Liberty explains

The good news is that Liberty University, which dropped its men's wrestling program from the varsity roster this week, is aware that they currently meet the criteria for compliance with prong two. But they believe that in three to five years this will not be enough. This is despite their plan to continue to decrease roster spots in men's sports and increase spots in women's sports. Compliance with prong two remains somewhat subjective. How many and how frequently a school has to add opportunities is not neatly outlined. And while I applaud Liberty's forward-thinking--many schools get caught having to make lesser-of-the-evil type decisions because they have not thought ahead--it still seems somewhat curious that Liberty would make this cut now. Liberty officials argue that wrestling was the sport to go because it had a large roster (38) and because it was the only sport not in the Big South Conference--it actually had no conference affiliation. I still have not run the numbers myself, in part because the most recent women's sport addition will not be present in the latest set of data. But according to Liberty, their undergrad population is 52/48 women to men. And even with the addition of the three sports they are still not achieving proportionality! Makes me wonder what things looked like when wrestling was added in 2006 (and earlier).

Liberty reclassifies wrestling

Liberty University reinstituted its DI men's wrestling program in 2006. This was a move that bucked the trend of dropping men's intercollegiate wrestling. And they produced a successful program in that time. But the university announced this week that it would be dropping the team from the roster of intercollegiate sports and reclassifying men's wrestling as a club sport. In order to comply with Title IX. Or so they say. Liberty has added three women's sports since 2009 but says that even those additions are not enough to achieve proportionality. True, perhaps. But we don't even need to go look at their Department of Education Equity in Athletics data--because they are already in compliance. They don't have to achieve proportionality right now because they are adhering to prong two. Adding three sports in three years demonstrates a history of expanding opportunities for women. The only reason they might be seeking proportionality is if they intend on dropping a women's program. Once a women's sport is cut, then proportionality becomes the only option. Or they might want to add a different men's sport in the future. The wrestling community and the Title IX community are often seen as adversaries, and Liberty saying that they cut wrestling because of Title IX is not helping things. Liberty already is in compliance (regarding participation). So if I was a wrestler, I would start questioning Liberty's rationale.

It's prom season! Bring on the gender conformity

Prom season causes a certain amount of consternation for administrators worried about, largely, the alcohol consumption and sexual behaviors of prom goers. In recent years we have seen some school officials, though, battle another alleged social ill: girls who want to wear tuxes (and some boys who want to wear gowns). A little over a year ago Erin wrote a post with a very similar title as my own here. And this year is no exception. In Houma, Louisiana senior Monique Verdin is planning on wearing a tux to her prom. Last year she wore a men's suit to a dance--without incident. But school officials have caught wind of her plan--which isn't really a plan; she just wants to wear what she's comfortable in--and said she will not be allowed in if she wears a tuxedo. According to school policy, prom attire must be formal wear which specifically notes gowns for girls and tuxedos for boys (we should also note how this policy is not just gendered but has class implications as well). But other similar cases (and note Verdin has not filed a lawsuit; she seems to be just hoping for the best) have privileged legally protected civil rights over "tradition" (the response from a parish official). The prom is this weekend. And right now it seems school officials are adamant.* In good news, Verdin's family and friends are sticking by her. Her father has contacted a lawyer. And her friends have said they will not go into the prom until they are assured that Verdin can get in too. * Interestingly this story was published this morning and despite my repeated refreshings it seems not to have been updated. But the title of the story that appears on my internet banner in is conflict with the article title and reads: High school relents on prom tux for girl. Not sure if this is wishful thinking or if there is some internet glitch. I certainly hope it's true and that the school does not have something sneaky planned like an alternate prom.

School Not Liable In USA Swimming Sex Taping Case

Last year, the media revealed numerous instances of sexual abuse by coaches affiliated with USA Swimming. One of the most notorious cases was that of Brian Hindson, who had arranged a secret video camera to tape female swimmers to whom he had given permission to change clothes in his office. After the video tapes were discovered years later, Hindson was convicted of criminal abuse and sentenced for 33 years in federal prison.

