Koller on the Title IX "Interest Paradox"

Professor Dionne Koller from the University of Baltimore School of Law has recently published an article, "Not Just One of the Boys: A Post-Feminist Critique of Title IX's Vision for Gender Equity in Sports" in the current issue of the Connecticut Law Review. In it, she examines why women and girls are relatively less interested than their male counterparts in pursuing and remaining involved in athletics. Rejecting both the explanation that women are inherently less interested in sports, as well as the theory that the absence of opportunity alone diminishes interest, Koller posits that disparity stems from Title IX itself. By requiring that schools provide opportunities for female athletes with an "interest and ability" to compete in varsity sports, the law operates to only provide opportunities for those interested in "assimilating" to a particular, male-driven brand of sport. She argues that, in this way, the law creates an “interest paradox” -- on the one hand, creating opportunities believed to be the foundation for building interest (the "if you build it they will come" theory) while on the other hand, "extinguishing the interest of those girls and women who would engage in sport, but are not willing to assimilate into the current model." To be competitive, athletes have to adopt the values of the existing model of sport: specialize early, risk injury from overtraining, prioritize winning over academics and other values, and strive for commercial success. While many women are interested in this model of sport, a different sports paradigm might have generate a better balanced interest among male and female participants. To this end, Koller proposes a more inclusive policy that requires education-based athletics to adhere to values and priorities like encouraging participation and fitness, inclusion, and increase of participation opportunities and choices for younger students. At the very least, Koller urges us to acknowledge the interest paradox, "so that discussions of gender equity in sport can move from polarizing, and ultimately unproductive debates about whether women are, or are not, inherently interested in athletics, to a more nuanced discussion of exactly what models of athletics a greater population of women might be interested in. Thus, it is only when women have an equal opportunity to participate in creating and defining the social construct that is athletics will we have realized gender equity in sport."

Citation: 43 Conn. L. Rev. 401 (2010).

Wilkes County Settles Title IX Complaint

Wilkes County, North Carolina, will improve the lighting and grading of its girls' softball fields by August 2012, and will create policies to improve girls' teams' access to the gym by Jan. 2011, according to the terms of a recent settlement agreement with the Department of Education. The settlement resolves a Title IX complaint filed a parent against the county school district in 2009, which triggered an investigation by the Department of Ed's Office for Civil Rights. According to the press, the parent who filed the complaint said of the settlement, "I know it states the school system is not admitting fault for not fixing things; however, these issues would not be an issue if they'd been taking care of business as they should be."

Delaware State Settles With Equestrians

A federal judge in Delaware approved a settlement between Delaware State and the members of the equestrian team affected by the university's decision to eliminate the program, who had sued and challenged the decision as a violation of Title IX. The settlement requires the university to keep the program until it offers proportionate opportunities to each sex not counting equestrian opportunities. The university will also play the plaintiffs' legal fees and court courts, about $500,000.

As I told Inside Higher Ed, the outcome of this settlement is a victory for the plaintiffs. The university had clearly violated Title IX by cutting an existing program from the sex with fewer opportunities to begin with. Delaware State's population is 61% female, yet women receive only 43% of athletic opportunities. But I refused to paint this outcome as entirely positive. While it's great that the legal process protected the athletes from a discriminatory outcome, but it's sad that schools are still screwing up some basic Title IX requirements.

Stossel on Title IX

When I was just a wee one, long before I knew anything about political philosophy, I would see John Stossel on television and know that he was just wrong about so many things.
You can decide for yourself tonight when FOX News airs his program Politicians' Top Ten Promises Gone Wrong. (It airs again on Sunday in case you miss it.) Number 8 is Title IX. In an interview about the upcoming show, Stossel talks about his list. The previous link is to the Media Matters blog post specifically about Stossel's take on Title IX.
We'll all have to check out the show to see the full extent of his report.

Girls' Hockey in NY State

We at the Title IX Blog are big fans of women's ice hockey. And so we never turn down an opportunity to praise the growth of the sport.
After much planning, negotiations, and struggles girls' varsity hockey is heading to western New York. And apparently it was a long time coming--five years. Some are incredulous that it took this long. There will be seven teams in the Western New York Girls Hockey Federation. It is not clear, though, that they are all being sponsored by schools. Three of the seven are being "privately funded." Given the presence of the sport in the rest of the state plus the success of the "local" university team at Niagara, many see the formation of the federation as a very good thing.
As a recent NPR piece on Morning Edition noted, ice hockey is one of the fastest growing women's sports in the country.

