Schlafly tries to side with OU

The University of Oregon is asking a federal court of appeals to overturn the ruling by a ninth circuit three-judge panel that said a former doctoral student's Title IX case against the university was worthy of a trial.
We have blogged about this case here--so I won't recap all the details.
It is not surprising that UO has asked for the panel's ruling to be overturned.
What is slightly more so--to us and to the university I think--is that the Eagle Forum, an organization headed by noted conservative Phyllis Schlafly, is trying to join in the case on the side of the university. Overturning Title IX because, they argue, it discriminates against men, has long been on the Eagle Forum's agenda.
But the university is now caught in a little predicament. Eagle Forum wants Title IX in front of the Supreme Court for an opportunity to be overturned or weakened by the conservative-leaning court. But the university doesn't want Title IX overturned--they just want this case to be re-framed: as one of academic freedom.
I don't quite buy that--especially because this incident at Appalachian State has been on my mind and given the lengths professors who teach perceived controversial material are taking to protect themselves from student allegations these days. This looks like a retaliation case. That is what the Ninth Circuit Panel saw. It should go to trial. 

NCAA Provides Model Policy to Prevent Athlete-Coach Relationships

The NCAA has come out with a very clear position on sexual relationships between coaches and student-athletes.  They are wrong.  They are a serious problem.  And they must be "unambiguously and effectively prohibit[ed] to ensure that sport programs offer a safe and empowering experience for all student-athletes."

This week, the NCAA is sending to its members a publication called "Staying in Bounds: A Model Policy to Prevent Inappropriate Relationships between Student-Athletes and Athletic Department Personnel," which is co-authored by law professor Deborah Brake and author/journalist/athlete Mariah Burton Nelson.

Off the bat, the authors make clear that they are talking about all romantic, sexual, or "amorous" relationships between coaches (or other athletic department staff) and student-athletes, even if they are professed to be consensual.  As the authors explain, there is a significant power differential between student-athletes and coaches (and athletic directors, and training staff), who spend intense and intimate time together.  As such, coaches who cross that line necessarily abuse that power, and their actions constitute sexual abuse.  It makes no difference that both parties are technically adults.

As a legal matter, many sexual relationships between coaches and athletes violate antidiscrimination laws such as Title IX, exposing schools to the risk of liability.  The power and influence coaches have over their athletes may suggest the absence of consent, which is an element of sexual harassment under the law.  And even in cases where the relationship appears "welcome," the university could be at risk of liability under Title IX due to the negative effect the relationship is likely to have on the other members of the team.  The authors suggest that prohibiting all sexual relationships between coaches and student-athletes is a prudent step to managing the risk of liability.

But even setting aside concerns for liability, banning athlete-coach relationships is necessary as a matter of professional ethics.  Other professions prohibit relationships between adults where a power difference obscures consent, such as the ethic that prohibits doctors and therapists from having sexual relationships with their patients.  Still others guard against relationships that are detrimental to the moral of a group and its trust in those with power, as in the cases of judges bound by ethics to avoid the "appearance of impropriety" including sexual relations with those who appear before them, and members of the clergy who regard it unethical to have sexual relationships with a parishioner.

With these considerations in mind, the authors make the following recommendations to  NCAA member institutions:

• Institutions should have free-standing policies addressing amorous relationships and not leave it to be covered by a general policy on sexual harassment.
• The athletics department should have its own policy on amorous relationships, rather than assume coverage under a university's general policy on relationships between staff and students.
• The policy adopted should prohibit sexual or romantic relationships between all coaches and athletes, not just coaches and the athletes on their team.
• The policy should not create an exception for coaches who are married to an athlete.
• The ban should continue for at least two years after the athlete/coach relationship has ended.
• The policy should prohibit retaliation against anyone who reports a violation.  
• The policy should provide for enforcement and discipline for coaches who violate it.
• The athletics department should educate coaches, staff, and student-athletes about the policy. 

As the authors note, many view coach-athlete relationships as harmless and benign. For that reason, there is likely to be some initial resistance to the model policy.  This publication is the first step toward challenging society's complacency on this issue, and I'm hopeful the policy recommendations it contains will ultimately be embraced widely. Kudos to the NCAA for taking a strong stand against this demonstrated threat to athlete well-being and to the authors for presenting shedding such clear light on the issue. 

