Indiana scheduling case in court

This week the 7th Circuit Court of Appeals will hear the Indiana high school scheduling case. The original lawsuit, filed in 2009 by a former girls' basketball coach charged that boys' basketball in the district got favorable treatment in the scheduling of games. (Other posts about this case can be found by clicking on the Indiana tag.]
No word on when a decision will be made.
We will make sure to note any further news out of Chicago this week.

Plan to Increase Scholarships Raises Questions About Title IX

As the NCAA considers a proposal by the Big Ten Conference to allow its member schools to increase athletes' scholarships to include living expenses, I am glad to read (here, in Sports Illustrated) that Title IX considerations are part of the discussion.

Currently, NCAA rules limit scholarships to tuition, fees, room & board, and books. This proposal would allow (but not require) schools to also provide assistance for transportation, food, laundry, entertainment and incidentals. The proposal is aimed to better compensate a student-athlete, who must go into his own pocket for the opportunity to participate in athletics. When you factor in that the university may generate revenue from this student's performance and that the student may be of limited means and lack the opportunity to hold a job due to time constraints of athletics, living expenses seem like a reasonable way to mitigate charges of exploitation. Moreover, given the reality that big-time college athletic programs are not know for high graduation rates, it can hardly be said that these athletes are adequately compensation by receiving a "free" degree. On the other hand, raising student-athlete scholarship amounts to cover living expenses would just contribute to the arms race mentality in college sports. If one school does it, its competitors would have to follow suit or suffer a disadvantage in recruiting. As a result, more collective money would get funneled into the revenue-generating (but not necessarily "profitable") sports of men's football and basketball, to the exclusion of other men's and women's sports.

Title IX would at least come in to play to provide equity to women's sports. Title IX regulations require schools to provide scholarship dollars in proportion to athletic participation. So increasing scholarships for certain men's sports would require a commensurate increase in women's scholarship dollars as well. Universities could comply by either increasing the number of scholarships or their amounts. Schools that already award the maximum number of scholarships in women's sports allowed by the NCAA would probably have to tack on living expenses awards to some female athletes' scholarships, if they wanted to be compliant. That's a big if, though. Women already receive less in athletic scholarships than men -- a $166 million disparity, according to the most recent figures from the Women's Sports Foundation. See also, here. It seems to me equally likely, if not more so, that this proposal would just widen the gap between male and female athletes rather than produce a collateral benefit to women.

Complaint targets Boiling Springs HS

I'm not blogging about the recently filed OCR complaint targetting Boiling Springs High School in South Carolina because I think the story is especially unusual or raises any new issues.
It's just an example of both good coverage of the issue (for the most part) and a good complaint.
Mike Tutterow, who has two girls at Boiling Springs (why didn't my high school have such a cool name??), filed the complaint after attempting to work out some of the issues (for several years) he saw within the athletic department. Note that anyone can file an OCR complaint. One does not have to be affiliated, in any way, with the school.
But Tutterow witnessed many discrepancies including: the quality and rate of replacement of boys' and girls' soccer uniforms; girls' coaches who had to launder their own team's uniforms; access to strength training; and differences in facilities (specifically the softball and baseball complexes).
It's not just treatment of athletes, however, it's about participation as well.
Girls are 47 percent of the schools 1600-person student body. They have only 30 percent of the athletic opportunities.
OCR visited Boiling Springs last week for two days.
The school superintendent, though, believes the school is in compliance and thinks OCR will find the complaint "unfounded." Based on what I have read, this seems unlikely. But the superintendent did say the district would make whatever changes recommended by OCR should the complaint indeed be founded.

