Some philosophers and political theorists have argued that to achieve a just society we must eliminate gender roles. Few would dispute that many of the reductions in the influence of gender over the last fifty or so years have increased justice in the U.S. Whether justice requires that our society become entirely gender-free, however, is more controversial. A common argument for retaining at least some gender roles is that some are natural consequences of biologically-determined average physical differences between the sexes. Athletics is one context in which people often make this argument. This article focuses on school athletics and the Title IX athletic regulations in order to gain insight into the implications of biological sex differences for the question of whether the creation of a gender-free society is a realistic and worthy ideal. Although Title IX has been hugely successful in increasing female participation on school sports teams, males today still dominate school athletics, and gender roles are still very operative in school sports. This article proposes a framework, based on the concept of equal opportunity, for understanding what it might reasonably mean for a society to be “gender free.” It then argues that overall equality of opportunity requires equality of athletic opportunity, and that, despite its successes, Title IX's failure to repudiate gender influences makes it unlikely that, in its current form, it will ever lead to equality of athletic opportunity. The article goes on to propose revisions of Title IX that would truly equalize opportunity in the school athletic arena. It thus suggests that the gender-free ideal is ultimately compatible with biologically determined average physical differences between the sexes.
An interdisciplinary resource for news, legal developments, commentary, and scholarship about Title IX, the federal statute prohibiting discrimination on the basis of sex in federally funded schools.
Thursday, March 29, 2012
Professor Simson on Title IX, Athletics, Biological Differences, and Gender Inequality
Here is the abstract from Professor Rosalind Simson's article in the current issue of Denver University Sports & Entertainment Law Journal, "The Title IX Athletic Regulations and the Ideal of Gender-Free Society." The full article also posted on SSRN.
Wednesday, March 28, 2012
Court Dismisses Case Challenging Title IX's Application to High School
Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.
The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.
To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.
Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)
The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.
To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.
Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)
Saturday, March 24, 2012
Tite IX claim survives in sexual assault case
In Allentown, Pennsylvania a judge has a ruled that a Title IX claim against the school district can go forward. Judge Paul Diamond dismissed civil rights claims brought by five alleged victims of sexual assault by an older student at Central Elementary School, but has ruled that the Title IX claims of four of the victims--all boys--can proceed, calling the school's response to the alleged sexual assaults "wholly inadequate." This lawsuit began in 2006 with one boy coming forward to say he had been assaulted. Last year, four others joined the lawsuit. Lawyers for the boys say the school did not take enough measures to ensure the assaults stopped even after being made aware both of the initial assaults and the alleged perpetrator's own history with sexual assault and misconduct.
Friday, March 23, 2012
No evidence of discrimination in SC high school
About nine months ago, we wrote about a complaint filed in Kershaw County, South Carolina where parents of a high school cheerleader felt the team was not being treated equally. Also there was some financial sketchiness about where the cheerleading team's money had gone.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.
Thursday, March 22, 2012
Ninth Circuit Reinstates Grad Student's Retaliation Case
Monica Emeldi, a graduate student in the University of Oregon's Department of Education, sued her institution under Title IX after the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. A federal district court had earlier granted summary judgment in favor of the university, but yesterday, an appellate panel of the Ninth Circuit Court of Appeals reversed that ruling and reinstated her case.
According the Ninth Circuit's analysis, Emeldi satisfied the basic elements of a retaliation case under Title IX, including that she engaged in "protected conduct" when she presented a memo to department officials summarizing graduate students' complaints about the department's bias towards male graduate students and failure to hire female faculty members. Soon thereafter, Horner, the chair of her dissertation committee resigned, a consequence that the court agreed was a consequence that a jury could find "materially adverse" that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination."
Last, the court determined that Emeldi presented sufficient evidence on which a jury could conclude that Horner's resignation was related to her complaint, including evidence of the proximity in time between Horner's resignation and Emeldi's complaint, that Horner knew about Emeldi's complaint, Horner's gender bias in other contexts, such as favoritism to male graduate students, that Horner resigned without helping Emeldi secure a replacement chair, that Horner had in the past praised Emeldi's work, which suggests that Horner did not resign for nondiscriminatory reasons that he claimed, and that Emeldi was unable to find a replacement chair even after asking fifteen other members of the department.