Column Questions Title IX's Absence from Cheerleader's First Amendment Case

There's a good column at WomensE-News.org on the Fifth Circuit's September decision dismissing a student's claims that the school district violated her First Amendment rights when officials ordered her to cheer for another student-athlete whom she had accused of raping her several months before. While the facts of this case certainly do call First Amendment issues into question, i.e., does the cheerleader have a right to refuse to cheer in symbolic protest of a particular athlete and his conduct, and was school officials' response retaliation against her for reporting a popular student-athlete for rape? (for analysis of those issues, see here), columnist Wendy Murphy rightly points out that Title IX should have been at the foreground of this case. The student's lawyer apparently did not allege, and thus the courts did not consider, whether school officials' response to her allegations of rape constituted deliberate indifference that should have rendered the district liable under Title IX. But Murphy believes this would have been an easy argument to win. Apparently, school officials were under the false impression that they were not obligated to get involved with the case as it proceeded in criminal court, even though courts have said that such deference to law enforcement constitutes deliberate indifference. Rather than take any steps to investigate or address the matter on its own, the school let the accused student continue to play sports until his criminal conviction. As for the accuser, she was not offered any protection or even sympathy, as evidenced by the instance in which she attempted to refuse to cheer at a game for the accused student by name, but was ordered by the superintendent and the principal to cheer or go home (she chose the latter). This too violates clear Title IX precedent in the area of peer harassment, as courts have said that it is inappropriate to separate the victim from the perpetrator rather than the other way around.

So why was Title IX, the obvious source of relief and liability in this case, ignored by the lawyers, the courts, and the media until now? Murphy blames our society's reductionist tendency to view Title IX as a law only about athletic opportunity and I think that certainly comes into play. But let's imagine that early efforts to exempt sports from Title IX had passed. Would the law be popular instead as an anti-harassment law? I'm not so sure. I think it might just not be popular at all. Culturally speaking, we have a tendency to downplay sexual violence and to disregard it as a form of sex discrimination. We'd be wringing our hands about the lack of awareness about Title IX's application to sexual violence whether or not the law also applied to sports.

Sadly, this case represents a missed opportunity, both to offer some relief to the plaintiff and to raise awareness about sexual violence and sex discrimination in schools. Sadder still, the cases that do invoke Title IX in the context of sexual harassment and sexual violence -- the vast majority of judicial decisions rendered under Title IX today, as a survey of this blog would quickly reveal -- are not sending the message to potential plaintiffs, to school districts, or lawyers on either side about the role of law in this area. (It does not help matters that to learn about sex discrimination in law school, you'd have to take a class with "Women" or "Gender" in the title, and the people who take those classes are not necessarily the ones who need to be enlightened.) For these reasons, I'm particularly glad Wendy Murphy posted about this case. One column in the blogosphere (now two) won't change the culture of ignorance, but if we all keep talking about school's responsibilities to protect students from sexual harassment and sexual violence, eventually the message will get through.

UC Davis Officials Do Not Have Immunity from Wrestlers' Suit

Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.

So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.

The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.

Title IX Is an Education Statute

In Menlo Park, California, an eight-year-old girl wants to play basketball in the city league with her friends, who are boys. But the city runs separate leagues for boys and girls, and refuses to make an exception for this "4-foot-6 tomboy." So her parents hired a lawyer, who threatened to sue the city under Title IX. The city's lawyer wrote back, arguing that Title IX does not require them to let her play in the boys league because of the law's limited application to contact sports.

I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.

To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.

Interest, equity, funding, facilities--what's the connection?

Being interested in both how the media covers issues of sport and equity and the cultural construction of gender, this article out of Florida had my interest piqued this morning.
On the heels of the NWLC's filing of 12 Title IX complaints last month, it seems local newspapers, at least Highlands Today out of Tampa, are taking an interest in how their local schools are doing in terms of equity in sports.
Thorough, but with a couple inaccuracies, this article touched on the issues of funding, boosters (good to see money equally distributed!), facilities, coaching, and participation levels.
The big problem many administrators and coaches want solved is the question of why more girls do not participate. Administrators recount their largely unsuccessful efforts at recruitment and say that the desire is just not there. Also the fact that Florida counts cheerleading as a sport apparently is pulling potential athletes away from other sports, say some.
I do not necessarily believe this to be untrue--the part about desire; I'd rather not take up the issue of high school cheerleading in Florida right now. But I also do not see this as an innate female characteristic.
Reading other parts of the same article I see that, for example, at one high school the softball facility is (admits the athletic director) not nearly as nice as the baseball facility. The explanation given is that baseball has been around a lot longer and draws a greater crowd. Also while volleyball is noted by one source as being popular, at the end of the article, the reporter writes that Title IX is to blame for putting smaller sports--like volleyball, he says--in danger of being cut.
So if you're a girl here's what you see: in addition to the fact that more people support boys' sports, that apparently you go to your boyfriend's events, but he won't come to yours (according to one AD), you hear from school administrators that the reason a facility that you might play in is not as nice is because of "tradition"; and that even a popular sport that does draw a crowd is in danger of being cut because it's considered minor.
And then if you read this article you see that some believe the reason for the disparity in participation is because boys and girls have different role models:
"Boys might emulate Tim Tebow; girls might choose Miss Florida"
And then you realize just how limited the choices are.

Thanks for our new gym, Title IX!

