Monday, January 31, 2011

Sexual harassment complaint at Syracuse

We apparently missed this story when it was first reported last summer, but a former member of the women's basketball team has filed a complaint against Syracuse University alleging sexual harassment by her coach, Quentin Hillsman. And OCR is investigating the charges. The player is accusing Hillsman of inappropriate behavior that includes touching and texting. Hilsman has denied, in a statement out of SU, the accusations and is currently receiving the support of university administrators.
The complaint was filed by the father of the student, Lynnae Lampkins, who remains at the university but left* the team because of her discomfort with her coach's actions which included butt slapping and chest bumping--of all players--not just Lampkins. Though she believes she was the only one to receive a text from her coach saying "I love you. I miss you. I can't wait to see you."
SU did its own internal investigation when it received the complaint in July 2010 and found no evidence to support the charges.
No word on when OCR will release its findings.

* Though there seems to be some confusion over whether she left or was left out. She is technically being red-shirted this year. Also of concern to some involved is Mr. Lampkins's history of formal complaints against various persons and entitites.

Sunday, January 30, 2011

Bemidji State Cuts Men's Track

A brief note that officials at Bemidji State, a state university in Minnesota that is trying to execute a 10% budget cut institution-wide, announced that it is terminating its indoor and outdoor men's track teams. Officials acknowledged that the university is "well out of alignment, as far as Title IX" -- an explanation for why budget cuts focused on men's sports rather than women's sports or both. Track was also, apparently, expendable from a point of view of maintaining the requirements the Northern Sun Intercollegiate Conference and the NCAA Division II, to which Bemidji State belongs.

In case you're wondering what "well out of alignment" looks like, Bemidji's EADA data reveals 221 opportunities in men's athletics, 129 opportunities in women's, a 63% to 37% split at a school whose student body is 50% male and 50% female. Cutting the men's track teams brings the percentage of opportunities in men's athletics to 54%, which may not be considered close enough for proportionality, especially because it amounts to an absolute disparity of 24 women's opportunities, which is more that the size of many women's teams.

Saturday, January 29, 2011

New Jersey Presses Anti-Gay Discrimination Charges Against School District

The federal Department of Education is not the only agency trying to hold schools accoutable for their role in bullying of students who are or perceived to be gay.

The New Jersey Office of Civil Rights has reportedly filed a complaint with the state's Department of Law and Public Safety against Ridgewood Public School District, alleging that it violated the state nondiscrimination law when it discriminated against then-high school student Matthew Zimmer. The district allegedly committed discrimination against Matthew when his health teacher outed him to his class, and when school officials painted over a "gay must die" graffiti without addressing the incident with the student body. The agency believes that the district's conduct created an environment that denied Matthew of his education by forcing him to withdraw from school.

Unlike Title IX, New Jersey law enumerates protection against discrimination based on sexual orientation. This gives the state agency wider latitude than its federal counterpart to consider acts of discrimination that are motivated solely by the student's orientation, rather than only those overlapping with the student's gender nonconformity. The article does not say whether Matthew was targeted for appearing or behaving in a nonmasculine manner, but if he was not, this may have been a harder case to pursue under Title IX. It's therefore a good illustration for why it is important for state laws to include sexual orientation in their antidiscrimination laws. As this map illustrates, most states do not have such comprehensive laws.

Friday, January 28, 2011

No Summary Judgment for FGCU in Ex-Provost's Retaliation Case

Bonnie Yegidis, we've recently mentioned, is the last plaintiff with outstanding Title IX claims against Florida Gulf Coast University stemming from alleged 2007 mass retaliation against female coaches who complained to administration about gender inequity in the athletics department. To recap, Yegidis was the provost at the time, and tried to get the President to take the charges seriously. She also defended general counsel Wendy Morris, who was fired for similar efforts. In alleged response, President Wilson Bradshaw forced her to resign her administrative position.