Sometimes you have to look beyond Title IX

We have been writing a lot lately about Title IX and sexual harassment and sexual assault. We noted that when judicial boards/courts consider sexual assault there is a different standard of proof than what is demanded by criminal courts.
Well, in Missouri last week, a state appeals court ruled that plaintiffs can now use the state's Human Rights Act to sue schools when sex discrimination is alleged. The ruling is in the wake of a lawsuit brought by parents of a boy who claims who was repeatedly assaulted by another male student in an elementary school. Plaintiffs lawyers are pleased because the Missouri Human Rights Act does not require, as Title IX does, for the schools to exhibit "deliberate indifference" to the situation. The HRA, which has been used in cases of sex discrimination in work places, only states that the defendant--in this case, the school district--knew or should have known about the discrimination/harassment.
It seems that the school district might appeal the ruling.
There's an interesting parallel here to the ways in which female students who wanted access to contact sports (exempted from Title IX) the federal law to their own state's Equal Rights Amendments in order to gain access.

OCR letter engenders changes

Inside Higher Ed has a piece about the changes that have occurred within the judicial bodies at various institutions in the wake of OCR's 2011 Dear Colleague Letter reminding schools of their need for Title IX compliance in regards to sexual assault and harassment.
The article specifically focuses on the honor court at the University of North Carolina (Chapel Hill) which recently decided to remove sexual assault cases from their docket. Those on the honor court, comprised entirely of students, could have been trained to specifically to handle sexual assault cases and remain in compliance with Title IX, but they opted to develop a new system for students seeking redress after alleged sexual assaults. Those involved hope that a new system will better serve the needs of victims, noting that the current honor court is likely seen as discouraging victims from coming forward.
The article also notes other schools that have adjusted their judicial boards, some of which contain faculty and staff members in addition to students. The goal, of course, is to develop a system from addressing claims of sexual assault that takes into consideration the climate and history of the institution as well as the needs of the parties involved.

Title IX Legal Scholarship Update

In the current issue of the BYU Education Law Journal, author Patrick J. McAndrews proposes a strategy for universities' compliance with Title IX without cutting men's teams.  Specifically, his three-part strategy includes long-term planning, roster management aimed at football, and aggressive surveying of students interest in order to demonstrate compliance with prong three.  Though this last point does not seem to take into account that the Department of Education's 2005 Clarification, allowing surveys to serve as the sole evidence for compliance with prong three, has since been repealed, the other suggestions are worthy of consideration.

Additionally, two articles in the current Sports Lawyers Journal are related to Title IX.  Author Andrew Weissler critiques the application of the three-part test to interscholastic athletics, and advocates for OCR developing a different interpretation of the effective accommodation regulation that takes the special circumstances of high schools into account.  In another piece, Ephraim Glatt argues that courts should not defer to OCR's 2008 Letter that provides guidance on what counts as an athletic opportunity for purposes of Title IX. He argues that factors such as athleticism and injury rates counsel in favor of counting competitive cheer as a sport for Title IX. 

Patrick J. McAndrews, Keeping Score: How Universities Can Comply With Title IX Without Cutting Men's Teams, 2012 BYU Educ. JL 111 (2012). 


Andrew J. Weissler, Unasked Questions: Applying Title IX's Effective Accommodation Mandate to Interscholastic Athletics, 19 Sports Law. J. 71 (2012).


Ephraim Glatt, Defining "Sport" Under Title IX: Cheerleading, Biediger v. Quinnipiac University, and the Proper Scope of Agency Deference, 19 Sports Law. J. 297 (2012).

Washington Post Covers Title IX and Campus Rape

Title IX's application to campus sexual assault was in the news this weekend, as the Washington Post profiled colleges' and universities' response to accusations of rape in the wake of the Department of Education's 2011 Dear Colleague Letter (DCL) which clarified schools' obligation under Title IX to investigate charges and effectively discipline those responsible.  Most of the article focused on the letter's requirement that schools use the "preponderance of evidence" standard to evaluate the case against the accused, rather than the more onerous "beyond a reasonable doubt" standard that is reserved for criminal matters where sanctions such as prison sentences are at stake. The article frames a controversy about the burden of proof by telling two stories.  In one, a rape victim is vindicated by her university's judicial process after the police refused to press charges, as they often do, due to the difficulty in satisfying the criminal burden of proof in matters that, typically have only two witnesses, the victim and the accused.  In another story, a male student was railroaded through a university "kangaroo court" after being accused of rape by a woman with whom he'd had consensual sex.  Police later brought charges against her for filing false charges, but not before the accused was expelled from school after university officials refused to hear his side.

While not denying that false reporting (a) happens, (b) is wrong, and (c) should be guarded against in the disciplinary process, I think the article creates a false linkage between what happened to that falsely accused student and the DCL.  It sounds like the university failed to investigate thoroughly and to give equal treatment to both sides, as Title IX and the DCL require. Blaming the preponderance standard in that case is like blaming the level playing field for a game you lose due to bad call from a biased referee. It's not fair to use that story to anchor the suggestion of opposition to the DCL, given that it doesn't appear the DCL was followed in that case. 

