Indiana Scheduling Practice Violates Title IX, Appellate Court Rules

Today the Seventh Circuit Court of Appeals ruled that a scheduling practice that reserves "prime time" Friday night scheduling for boys basketball games while relegating the girls' games mostly to the less preferential weeknights, violates Title IX. The case at hand was filed in 2010 by a former Franklin County, Indiana, basketball coach, Amber Parker against Franklin County school district, the Eastern Indiana Athletic Conference, and its high school members. Earlier, the district court dismissed the suit after determining -- without sufficient analysis, in my opinion -- that the scheduling disparity was substantial enough to constitute a denial of equal treatment under Title IX. But the plaintiff appealed, and today's appellate court reverses the lower court's ruling and reinstates the case.

Unlike the district court, the appellate court acknowledged that the scheduling of most girls basketball on weeknights has a negative affect on girls that constitutes a substantial deprive of equal treatment. For one thing, community members are less likely to attend weeknight games, which deprives the girls' teams of audience and community support. It also imposes on girls a larger burden that their male counterparts to balance sports with academic work during the week. Moreover, the court acknowledged that the scheduling disparity can harm female athletes in a psychological way because it casts girls' activities as inferior to boys. This inferior treatment, reasoned the court, contributes to the perception that girls' sports are "second class" and undeserving, a perception that deters girls from participating in sport, "in contravention of the purposes of Title IX." This perception is also transmitted to fans and contributes to their lack of support for girl teams.

The appellate court also reinstated plaintiff's claims that the schools' scheduling practices violate the Equal Protection Clause, which district court had wrongly dismissed on sovereign immunity grounds.

Evergreen School District Resolves Title IX Complaint

Evergreen School District in Washington State has reportedly entered into a voluntary resolution agreement with the Department of Education's Office for Civil Rights. Under the agreement, OCR agrees to suspend its investigation that was triggered this summer by a complaint that the school district favored boys baseball with better facilities, uniforms, and equipment as compared to softball. In particular, at two of the district's high schools, the complaint alleged that the district had neglected to repair damage on the softball fields, that the fields lacked drainage and irrigation, as well as fences, batting and pitching machines and cages, and proximity to bathrooms and drinking water.

For its part, the school district agrees to assess its baseball and softball programs along these lines and to devise and implement an action plan to address any discrepancies that the assessment reveals -- in other words, the school district agrees to do what Title IX already requires. The agreement provides deadlines by which the district shall accomplish these tasks, and affords OCR the opportunity to monitor and review the district's efforts.

35 years of participation data

We have, countless times during our research and writing about Title IX and equity in sports, said "thank goodness for Drs. Linda Carpenter and Vivian Acosta." For 35 years now these women have compiled and categorized and interpreted data about the participation of women as athletes, administrators, coaches, and other staff in intercollegiate athletics.
They just released the report for year 35.
Here are some of the highlights:

• The most women ever are employees (coaches, trainers, sports information directors, administrators, in intercollegiate athletics.
• Participation is the highest ever as is the number of teams per school (8.73 average)
• The number of women coaching women's teams is at the highest level since the start of the study.
• But 57.1 percent of women's teams are still coached by men as are 97-98 percent of men's teams.
• And only one in five coaches of intercollegiate teams are women.
• But there are 100 more women in head coaching positions today than in 2010
• One of the most interesting and startling statistics to me was that almost all schools have Sports Information Directors but only 9.8 percent are women. (Is there a connection between this stat and the lack of media coverage of women's sports?)
• And DI has the lowest percentage of women as SIDs (3.1%)
• Women are better represented as strength and conditioning coaches, though. In DI Football Bowl Subdivision schools there is at least one female S/C coach. (The issue remains though how many of those women are hired solely to train female student-athletes. This is the first year the study has addressed S/C coaches. Maybe in future years some of this information will be added.)

You can always go to the website linked above for more information about Title IX.

Retaliation Case Filed Against Jackson State

Denise Taylor, former women's basketball coach at Jackson State University, has reportedly filed a retaliation suit against the university in federal court. Her suit alleges that she was terminated with two years left on her contract in retaliation for threatening to file a Title IX complaint after she was denied the opportunity to attend the convention of the Women's Basketball Association. The university's stated reason for terminating Taylor's contract including "sexual gender stereotyping, verbal abuse and misappropriation of funds." As litigation proceeds, it will be Taylor's burden as the plaintiff to prove that the university's reasons are pretext, and that the real reason she was terminated was retaliation for threatening to file a gender equity complaint.