FGCU recently moved for summary judgment on Yegidis's Title IX retaliation claim, but a federal judge in Florida ruled against the motion and allowed Yegidis's claim to proceed to trial. Specifically, the court agreed that Yegidis had produced evidence in support of the essential elements of a retaliation claim: that she engaged in protected activity by complaining about perceived discriminatory and retaliatory conduct in athletics, which bore a causal connection to her termination in that it occurred after Yegidis spoke to the then-incoming President about her concerns. This part of the opinion was significant for legal reasons, as it recognized that the First Amendment test for protected conduct, which requires employee to be speaking in the personal rather than professional capacity, is not applicable to Title IX claims (see related posts here and here). Also, Yegidis produced evidence to counter FGCU's stated legitimate, nondiscriminatory reason for her termination -- that she and others in the administration's senior management did not work well together. Specifically, the judge credited Yegidis's evidence that other members of dysfunctional management team who did not complain about the Title IX investigation were retained, that the President terminated her without ever addressing her Title IX concerns, and that her termination was not warranted by her credentials and job performance, as sufficient for a jury to find that the FGCU's stated reason was pretext for retaliation.

While the judge's decision did pave the way for trial on the retaliation claim, it was the end of the road for her claim that FGCU's sexually hostile environment also violated Title IX. Following the practice of other district courts in the 11th Circuit, the court held that the general federal employment discrimination statute, Title VII, provides the exclusive remedy for such claims, and Yegidis needed to have filed with the EEOC before bringing such a claim to federal court.

Decision: Yegidis v. FGCU, No. 2:09-CV-00353-CEH-DNF (M.D. Fla. Jan. 21, 2011) (memorandum of order denying summary judgment).

Thursday, January 27, 2011

ESPN Magazine Profiles Homophobia and Recruiting

Props to ESPN The Magazine, for publishing an excellent profile on role of homophobia in recruiting for women's college basketball. Here's the first paragraph, which describes an example of the problem:

On every top recruit's college visit, there comes the moment of the final pitch, when the head-spinning hoopla finally gives way to the business of basketball, when the high school girl steps away from the rah-rah of all the games and the ego-stroking of all the VIP intros to sit down with the head coach. During one teen's big moment, a heart-to-heart with Iowa State's Bill Fennelly, the decorated coach of 23 years sang an insistent refrain. "He kept drilling that 'this would be a family,'" says the player, who asked not to be named. "'You should come here,' he said, 'because we're family-oriented.'"

The article goes on to unpack the references to family and reveal them for the veiled homophobia they contain. Though it presents quotes from defenders of the term -- like Fennelly himself, who defends his right to sell what he thinks his program has to offer, and UConn's Geno Auriemma -- the input from coaches, players, and scholars presents a far more persuasive case that recruits and their families interpret the family rhetoric to be "cloaking" something else. Specifically, it is a suggestion that here, unlike other programs, you don't have to worry about lesbians coaches and teammates. Backing this up, the Magazine presents the results of its own survey of current and recent players, 55% of whom said that sexual orientation was an "underlying topic of conversation" in recruiting talks.

The article also makes a persuasive case for why this is bad for the game. Unlike other forms of negative recruiting, like suggestions that an opponent coach is violating rules, or planning to leave the program -- the lesbian variety is unique to the women's game, and is operating as what Professor Heather Barber calls "subtle weapon against programs led by unmarried female coaches." It is a major factor in the disproportionately low number of head coaching jobs held by women. Homophobia not only deters some women from going into coaching in the first place, the threat of a lesbian stigma also keeps women isolated and prevents them from forging mentor relationships and networks that are necessary for advancement in the coaching profession. It is even rumored to be the reason why the biggest powerhouse teams in the game, Tennessee (coached by an unmarried woman, Pat Summit) and Connecticut (coached by a married man, the aforementioned Auriemma) don't play a head-t0-head game anymore (though the article did not present any evidence to substantiate the rumor, only that the rumor exists). More importantly, it is oppressive to student athletes, like Emily Nkosi (nee Niemann) who played for Baylor until she couldn't stand the closet any more. She left Waco because in her words, "my internalized homophobia made me believe that if people found out I was gay, they would kill me."

Ending on a hopeful note, the article echoes coaches and others calling for better education and enforcement of recruiting violations, and a campaign to raise the ethical bar from within the coaching profession. More optimistically, it suggests that the changing cultural attitudes about lesbians will eventually catch up to athletics and render the lesbian stigma meaningless there too. Veiled homophobic references will backfire when they are addressed to recruits who are looking for team atmosphere that is open and affirming of their or their teammates' lesbian orientation.