I came across this article about the debut of a new gym at Lake Shore High School in Michigan. The new gym was added, according to the article, "because a Title IX legislation ruling that stated boys and girls seasons must be at the same time."
This made me pause. I didn't remember anything about Lake Shore High School.
But I went on to read about the great new gym that includes a commons area for concessions, where the game inside the gym can be simulcast, an NBA-sized court (which will make the school a prime site for post-season and tournament play), and a more secure entrance to the school. Sounds like some great improvements.
And no one has to practice at 10pm.
Then I remembered which "Title IX legislation ruling" the article was referring to: the very contentious--and very expensive--lawsuit against the Michigan State High School Athletic Association. So many people just refused to give any ground about--among other things--ensuring that girls played their sports in the traditional seasons. Costs, logistics, tradition, etc., etc.
Lake Shore High School clearly was one of the schools affected by the mandate to move girls sports to their traditional seasons. And now they have a new facility.
So in case no one else says it: Thank you, Title IX, for the sparkly new gym in Michigan with its indoor track, student store, and concession stand. We wouldn't have done it without you!

JMU case not quite stagnant

Equity in Athletics presented its case to the Fourth Circuit Court of Appeals earlier this week. EIA is attempting to overturn the decision (made in 2006 and carried out in 2007) by James Madison University to cut 10 intercollegiate sports. EIA is trying to get its lawsuit against JMU restored. EIA's attempt to force JMU to reinstate the teams has already failed at the district and appellate court level and the US Supreme Court refused to hear the case. JMU's lawyer is confident that the case, according to one writer, "will remain stagnant."

Resolution Reached in Title IX Sexual Assault Cases

The Department of Education announced that it has reached "voluntary resolution agreements" with two universities that it had been investigating on charges that they failed to protect students from sexual assault in violation of Title IX. According to the Center for Public Integrity, an organization of investigative journalism that has in the past reported on the government's lax enforcement of Title IX in this area, today's agreements obligate Eastern Michigan University and Notre Dame College in Ohio to a list of remedial measures aimed to protect students.

Eastern Michigan University had apparently attempted to cover up the rape and murder of one of its students, Laura Dickinson, when they falsely reported that her death had involved no foul play. The Department of Education investigated the university on charges that it violated federal crime-reporting act (the Clery Act) that also covers sexual assault, and assessed a $350,000 fine. Additionally, however, the agency's investigation extended into possible violations of Title IX stemming from weak or nonexistent policies and practices aimed to protect students from sexual harassment and assault. This investigation produces a resolution agreement under which the university is obligated to undertake a variety of measures from adopted and publicizing nondiscrimination policies that expressly include sexual harassment and assault, as well as grievance procedures to address claims of sex discrimination involving students, faculty, staff, and third parties. The university must also appoint and train a Title IX Coordinator to coordinate the university's efforts at compliance. The agreement includes more creative, proactive requirements as well, including that the university:

• establish a committee of students to ensure that students understand their rights and the university's responsibilities under Title IX, and to recommend strategies to address and prevent instances of sexual harassment and assault;
• review campus police records for the last school year, and for any instances of sexual assault that were treated solely as criminal matters, assess whether violations of Title IX occurred, whether remedies were effective, and to take any necessary additional steps to ensure that the matter is effectively addressed
• address sexual harassment and assault at freshman orientation
• and establish an on-call victims assistance program

Notre Dame College, where officials had also been charged with trying to cover up sexual assault, is bound to a similar resolution agreement.

Assistant Secretary Russlyn Ali says that by including measures "far more robust" than what OCR has sought in the past, these agreements change the paradigm for how all colleges and universities will address campus sexual assaults.

Drivers Ed Harassment Case Survives Motion to Dismiss

A federal court in Pennsylvania recently held that a student's claims stemming from sexual abuse by a drivers ed instructor could survive the school district's motion to dismiss. Specifically, the court agreed that the plaintiff alleged all of the elements for Title IX liability (as well as some of her other claims, including the 14th Amendment). Because the alleged conduct involved a forced sex act, it is necessary severe and pervasive, the first requirement for liability. Also, the school allegedly had adequate notice of the instructor's propensity to commit abuse, based on two prior incidents of harassment (one in which he asked a student to show him her nipple piercing, and another in which he asked a teacher to show him her tattoo), which were reported, and his general reputation. Finally, the school district's response constitutes deliberate indifference, as the instructor was not disciplined for the prior incidents of harassment, and was allowed to take students on one-on-one driving lessons, in contravention of district policy. Thus, the plaintiff may continue to pursue her Title IX claim against the district.

The plaintiff also successfully alleged Title IX retaliation claim against the school district, in that she claimed that school officials did not protect her from the harassment by teachers and peers that she faced after reporting the instructor's misconduct. The plaintiff alleges that she was so uncomfortable at school due to the hostile environment created by teachers' and students' vocal support for the instructor -- one teacher even posted a letter, in the plaintiff's presence, soliciting donations to the instructor's defense fund -- that she withdrew from school and continued her education from home. Recognizing that the school district has an obligation to respond to retaliatory harassment, the court held that the school could be found liable for retaliation if these facts prove true.

E.N. v. Susquehanna Township School District, 2010 WL 483700 (M.D. Pa. Nov. 23, 2010).