Ithaca College adding sports

Ithaca College is in the (ongoing) process of adding sports for women. Sculling was recently added to the varsity roster but administrators are looking ahead and discussing what sports will be added in future years as the college works comply with prong two.
Despite the inaccuracies in this article (there are actually three ways--not two--to comply with the opportunities part of Title IX), it was a good example of the process (or at least one version of the process) that schools go through as they make decisions about adding teams.
In the case of IC, they are looking at costs of teams, potential athletes already on campus (largely found in existing club sports), and the potential successes of future teams.

Court Dismisses Claims in Bully-Suicide Case, Again

For the second time this year, a federal district court in Texas has dismissed claims against the Joshua Independent School District filed by the estate and family of Jon Carmichael, a former middle schooler who committed suicide in 2010 after enduring severe bullying at the hands of his peers.  As we noted back in January, the court dismissed the Title IX claims because the complaint did not contain enough detail to warrant a finding that the bullying was "because of sex."  However, the court gave the Carmichaels the opportunity to amend the complaint and try again.  Last week, the court ruled that even as amended, the complaint does not sufficiently warrant consideration under either Title IX.  It also dismissed, for the second time, the Carmichael's constitutional claims.  This is a most unfortunate decision.

Here is how the complaint describes the pinnacle of Jon's abuse:

A day or so before Jon's death, he was once again placed into a trash can. This time the acts of the bullies—all members of the middle school football team—escalated beyond just their regular assaults of Jon and now into a degrading sexual assault. Before they placed him in the trash can, they stripped him nude and tied him up. Then, they proceeded to parade a group of boys before him while calling him “fag”, “queer”, “homo[”], and “douche.” A number of students in the locker room observed this deplorable behavior. Jon was, of course, devastated by this assault that placed his emerging sense of manhood under direct public attack.

Even more shocking than the incident itself is the fact that Jon's fellow student, J.R., videotaped the attack and uploaded it to YouTube. Sometime later, a teacher who had learned of the incident and video directed J.R. to remove it from the website and destroy it. The teacher did not report the incident. It is highly unlikely that if a female student had been the object of such an attack, whether at the hands of male or female students, the incident would have been investigated and reported and the bullies would have been punished. Also, this was another instance where the coaches at Loftin, including Defendant Strickland, employed different customs, practices, and procedures when members of the football team were the perpetrators of an assault.

According to this court, "this single incident, amid numerous ones that contain no hint of gender-based animus, is not enough to state a facially plausible student-on-student harassment claim." The court makes much of the fact that plaintiffs do not allege that Jon was targeted because he was perceived by his harassers to be gay.  Thus, the words the bullies used during the trash can incident did not, to the court, mean anything related to Jon's gender or gender conformity. This represents an overly-narrow view of sex discrimination as applied in the context of bullying.  Especially with the added detail about football players perpetrating, and getting away with, the most severe incident, it is easy to see that bullying is being used a tool to police compliance with the dominant version of masculinity, which Jon Carmichael did not meet, and that makes it discrimination "on the basis of sex" protected under Title IX.

The court also disregards as speculation the plaintiff's claims that a female victim in the same circumstance would have been treated differently, which, in addition to the gender nonconformity theory, is another way of demonstrating that a bullying case involves discrimination on the basis of sex.  This seems unduly harsh.  I think the plaintiffs should have had the opportunity to convince a jury that this was, indeed true.  It seems reasonable, especially in light of  the alleged statement by school officials that "boys will be boys," that a gender double-standard was at play.  

The court did not give the plaintiffs yet another chance to amend their complaint.  Instead, the next available step for the Carmichael family is to appeal the lower court's decision and seek to have an appellate court reinstate their case. That's the outcome I'm rooting for. 


Decision: Estate of Carmichael v. Galbraith, 2012 WL 4442413 (N.D. Tex. Sept. 26, 2012). 

Professor Grossman's Column on Single-Sex Education

Hofstra law professor Joanna Grossman's most recent column on Justia.com examines the ACLU's recent challenge to single-sex classes at a West Virginia middle school (a case we also blogged about) and its study of single-sex education in America, called "Teach Kids Not Stereotypes" (see prior posts here and here).  Grossman explains the Department of Education's 2006 regulations implementing the No Child Left Behind law permit public schools to use single-sex education only when doing so is "substantially related" either to "an overall established policy to provide diverse educational opportunities" or "to meet the particular, identified educational needs of its students."  The regulations also require that programs must be voluntary, and allow for a co-education alternative.  Yet, the ACLU's study, as well as the West Virginia case, suggest that schools are not taking these requirements seriously, since so many of them are based on the premise of questionable scientific validity that boys and girls are hard-wired to learn differently.  What's more, Professor Grossman points out, the Department of Education's enforcement of the regulatory requirements and limitations is inherently lax, as the regulations provide for school district's self-evaluation rather than periodic compliance checks by the agency.  Grossman concludes by echoing the ACLU's recommendation, "that the Department of Education should act swiftly to rescind the 2006 regulations that have led to a widespread misunderstanding of the requirements of the implementation of single-sex education in public schools, to reinstate the prior regulations, and to provide immediate and much-needed guidance making clear that programs based on sex-stereotyped instruction violate Title IX and the Constitution."