Sunday, January 23, 2011

DU decision backlash

There have been a lot of articles and editorials and articles that editorialize in the wake of DU's decision to end its men's running program.
I thought this one was especially good, from a female alum and current track coach. She raises the point I neglected to make in my initial post which is if DU is adding women's golf in the fall why it it so worried about achieving proportionality now. Ms. Ambrogi appears to be right. By adding women's golf it would seem that DU is complying (temporarily anyway) with prong two by expanding opportunities. Not sure what their previous history has been, but the addition of golf would seem to do for now...unless DU has plans to cut a women's team some time soon. In that case they would have to have their proportionality ducks (or hens in this case) in a row.
This is just a very curious case, and I have a feeling we are not hearing the whole truth(s).

Friday, January 21, 2011

A change of seasons

OK the title is a misleading and mostly my own projections as I get ready to go outside and shovel/plow for the third time this week.
What has really happened is that the Schuylkill League in Pennsylvania has decided to switch the days of play of the boys' and girls' basketball teams. (So change within the season.) The boys have usually played a Tuesday/Friday schedule and the girls Monday/Thursday. But after seeing a Title IX complaint filed in the nearby Tri-Valley League, Schuylkill decided to be proactive. And thus the schedule change. Hopefully there is not too much consternation over the switch. No mention of what the plans are for future scheduling: keeping the midseason switch or altnerating years, or something else entirely.

Thursday, January 20, 2011

Delaware to drop two sports

The University of Delaware announced this week that they will be dropping men's cross country and men's indoor track from its list of varsity sports in order to comply with Title IX. The two sports will have club status after this year.
The option to add more women's sports was not possible because of budgetary reasons, according to officials. Women's golf, however, will be added in the fall, as planned. (We wrote about that when UD cut men's indoor track.) With the reduction, DU will carry 21 teams, the most in its conference.
According to this editorial, DU cited Title IX 12 times in its announcement of the cuts. The past cuts (linked in the second paragraph) were blamed exclusively on Title IX, but this time DU is also citing economics. But editorialist Jeff Pearlman, an alum and whom we have also written about in the past, isn't buying that or fiscal responsibility given the low costs of maintaining the program and the plethora of football players on that team's 103-person roster.
With these cuts there is no longer any varsity running program for men at DU.

Addendum: Here is another article on the cutting of the teams that discusses the impact on the student-athletes and includes interviews with team members. Some of the runners are none too happy with Title IX. Others are not pleased that the administration has asked them not to talk to the media without prior discussions with the appropriate officials.

Wednesday, January 19, 2011

Coach Sues University of Minnesota to Challenge Anti-gay Discrimination

Last week, former University of Minnesota women's golf coach Katie Brenny reportedly filed suit against the university and officials, arguing that she was forced to resign by anti-gay hostility in the athletic department. Brenny charges that the university violates the state of Minnesota's Human Rights Law, which unlike Title IX, covers discrimination on the basis of sex and sexual orientation. Brenny alleges that though she was hired as associate head coach of the women's golf team, she was never permitted to carry out coaching duties, as she reassigned to administrative duties soon after arriving at the University, while the someone else took over the team. The University denies that it discriminated against Brenny, while Brenny argues that she is entitled to compensation for lost wages and the expense of finding another job, as well as humiliation, embarrassment, and distress.

Monday, January 17, 2011

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.
  • The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  • A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  • A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).
  • A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).
  • A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  • A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).

Saturday, January 15, 2011

OCR Investigates Anti-Gay Abuse that Lead to Suicide

The Office for Civil Rights will reportedly investigate claims that the Tehachapi Unified School District in California failed to protect a student from anti-gay bullying and harassment that resulted in the student's suicide in September. This appears to be the first investigation of its kind, coming on the heels of OCR's guidance letter to schools that delineates schools' responsibilities under Title IX to address sexual orientation discrimination that overlaps with sex discrimination, like where the student is targeted for failing to conform with stereotypes about sex and gender. The student whose suicide has prompted this investigation was thirteen-year-old Seth Walsh, who hanged himself from a tree in his backyard after fellow students at Jacobsen Middle School harassed him because he was openly gay, and because if his mannerisms and appearance. The investigation will determine whether school officials responded appropriately to bullying that they knew or should have known was going on.