Michigan adding lacrosse

Lest we think that all schools are in financial crises and being forced to cut sports...
University of Michigan has announced that it will be adding men's and women's lacrosse to its list of intercollegiate sports. Both teams are currently club sports at the school. Interestingly the men will be upgraded next year and the women will achieve varsity status in 2012. Not sure what the reasons are behind this timetable. Perhaps it has something to do with facilities. Still, I have not seen any explanation of why the men before the women. (And I would expect, if the plan were reversed, to be informed as to why.)
Michigan is planning on adding, but does not currently have, a dedicated lacrosse facility.
The school is banking on data that reveal lacrosse is one of the fastest growing sports in the country.
Michigan is currently complying with the accommodations of interest and abilities by adhering to prong one. Women comprise just under half of the undergraduate student body (49 percent) and receive roughly 47 percent of the athletic opportunities. I assume the size of the respective teams will be about equal and thus the numbers will not change much.

Competitive Cheer Efforts Profiled in NYT

Today's New York Times includes an article on the competing proposals to the NCAA to recognize some version of competitive cheer as an emerging sport for women. One was submitted by a consortium of six universities already sponsoring varsity-level cheer, which they call "Acrobatics and Tumbling," while the other, called "Stunt" has been put forth by USA Cheer, an organization that has affiliation and common leadership with Varsity Brands Inc., the company that runs well-known competitions primarily for sideline cheer squads. According to the article,

The two proposals being considered by the N.C.A.A. share many similarities: the competitions themselves are longer and more standardized than in the past, athletes now wear uniforms more akin to those of volleyball players, and they no longer rally the crowd for another team.

However, they differ in other ways, like how to score the events and how many competitions to stage in any given season. The proposal being advanced by the handful of universities calls the new sport acrobatics and tumbling and uses a scoring system similar to that of gymnastics, with points based on degree of difficulty. The format backed by USA Cheer is called stunt and has a head-to-head format, with the competition divided into quarters.

One important distinction is the size of the teams. The proposal for acrobatics and tumbling, which was submitted to the N.C.A.A. late last year, imagines that an average squad size will number from 32 to 36 athletes, with a maximum of 12 scholarships. The proposal for stunt, which was sent in on Wednesday, envisions a squad of 20 to 30, with a maximum of 24 scholarships.

The article also addressed the potential Title IX implications of the NCAA's potential decision to award one or the other versions of competitive cheer emerging sport status. Athletic department administrators will now have another possibility to choose from in adding sports for women and to promote their institution's Title IX compliance by either satiating unmet interests and abilities or closing the disparity between athletic opportunities for men and women.

On the issue of competitive cheer's relationship to Title IX, reporter Katie Thomas admirably conveyed the position of mainstream women's sports advocates, which is that as long as competitive cheer is truly operating as a sport, with the same level of support, the same opportunities for varsity-level competition as any other sport, it ought to be considered a sport. This position is too nuanced for many reporters who seem to delight in setting up women's sports advocates the nemeses of competitive cheer, so I was pleased that this article conveyed a difference between being against competitive cheer, and being against/concerned about athletic departments using competitive cheer to avoid having to address existing disparities in traditional sports.

Montana Adds Softball

A while ago, we mentioned University of Montana's plans to add women's softball. By way of update, here it's reported that the Regents have approved a plan to raise the student athletic fee (by $12.50 per year) thereby confirming the funding source for Montana's softball initiative. Student government also approved the fee increase, though leaders expressed reservation that the money be earmarked for Title IX compliance.

Adding softball was the right thing to do. Women make up 51.7% of the undergraduate population at Montana, but receive only 42.7% of the athletic opportunities, in a total of 6 sports. By my calculation, Montana would have to add 76 athletic opportunities for women to achieve proportionality. Softball is a start. It certainly improving their chances of demonstrating compliance with prong 3 in the meanwhile, as the decision satisfies to demonstrated unmet interested and ability.