One judge, however, dissented from the majority's conclusion that Emeldi's case should have a chance to reach a jury, basing his objection primary on Emeldi's failure to provide corroborating evidence by other witnesses and relying instead on her own affidavits and testimony. The dissent concludes, "Title IX's worthy antidiscrimination objectives notwithstanding, to let Ms. Emeldi's claims go to a jury will serve only as a precedent-setting example of how little it takes to turn a failed supervisory relationship between a professor and his Ph.D. candidate into a federal case of gender discrimination."
Emeldi v. Univ. of Oregon, 2012 WL 933821 (9th Cir. Mar. 21, 2012).
According the Ninth Circuit's analysis, Emeldi satisfied the basic elements of a retaliation case under Title IX, including that she engaged in "protected conduct" when she presented a memo to department officials summarizing graduate students' complaints about the department's bias towards male graduate students and failure to hire female faculty members. Soon thereafter, Horner, the chair of her dissertation committee resigned, a consequence that the court agreed was a consequence that a jury could find "materially adverse" that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination."
Last, the court determined that Emeldi presented sufficient evidence on which a jury could conclude that Horner's resignation was related to her complaint, including evidence of the proximity in time between Horner's resignation and Emeldi's complaint, that Horner knew about Emeldi's complaint, Horner's gender bias in other contexts, such as favoritism to male graduate students, that Horner resigned without helping Emeldi secure a replacement chair, that Horner had in the past praised Emeldi's work, which suggests that Horner did not resign for nondiscriminatory reasons that he claimed, and that Emeldi was unable to find a replacement chair even after asking fifteen other members of the department.
One judge, however, dissented from the majority's conclusion that Emeldi's case should have a chance to reach a jury, basing his objection primary on Emeldi's failure to provide corroborating evidence by other witnesses and relying instead on her own affidavits and testimony. The dissent concludes, "Title IX's worthy antidiscrimination objectives notwithstanding, to let Ms. Emeldi's claims go to a jury will serve only as a precedent-setting example of how little it takes to turn a failed supervisory relationship between a professor and his Ph.D. candidate into a federal case of gender discrimination."
Emeldi v. Univ. of Oregon, 2012 WL 933821 (9th Cir. Mar. 21, 2012).
Wednesday, March 14, 2012
Pregnancy Discirmination Lawsuit Filed in New Mexico
Last week the ACLU filed a federal lawsuit on behalf of an eighth-grade student at Wingate Elementary School in Fort Wingate, New Mexico, for discriminating against the plaintiff, Shantelle Hicks, on the basis of her pregnancy in violation of Title IX and constitutional law. According to the complaint, school officials initially told Shantelle. that she could no longer attend school after she told them she was pregnant. They encouraged her to enroll in an alternative high school with a program for pregnant teens. However, when Shantelle asserted her right to remain in school -- Title IX regulations allow students to enroll in special programs for pregnant students, but only on a voluntary basis--school officials endeavored to drive her out by humiliation. At an assembly of the entire middle school, school officials announced Shantelle's pregnancy, which had been private matter until then.
The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.
Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.
The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.
Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.
Tuesday, March 13, 2012
Staurowsky Cheers NCAA's New Title IX Compliance Guide
Recently, the NCAA published Equity and Title IX in Intercollegiate Athletics: A Practical Guide --- available here and now permanently added to our blog's resource links. The authors of this guide are attorneys Janet Judge and Tim O'Brien.
As Professor Ellen Staurowsky humorously notes in a column at College Sports Business News, this is what sports fans are waiting for in March -- the opportunity to pour not over brackets, but over a step-by-step compliance guide addressing all three prongs, the entire laundry list, pregnancy, harassment, retaliation, and equal pay. Well, she admits, announcement of this new compliance manual probably did not invoke spontaneous applause, but it is something worth cheering about. As Staurowsky explains,
As Professor Ellen Staurowsky humorously notes in a column at College Sports Business News, this is what sports fans are waiting for in March -- the opportunity to pour not over brackets, but over a step-by-step compliance guide addressing all three prongs, the entire laundry list, pregnancy, harassment, retaliation, and equal pay. Well, she admits, announcement of this new compliance manual probably did not invoke spontaneous applause, but it is something worth cheering about. As Staurowsky explains,
This generation of young professionals coming soon to an athletic department near you as future employees will not have the latitude as their predecessors once did to wave off responsibility to affirmatively comply with Title IX... The hand of the ticking clock of Title IX compliance has struck the hour of “no more excuses”.
