Saturday, July 30, 2011
The article mentions the role of Title IX in this regard, stating that under the law, "men’s and women’s colleges may admit only students whose legal documentation shows they are of the gender that a particular institution serves." I think this representation of Title IX is questionable, however, as I'm not aware of any aspect of the law that invokes a "legal documentation" test for determining a person's sex. Such a standard would not exactly provide workable clarity, either, because some states make it easier to change one's sex designation than others. Moreover, the decision to apply for new ID may come at different stages of transition for different folks. So, a "legal ID" test would require an all-women's school to consider for admission an individual who has surgically and hormonally transitioned from female-to-male, but who hasn't yet applied for, or received, a re-issued birth certificate (or drivers license, or some other legal ID). And that school would have to exclude someone who has changed his sex designation, but not his body, in accordance with a male gender identity, as well as someone who has physically transitioned from male-to-female but still does not have a female gender marker on her ID.
No court or regulatory interpretation has endorsed such bright-line rules. And I think the law's indeterminacy around the concepts sex and gender allows all of these hypothetical students make a case for eligibility for admission. A court could interpret Title IX's prohibition on sex discrimination to forbid a school from discriminating against someone who is born female but presents as male, if it decides to interpret presenting/identifying as male as an example of gender nonconformity. A court could also interpret Title IX's prohibition on sex discrimination to require an all-women's school to consider a male-to-female transsexual, because she, like other people who identify as female, is a woman. If both were legally required, an all-women's college would be open to anyone who is now female or who has been female in the past.
Is that a position that all-women's college could defend? This depends on the reasons all-women's colleges provide for remaining single-sex in the first place. If the purpose of all-women's college is to compensate for the male privilege that exists in education and in the wider world, they could certainly accept male-to-female transsexual students on the grounds that they have reduced their access to male privilege by virtue of their transition, as well as female-to-male transsexual students, who have been excluded from male privilege in the past. (For example, a female-to-male engineering student does not by virtue of a college-age transition overcome gender stereotypes that may have obstructed his K-12 education in science in technology.)
The bottom line for now, however, is one the article gets right. College admissions policymakers, like Title IX policymakers will be increasingly confronted with questions about transgender students' eligibility for single-sex colleges and other single-sex spaces. In my view, they should and can legally strive to be as inclusive as possible.
Friday, July 29, 2011
But it also offers some hope for better enforcement and attention by the office under the new leadership of Russlynn Ali, who is an Obama appointee.
Other interesting points: the practice of self-investigation where OCR--because it is understaffed and overworked (dealing with all civil rights violations--not just Title IX complaints)--offers a school the opportunity to investigate itself and issue a report to OCR, rather than having OCR come in. I've always been wary--if not outright critical--of this practice because it requires, as Ali notes, a good faith effort in the part of schools. And I remain skeptical that schools, once informed of violations but still reluctant to remedy them--are really worthy of that kind of trust.
And the recent case at Ball State University, which we have not yet written about and which is highlighted in the article, is proof of why self investigations might not be all that effective. Ball State seems to have a problem retaining the coaches of its women's teams. Since 2005 12 head coaches of women's teams have left. There are only 11 women's teams at Ball State. And it is actually being sued by a former tennis coach. Offered the chance to investigate itself, the university, well, dropped the ball. They issued a finding that there was no discrimination--after two weeks! It failed to interview any coaches and didn't produce any new evidence in its report! Let's just reiterate: in an investigation about discriminatory practices in hiring/firing--the university didn't interview one coach;the president said she didn't think it was necessary.
And all is not right at Ball State in terms of facilities. Under pressure from OCR, the university has added some locker rooms for women's teams after it was discovered some athletes were changing in their cars and/or a storage shed.
Still the threat of OCR showing up on campus does compel more earnest responses from other institutions, which is why Ali is not ready to abandon the practice of self investigation.
Thursday, July 28, 2011
Community colleges face unique challenges when trying to comply with the law. It's non-traditional student body, of which women make up the majority--often a large majority, has lead many community colleges to believe they cannot possibly comply. Additionally, community colleges are facing the same--if not worse--budget issues as four-year institutions.
But this does not mean they are exempt from providing their female students with opportunities to play sports.
Many women who attend community colleges are juggling multiple roles in addition to being students: parent, employee, domestic caregiver/doer. They are often older. But, according to Katie Thomas's article, male students have similar constraints.