Alleged abuses by Florida high school soccer coaches

When I started reading this story about alleged abuses perpetuated by three coaches of a girls' soccer team in Florida, I thought it was an Onion-like piece. Then I realized that in Florida it is not so unusual, perhaps, to have a high school named Citrus High School. But the allegations agains these coaches certainly seem so over the top that I wondered still.
But the complaint is legitimate. (As in the complaint has been filed, not that the allegations have been proven true at this point.) But the details are a little confusing. Here is what I have garnered thus far:
1. Some parents and players were concerned over the behavior of three male coaches who worked with the girls' JV soccer team at Citrus High School. This behavior included one coach who liked to watch the girls shower and who pulled down the pants of a varsity player, and another coach who made comments about his genitalia as well as that of his players.
2. Said parents and students made a complaint to the coaching staff and the District School Board of Citrus County. The district suspended without pay the coach who made the inappropriate comments during its investigation. They also reprimanded him.
3. After the invesitgation was complete, the girls who had complained feel they were retaliated against. They say they were made to feel unwelcome. Their families were threatened with lawsuits by the coaches' lawyers. And they allege the coaches asked the district to expel two of them because they allegedly live outside the Citrus County School District.
4. This has led to the current lawsuit against the district school board. The family is asking for an injunction (against the expulsion I would assume) and costs and damages for Title IX violations.

I suspect some of the details got muddled in the reporting of this story and in my re-reporting of it. As we find out more, we will certainly add/correct.

Retaliation Case Against Texas Southern University Dismissed

Last week a federal court in Texas dismissed a former coach's claims that he was fired by Texas Southern University in retaliation for his Title IX advocacy. Cummings alleged that one week prior to his termination, he met with Athletic Director and raised concerns about the comparatively lower number of assistant coaches allowed for the women's basketball, as well as a lower budget for recruiting and operating costs, and the absence of an appointed Title IX Coordinator and Senior Women's Administrator. Though these facts created an inference of retaliation, TSU overcame this inference with evidence that they fired Cummings because of his team's poor win-loss record and low academic success indicators. None of Cummings's evidence rebutted TSU's claims that its reasons for firing him were legitimate. The only evidence that his advocacy and termination were related was the fact that they happened close in time, but this circumstantial evidence, without more, was not enough to survive summary judgment.

Though this case was dismissed, another former TSU women's basketball coach's retaliation cases remains pending. You may recall Surina Dixon, who was hired to be Cummings's successor. She held the job for just a couple of months before she was terminated, allegedly for questioning TSU's decision to pay her half as much and on a shorter contract term than the newly-hired men's basketball coach. Dixon's case remains pending and dispositive motions have been filed. I expect we'll be hearing more about that TSU case in the near future.

Cummings v. Texas Southern University, 2011 WL 1750697(S.D.Tex. May 06, 2011).

Is Title IX Hurting Men? (No)

On Jezebel, Anna North provides perspective from Donna Lopiano on recent headlines blaming Title IX for universities' decisions to eliminate men's teams (see, e.g.). Lopiano blames the arms race in spending on men's basketball and football, which at Division I institutions receive 78% of the funding for men's sports. It's this kind of favoritism that results in schools having to cut teams in the first place, and the existing disparities in opportunities that still favor men, that put men's sports like wrestling and tennis on the chopping block. North reported that Lopiano succinctly replied "oh god no" when she asked her if Title IX should be modified. She didn't need to say more. Though the disrespect that schools show to when they choose to favor the 120-worst football player over their best male wrestlers and tennis players is deplorable, it's not a Title IX violation. It's a collective-action problem that, as Donna Lopiano points out, can be solved when Congress, the NCAA, and its member institutions agree to get it done.

Honestly, though, as much as I like reading Donna Lopiano's perspective on this issue, my favorite part of this post was in the comments at the end, when readers put the Title IX-cutting-men's-teams issue into perspective not with statistics and policy arguments, but with pop culture.

One posted: What is this, a King of the Hill episode?

Another posted back:

Hank Hill: It's all well and good to talk about equal rights until some MAN loses his job! How's that equal?
Bobby Hill: Yeah! And it's worse when they take away our favors, 'cause we're USED to getting 'em!

One week later

Many, many responses to last week's NYT piece by Katie Thomas on the fudging of Title IX numbers by colleges and universities.