Friday, January 14, 2011

CU football player arrested for sexual assault

Kudos to University of Colorado for not trying to bury this incident, but rather speaking out about the charges against Michael Sipili who was arrested for sexual assault this week.
Sipili is being referred to as a "former football player" because his eligibility expired with the end of the fall season. But he is still enrolled as a student and my guess is that he is still involved in football team activities--at the very least on a social level. In other words, this is semantics. All it means is that he won't be suspended from the football team because, technically, he is no longer a member.
But CU has expressed its disappointment in Sipili, whom they let back on the team after a previous violent incident (he punched someone). Administrators were quick to point out the many steps they have taken to combat a culture of sexual harassment and assault that existed on the campus. These steps, of course, were required as part of the settlement from the 2001 sexual assault of two female student-athletes at a football recruiting party. (Other posts about this case can be found under the University of Colorado tag.) And CU seems to have taken the issue of climate change seriously. I speak as an outsider, of course, and realizing that it would not have been wise for officials at a school where sexual assault by student-athletes has been a problem to NOT say something when there has been another incident (though the circumstances, as noted in the above-linked article are quite different).
I don't have any particularly profound assessment. I think a school can have the best intentions and make concerted efforts to combat hostile climates, but these students have had 18 years of living in and participating in climates/situations with varying levels of hostility and prejudice. It's not easy work to dismantle these things. Some of us try to do it every day in classrooms--and other venues. A one-credit mandatory course is simply not going to create radical shifts in thinking in everyone. This is not to say it should be eliminated, but that we should be realistic about the results. I am pretty happy with the mini epiphanies I get to see among my own students. And I just hold out hope that others will have those moments long after they leave my classroom. It's too bad Mr. Sipili didn't have one before his alleged actions. But whether CU is supposed to shoulder some of the blame for this is not clear at this point.

Friday, January 07, 2011

See for yourself

After I posted yesterday's piece about the fieldhouse lawsuit in Kentucky, more news stories came across my desk(top).
This one includes a little tour of the fieldhouse as well as interviews with school board attorney Anne Coorssen, and Dick Richards, one of the parents who filed the lawsuit. Richards, apparently, has been attempting to convince administrators and the school board that the field house is a gender equity issue since plans to build it were made public.
Coorssen seems displeased that this one issue is being made, well, an issue. She believes that taking issue over one building is just too narrow to constitute a Title IX lawsuit--especially when looking at the facilities that exist within the school building including locker rooms for every team. Other lawsuits--especially the ones over softball fields--have shown this is not an issue for the courts. Facilities is one actionable aspect of Title IX compliance and thus can certainly be made an issue of. Also she seems to think the lawsuit is unwarranted given that what North Oldham High School provides its student-athletes is a lot better than what other schools do. Perhaps true (though the investigation into the National Women's Law Center complaint will reveal more on the veracity of that claim), but proper defenses to Title IX lawsuits cannot include interschool comparisons.
I'm curious to see where this one goes and what facts and practices and intentions are going to be made most salient. Apparently not only the Kentucky High School Athletic Association, as I mentioned yesterday, weighed in on this issue, but OCR did as well.

Interesting PS of sorts. The video shows a banner for the girls' track and field team, which is allowed to use the fieldhouse from December through the end of the school year. It says Lady Mustangs. Reminded me of that study (can't remember the author--sorry!) showing that colleges and universities which continue to use feminized nicknames to differentiate their women's teams are not as Title IX compliant. Obviously cannot directly apply that to high schools, but it's something to think about.

Thursday, January 06, 2011

Field house prompts lawsuit in Kentucky

In the fall, Oldham County Schools in Kentucky was one of the twelve school districts cited in complaints brought by the National Women's Law Center against districts they found particularly problematic in terms of Title IX compliance.
Now, in a lawsuit brought by two parents, Oldham is being asked to account for its new (built in 2008) $1 million field house that appears to be almost exclusively used for the football team. The new field house has only boys' locker rooms and includes amenities such as a media room, laundry room, and training rooms.
It seems particularly egregious that a new facility seemingly was constructed with so little attention paid at the outset to equitable use. The Kentucky High School Athletic Association even expressed some concern. But in the fall of 2009 it said the advantage the new facility conferred upon boys' athletics was mitigated when the girls' track team was allowed to use it in the spring. This is not enough say the plaintiffs.
Theschool district intends to fight the lawsuit, claiming it is not in violation of Title IX. The district's lawyer has said, as way of defense presumably, that no girls' team is complaining. Given what happens to girls (and others) who complain about gender inequities that is not 1) surprising or 2) a defense--legal or otherwise.

