender differences. Fine, a cognitive neuroscientist, takes aim at the many scientific studies that have continued to attribute gender differences to innate characteristics. Why do we--as in the Title IX Blog, not the general populace which should care a lot--care about this work?
Well for one, according to the review in the New York Times, it's a very well-written and accessible work. And secondly, Fine discusses the research done by doctoral student Jennifer Connellan that has been used to justify sex-segregated classrooms. And finally, I think it's time to add neurosexism into the gender equity lexicon.

A Title IX Must-Read: Getting In the Game

Hot off the press! Getting In the Game is a new book by Title IX expert Professor Debbie Brake from the University of Pittsburgh School of Law. In the book, Brake examines how Title IX has affected and continues to affect many facets of college and scholastic athletics for men and women. Chapter by chapter, Brake identifies and analyzes the hard and interesting questions that Title IX raises, including the appropriateness of separate teams in the first place, whether and when girls should be able to try out for boys' teams, how to measure equal opportunities (the three-part test), what counts as athletic opportunities (including the cheerleading issue), the effect of Title IX on men's sports, the effect of Title IX on women of color (for more, see here), what constitutes equal treatment, the tension between equal treatment and acknowledging sex-differences (the pregnancy issue), and general aspects of the law, such as protection against sexual harassment and employment discrimination, that apply to athletics as well.

Brake is not shy about her own opinions about where the law gets it right and in what ways it can improve. For example, Brake acknowledges the critique of Title IX that by allowing separate teams for men and women, the law has harmed women's sports by segregated women into sports that receive the least support, least prestige, and reinforce stereotypes about women's athletic inferiority. But, she argues persuasively that separate teams are needed to preserve opportunities for women -- to give them the chance to, essentially, get in the game. Relatedly, however, she critiques some of the limitations on co-ed participation, including the existing regulation that lets schools prevent girls from trying out for boys' teams in contact sports, as well as the limitation on co-ed participation in sports where both a girls team and a boys team is offered. Brake proposes that girls should be allowed to try out for boys teams in both contact and non-contact sports, and even if there is a girls team that exists in that sport, but where that team is not truly equal, due to different levels of support for teams, level of play, or status. This proposal addresses some of the anti-separatist concerns without abruptly curtailing the protection of women's opportunities that results from having a default of separate teams.

Throughout the book, Brake balances detail and context on the one hand with readability on the other. The result is a book that should appeal to a broad audience including legal experts, athletic administrators, student-athletics, parents, and fans.

For other endorsements, see here.

Sexual Harassment Litigation Roundup

It's time for another roundup of recent decision in Title IX sexual harassment cases:

A federal judge in Ohio refused to grant summary judgment to the Southwestern City School District so that a jury can resolve disputed facts about whether district officials knew and took proper action to protect a student from being sexually assaulted by another student who had assaulted her on the school bus earlier that year. The jury will also get to decide whether the plaintiff was suspended in retaliation for speaking out against the ongoing harassment. Evans v. Bd. of Educ, Southwestern Sch. Dist., 2010 WL 2889100 (S. D. Ohio July 20, 2010).

Another judge in the same district dismissed claims against the school district that, like the prior case, also involved sexual assault on the school bus. The court found that district officials responded appropriately when they learned that a 17-year-old high school student forced a 12-year-old seventh grader to perform oral sex on the bus, by suspended both students and assigning the perpetrator to another bus. Nor could the district be liable for the taunting and teasing the victim received at school after the incident, which the court said did not rise to the "severe and pervasive" standard required by law. However, the court ruled that the plaintiff could proceed with her claim that the school district's decision to suspend the plaintiff in response to another matter was actually retaliation for her complaints about the sexual harassment. Marcum ex rel. C.V. v. Board of Educ. of Bloom-Carroll Local School Dist., 2010 WL 2927235 (S.D.Ohio Jul 23, 2010).

Last, a federal judge in California granted a motion by individual teachers to dismiss claims that they knew about and failed to report sexually harassment that another teacher was perpetrating on a student. The court dismissed the claims against these teachers that were based on Title IX because the statute only supports institutional, not individual liability (The plaintiff's Title IX claim against the school district was not included in this motion to dismiss, and thus was not addressed this decision.) However, with respect to two of the teachers, the court found that the plaintiff could proceed with her claims that their failure to respond to the perpetrating teacher's sexual harassment violated the Equal Protection Clause, which does allow for individual liability. Similarly, the court acknowledged that the perpetrating teacher could have violated the plaintiff's Equal Protection rights as well, and gave her the chance to amend her complaint to include an allegation that the teacher's harassing treatment singled the plaintiff out because of her sex. Dyess ex rel. Dyess v. Tehachapi Unified School Dist., 2010 WL 3154013 and 2010 WL 3154083 (E.D.Cal. Aug 06, 2010).

Which came first? The rock or the hard place?