In my mind all this means is that the fact that community colleges offer fewer sports than 4-year institutions makes sense. The community college population is less likely to be able to fit sports into their schedules.
The article highlights several schools that are complying--but they work at it. They recruit. And actually, it isn't very hard. Athletic directors have found that when they tell women there are spots for them--they come. Interest and ability? Sounds like it's there is many cases.
And, again, measuring interest in a responsible way--and probably in a way that would be specific, here, to a community college population--is always an option.
I've taught at community colleges. There is a very unique student population, which makes community colleges really great places to work and go to school in many respects. But not so unique that community colleges get a pass on providing gender equity.
Monday, July 25, 2011
It is true that the Department of Education has in recent years promulgated regulations that permit additional exceptions by allowing single-sex education in core courses. But by their terms, these regulations only apply to K-12 education. Moreover, the exception they create is narrow -- the single-sex nature of the course be tailored to an important educational objective, which must be based on evidence and not assumptions and stereotypes about the way men and women learn. For both reasons, Peace College cannot rely on the single-sex education regulations to justify their position.
I could imagine that the Department of Education might allow Peace College some leeway and look the other way during a limited period of transition, such as the length of time it takes already-enrolled students to graduate. But I don't think this model can be permanently sustained without running afoul of Title IX.
Friday, July 22, 2011
A significant amount of attention has been paid of late to the spate of complaints filed against school districts alleging disparities in the sport opportunities high school provide to their male and female pupils. Recap: NWLC's 12 complaints last fall, and the more recent ones targeting a majority of districts in Oregon, Washington, and Idaho.
Vocal opponents of such attempts to give more girls the opportunity to play sports--under the guise of "personal choice" and "reverse discrimination"--the College Sports Council, and others, have spoken out against what they believe is the misapplication of the three-prong test to high school athletics. The lawsuit they filed yesterday in federal court attempting to get the judiciary on their side was a long time in the works, I would imagine, but comes now at a time when these issues are very much in the spotlight. An additional reveal was, as we mentioned in yesterday's post, the group's new name: American Sports Council. This allows the former CSC to, I guess, legitimately turn its attention to high schools. And fighting discrimination against boys does reflect the American way.
ASC, when it was CSC, attempted this same move--to get rid of the three prong test--except with college sports. It didn't work. Courts have consistently held that all of Title IX's provisions apply to high schools (and other entities) as well. And, as Erin noted yesterday, we predict the outcome will be the same.
As well it should be. In fact, I argue that the three-prong test is even more applicable--or easily and equally--applicable in the high school context. Here's why.
First, let's address some misconceptions. Opponents of the three-prong test--specifically the proportionality test--say that applying the test to high schools is going to result in a million boys being denied sporting opportunities. They say that budget-strapped schools will, of course, have to cut sports for boys. But proportionality is NOT required. ASC keeps invoking the "safe harbor" rationale saying that this phrase--which came in a 1996 clarification letter from the Department of Education--means that schools will, of course, attempt compliance with that prong in order to avoid lawsuits. (You can see a You Tube video from the group about the filing.)
Let's clear some things up. Proportionality is a safe harbor because it is numbers based. Numbers don't lie. Except when they do. Like when schools manipulate rosters in order to make it seem like they are offering opportunities to girls and women--when they are not. I don't think this is the Department of Ed's problem. This is laziness and utter disregard for a gender equity law--passed almost 40 years ago--that we still cannot seem to adequately enforce.
Second, if these opponents truly believed that girls were less interested in playing sports then, I believe, they would be making greater efforts to prove it. Develop the methods to sufficiently measure interest and let's see. Opponents say that this opens up schools to lawsuits. Well, schools aren't doing a great job avoiding lawsuits right now as they manipulate rosters and continue to deny female athletes equitable treatment. A good faith effort goes a long way with me--and others like me. But we don't see it happening. We see avoidance of the issues--at all costs--even millions of dollars (as a result of jury awards and settlements).
So why are high schools arguably even better suited to the three-prong test?
Well, the gender division in most high schools (and I am speaking largely about public schools here) is close to 50/50. In other words--it shouldn't be that hard to offer equal opportunities. High school sports are often just a progression of student-athletes' careers from youth sports in a way that the transition from high school to college is not as natural or expected. It's hard to believe that the numbers aren't there given the growth in youth sports.