Wednesday, January 05, 2011

Court Dismisses Retaliation Case Against University of Hawaii

Last month, a federal court in Hawaii dismissed the Title IX lawsuit filed by former women's basketball coach Jim Bolla against the University of Hawaii. As we noted when we first blogged about this case in 2009, Bolla claimed that the athletic director terminated his contract in retaliation for the coach's demands for gender equity, while the university claimed that the decision was lawfully motivated by Bolla's abusive conduct towards his players.

But a judge granted the university's motion for summary judgment after determining that Bolla did not establish a prima facie case for retaliation under Title IX, which requires the plaintiff to demonstrate that he suffered some adverse employment action (here, termination) after engaging in protected activity, and that there is evidence to support that his termination was motivated by retaliation rather than a lawful, nondiscriminatory reason.

On the one hand, the court agreed that Bolla's claims to have discussed gender equity concerns with the athletic director (a claim that the university disputes as a matter of fact) sufficiently allege that he engaged in conduct that should be protected from retaliation. The court's reasoning on this point was significant, because it pointedly refused to import from First Amendment law the requirement that an employee be speaking in their personal capacity, rather than in their official capacity, for protection from retaliation to apply. Such an interpretation, which some courts have endorsed (erroneously, in my opinion) leaves coaches without protection from retaliation for just about anything they might say about Title IX as it applies to their team or their job, a position that the judge wisely recognized was inconsistent with the Supreme Court's holding in Jackson v. Birmingham Board of Education (ruling that Title IX prohibits retaliation against a coach who seeks to assert Title IX on behalf of his players).

On the other hand, the court acknowledged that the university articulated a "legitimate, nondiscriminatory reason" for terminating Bolla -- namely, the fact that he had kicked a player, which Bolla did not dispute other than to recharacterize it as "gently" tapping her "buttocks" with his foot. Moreover, Bolla failed to put forth sufficient evidence to demonstrate that the university's stated reason for firing him was actually pretext for an actual motive of silencing his advocacy for gender equity. Bolla attempted to demonstrate this pretext by arguing that it represented a departure from the University's typical way of dealing with coaches' misconduct; specifically, he pointed out that the football coach was not terminated after he publicly made an offensive remark in using the word "faggoty" to describe the pre-game ritual of an opposing team (an incident my co-blogger wrote about here). But the court did not consider the football coach's situation to be comparable enough to Bolla's to have warranted a similar response. The football coach did not physically assault any player; nor, said the court, was there evidence that any members of his own team took offense at his remark. Since Bolla did not provide any evidence that the football coach's comment -- though offensive and certainly painted UH in a negative light -- rose to the level of verbal abuse (let alone, physical abuse, for which Bolla was fired), the university's decision to treat the coaches differently was not evidence that it was actually hiding its true motive of retaliation against him.

Decision: Bolla v. University of Hawaii, 2010 WL 5388008 (D. Hi. Dec. 16, 2010).

Monday, January 03, 2011

FGCU Trial On the Horizon

The Naples Daily News reports that the wrongful termination lawsuit filed by Florida Gulf Coast University's former provost Bonnie Yegidis will soon go to trial. Yegidis has claimed that FGCU President Wilson Bradshaw forced her to resign her in retaliation for urging a thorough investigation of female coaches' Title IX concerns. Pretrial motions are scheduled for later this month, which will be followed by juror-selection and a two- to three-day trial.

At one time, four lawsuits had been filed against FGCU arising out of the university's response to coaches' allegations of sex discrimination in athletics. But the university settled with former coaches Jaye Flood ($2.96 million) and Holly Vaughn ($435,000), as well as former university counsel Wendy Morris ($800,000). Yegidis's lawsuit is the only one that is still heading towards trial. In light of the earlier settlements, it will be interesting to see what a jury decides on the questions of the university's liability and damages.