The Great Lakes Intercollegiate Athletic Conference has decided to reverse the order of their basketball doubleheaders this coming season. Doubleheaders within the conference have traditionally featured a women's game followed by a men's game. But after an anonymous complaint filed with OCR and the subsequent investigation, the conference has decided to reverse the order. The order of women first, men second, the complaint indicated, gave the impression that women's games were mere warm-up acts for the main attraction.
The GLIAC is not, however, the first conference to make such a change in its scheduling. Other conferences rotate annually or some switch in midseason. Whether such scheduling is legal has not been determined because it was a complaint that was filed--not a lawsuit.
Regardless, the situation raises some issues. Lest my critics think I am all "this is super duper awesome" when any action is taken in the name of gender equity in sports, I do worry.
Let me state first that I think women's games should be the main event an equal amount of the time if main event status/time has to be shared between men's teams and women's teams. While going to women's hockey games at the University of New Hampshire on Sunday afternoons was a pleasant distraction from all that reading I should have been doing in college, it would have been nice to have the team get the primetime Friday or Saturday slot more often.
But do I worry about what the effects will be if half the audience leaves after the men's game? I do. But then again I worry about the effects when female athletes see fans trickling in at the very end of their games clearly there to watch the men.
While I do believe that the promotion of women's sports is a major problem, we're not in Iowa* in terms of basketball (greater popularity among girls' basketball than boys') and the "if you build it they will come" mantra that was born there.** Building is good. Building it is great. But there is no magical realism moment where cars are lining up, headlights blazing in the night to get to women's basketball games. What I hope is that there will be no moments of red tail lights lined up heading away from arenas as the women start their games.
This article from the NCAA that discusses the other conferences who have already changed their schedules to give women's teams more primetime opportunities does not say what the effect has been on audience numbers. I do think that putting women's sports in the spotlight will change attitudes about female athletes--but not overnight; not even in one season I would suspect. I hope that conferences, administrators, fans, and even (especially?) detractors allow us some time. Because a lot more change has to happen, and it extends far beyond start times.

* anymore but I liked it when I was there and do go back to visit.
** okay it was technically born in Hollywood, but it was delivered in Iowa.

Judge Dismisses Retaliation Case Against Montana State

A federal district court judge in Montana has dismissed former women's basketball coach Robin Potera-Haskins's case against Montana State University-Bozeman, in which she alleged she was terminated in retaliation for complaining about gender inequities within the department. After a bench trial, the judge issued of findings of fact consistent with the university's allegations that Potera-Haskins was fired instead for being hard -- specifically, manipulative and verbally abusive -- on the players. According to the opinion (which I have read but cannot link to), the judge did not believe, as Potera-Haskins claimed, that she had been forced by the Athletic Director to grant a scholarship to his daughter, but rather, that she had done so in order to curry the AD's favor. He did not believe that MSU terminated Potera-Haskins for pressing Title IX issues.

The judge acknowledged that Potera-Haskins's testimony refuted his findings, but found generally as a matter of fact that she was not a credible witness (the judge made no mention of the credibility of other witnesses who testified on Potera-Haskins's behalf, or how/whether he weighed their testimony). Trial judges make credibility findings all the time, and they are usually granted deference by appellate courts, because they do not hear witness testimony first hand. But trial judges usually explain the basis for their credibility findings, and such an explanation was, rather astonishingly, missing from this opinion. Nowhere does the judge explain why the testimony of former players and athletic department officials was more credible than Potera-Haskins's own. As a result, the credibility finding, which was the linchpin to the judge's decision to accept MSU's version of the facts over Potera-Haskins's, seems to me rather vulnerable on appeal.

Moreover, the judge's decision to deny a jury trial in the first place is also highly questionable. Recall that that the decision to hold a bench trial instead flowed from the judge's determination that no economic damages were at stake in the case -- highly unusual for an employment discrimination case.

So even though the first round in this fight goes to Montana State, I think the plaintiff -- who I understand intends to appeal -- has a good chance of convincing the Ninth Circuit that the decision should be vacated and remanded with instructions for a jury trial.

Qunnipiac Adds Rugby and Golf

The AP is reporting that Quinnipiac University filed its court-mandated Title IX compliance plan in federal court, in which it announced its decision to keep women's volleyball through 2011-12, s well as to add golf and rugby in order to balance women's athletic opportunities with men's. Quinnipiac will also retain its competitive cheer team -- renamed "stunts and tumbling" -- even though these opportunities do not (yet) count towards the university's Title IX compliance under the district court's recent ruling.