Second, the valuing of participation is somewhat more emphasized in high school sports. Because high school sports are not expected to be big revenue generators in the way intercollegiate sports are, the philosophy of sport as an educational and growth experience is more at the forefront and less easily disregarded and lost amid large and complicated athletic department budgets. And so, of course, opportunities should be equitably distributed when we're talking about an educational endeavor.
They don't have to worry about expenditures such as recruiting and scholarships, either.
I have read several pieces that complain that we feminists are lawsuit happy and attempting to dismantle boys' sports with these recent filings. First, these are complaints--not lawsuits.
There is no desire to kick boys out of sports. But again, Title IX has been around for four decades. What have schools been doing? Advocates for women's sports get villainized because we expect that schools and the government actually follow and enforce this law. These complaints serve to both put high schools on notice that they cannot continue to be ignorant of Title IX. And they're a wake-up call to OCR which has been somewhat complacent in its enforcement at the high school level.
Is there ever going to be a good time for us to request that girls be given what they deserve? The economy was pretty decent in 1996, as I recall. If schools had truly believed that proportionality was the safe harbor of Title IX, they would have had the means to implement it then. And prior to 1972? Well there were boon periods then too. Yet there was no widespread movement to add sports for women. Hard to argue that we don't need Title IX.
Progress is neither innate nor organic. Equality does not just manifest itself because years pass.
Thursday, July 21, 2011
For more coverage, see this thorough post on Education Week's Schooled in Sports blog.
Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.
Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.
How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.
Tuesday, July 12, 2011
The press has not reported on the person filing the complaint, as government regulations protect anonymity of complainants. However, unlike lawsuits filed in federal court, complaints to OCR may be raised by anyone.
Is Montana next?
Monday, July 04, 2011
Though Greenwell's team was not a varsity sport, it was part of the athletic department. Greenwell was hired by and answered to the athletic director. She ran very lucrative cheerleading camps that made cheerleading the second most-profitable athletic department enterprise, after football. In 2008, her cheerleading camp netted $400,000 -- money that all went in to the athletic department general fund. Greenwell brought other perks and prestige to Alabama athletics as well, yet, she argues, the athletic department exploited her by refusing to pay her commensurately to other coaches. Apparently, the University justified paying Greenwell less than other coaches on the grounds that cheerleading program was not an NCAA sport with varsity competition. But Greenwell argues -- validly, in my opinion -- that for purposes of determining pay equity, what matters is that her responsibilities of running camps and the cheerleading squad required effort equal if not greater to that of other coaches. Additionally, U of A held Greenwell out as one of their "coaches" when it suited them, to associate the institution with her prestige.
However, Greenwell's complaint is light on a couple of details that will determine the validity of charges against the university. In particular, there are no details about how Greenwell's salaries actually compared to those of male coaches. Also, it's not clear exactly on what basis Greenwell alleges the required nexus between the issue of her salary disparity and the fact of her termination. The complaint states that she advocated for a higher salary once in 2003, and that another time in 2006, she and students complained about the inequitable lack of academic and other support for cheerleaders compared to other student athletes. Typically, retaliation cases succeed when the plaintiff engaged in protected conduct much closer in time to the employer's retaliatory conduct (Greenwell was terminated in 2009). We'll have to wait and see whether such additional factual allegations are forthcoming, or whether their omission is enough to warrant dismissal of her case.
Sunday, July 03, 2011
While female Hoosiers play an unequal game of geographic Ping-Pong come title time, the boys continue to perform on the big stage, under the bright lights of Conseco Fieldhouse.
Boys get the state capital that is centrally located. The girls get the town in western Indiana where Timothy McVeigh was executed.
Do you feel the thrill, ladies?
Apparently, the girls' basketball championship got squeezed out of Indianapolis's premier basketball venue again this year, due to scheduling constraints created by the fact that Consesco also serves as the championship site for the women's Big Ten conference. But that doesn't mean that the high school girls should perpetually lose out. Hanlon suggests that the girls could play their championship a week earlier so that both could be held at Conseco without conflict.
Another way equitably address the limited playing time available at Conesco would be would be to alternate the championship that gets to play there. Every year, either the boys or the girls would have to relocate to a remote location that will be very inconvenient for either northern or southern teams. Since the girls had to play elsewhere last year (Fort Wayne), this year, the boys should have to play in Terre Haute. The fact that this solution hasn't been suggested -- not even by a columnist who taking up this issue of discrimination -- shows just how unexamined male privilege is in high school basketball.
Friday, July 01, 2011
Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.
These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.