Maryland cuts comeptitive cheer

The first DI school to raise the issue of cheerleading as a sport, Maryland decided last week to cut the team now known as acrobatic and tumbling or acro for short. The acro team is one of 8 varsity teams being cut at Maryland which is suffering from huge budget deficits.
In 2003 UMD made its cheer team a varsity sport, believing other schools would follow quickly. Others schools have followed (only 5 in DI though), but obstacles remain.
At the forefront is the "is it a sport" question. Sure--if it's treated like a sport. In other words (and in the context of intercollegiate athletics): does it exist solely to be a sport (and not a support system from other sports)?; is the team and the athletes provided the same level of support in all program areas as other existing sports? Meeting such conditions would clear the way for OCR to offer approval and thus make it count for Title IX which is what most schools are looking for: a cheap sport to even the numbers. (Though, as I have said before, I don't think a sport the highest rate of catastrophic injury will necessarily be cheap.)
But the NCAA is another obstacle. The activity formerly known as competitive cheer isn't recognized as a sport by the organization. So they won't count it yet--or sponsor a championship for it.
And the schism in the cheer community between acro and its competitor--stunt--makes NCAA approval an interesting prospect/process.
Check out the recent issue of TIME for more on the issue and to see Erin's quote.

OCR Complaint Filed Against University of Montana

It's reported this week that OCR will be investigating received a complaint filed earlier this year against the University of Montana, alleging sexual abuse and rape involving the football team. Details in the article are scarce, as the press received a redacted version of the complaint in order to protect the confidentiality of whomever filed it.

However, news out of Missoula over the last several months offers several clues as to the nature of the complaint and the likely scope of the investigation. The University of Montana football team was in the news last December, when three of its members were accused of using a date-rape drug to assault three women on campus. While one was eventually arrested and charged with rape, the University was criticized for its response, which included hiring a retired judge to conduct an independent investigation. Some saw as an unnecessary step, a delay tactic, and a public relations move. In any event, the judge's investigation eventually revealed nine cases of alleged sexual assault or attempted sexual assault involving students in the 16 months ending in December 2011. Many of these complaints were withdrawn by the victim or not pursued by the university.

Then, in February, a female student got a restraining order against the team's quarterback, and no charges were filed.

Last month, the University announced that it would not renew the contracts of its very successful head football coach Robin Pflugrad and the athletic director Jim O'Day. The University did not accuse either man of attempting to cover up a rape culture among the football team, but, reportedly, that is what many believe.

My guess is that OCR's investigation will shed some light on that very question.

Niagara cuts women's ice hockey

Found out, via Twitter, yesterday that Niagara University is cutting its women's ice hockey team because it is too expensive--and apparently underperforming. Apparently, after a strong start (the team made the Frozen Four only four years after its establishment), the team has not done well.
The school, which has (according to the latest Department of Education data) a 59% female undergrad population, has 53% of its athletic opportunities going to women. That is with hockey. Without hockey that statistic goes to 45%. The school has announced it will add women's track and field. Right now it looks like NU has cross country for both men and women. The addition of track and field for women means that there will be "new" opportunities for female student athletes, but that some of those are likely to be filled by current cross country runners--which is fine and legal and all.
It's just a little disappointing that to save costs, the university has decided to draw support from it's women's ice hockey team, but keep the men's team, and add what will likely be fewer opportunities overall because of the duplicate athletes (of which NU currently has none).

Michigan high school softball field controversy

The girls' softball team in Avondale, Michigan is embarrassed by the condition of their field. And the players and their supporters are wondering where the money earmarked for the facility's improvement have gone--as they stare at the newly renovated boys' baseball facility that has a dedicated field for the junior varsity team. And even as they ask questions about where the promised improvements are, many know nothing will happen in the immediate future. So the girls are working with administrators on an arrangement that would allow the softball team to share the JV team's field. (Not sure how they will deal with the differences in the field dimensions, but I would imagine they have a plan.)
Best line of the article:
At the very least, Avondale made a mistake in timing. After all, shortchanging a female team on the 40th anniversary of Title IX isn't the best way to win plaudits from equal opportunity advocates.

New volleyball coach at Quinnipiac

Apparently hedging some bets about whether the court will lift the injunction against the school cutting women's volleyball, Quinnipiac has hired an interim head coach for the program. As you might recall, coach Robin Lamott Sparks was fired and escorted off campus a couple of months ago for reasons that remain unspoken. Yes, there was the bad record--but bad records don't generally warrant security escorts.
Meanwhile, QU has been trying to cut the team, but has been prevented by an injunction that stemmed from the case that became famous for addressing the "is cheerleading a sport" question. QU has requested the injunction be lifted; that issue will be determined later this spring.
Meanwhile, the university has brought on board Kristopher Czaplinski who had been serving as an assistant coach at Post University. He has also been involved in Junior Olympic program.
Not quite sure how the university convinced him to give up an actual job for one that might be gone by the summer. It's possible he will get a shot even if the injunction is lifted. We shall see...