Qunnipiac's choice to add rugby is an interesting one. The NCAA designated rugby an "emerging sport" in 2002, as part of its initiative to support colleges' efforts to add athletic opportunities for women. The emerging sport designation means that sport will obtain national championship if 40 schools (across all three divisions) add the sport by 2012. In the meanwhile, opportunities added in that sport count toward NCAA requirements, as well as enjoy the presumption of counting as a varsity opportunity for Title IX purposes. Emerging sport status has successfully launched women's championships in sports like ice hockey and rowing, but rugby may not be following the same path. Though there is a widespread interest in rugby among female students, there is less interest from within the sport, which has a strong tradition of independence, to submit to institutional control. As a result, rugby has made slow progress towards the "4o by 2012" benchmark. By my count, Quinnipiac is only the sixth school overall, and the second in Division I, to add rugby as a varsity sport. If rugby loses its emerging sport status in 2012, Quinnipiac could potentially have two women's teams (stunts & tumbling and rugby) that do not count for Title IX purposes. We can only guess what effect this would have on the university's overall compliance strategy.

Settlement in anorexia~bullying case

I have to say I was a little bit surprised by the news that a settlement had been reached in the bullying case in which a mother alleged that her daughter had been bullied into an eating disorder.
We blogged about this case almost exactly a year ago. A young teenager in Pittsburgh, Pennsylvania had been bullied for nearly two years with the majority of the comments related to her weight. She developed an eating disorder severe enough to require in-patient treatment.
As we noted then and as this article that reports on the settlement notes, the bullying/eating disorder connection is a little tenuous, which is why some think it was good that this case did not see the inside of a court room. While no one is denying the severity of this girl's condition, the issue at hand was the bullying which school administrators were aware of but did not take seriously enough to intervene, according to reports.
I have to believe that the increase in media attention on bullying in the wake of the Phoebe Prince case had some kind of effect on this settlement. I've noted my queasiness over the coverage of the Prince case, but if it is raising awareness and making schools take some responsibility for past, present, and future incidents then I am glad for that, at least.

P.S. The settlement was for $55,000 and according to this blog, the amount does not make the plaintiffs very happy; in fact they said the settlement represents a win for the Pittsburgh School District. They feel it is about getting rid of the case rather than making change and acknowledging the problems that occurred.

Some Reflections on the Media's Coverage of the Quinnipiac Decision

I've been reluctant to post links to the media coverage and commentary regarding the Quinnipiac ruling. This is because most of it that I've read sounds as if the author didn't even read the judge's opinion, but rather, used a generalized version of its conclusion as a starting point for his or her own view about whether cheerleading is a sport in some larger sense. Common themes included, "This judge must just think cheerleading is still about pom poms and good looks -- doesn't he know that it's different now?" "Let him try a partner stunt and then tell me it's not a sport!" "Doesn't this judge know how physically demanding cheerleading is?" "But there are injuries! Cheerleaders work hard! It must be a sport!"

Of course, anyone who read the opinion knows that physical athleticism, sports injuries, and hard work were not issues that were in dispute in this case. The judge didn't overlook those factor, he agreed that cheer athletes work hard at physically demanding, dangerous stunts. Additionally, however, the judge appropriately went on to evaluate the quality of the competitive cheer athletes' experience in comparison to that of other athletes' at QU, and finding them non-comparable for Title IX purposes. No other varsity team had to play against club and high school teams as their primary competition. No other varsity team lacked a championship that evaluated athletes on different criteria from what they had been using all season. The judge was not answering the "bargument" question "is cheerleading a sport?" He was evaluating one program, and determining its lack of similarity to other sports that that institution includes in its Title IX equation. It's not as sexy when you say it that way, so no wonder the media turned it into something else.

But this morning two articles about the decision came across my screen that I thought were worth sharing. First, here is an article titled "Victory In Defeat" from the Ohio State All-Girls Cheerleading website. This commentary is proof that some from the cheerleading community read the decision for what is was: not a dis on contemporary cheer, but a "blueprint ... that identifies the shortcomings of the current collegiate model and nearly walks the NCSTA [National Competitive Stunts and Tumbling Association, the governing body of competitive cheer] by hand towards the necessary policy implementations and other solutions needed to bring the sport into compliance with T9."

Second, Nancy Hogshead-Makar of the Women's Sports Foundation published this op-ed on ESPN.com, which takes issue with another media trend of using the Quinnipiac decision to denigrate Title IX and the role of courts in enforcing it. Responding particularly to Gregg Easterbrook's column on the same publication (in which he, among other things, cried that "playing volleyball is not a civil right," Hogshead-Makar responded by putting the right to equal athletic opportunity in schools into proper context:

[T]he results of a large body of research continues to confirm with certainty that a sports experience leads to higher educational attainment and success in the workplace, life-time lower rates of obesity, breast cancer, osteoporosis, heart disease and depression. (See the Women's Sports Foundation's report, Her Life Depends On It II). Sports for both boys and girls are an investment in our collective future that we're all paying for with tax dollars, as student loans are the lifeblood of most schools. Title IX need not justify itself. Its results over the past 30 years, allowing a new generation of women to develop and showcase their abilities through education, should calm the critics. Instead of these repeated attempts at fault-finding with a 38-year-old law, let's work together to fulfill the promise of Title IX for both men and women, and increase the number of sports opportunities for all of our youth.

Glad there was some media commentary about the Quinnipiac ruling worth sharing on the Title IX Blog this morning.