Possible progress in Castle Rock complaint

This past week's meeting which would have addressed the Title IX complaint against the Castle Rock school district (Washington) was postponed until next month. But administrators say they are taking steps to remedy some of the inequities upon which the complaint is based.
As we noted in November, parents complained that the girls' soccer team often had games cut short because of darkness even though the football stadium, which has lights, was not being used. Requests to use the stadium were denied for various reasons that will not likely trump Title IX's equal treatment standards.
Superintendent Susan Barker has said that the athletic director is being trained in how to assess gender equity in athletics programs (apparently it is not a job requirement to be aware of how to follow the law). Also there may  be an athletic advisory committee established, which would pass along recommendations to the school board. One of the things the hypothetical committee might recommend is that girls' soccer be allowed to use to the football stadium.
So it seems that more needs to be done in Castle Rock.
In the meanwhile, the girls' JV soccer coach has submitted a letter of resignation. (Her team often gets the brunt of the discriminatory treatment.)
Also, the stadium is not the only issue parents have. They would like addressed the issue of paying for uniforms, driving their children to games, the level of parent representation on any advisory board.

Parents will be speaking at the hearing schedule for late February.

University of Montana Football Players Linked to Wave of Sexual Assaults

An article in Huffington Post describes an alarming series of sexual assaults involving football players at the University of Montana. Most recently, an incident in which multiple football players are accused of drugging and raping two female students has produced felony charges and one admission of guilt. This incident has also apparently brought to light two prior allegations of rape committed by football players, that were reported to the University but which the University did not investigate or pursue disciplinary action.

The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.

An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.

Teacher Harassment Case Settles for $600K

The Susquehanna Township School District in Pennsylvania will reportedly pay $600,000 to settle a lawsuit filed against it by a former student who alleged she was sexually assaulted by a drivers education instructor, and who thereafter was harassed at school for filing charges against him. We have blogged about this case before when the court denied the defendant's motion to dismiss and motion for summary judgment. In the latter, the judge determined that the instructor's violation of school policies in the past should have put it on notice that female students were at risk. The judge faulted the school district for taking a “lackadaisical approach” to disciplining the instructor, noting that if officials had followed up to ensure that he was complying with, for example, the policy prohibiting him from being alone with students during "behind the wheel" instruction, it could have prevented plaintiff's assault.

The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.

Case Raises Question of Title IX's Application to Private High School

A recently-filed federal lawsuit claims that Poly Prep High School in Brooklyn violated Title IX by responding with deliberate indifference to knowledge that a football coach was sexually abusing his student-athletes. This case is vulnerable to dismissal on the grounds that Poly Prep is a private school that does not directly receive federal funds. But the plaintiffs' lawyer reportedly plans to argue that the school's tax-exempt status is the equivalent of a federal subsidy, and as such Title IX should apply. While there does not appear to be conclusive legal precedent on this question,one federal court has labeled it a "nonfrivolous argument" (for purposes of settling a question of federal subject matter jurisdiction) because tax exemptions have been deemed to count as federal financial assistance in the context of other laws. See M.D.H. v. Westminster Schools, 172 F.3d 797 (11th Cir. 1999).

Lacrosse League in Connecticut Faces Title IX Suit

The New Canaan Lacrosse Association, a private youth lacrosse league in Connecticut, is defending litigation claiming that it violates Title IX for failing to provide equal treatment to girls and boys. It is unclear, however, that the law applies, given Title IX's limited application to educational institutions and the fact that NCLA is not affiliated with any school. Nevertheless, the lawsuit has succeed in raising awareness about parental concerns about unequal treatment in the league, including providing boys with more money, equipment, supplies and experienced referees and a lower ratio of coaches players.

The article does not say whether the lawsuit also includes claims under the Equal Protection Clause, which prohibits sex discrimination by government entities as well as private entities with which they are closely intertwined. In my opinion, the league's use of municipal fields makes that at least a plausible argument, one more likely to apply than Title IX.

Public Single-Sex Education Vulnerable to Legal Challenge, Professor Explains

A recent essay in the National Law Journal by emerita Columbia law professor Vivian Berger criticizes the trend in single-sex education. Noting that the "bloom may be off the rose" in light of some recent, high-profile decisions to cancel single-sex classes, either voluntarily and/or in response to litigation pressure (see, e.g., here, here, here, and here), she points out there are more than 500 public schools that are either wholly single-sex or sponsor some number of single-sex classes. Professor Berger's observation is timely in light of Friday's front-page story in the Boston Globe, which reported on a controversial decision to segregate the first grade at a public school in Roxbury.