One of his victims, Brooke Taflinger, also brought a lawsuit against USA Swimming and the Indiana school district, Westfield-Washington, whose pool was the venue for Hindson's club team's practices and competitions. Recently, however, the federal district court in Indiana dismissed the Title IX claims against the school district. Though Hindson's team used the school district's pool, it was not part of Westfield-Washington's educational activities. Moreover, the plaintiff did not sufficiently allege that school district officials had notice of Hindson's secret taping, nor did she allege any facts on which they reasonably should have known such abuse was going on. The school district could have have been expected to know that this abuse was going on, where Hindson "deliberately sought to and did in fact conceal his criminal activity from everyone, including the school," said the court. In fact, Hindson successfully concealed the videotapes of plaintiff from everyone for 8 years; they were only revealed after Hindson sold his computer that still contained recorded footage. Based on these facts, the school district could not have known that Hindson was taping his swimmers, and should not be liable for it.

Decision: Taflinger v. Hindson, 2011 WL 304699 (S.D.Ind. January 26, 2011).

WSJ Reports on Brain Similarities Between Adolescents of Different Sex

Yesterday's Wall Street Journal reported findings of government research that casts doubt on assumptions that male and female brains are significantly different during adolescence. As the article put it:

A common stereotype is that boys develop more slowly than girls, putting them at a disadvantage in school where pressure to perform is starting ever younger. Another notion is that puberty is a time when boys' and girls' brains grow more dissimilar, accounting for some of the perceived disparities between the sexes. Now, some scientists are debunking such thinking. Although boys' and girls' brains show differences around age 10, during puberty key parts of their brains become more similar, according to recent government research. And, rather than growing more slowly, boys' brains instead are simply developing differently.

The article also described research that puts those differences into context:

Dr. Eliot cites a neuro-imaging study from last year that showed the female brain has stronger neuronal connections than the male brain in certain areas, and vice versa. But in general, the study found that the male and female brains show more commonality than difference, Dr. Eliot says. The study, which looks at about 1,100 brain scans, was published in the Proceedings of the National Academy of Sciences.

Dr. Giedd of the NIMH says his research also showed there are exceptions. In about 10% of the young people studied, boys' and girls' brains were more similar to the brains of the opposite sex than to others' of the same sex. Dr. Giedd says many factors can affect the rate of brain development, including the strength or weakness of testosterone receptors. Testosterone, a hormone usually associated with male traits, is present in both sexes and can help determine how quickly parts of the brain develop that account for typical male-dominated functions.

Because advocates of single-sex education point to such differences to defend the practice of separating boys and girls in the classroom, these findings could be relevant to the legal question of whether such efforts are based on generalizations about sex differences, and therefore impermissible under Equal Protection standards. They could also be relevant to the policy question of whether it makes sense to segregate on the basis of sex, rather than other indicators of learning styles and intellectual development.

West of the Mississippi...

Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.

26 Washington School Districts Named in Title IX Complaint

The Department of Education's Office for Civil Rights recently accepted a complaint that cites 26 school districts in state of Washington for failing to provide equitable opportunities in girls' athletics. The school districts recently received notice of the complaint and have been asked to provide information to OCR, so it can decide whether to investigate further. According to the Bellingham Herald, officials from area school districts were surprised to have learned about the complaint and professed to having "no idea" about any gender disparities in the district -- which is, of course, usually how those disparities get to be there in the first place.

More Title IX Scholarship

Here is a roundup of articles and chapters about Title IX that have been published recently:

Attorney Kristen Galles -- known for her victories against Quinnipiac and the Michigan HS Athletic Association-- published Title IX and the Importance of Reinvigorated OCR in the journal Human Rights. In this brief essay, she explains the role that OCR plays not only in enforcement, but in educating schools and universities about their obligations under Title IX. She argues that OCR has the potential make an even greater difference combating sex discrimination in school, and is hopefully optimistic that the newly-recommitted agency can one day work her, a Title IX litigator, out of a job. Citation: Kristen Galles, Title IX and the Importance of Reinvigorated OCR, Human Rights, at 37 (Summer 2010).

