Alma College wrestling reborn

We've largely gotten away from correcting all the little mistakes, misinterpretations, and misrepresentations of Title IX that occur in the media.
But sometimes one of them just strikes that nerve and...
A story about the rebirth of intercollegiate wrestling at Alma College in Michigan says that the program was cut in 1984 "in large part because of Title IX." This bothers me for two--related--reasons. One, a majority of the wrestling community blames the enforcement of Title IX for its demise in the 80s. And two, Title IX was not being applied to athletic departments in 1984. The Grove City decision came down in 1984. No school is going to cut a program for Title IX reasons while a Supreme Court decision over whether it will have to or not is pending.
Wrestling advocates argue that wrestling is growing in popularity. And the numbers support this. But that does not mean it has retained a consistent level of popularity or support over the past 40 years. That some wrestling programs are being (re)introduced is indicative of the ways in which athletic programs change with the times. And this is a good thing.
The president and trustees of Alma College say that the time was right to reintroduce wrestling because of the benefits it will bring to the athletic department and the school as a whole.
They did a feasibility study. Which means they must have run the numbers I just did.
So Alma has a 105-member football team. (These are the latest numbers reported to the Department of Education.) This presents a certain amount of challenges especially when the student body is 58 percent female. They added 26 opportunities for men with wrestling. Fortunately they added 28 for women when bowling and lacrosse got put in place this year as well. So these new numbers added to the old numbers (in other words, this is approximate) look like this:
Fifty-nine percent of athletic opportunities at Alma go to male students. Prior to the addition of wrestling and women's lax and bowling this year men had 60 percent of the opportunities.
In other words, not much changed.
Alma remains in compliance under prong two. Still the implication that the wrong/discrimination men experienced when wrestling was cut in the 80s seems a little misplaced given that women then and now have fewer opportunities at Alma College.

Preliminary Court Rulings Shape Ball State Retaliation Litigation

After Kathy Bull was terminated from her position as head coach of Ball State's women's tennis team (which we blogged about here), she filed a federal lawsuit contesting this decision as unlawful retaliation under Title IX and other laws. Last week, the federal judge in Indiana granted Ball State's motions to dismiss several of Bull's claims, resulting in a winnowing of Coach Bull's claims that could be headed for trial.

The court did not dismiss Bull's primary claim, that Ball State is institutionally liable under Title IX for firing her in retaliation for her advocacy for gender equity. But the judge did dismiss her claims against individual university officials, which she had filed both under Title IX as well as Section 1983, the statute that allows plaintiffs to seek judicial enforcement of constitutional violations. Title IX, of course, only provides for institutional, not individual liability. And while 1983 does allow a plaintiff to enforce constitutional claims against individuals who are state officials, it does not allow plaintiffs to sue individuals for money damages, as Coach Bull's complaint had apparently been framed. Further applying these protections for state officials -- known as sovereign immunity --the court dismissed individual claims against the members of the Board of Trustees, as well as state law claims against Ball State officials and trustees.

Decision is: Bull v. Bd. of Trustees of Ball State Univ., 2011 WL 6740549 (S.D. Ind. Dec. 22, 2011)

UNI Undertakes Title IX Compliance Review

The University of Northern Iowa is undertaking a comprehensive Title IX compliance review, officials announced this week. UNI reportedly has hired an outside firm to examine "'all policies and procedures that funnel into Title IX' including student misconduct, harassment and discrimination, communication, outreach and training." This kind of review is the first of its kind at UNI, which has in the past conducted a narrow review of its sexual misconduct policy but never one as broad as has been described. It also sets UNI apart from its peers, as this this article suggests, by undertaking a review that is broader than sexual abuse reporting policies as other public Iowa universities have done in the wake of the Penn State scandal.