Here are some:


In the NYT itself, the letters to the editor the article inspired. Range of thoughts from a variety of people. Nothing too outstanding. The usual pro Title IX and the opportunities it provides as well as some of the "casualties" of the law rhetoric and the not-so-helpful or equitable solution: stop counting football. There was a good one by the captain of the fencing team at Lafayette College who reports that the formation of a co-ed fencing team has created an overall positive sporting and educational experience regardless of the success of the team from year to year.

Cornell's own student newspaper covered the fencing team's response to the NYT piece which called into question the male club players who practice with the women's varsity team and thus are counted as team members. Anyone who practices with and receives coaching via a women's team must be counted on that roster--and this includes men. Cornell was not being deceitful, as some believe the NYT implied, they were following the rules. And, we should note, they do include the fact that there are male practice players when they report their data to the Department of Education. The EADA has a special caveat section. Most schools do not avail themselves of this section to explain things like male practice players. Cornell does. Whatever one's stance on male practice players, they are not hiding the use of them.

Also in the NYT is George Vecsey's take on the effects--on Title IX and beyond--of "King Football." A good examination of intercollegiate football culture, especially in light of recent justice department questions over the lack of a playoff system in the BCS.

Thomas herself in not quite a follow up wrote about the Delaware situation and the practice of schools cutting men's team in an attempt to bring about gender equity. The Women's Sports Foundation responded to that piece in its own press release. WSF noted that overall opportunities are up--for everyone and that the dropping and adding of sports is nothing new and ongoing in the ever-changing sport landscape. They also provided a compelling metaphor (comparing cash-strapped athletic departments to families) about blame and sharing resources.

There have been many other articles, most of which we probably have not seen. And we imagine there will be more to come. It's been a busy week here in Title IX land, we might be taking the weekend off. Discussions of gender equity in education will resume Monday.

Competitive Cheer Article Published

Ego alert. My own article, "The Feminist Case for NCAA's Recognition of Competitive Cheer as an Emerging Sport for Women" has been published in the Boston College Law Review along with the other papers from its symposium last October focusing on the NCAA at its 100-year anniversary.

Here is the abstract:

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve Title IX compliance, in a way that would benefit women’s sports generally, by expanding the definition of sport to include those that are women-driven and by reclaiming as sport an activity— cheer—that was initially deployed to separate women from athleticism. In light of these reasons, as well as the burgeoning interest in competitive cheer at the college and high school levels, the Article concludes that the NCAA should promote the growth of competitive cheer by endorsing it as an emerging sport for women.

Court Dismisses Sexual Harassment, Retaliation Case Against Hofstra

Last month, a federal court in New York awarded summary judgment to Hofstra University, dismissing claims of sexual harassment and retaliation that had been filed by Lauren Summa, former student manager of the football team. Summa, you’ll recall from prior posts, alleged that she was sexually harassed by members of the football team on bus rides to away games and in other contexts. She also claimed that she was not rehired for the manager position or for a grad assistant position elsewhere in the university as retaliation for complaining about the incidents to the coach and others.

The court analyzed Summa’s sexual harassment claims under Title VII as well as Title IX, after concluding that as a student manager she was an employee within the meaning of the employment discrimination law. The court determined that several of the events Summa included in her description of a “hostile environment” consisted of “gender neutral” harassment -- that is, not motivated by her sex -- and thus did not qualify as sexual harassment. For instance, the court described an incident when football players holding shut the door while she was in the bus bathroom as “boorish” and “immature,” but not motivated by sex. Also, the screening of a movie with sexual themes on the team bus did not count as sexual harassment because there was no evidence that it was shown to target Summa. The fact that players responded to Summa’s complaint about the movie (which prompted the coach to turn it off) by shouting “we want boobies” and that one of them yelled at Summa to “sit down and shut … up,” while gender-motivated, did not “by itself” evidence of a severe and pervasive hostile environment.