Michelle Gaugh published an article about Title IX's application to discrimination against parenting and pregnant students in the Michigan Journal of Gender and Law. In it, she points out that such discrimination persists despite a clear regulatory prohibition against treating pregnant students any differently from others who may have a temporary medical condition that requires accommodation. She also explains that there have been relatively few efforts to address this discrimination in court, primarily because victims lack awareness of their rights and socially and legally marginalized. She argues that increasing awareness about Title IX's application to pregnant and parenting students, including educating teachers and other advocates, as well as increased enforcement and oversight from OCR, can help curb this variety of sex discrimination. Citation: Michelle Gaugh, Parenting and Pregnant Students: An Evaluation of the Implementation of the "Other" Title IX, 17 Michigan J. Gender L. 211 (2010).

Professor Deborah Brake has posted to SSRN a chapter called Sport and Masculinity: The Promise and Limits of Title IX, which will appear in the book Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper and Ann C. McGinley eds. 2011). Brake points out that, "[w]hile Title IX has greatly expanded the range of culturally valued femininities for women, and broadened the social category of "woman" in the process, it has not broadened the masculinities that sport constructs for male athletes, nor has it made significant inroads into the hyper-masculine ethos that pervades the most-valued men’s sports." Title IX reinforces the hegemonic masculinity replicated through in several ways, "including Title IX’s default rules approving of sex-segregated teams and its limited integration rights, and an equal treatment standard that accepts as a baseline the hierarchies within men’s sports that privilege the most masculine sports, football and basketball." Then she addresses how Title IX might nevertheless be used to "intervene in the production of masculinity," in light of a trend of "recent cases in which Title IX has held educational institutions accountable for the harms caused by extreme performances of hyper-masculinity, including sexual assaults by male athletes of women and of other male athletes."

Student Scholarship Addresses Contact Sports Exception

I recently came across two student-written articles that critically examine Title IX's contact sports exception -- the regulatory provision that requires schools allow cross-over tryouts, (e.g., a girl trying out for a boys' team, when there is no girls' team in that sport) but only when the sport is not a contact sport.

Jessica Constance Caggiano's note in the University of Pittsburgh Law Review criticizes the exception as both the product of a contributor to stereotyped notions about girls' and women's physicality and athleticism. She calls for a policy change that would eliminate this limitation.

Marielle Elisabet Dirkx's comment in the Mississippi Law Journal addresses the unconstitutionality of the contact sports exception in light of courts' decisions that prohibiting cross-over participation violates the Equal Protection Clause when it is based on over-generalization and stereotypes.

These articles are:

Jessica Constance Caggiano, Girls Don't Just Wanna Have Fun: Moving Past Title IX's Contact Sports Exception, 72 U. Pitt. L. Rev. 119 (2010).

Marielle Elisabet Dirkx, Calling an Audible: The Equal Protection Clause, Cross-over Cases, and the Need to Change Title IX Regulations, 80 Miss. L.J. 411 (2010).

Appeal in Indiana scheduling case

A summary judgment issued by a federal judge in Indianapolis is being appealed by the plaintiffs in the scheduling of girls' basketball games in Frankling County, Indiana. This is the case started by former coach Amber Parker (who has since moved out of the state). Last year the judge ruled that the schools (and IHSAA, since dropped from the lawsuit) were not in violation of Title IX. Erin noted some of the issues with the judge's rationale when the decision was released and it seems her hopes for an appeal have been realized.
The appeal will be heard by the 7th Circuit Court of Appeals in Chicago.

No sand v-ball in San Diego

Bucking national trends that show further increases in the number of women attending college, San Diego State University has seen its numbers of enrolled female undergraduates drop in the past few years. The decrease (to just under 57 percent of the total enrolled undergraduates) means SDSU's plans to add two women's sports have changed. The university planned to add women's lacrosse and sand volleyball in order to decrease the gap in scholarship dollars between male and female athletes (based on the percentage of undergraduate enrollment). Like all CSU institutions, SDSU must remain in compliance with the 1993 Cal-NOW settlement that requires equitable distribution of scholarship dollars (or grants-in-aid) within 5 percentage points.
But with the decrease in women attending the university*, plans for the addition of sand volleyball have been shelved. The athletic department believes it can close the gap by adding only women's lacrosse. A coach has already been hired.