Staurowsky encourages college athletic departments not to deterred from tackling their compliance responsibilities, now clearly laid out before them, by claiming other priorities or lack of funds. Indeed, she surmises, an internal review of Title IX compliance might be "the opportunity to devise and adopt financially sustainable college sport budgets responsive to those enduring problems associated with the financial arms race." It's the Title IX-avoidance mentality that creates the bad spending habits that eventually, after costly litigation, result in "facial cutting of programs that did not result in an interruption in the spending patterns that created problems to begin with but were traumatic nonetheless." By getting out ahead of Title IX compliance, schools can implement balanced priorities that take women's and men's athletics into account and do right by student-athletes for whose sake college sports exist in the first place.
More coaches in PA?
Parents of student-athletes on the girls' cross-country and softball teams have gone to the Daniel Boone School Board (in Pennsylvania) asking why their teams do not have assistant coaches. The boys' baseball team has an assistant coach. Worried about the safety of the members, parents are asking for funds to pay for assistant coaches for these teams and wondering if the lack of assistants currently is a Title IX violation.
We cannot say based on the information in this brief article. Do other girls' teams have assistant coaches? How many of the boys' teams have assistant coaches?
These are the things the school board--and the parents--will want to investigate when the issue comes up next at a board meeting.
I found this situation interesting in light of the recent trend in complaints where schools are being cited for multiple violations at once. This is a very specific complaint. I surmise that parents felt the absence of assistant coaches is an issue that needs remedying and sought a legal and persuasive way to remedy it--and they found Title IX.
We cannot say based on the information in this brief article. Do other girls' teams have assistant coaches? How many of the boys' teams have assistant coaches?
These are the things the school board--and the parents--will want to investigate when the issue comes up next at a board meeting.
I found this situation interesting in light of the recent trend in complaints where schools are being cited for multiple violations at once. This is a very specific complaint. I surmise that parents felt the absence of assistant coaches is an issue that needs remedying and sought a legal and persuasive way to remedy it--and they found Title IX.
Saturday, March 10, 2012
Sexual Harassment Roundup
Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.
As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).
Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).
A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).
As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).
Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).
A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).
Friday, March 09, 2012
OCR still watching Darien
A quick search of this blog for Darien High School will reveal the many issues the Darien School District has had complying with Title IX in both the areas of equal opportunity and equal treatment (facilities, practice times, etc.). Three complaints in the past six years have resulted in some changes for the better. But not everything is settled and OCR has said Darien still has work to do. The gymnastics team still lacks the appropriate facilities. And the swim team is still having issues with practice times at the local YMCA. (Though the pool at the Y is under construction and apparently, post-renovations, all should be good though there is still a lot of discussion about "pool inequities.")
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.
Thursday, March 08, 2012
Complaints Filed Against Five Wisconsin Districts
Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
Wednesday, March 07, 2012
Settlement Ends Harassment Investigation Against Minnesota School District
This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.
Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:
Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:
- Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
- Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
- Enhance and improve its training of faculty, staff and students on sex-based harassment;
- Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
- Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
- Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
- Improve its system for maintaining records of investigations and responding to allegations of harassment;
- Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
- Submit annual compliance reports to the departments.
Castle Rock Update
We've been following the situation in Castle Rock, Washington (see prior posts here and here), where parents have been advocating for equal rights for girls teams to use the high school's lighted stadium,which has so far been reserved for the priority use by the football team. After initial complaints to the school board failed, one parent filed a complaint with OCR, alleging that it violates Title IX to exclude girls soccer from the stadium.
A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).
The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.
A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).
The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.
Tuesday, March 06, 2012
Quinnipiac seeks to lift volleyball injunction
When Quinnipiac University tried to cut its women's volleyball team several years ago, it lead to the now famous and controversial case about cheerleading. (If you're not quite sure how that happened, click on the Quinnipiac tag.)