As my employment discrimination students know well, there’s a lot of subjectivity in the “severe or pervasive” standard in sexual harassment law. Had I been the judge, I would have likely viewed Summa being physically entrapped in the bathroom of a bus full of hostile football players as not only severe, but also gender-related given that none of the men on the bus were apparently subjected to that kind of intimidation. Moreover, while the court concludes that Hofstra responded appropriately to the incidents of harassment that Summa reported (for example, the football player who yelled at Summa after the movie incident was suspended from the team by operation of the coach’s third strike policy) there is no indication that the coaching staff addressed the bus bathroom incident or the “we want boobies” chant which also would have rated with me as evidence of hostile, sexual harassment.

For a variety of reasons, the court also rejected Summa’s claims that she was retaliated against by the University for complaining about the harassment she experienced in her position as student manager. According to the court, Summa did not demonstrate that the person in charge of hiring student managers had knowledge of her complaints, a required element for any retaliation claim. The court also accepted Hofstra’s articulation of a legitimate, nondiscriminatory reason for its decision to deny her a graduate assistant position, one relating to certain misstatements on her resume, which Summa did not demonstrate to be pretext of a retaliatory motive.

Decision is: Summa v. Hofstra Univ., 2011 WL 1343058 (E.D.N.Y. Apr.7, 2011).

The three-prong breakdown

At the NCAA Gender Equity Forum, which Erin attended earlier this week, there was a discussion about compliance in the area of equitable opportunities. This area is--arguably--the most well-known and, perhaps ironically, the most misunderstood.
Schools can measure their compliance using one of three tests--hence the three-prong test. Often the three-prong test is presumed to be the only measure of Title IX compliance. It is not, as is exemplified in our many posts about facilities, access to coaches, provision of quality competitive opportunities and equipment, etc.
A session at the conference addressed the three-prong test and the ability and difficulties in complying. The happenings at the panel were reported by Inside Higher Ed. It seemed like a good discussion about whether the prongs are viable any more--and if so, which ones and how schools can demonstrate compliance. There was certainly frustration among various audience members who were athletics administrators about the challenges each pring presents. The session was lead by Jacqueline Michaels of OCR who seemed to do a very good job with questions from the audience and in explaining the intricacies of each prong--especially the confusion over prong three given the changes and clarifications this specific test has seen over the last 6 years.
I highly recommend reading this short piece to get a better understanding of the three prongs and how they are enforced.

OCR Trades School District Complaints for Statewide Review

The Department of Education's Office for Civil Rights has received more than a hundred complaints against school districts in Washington state since fall, all alleging violations of Title IX in the schools' athletics departments. Recently, however, the federal agency has closed its pending complaints against Washington schools, choosing instead to investigate the state office in charge of gender equity in education. Notably, Washington state law requires schools to annually audit their athletic programs for compliance with state and federal gender equity laws. The large number of OCR complaints filed against those schools certainly suggests some weaknesses in the scope and enforcement of that state requirement.

As far as I can tell, OCR's decision to close school district complaints in favor of state agency review is a highly unusual move. I'm not quite sure what to make of it. On the one hand, it looks like OCR has recognized some systemic problems in the state, and the possibility that those problems might be attributable to the state agency's failure to hold those schools accountable. Moreover, by turning its attention to the state education agency, OCR sends a message to every state that they have a role to play in ensuring that gender equity problems do not keep mounting up around the state.

On the other hand, school districts and state education agencies have concurrent responsibilities to comply with Title IX, so OCR's decision to let the schools off the hook for now smacks of abdication of enforcement duty. For this maneuver to sit well with me, I'd like to see OCR take the enforcement resources that it presumably saves by consolidating hundreds of individual school district investigations into a single investigation of the state education agency, and use those resources to open up compliance reviews of other state education agencies around the country. Such a move would produce better support of Title IX at the state level and make it so that OCR is not the only cop on the block, so to speak. If this is about getting more bang for the proverbial buck, how about going for a really big bang?