Professor Berger explains that these programs are vulnerable to legal challenges on a number of grounds. The Constitution's Equal Protection Clause, for one, prohibits states and state-sponsored entities such as public schools from relying on gender stereotypes, which are frequently the basis for sex-segregated classes. In addition, she points out, many sex-segregated programs violate the Department of Education's recently-revised Title IX regulations, which, while relaxing earlier restrictions on single-sex education, still require "substantially equal" alternative for members of the excluded sex: "This claim will usually be well-founded: Much sex-segregation involves charter academies, which offer benefits like lower student-teacher ratios and special curricula not available in regular schools." Last, Professor Berger points out that other federal agencies that provide funding for education also have Title IX implementing regulations, which still retain strict restrictions on single-sex education.

Professor Berger's observations about the legal vulnerability of hundreds of segregated public schools and classrooms raise legitimate questions about the role of government education and enforcement in this application of Title IX. As we noted on the blog yesterday, when OCR took a stand against universities' lax response to sexual assault, enforcement increased. A similar approach is certainly warranted in the context of single-sex education.

Stipend plan goes back to the drawing board

The NCAA Convention has been going on in Indianapolis. High-profile issues were on the docket this year including the controversial $2,000 student-athlete stipend. That the issue was pushed back to the working subcommittee that proposed it initially last summer was not surprising--in contrast to some of the news reports on the meeting. The subcommittee will work on some of concerns over Title IX, students on partial scholarships, and hopefully the concern many schools had over how to fund these scholarships when one isn't in the BCS. A new proposal is expected in April after which there will be a 60-day comment period.


A PS of sorts: membership voted NOT to reduce football scholarships or women's basketball scholarships.

Supreme Court Endorses "Ministerial Exception"

On Wednesday the Supreme Court decided that that First Amendment protected a religiously-affiliated elementary school from having to defend claims that it fired a teacher for reasons that discrimination on the basis of her disability. The Court concluded that because the teacher's job included religious instruction, the school's right to religious freedom precluded the application of antidiscrimination law. This decision is reportedly the first time that the Supreme Court has affirmed the concept of a "ministerial exception" to employment discrimination laws, though lower courts have applied this concept in the past -- including in cases involving discrimination on the basis of sex.

OCR Investigates Xavier University's Handling of Sexual Assault

In response to a complaint filed by a former student, the Department of Education's Office for Civil Rights is investigating how Xavier University handled that student's accusations of sexual assault directed at another student. Kalyn Burgio, the complaining student, alleged to the university that she was assaulted by Sean Marron in March of 2009. The incident occurred in the several-week period after Marron was had been found responsible by the university for a similar assault against another student, but before he was required to leave campus to serve his suspension.

Burgio alleges that when she reported the incident, the Dean of Students encouraged her to drop the charges in exchange for a promise from Marron that he would leave campus voluntarily. According to Brett Sokolow, a legal expert on campus sexual assault who was quoted in the article linked above, such a conversation, which amounts to the university negotiating on behalf of the accused, would not only be highly inappropriate, but retaliatory and a violation of the victim's civil rights. Such a deal also reportedly violated Xavier's disciplinary procedures, which allow the accused to waive a hearing only if he accepts responsibility for the charges.

Burgio further alleges that the university's disciplinary procedure, which did result in a finding that Marron was responsible for sexual assault against, was nevertheless procedurally flawed and biased toward protecting the university's reputation and accommodating the accused. She alleges that Xavier failed to inform her of her rights to file criminal charges, unduly delayed the disciplinary proceeding, and denied her academic accommodations. In addition, Marron was again allowed to finish the semester before his sentence of expulsion took effect.

This investigation is reportedly one of 30 open investigations being pursued by the Office for Civil Rights, and one of 40 complaints received by the agency since the beginning of 2011. The number of complaints has nearly doubled that of prior administrations, and is likely due to OCR's efforts to clarify universities' responsibilities to protect victims civil rights in the wake of sexual assault, efforts that have included a recent Dear Colleague letter and a couple of high-profile settlements.

Court Dismisses Claims in Bully-Suicide Case

Last week, a federal court dismissed claims filed by the estate of Jon Carmichael, a thirteen-year-old from Texas who committed suicide in March of 2010, after enduring years of bullying by his peers. The court reasoned that the plaintiff's complaint contained insufficient allegations that the bullying targeted Carmichael "because of sex," as required to sustain a Title IX claim. The complaint did allege that bullies had called Carmichael "fag, queer, homo and douche," which the plaintiffs argued suggested that he was bullied because he did not conform to gender stereotypes, and thus "because of sex." But the court dismissed that allegation of significant of a sexual or gender-based motive, pointing out that the statements accompanied a particular act of bullying in which Carmichael had been stripped nude, tied up, and put in in a trash can. According to the court,

Experience and common sense teach that bullies and harassers of this age are not particular about what they say when bullying and harassing their victims. While their words might reveal an animus based on the victim's male gender, they may also simply represent more generally a characteristic of the perpetrator's sociopathic behavior, regardless of the victim's gender.