Florida School District Pays $250,000 to Settle Harassment/Retaliation Case

The Citrus County (Florida) School Board will pay $250,000 to settle sexual harassment and retaliation claims by former students.  This high dollar figure will probably not surprise readers who recall this case from earlier posts, such as this one describing the egregious sexual harassment and abuse student-athletes alleged against three male coaches of the girls' JV soccer team at Citrus High School, and this one describing school officials' absurd retaliatory acts of trying to kick one of the complainants and her sister out of school on false claims that she lived outside the district. 

The school district also agreed to write a letter of regret and provide Title IX training to district employees.  Yes, please, this district definitely needs some Title IX training.  

OCR Called to Investigate Title IX Violations by the South Carolina Department of Education and 20 School Districts

We've got our eye on a number of complaints reportedly filed with the U.S. Department of Education's Office for Civil Rights targeting sex discrimination in athletics in the state of South Carolina.  One complaint names the South Carolina Department of Education, while a separate round of complaints addresses particular disparities at 20 school districts in the state.  The media hasn't yet reported much detail about this, other than to note that OCR is in the early stages of intake with the earlier-filed SCDOE.

In June, OCR settled a Title IX complaint against the Spartanburg, South Carolina school district, in a manner requiring the district's Boiling Springs and Chesnee High School to change the manner in which they schedule double-header basketball games so that girls have equal opportunity to the prime time slot.  No word yet on whether similar allegations are included in the recent complaints.

Oregon parent pursues lawsuit

In July we wrote about Randy Anderson, a parent of a softball player in the Seaside School District in Oregon. He was challenging the lack of access the girls' softball team had to the city's new premier athletic facility. The school district later announced that they would indeed allow the softball team to use the field--along with the football, baseball, and soccer teams. But Anderson says access to the field is not the only issue and so he is pursuing the lawsuit against the district.
Anderson's lawyer wrote in a statement that there are issues "regarding practice and competitive facilities, locker rooms, training facilities, equipment and supplies, travel and transportation, coaches and coaching facilities, scheduling of games and practice times publicity, funding and equal athletic participation opportunities."
In other words--pretty much everything.
I am not sure how effective a lawsuit will be unless others in addition to Anderson (whose daughter will eventually graduate) join in. It might be helpful to file an OCR complaint. It would trigger an investigation, which can have the effect of making schools a little more (re)active.

Who will do the data?

We here at the Title IX Blog tend towards the qualitative in our own research, but we greatly appreciate the people in our lives who are more quantitatively minded. This is especially true of Linda Jean Carpenter and Vivian Acosta whose 35-year longitudinal study of Title IX and women's participation in intercollegiate athletics (as student-athletes, coaches, administrators, trainers/medical personnel) has been invaluable to our work and arguably to everyone who studies Title IX. And so we were a little dismayed to discover that Carpenter and Acosta may be done with data collection. We understand and agree with Carpenter who noted that 35 years is indeed a very long longitudinal study.
But, as also noted, tracking the trends remains crucial to understanding Title IX and sport culture more generally. And so we hope someone takes up where they left off. Smith College's Project for Women and Social Change currently funds the study. It would be great if Smith could take over data collection as well. Seems like a good opportunity for grad student and faculty collaboration.

Know Your Rights: Back to School Edition

First day of school (for some of us)!
There are plenty of Title IX in the classroom issues all year round, but today just a reminder about two: pregnant students and single-sex classrooms in public schools.
The latter made news in West Virginia last week when a parent challenged the single-sex classrooms at a local middle school and a federal court issued an injunction against the school.
The ACLU (which handled the West Virginia case) also issued a report this month about single-sex classrooms in public schools and the educational messages being sent in them including the teaching of "male-hood" and "female-hood" by telling boys to become the "warrior, protector, and provider" while the girls spend their time "writing, applying and doing make-up and hair, art."
The Feminist Majority Foundation released its report on single-sex education at the beginning of the summer and pointed out that the percentage of public schools with single-sex classrooms remains small, though the popularity of the trend is concerning. Especially helpful from the FMF report was the list of four major concerns and violations the organization found including1) weak justifications for single-sex education; 2) inequality among the classrooms as seen in student-teacher ratios and the perpetuation of gendered stereotypes; 3) lack of viable opt-outs and; 4) lack of evaluation methods to determine efficacy of single-sex classrooms.
Also, as we noted earlier in the summer, single-sex classrooms are not the only ways in which gender stereotypes are being perpetuated. Many single-sex activities exist in co-ed environments that can also be damaging. 
Regarding the treatment and rights of pregnant students, the National Women's Law Center has a comprehensive report available on their website.  In addition to the report, readers can find a toolkit, a wallet-sized card listing the rights of pregnant and parenting students, as well as a fact sheet for schools.
In the wake of the news about pregnancy testing of female students in a Louisiana charter school, we think the NWLC report and accompanying resources are both helpful and timely.