If you happen to be interested in OCR's own description of its decision to replace school district investigations with a compliance review of the state education agency, here is an excerpt from its letter closing some of those complaints:

OCR is currently conducting a compliance review of the Washington State Office of the Superintendent of Public Instruction (WA OSPI) under Title IX (OCR Case No. 10115004). The review will examine the methods and procedures that WA OSPI uses to evaluate the reports on interscholastic athletics programs that each school district in the state is required to submit to OSPI annually. In particular, it will investigate how WA OSPI ensures the accuracy of the reports on interscholastic athletic programs submitted by the districts.

It will further examine how WA OSPI addresses reports indicating that districts are not in compliance with Title IX in order to determine whether WA OSPI is aiding or perpetuating discrimination by providing significant assistance to districts that do not comply with Title IX.

OCR has received more than 125 complaints since November of 2010 alleging that school districts throughout the state of Washington are violating Title IX by failing to provide female students equal opportunities to participate in interscholastic athletics compared with opportunities that are provided to male students. Considering the number and scope of similar allegations, OCR has determined that a compliance review of the state education agency is appropriate.

Under OCR's procedures, OCR may close a complaint that raises allegations that are being addressed in a compliance review. Since OCR is conducting a statewide compliance review that will address the allegation raised in your complaints against the above districts, OCR is closing the complaints against these districts as of the date of this letter.

NCAA Gender Equity Issues Forum

Greetings from Bethesda, where I'm attending the NCAA's Gender Equity Issues Conference. This is a great annual event that brings together gender equity experts and athletic department staff from colleges around the country to talk about Title IX and gender equity issues. Yesterday I had the pleasure of participating on a panel about how to count participation opportunities for the purposes of demonstrating proportionality. My co-presenter Tim O'Brien and I used the court's decision in the Quinnipiac case as the starting point for a discussion about the importance about looking past the numbers and assessing whether those numbers reflect actual, meaningful athletic opportunities. We also talked about some of the egregious examples of reporting violations and roster manipulation that the New York Times wrote about last week. We definitely addressed those issues as well. David Moltz covered the presentation for Inside Higher Education, so even if you couldn't attend, you can read all about it!

Other panels have addressed such hot topics as pay equity, prongs two and three compliance, diversity and inclusion, retaliation, and emerging sports. We also had a brilliant keynote address by Mariah Burton Nelson on the importance of implementing and enforcing policies against sexual abuse by coaches. And I had the pleasure of learning about the Athlete Ally initiative to eliminate the use of sexist and homophobic language in sport, and meeting its founder, a former student-athlete and All-American wrestler, Hudson Taylor. All in all it's been a great conference!

Brown to cut sports--or maybe not

It's been a big news week generally and in Title IX land. We apologize for not keeping up.
Last week I kept meaning to write about how a Brown University committee was recommending the elimination of four sports from the varsity roster: wrestling, men's and women's fencing, and women's skiing. There was a list of eight criteria the committee followed when making the decision. Gender equity was listed as the eighth.
But then President Ruth Simmons announced (perhaps in light of seemingly immediate action to save the sports driven in large part by the wrestling program's alums from what I have read) that no decision will be made until fall semester.
But let's run the numbers anyway given that Brown was at the center, many years ago, of a very contentious and precedent-setting Title IX case. (It's always good to see if institutions remember their own history after all.)
Currently it appears (based on the latest data from the Department of Education) that women comprise 52 percent of the undergraduate student body and receive 46 percent of the athletic opportunities.
If the recommendations are enacted this is what changes (I am keeping the 52 percent the same while noting that undergraduate enrollment could change of course):
Not too much. Women would have 47 percent of the opportunities. But again, enrollment numbers and even roster numbers could change that figure slightly.
In other words, it's close, even though male athletes will receive the brunt of the cuts, the female student-athletes could have a case that they should not be cut because Brown has not achieved proportionality. Because while the 5% +/- figure has been thrown around when talking about how close to proportionality a school must be, there really is no magic number.