The review will undoubtedly examine the university's response to a 2004 incident in which a female student was assaulted in her dorm room by two UNI football players. In 2007, the student sued the university, arguing that the university's hostile and indifferent response constituted a violation of Title IX. She argued that university officials treated her with "great animosity," denied her academic accommodations and a request to change dormitories, and failed to respond to reports that she was receiving harassing calls from players. After she was forced to quit school, the university sent her tuition bill to a collection agency and the dean of students told her she was disappointed "she didn't tough it out." All of this, if proven true, sounds like a classic case for institutional liability under Title IX.

This lawsuit remains pending, and there is no apparent, direct connection between the this litigation and the university's decision to undertake a comprehensive review at this time--i.e., there's no court order or settlement agreement telling them to do so. And obviously, changing problem policies going forward will not absolve the university for violations it may have committed in the past. All of this underscores the university's claims that it is taking this step in a voluntary, proactive manner. In that regard, more universities should follow UNI's lead, and review their sexual harassment and related policies not as a reaction to sexual assault, misconduct, abuse, and cover-ups, but in an effort to keep those things from happening in the future.

Cheer Team DQ'd for Having Male Member

As reported in the Bleacher Report, a high school cheerleading squad in Michigan was retroactively disqualified from a competition for violating a league rule banning male athletes from female teams. The article goes on to criticize the Michigan High School Athletic Association, which governs competitive cheer and other sports in the state of Michigan, for employing a double standard, because girls are allowed to try out for boys teams at schools that do not offer a girls team in a particular sport.

As the article points out, MHSAA defends its rule by arguing that it's necessary to preserve athletic opportunities for those whose opportunities have historically been limited. Clearly MHSAA is invoking the Title IX regulations here, which provide that when a school "sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." In other words, to have the right to try out for a cross-sex team, you have to be a member of sex whose athletic opportunities have previously been limited, and the sport in question is not a contact sport. There's no question that cheer is not a contact sport, but the other limitation to the cross-over exception clearly applies -- girls in Michigan have previously, and continue, to be underrepresented in athletics.

MHSAA's policy is not only legal under Title IX, it also does not qualify as a double standard, as the article claims. A double standard is when you extend different privileges to similarly-situated groups. When groups are not similarly situated, different treatment may be warranted. According to last year's participation report by the National Federation of High School Associations, there were 133,000 opportunities for Michigan high school girls compared to 181,000 opportunities for Michigan high school boys. With girls receiving only 42% of high school athletic opportunities in Michigan, it's not a double standard to say that girls, but not boys, can try out for cross-sex teams.

But even though MHSAA's policy is legal under Title IX, and deflects the charge of "double standard," I still would prefer participation rules that promote, rather than limit, cross-sex participation in sports. I think that girls and boys playing more often together, rather than apart, can ultimately contribute to breaking down gender stereotypes that are perpetuated when segregation is maintained. Schools need to address the gender disparity in opportunities, that is true. But rather than doing so by excluding boys from "girls" teams, the better approach is to commit to adding as many opportunities as it takes to match girls' interest in athletics, whether that be more freshman and JV teams in sports that girls already play, adding new girls' teams in sports that girls don't yet but could be interested in playing, and being more inclusive of girls on boys teams in sports where it is not feasible to add a girls' team.

Slippery Rock Settles Retaliation Suit

Slippery Rock University has settled on undisclosed terms the retaliation case filed against it by two female athletics officials, which we had earlier blogged about here. The plaintiffs had alleged that their employment contracts were not renewed in retaliation for their cooperation in an earlier lawsuit against the university that challenged the athletic department's compliance with Title IX.

Advocates Seeking Title IX Compliance Review of Penn State

Legal scholars have speculated on the possibility that Penn State's response to allegations of sex abuse in its athletics department could violate Title IX (see earlier blog post here). Last week, ten civil rights advocacy organizations sent a joint letter to OCR, imploring the agency to conduct a compliance review of the matter -- particularly, whether the university employed a different standard because athletics was involved. OCR is already investigating whether Penn State violated the Clery Act, which requires universities to disclose criminal incidents that occur on campus.

Coincidentally, this request for an OCR compliance review comes on the heels of this report on the trend of increased compliance reviews by OCR in the last two years. Hopefully OCR will take some of that compliance-review momentum and use it to broaden the scope of it its investigation at Penn State.

Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

DI Stipends Headed for Override

Christine Brennan doesn't mince words in her column in USA Today. The NCAA's new plan allowing Division I schools to pay full-scholarship athletes a $2000 cost-of-living stipend was "bad from the beginning, a ramshackle idea that saddled already-strapped athletic departments with another financial burden while also asking them to do something that appeared to be against the law." Brennan explains how the stipend proposal was hastily passed after it emerged from a working group lead by none other than disgraced Penn State President Graham Spanier. There is no indication that the NCAA took into consideration the financial implications on athletic departments that are desperate to cut costs in this economy, not add them -- as Brennan points out, only 22 universities out of the 331 in Division I actually have a profitable athletic program. Nor does it appear that the NCAA gave any consideration to the gender equity implications of this proposal; Brennan echoes our concern that limiting the eligibility to for the stipend to full-scholarship athletes creates an inherently inequitable situation because there are twice as many full-scholarship male athletes than female. (Citing AD Tom Osborne's objections along these lines, which we blogged about Tuesday, Brennan says, "When a crusty warrior such as Osborne has to teach the NCAA about the law [Title IX], it's downright embarrassing.")

The good news, Brennan reports, is that this plan appears to be headed for a rare override vote by the Division I membership, as 97 institutions have petitioned the NCAA to reconsider the stipend-authorizing legislation. Come January, the plan could be overhauled or even scrapped.

Mississippi High School Coach Sues District

Catherine Papagolos, former softball coach, filed suit against the Lafayette County School District in Mississippi, claiming that she was fired in retaliation for complaining about gender equity in her salary. Specifically, it is reported that she alleged she was fired after questioning why her salary was not comparable to that of the high school baseball coach.

While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.

Like We've Been Saying...

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Cal State students file harassment complaint

About a month ago I read about issues of harassment on the Cal State San Marco campus. At that time it seemed that groups of students were being targeted by a kind-of, sort-of campus publication whose purpose is hate-mongering. The publication called The Koala is actually a former Cal State San Diego publication that its founder (a CSUSD grad) has turned into a for-profit venture on several CSU campuses. It regularly, according to various reports, targets racial, ethnic, and sexual minorities as well.
A group of women and allies who did not enjoy the hostile content directed at women as a class (and some personal attacks against more outspoken women) and citing the publication's creation of a hostile and intimidating climate on campus, went to the administration seeking some redress. But they received none from the university. And so they filed a Title IX complain with OCR.
There continues to be pressure on the administration to take action against the publication including a petition at Change.org.

Title IX expert and adjunct professor of law, Wendy Murphy, is helping in the complaint process.

Division I Cost-of-Living Stipends Draw Objection from Faculty

When we blogged last month about the NCAA's vote to allow Division I institutions to provide athletes who receive full athletic scholarships with $2000 spending money stipends, we speculated that this proposal could exacerbate existing disparities in scholarship funds awarded to men and women, causing and contributing to member institutions' compliance problems under Title IX.

Reading a letter sent today to the NCAA from the Faculty Athletics Representatives, I came to understand why the problem is even worse from a Title IX perspective than I initially understood. The new rule only authorizes the cost-of-living stipends to athletes in so-called "head count" sports who receive full scholarships or the equivalent of a full scholarship when combined with other financial aid. Athletes in "equivalency sports" who receive receive partial athletics scholarships are not eligible for the stipend. While Division I allows up to 98 full scholarships in the men's head-count sports (football and men's baseball), there are only 47 possible female head count student-athletes (basketball, volleyball, gymnastics, and tennis). So there is no way an institution could fully fund its cost-of-living stipends and still comply with Title IX. FAR has requested that the NCAA amend the proposal to allow cost-of-living stipends in equivalency sports as well, which could theoretically allow institutions to spread smaller awards over more athletes in a way that could balance out the total dollars awarded overall.

We'll have to wait and see how NCAA responds to this proposal, and generally to the Title IX objections that have been raised.