Poly Prep Must Defend Title IX Lawsuit for Sexual Abuse by Coach

In 2009, ten former students of Poly Prep Country Day School, a private high school in Brooklyn, sued the school under Title IX and other laws, claiming damages arising from having been sexually abused by the school's former football coach, Philip Foglietta, between the years 1966 and 1986. The plaintiffs allege that school officials knew of Foglietta's widespread abuse and worked to conceal it. Recently, a federal court in New York decided in the plaintiffs' favor on two preliminary questions arising out of the age of the underlying allegations.  

One of Poly Prep's defenses is that Title IX only applied to programs directly receiving federal funds in the years following the Supreme Court's 1984 decision in Grove City College v. Bell.  Grove City College was later supplanted by a congressional statute restoring institution-wide liability that went into effect in 1988.  As such, Poly Prep argued that the school cannot be liable under Title IX for alleged acts which occurred before 1988, because the federal funding Poly Prep received during this time -- funds to support scholarships and loans as well as construction and rehabilitation projects -- were not direct to the athletic program.  The court rejected this argument, however, finding evidence in the 1988 statute that Congress intended its application to be retroactive, including the Act's use of terms such as "restore" and "clarify."  A Second Circuit case from 1989 held similarly on the question of the 1988 statute's retroactivity, providing precedent for this court to follow.     


Poly Prep's other argument was that the plaintiffs' Title IX claims are barred by the statute of limitations because they are so old.   Title IX itself does not contain a statute of limitations.  Instead, courts apply the statute of limitations that governs similar actions under state law, which in New York is three years.  However, plaintiffs are not penalized for missing the deadline to file suit if the nature of the injury has been "fraudulently concealed."  It is possible that by concealing that they had knowledge of Foglietta's wrongdoing, Poly Prep officials made plaintiffs believe that they had no claim against the school.  To hold plaintiffs' claims as time barred would violate the reasoning of New York state courts' that "[a] defendant/wrongdoer cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense."  The burden will be on the plaintiffs to prove that the elements of fraud occurred, including that they relied on misrepresented or concealed information as the basis for not bring suit.  But for now, the plaintiffs Title IX claims (as well as a state law claims for negligence, which is also subject to the statute of limitations defense) remain a part of the case.


Also of note: in an earlier post about this litigation, we noted that the case raised the question of whether federal tax exempt status counted as a receiving federal funds for purposes of Title IX.  This argument no longer appears to be an issue in the case, having been supplanted by the discovery that Poly Prep received direct federal funds (for student loans, construction projects) during the time period in question.  The court also rejected it in a footnote, noting "Courts have held, however, that such status does not constitute federal financial assistance within the meaning of Title IX. See, e.g., Stewart v. New York Univ., 430 F.Supp. 1305, 1314 (S.D.N.Y.1976)."


Decision: Zimmerman v. Poly Prep Country Day School, 2012 WL 3683393 (E.D.N.Y, Aug. 28, 2012).

Social Justice Feminism Conference at University of Cincinnati

Allow me to plug an upcoming conference on Social Justice Feminism, sponsored by the Center for Race, Gender, and Social Justice at the University of Cincinnati School of Law.  From October 25 to October 27, panelists including advocates, activists, and scholars will discuss women’s movements, building community, and advocating for social justice in such areas as sex, citizenship, reproductive freedom, criminal justice, gender violence, food security, education, parenting, economic inequality, and more.  

A conference program can be found here.  

Legal Advocacy Groups Urge Department of Education to Investigate Penn State

The ACLU and the Women's Sports Foundations have urged the Department of Education to investigate whether Penn State's response to known incidents of sexual abuse by former assistant football coach Jerry Sandusky violated Title IX.  According to this article, the Department hasn't ruled out possibility of an investigation, and some experts think that an investigation seems likely.  If the findings of Penn State's internal investigation (known as the Freeh Report) are true, the situation at Penn State contains examples of what courts and the Department have already said constitutes "deliberate indifference" and the basis for institution liability under Title IX -- examples such as suppressing reports of assault by intimidation and allowing athletics to handle its own cases outside the university process, according to Professor Nancy Hogshead-Makar, quoted in the article.  It is also possible that the Department would investigate potential violations of the Clery Act, which requires universities to disclose information crime on campus.  Yet Title IX gives the Department more leverage, since it has the theoretical power to revoke all of Penn State's hundreds of millions of dollars in federal funding.  As the article points out, a Title IX investigation could also inspire private litigation by victims, who could bring a claim for damages under the law.

For a related, earlier post, see this summary of  Professors Joanna Grossman and Debbie Brake's Title IX analysis of the Penn State case for the website Justia.com.