Early on in those proceedings volleyball asked for and received an injunction which prevented the university from cutting the team. That injunction is still in place while QU gets its proverbial house in order--i.e. they achieve compliance. Believing that are so, the university filed with the court in December of 2011. A hearing is scheduled for June 11.
But those watching QU closely say the university has not changed its ways. Sandra Staub of the Connecticut ACLU does not believe the university has made any "meaningful improvement in the allotment of athletic opportunities for women at Quinnipiac." Additionally, QU is facing more legal proceedings regarding equal treatment. Staub argues that the school has some issues in the areas of facilities and coaching, among other unnamed items.
Clearly the university wants to replace the volleyball team. It has already fired the head coach. But whether they will have to seek out a new head coach remains to be seen.
Early on in those proceedings volleyball asked for and received an injunction which prevented the university from cutting the team. That injunction is still in place while QU gets its proverbial house in order--i.e. they achieve compliance. Believing that are so, the university filed with the court in December of 2011. A hearing is scheduled for June 11.
But those watching QU closely say the university has not changed its ways. Sandra Staub of the Connecticut ACLU does not believe the university has made any "meaningful improvement in the allotment of athletic opportunities for women at Quinnipiac." Additionally, QU is facing more legal proceedings regarding equal treatment. Staub argues that the school has some issues in the areas of facilities and coaching, among other unnamed items.
Clearly the university wants to replace the volleyball team. It has already fired the head coach. But whether they will have to seek out a new head coach remains to be seen.
Kansas in compliance
But there is still no men's swimming and diving team, much to the disappointment of Ron Neugent, an alum who filed a Title IX complaint in 2009 stating that male student-athletes were underrepresented based on the percentages of male and female undergraduates at the school.
Neugent argued that men were being discriminated against because they had proportionally fewer opportunities in athletics.
His goal was to get the university to add sports for men. But the university--agreeing that it would work on the situation but not admitting non-compliance--opted to achieve proportionality by looking more closely at team rosters and adding and subtracting roster spots.
And having done so, administrators recently filed paperwork stating that the school was in compliance.
Neugent, though, wanted Kansas to add, as mentioned, men's swimming and diving as well as men's tennis. But that seems like a lot of roster spots and KU was not grossly out of proportion. In 2007, two years before the complaint was filed, the university was told it had achieved substantial proportionality when it had a 1.8 percent gap. It seems that adding two men's teams would have required the addition of at least one women's team, which is always great--but expensive.
It also seems that Neugent was concerned not just with equity, but with his alma mater's position in a competition called the Director's Cup. The competition rewards a school for its success across 10 different men's and women's sports. Adding those two men's sports would help KU's standing in that competition.
But, as of now, KU has opted to closely monitor the numbers.
Neugent argued that men were being discriminated against because they had proportionally fewer opportunities in athletics.
His goal was to get the university to add sports for men. But the university--agreeing that it would work on the situation but not admitting non-compliance--opted to achieve proportionality by looking more closely at team rosters and adding and subtracting roster spots.
And having done so, administrators recently filed paperwork stating that the school was in compliance.
Neugent, though, wanted Kansas to add, as mentioned, men's swimming and diving as well as men's tennis. But that seems like a lot of roster spots and KU was not grossly out of proportion. In 2007, two years before the complaint was filed, the university was told it had achieved substantial proportionality when it had a 1.8 percent gap. It seems that adding two men's teams would have required the addition of at least one women's team, which is always great--but expensive.
It also seems that Neugent was concerned not just with equity, but with his alma mater's position in a competition called the Director's Cup. The competition rewards a school for its success across 10 different men's and women's sports. Adding those two men's sports would help KU's standing in that competition.
But, as of now, KU has opted to closely monitor the numbers.
Monday, March 05, 2012
OCR Rejects 900 Complaints About California High Schools
Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Saturday, March 03, 2012
Softball field issues in Butte
In an attempt to remedy an "inadequate" softball field used the by high school girls' softball team in Butte, Montana, two of the team's former assistant coaches. This story caught my attention because it was confusing and curious in multiple ways.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields.
When more information/clarifications emerge, we'll be sure to post them.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields.
When more information/clarifications emerge, we'll be sure to post them.