* Might be a good time to remember the investigation into the allegations that some colleges are discriminating against female applicants in an attempt to keep their undergraduate population even(ish).

Fourth Circuit Affirms JMU Cuts

Equity in Athletics has been battling in court James Madison University's decision to cut 10 teams since the cuts were announced in 2006. On behalf of the affected athletes and other interested parties, the organizations sued the University and the Department of Education, challenging both the cuts and the Department of Education's policy interpretation that provides the three part test for measuring equity in athletic opportunities. After failing to attain a preliminary injunction against the cuts, EIA continued to pursue permanent relief. Last year, a federal court in Virginia rejected EIA's claims, and yesterday, a three-judge panel of the Fourth Circuit Court of Appeals affirmed.

Though the appellate court agreed that EIA had standing to bring its case, the rest of the decision rejected EIA's arguments in their entirety. In particular, the court rejected EIA's argument that the three-part test is an unauthorized use a disparate impact standard of discrimination. For one thing, the court cited specific language in Title IX that allows regulators to consider statistics when defining and measuring equity. ("Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." 20 U.S.C. § 1681(b).) For another, the court said EIA "misconstrues" the three-part test as a mandatory disparate impact standard. Consistent with every other court that has considered this question, the court recognized that the three-part test does not mandate proportionality. Rather, it allows evidence of proportionality create a presumption of compliance. Institutions with disproportional athletic opportunities can still show compliance under either of the alternative prongs.

The court then went on to affirm the district court's rejection of EIA's other claims, affirming the constitutionality and procedural validity of the three-part test as well as the constitutionality of JMU's decision to cut more men's teams than women's teams -- a decision that affected more male athletes, but produced a result that "ensure[d] that the student body as a whole was “substantially equally” represented in the availability of opportunities for athletic participation." Relatedly, the court "unhesitatingly [made] clear " its rejection of the idea that athletic opportunities should be distributed in proportion to percentages of male and female students who are interested in athletics, citing the First Circuit's oft-quoted language that "[i]nterest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience."

According to a press release, EIA plans to appeal, either to the entire Fourth Circuit en banc (which can, in rare cases, reverse a three-judge panel) or to the Supreme Court. So we are not yet done blogging about this case!

Decision is: Equity In Athletics, Inc. v. Department Of Educ., 2011 WL 790055 (4th Cir.(Va.) Mar 08, 2011).

Yegidis Seeks New Trial

The Naples Daily News is reporting that former FGCU Provost Bonnie Yegidis is moving for a new trial. Last month, a jury concluded that her removal from the provost position was not retaliation for her role in challenging sex discrimination in the university's athletics program. But Yegidis is arguing that the judge's decisions in advance of trial to limit certain witnesses' testimony were improper and influenced the jury's verdict. In particular, the judge limited the testimony of key witnesses Merrily Dean Baker, the former athletics director, and Wendy Morris, the former general counsel, who like Yegidis both encouraged university president to meaningfully investigate coaches' claims of discrimination against women's sports and female coaches. The judge limited the testimony out of concern that the coaches' and Morris's lawsuits, which produced six and seven-figure settlements, could improperly bias the jury against FGCU. But Yegidis's motion for a new trial raises the argument that these restrictions went too far and resulted in an incomplete picture of Yegidis's perception of discrimination and her role in challenging it -- both crucial elements to a retaliation claim.

Intersex Athletics, Roster Floors Addressed in Law Student Notes

The current issue of the Brooklyn Law Review contains two Title IX-themed articles written by students.

In Policing the Policing of Intersex Bodies, author Laura Zaccone lays out a regulatory approach to "preventing the gender inquisition that befell Caster Semenya from occurring in the educational context." She urges the Department of Education to

issue Title IX regulations--or, failing that, a policy interpretation--making a student's self-identified gender determinative of eligibility to compete in school athletics. If a student lives and identifies as a female, there should be no other eligibility criterion for participation on a female team. Under this policy, the perspective of the individual student is the deciding factor. But an individual's self-identified gender is not always readily discernable to others. Some basic guidelines, then, are needed to ensure that this policy is administered fairly.