In a way, the judge is right that what the bullies are saying as bully is not particularly meaningful or probative of motivation or intent. But the social context of male-on-male bullying makes clear that it's entirely about sex and gender. Whether its because the victim is short, not good at sports, or perceived to be gay, the point of bullying is to sustain a power imbalance between men and women by ascribing power to those who are most traditionally masculine (big, strong, straight, good at sports) and devaluing those who do not conform to that stereotype. Relatedly, many bullies bully in order to prevent themselves from being at the bottom of the pecking order within male groups and thus closer to the group (girls) constructed as inferior. While the court might rightly distinguish this motive from picking on the victim because of his perceived gender nonconformity, it is still bullying that is, at its core, about sex, because it is about the imbalance of power between (and thus, within) the sexes.

Decision is: Estate of Carmichael v. Galbraith, 2012 WL 13568 (N.D. Tex. Jan. 5, 2012).

How Diverse Are Women's College Sports?

Recently, the NCAA published the most recent school-year's participation data, which includes breakdowns by sex, race, sport, division, and conference. Because this data set goes back to the 1999-2000 school year, I decided to use it to look for trends in racial diversity in women's college athletics over the last decade. Several hours and few Excel spreadsheets later, I have the some questions and answers to report.

My first question was whether athletic opportunities for women in general increased during the time period in question.

• The answer, not surprisingly, is yes. Athletic opportunities for women at NCAA member institutions has increased by 31% -- from 147,683 in 1999-2000 to 193,207 in 2010-2011.
  
• Half of that overall increase is due to gains in three women's sports: indoor track, outdoor track, and soccer.
  
• Participation rates within most other women's sports increased as well. In addition to two emerging sports that were discontinued during the time frame in question -- archery and badminton -- only fencing, rifle, skiing, and synchronized swimming showed declining participation rates. All other sports gained some.
  

Next, I wondered whether opportunities for female athletes of color have increased during this time period as well.

• Again, the answer is yes. Opportunities for women of all minority races (Black, Asian/Pacific Islander, Hispanic/Latina) increased by percentages higher than the mean 31%. For instance, opportunities for Black female athletes increased from 14,001 to 21,615, or 54%. In comparison, opportunities for white female athletes increased from 117,244 to 144,598, or 23%.
• However, these gains for female athletes of color were not enough to significantly change the overall racial distribution of female athletic opportunities. In 1999-2000, 79% of female athletic opportunities went to white athletes, compared to 75% last year -- a change of only four percentage points. Meanwhile, the percentage of female athletic opportunities that went to Black women rose from 9 to 11 percent.

I then wondered whether the present distribution of female athletic opportunities by race is proportionate to racial demographics of the undergraduate population.

• The best data I could find suggests that about 8% of female college undergraduates are black (13.5% of college students are black; 59.3% of black college students are female).
  
• A total of 14,001 athletic opportunities received by Black women constitutes 11% of women's athletic opportunities, so Black women are not underrepresented in the distribution of women's athletic opportunities.
  
• Yet when you take into account the general underrepresentation of women in college athletics, the percentage of athletic opportunities for Black women is disproportionately low, since a total of 14,001 athletic opportunities received by black women constitutes only 3% of all athletic opportunities.
  

Last, I wondered if racial diversity within particular sports has changed over time.

• In 1999-2000, there were 14,001 athletic opportunities for black female athletes. 25% of these opportunities were in outdoor track, 21% in indoor track, and 23% in basketball. This not surprising, as reporters, scholars, and advocates have noted for years about this manner of racial segregation within athletics.
  
• Unfortunately, though participation rates are rising in almost every sport, including two new emerging sports that have been added in the last ten years -- bowling and rugby -- opportunities for black female athletes are still concentrated in track and basketball in percentages nearly identical to those ten years ago.
  
• Other minority races, though receiving fewer athletic opportunities than black women, were more evenly distributed throughout various sports. Latina/Hispanic women have 7747 athletic opportunities -- 17% in soccer, 14% in softball, 10% in track. Asian women have 3999 athletic opportunities -- 12% in soccer, 11% in tennis, and 10% in track. Finally, just 716 Native American/Alaska Native women have athletic opportunities at NCAA institutions, 18% of these are in softball, followed by 13 and 12% in outdoor and indoor track, respectively.

In sum, this year's NCAA participation data suggest there's been no drastic change in the diversity of women's college sports over the last ten years. Thanks to Title IX, opportunities for women to participate in college athletics continue to increase and close the gap between participation rates for women and men. Yet even though these increases produce opportunities for Black women that are proportion to their demographic rates on campus, their opportunities still remain clustered in track and basketball. With only two sports accounting for most athletic opportunities for Black women, questions must be raised about the accessibility of other sports to athletes of color.