New York Times Examines Coach Salary Disparity in Basketball

Tonight, Baylor and Notre Dame will play for the NCAA championship in women's basketball, so the New York Times chose today to run an article about salary disparities between coaches of men's and women's teams. According to the article, the coaches of women’s college basketball teams are paid about one-half or one-third of the amount of the men’s basketball coach. There are a few exceptions, like Tennessee's Pat Summitt, whose $2.2 million annual salary is actually more than her men's team counterpart, and Geno Auriemma, who makes two-thirds of UConn men's team coach Jim Calhoun. But in most cases, men's basketball coaches (who are almost always men) are paid two- or three- times more than the coaches of women's teams, whether they are male or female.

The article then examines factors that contribute to this disparity, which defies the general principal under Title IX that men's and women's teams receive comparable resources, including coaches of equal caliber, and the Equal Pay Act, which prohibits paying women less for equal work. One source of the disparity is third-party sources of income, like endorsements and speaker fees. Men's coaches are also able to capitalize on market forces that make their summer camps a profitable endeavor, while women's team's summer camps are generally recruiting tools that break even. The article also notes that unlike the coaches on the men's side, whose teams receive favorable treatment automatically, coaches of women's teams use their employment contract to secure amenities for their teams. This presumably cuts into their bargaining power to leverage higher salaries.

The article also provides some insight into law's limited ability to address disparities in head coach salaries. Title IX's limitation in this regard is that it is student-focused. The law requires equal treatment for men's and women's teams, which includes the quality of coaching each program receives. Quality of coaching is of course a function of the compensation available. But the overall market for salaries in women's sport generally allows universities to purchase a coach of comparable quality to head their women's teams, just at discount prices.

The Equal Pay Act is also implicated by salary disparities, but limited in its ability to address the problem. For one thing, as the article notes, third-party payments like endorsements are outside the scope of the Equal Pay Act. (I do think, however, that a case could be made for including booster club payments as part of the equal pay equation, by analogizing to Title IX, which requires school districts that accept funds raised by one team's boosters to still provide equal treatment to boys and girls teams.) Another limit is that the Equal Pay Act provides a remedy to women who are paid less than men for equal work -- it doesn't apply to male coaches of women's teams who may be paid less than male coaches of men's teams. And even where the Equal Pay Act does apply, universities can justify disparities in base pay by arguing that the male coach has more job responsibilities -- even if such additional job responsibilities are seemingly manufactured for that purpose, such as requiring the men's team coach to make 20 public appearances and the women's team coach15 (an example from the article). The Equal Pay Act also allows universities to justify paying male coaches more based when their team brings in more revenue, even though this disparity is due to to external market forces rather than the respective effort that each coach puts into the job.

Reversing the Trend of Declining Women Coaches

This article on ESPN.com addresses the dearth of female coaches in a way that appropriately puts the responsibility on colleges and universities to make sure that it is reaching out to a diverse pool of candidates as well as creating a working environment that is friendly and conducive to coaches of both sexes. I have just one complaint about an obvious omission. If you want to attract female coaches, you have to make sure that your institution is doing right by lesbians. No, I don't believe that all aspiring female coaches are gay -- of course that's not true. But some are. Many are. If you want to attract the largest possible pool of female applicants, you should also be asking the following questions, in addition to the advice about that the ESPN article provides about recruiting, mentoring, networking, and supporting female coaches.

• Does your institution have employment policies that are gay and lesbian friendly? For example, do you have a nondiscrimination policy that includes sexual orientation as a protected class, and do you offer domestic partner benefits?
• What has your department done to address the problem of negative recruiting? (Negative recruiting is the practice of mentioning another coach's perceived lesbianism to potential recruits and their families in an effort to gain a recruiting advantage over that coach.) Do you have a zero-tolerance policy for coaches who engage in negative recruiting, and have you stood up for coaches against whom negative recruiting has been used?
  
• What is the culture and climate of your athletic department? Are all coaches' partners and families welcome at events? Are gay and lesbian staff members as free as anyone else to talk openly about their partners and families?
  
• Do your media guides provide equal treatment to coaches' nontraditional families, or do they only mention coaches' opposite-sex spouses?
• Are recruiting materials using code words like "family friendly" or "Christian values" that may be signaling discomfort or exclusion of lesbian coaches?

See also, this article in New York Times about dwindling number of female head coaches in women's hockey. It too provides a comprehensive analysis of the problem, but fails to mention homophobia in sport as a contributing factor.