Above all, students should not be subjected to gender-identity tests. Procedures seeking to establish gender identity are just as pernicious as those purporting to verify biological sex. The DOE should make clear that testing of this nature is likely to violate Title IX.
To determine a student's gender identity, there are a numbers of factors that school administrators can consider. Substantial weight should be accorded to the gender self-identified by the student at enrollment.

Administrators might also consider the gender marker on identification documents, such as passports, driver's licenses, or birth certificates. These records should not be regarded as conclusive, however, given the adverse implications for transgender students, who often face obstacles in modifying the gender designation on personal documents even after sex reassignment surgery.Whatever factors are used to show self-identified gender, the DOE should require that school officials apply them consistently across the board. A case-by-case approach risks that athletes appearing more “masculine” than others will be subjected to more vigorous scrutiny.

76 Brooklyn Law Review 385 (2010).

A second article, Leave It On the Field, student author Carolyn Davis criticizes the federal court's decision in Biediger v. Quinnipiac, which rejected the university's claim to satisfy the proportionality standard because the university had counted several athletic opportunities for women that were not meaningful in comparison to other varsity opportunities (specifically, those in competitive cheer, winter track for some athletes for whom it was an extension of the season for other running sports, and opportunities on teams with a roster inflated for Title IX purposes). Davis criticizes the court's analysis as "part of a worrisome trend" that courts are interfering with athletic department's spending decisions. In this spirit, she argues that the use of roster floors ought to be an acceptable practice, and that courts should not scrutinize the "subjective" question of whether those rosters offer meaningful participation opportunities. Interestingly, however, Davis's defense of the practice of expanding/inflating the size of women's teams by arguing that it is most acceptable when it is accompanied by commensurate increases in support for the team. Yet, by using an example the inflated roster of Quinnipiac's softball team, which did not receive commensurate additional support, Davis demonstrates that without judicial oversight, universities facing budget problems will solve them by very means she agrees are problematic.

76 Brooklyn Law Review 265 (2010).

Booster Club Can't Pay Football Athletes' User Fees

School and city officials in Haverhill, Massachusetts understand Title IX. That is why they denied the request of the Touchdown Club, the booster club for the Haverhill High School football team, to use its fundraising proceeds to defray the cost of participating in football. This would violate Title IX, because boys would have the opportunity to play a sport for free (football) while girls would have no such option -- Haverhill charges $275 for all varsity and $175 for all freshman teams. Title IX does not consider the source of funds in determining whether it is equitably spent. If a school accepts money -- whether it be from private funds or public money, it may not use that money to fund disparate treatment for male and female students.

Touchdown Club officials were reportedly disappointed -- though not surprised -- that their request was denied. Hopefully there is a way they can use their money -- a donation of $15,000 was planned -- in a way that benefits athletics as a whole, and could maybe bring down the user fees for all students. I wonder if the boosters considered a "scholarship fund" that would cover the costs' of athletes' user fees based on their financial need, regardless of their sex and regardless of their sport. While it would be illegal to designate this fund just for football players, I don't think it would be illegal to designate the fund for "needy students," even if that criteria happened to help more football players than other athletes. As long as the boosters use sex-neutral criteria as the basis for making the awards, and boys and girls have equal opportunity to apply and be considered based on need, it would not be required that an equal number of awards be made to girls and boys. This solution would seem to be in line with the football boosters' goal of gaining back athletes who have had to drop out since the fees were implemented (the team has gone from 70 to 40 players in the last ten years). So it actually may be that there are more football players eligible the scholarship than players in other sports.

Pay-to-play is controversial in a lot of schools, as user fees operate to limit athletic participation to students who are already financially privileged. Certainly, class-based discrimination in athletics is a troubling as sex-based discrimination; but the solution to the former must not implicate the latter. I think that booster clubs have tremendous potential to help reduce financial barriers to participation, and there are opportunities to do so in a sex-neutral way.