OCR's Quadrennial Report, and Ali's Last Day

Yesterday the Department of Education's Office for Civil Rights held a conference call to roll out a new report summarizing its enforcement and policymaking efforts since 2009.  Federal law requires the agency to produce a report like this every four years, covering all of its enforcement areas including but not limited to Title IX.  The report does not contain any big news or surprises on the Title IX front, but the conference call did: tomorrow is Assistant Secretary Russlynn Ali's last day on the job.  The Obama administration has not announced a replacement for the OCR chief.

Here's an excerpt from the report, which I thought was interesting.  It's a chart of Title IX complaints, broken down by topic, and showing the total number of times a complaint addressed one of those topics.  Athletics received the most complaints, over 1200, but sexual harassment/sexual violence was a close second with 1137 [that must be a typo in the chart, because racial harassment was discussed in another section]. Beyond those two big and well-known categories, sex discrimination is also alleged in a wide variety of topics from admissions, other forms of differential treatment, employment issues, financial aid, grading, pregnancy, retaliation, and other. 

In addition to the complaints it received, the agency also initiated 37 proactive compliance reviews, 11 of which related to sexual violence and 17 of which related to athletics.

The report is useful as a barometer of what Title IX issues are still relevant and in what proportions.  But other than the information about proactive compliance reviews,  there's not a lot of useful data about enforcement.  For example, of those 1264 athletics claims -- how many did OCR investigate?  How many compliance orders or resolution agreements?  Because we know that hundreds of athletics claims -- the mass complaints filed against school districts in Washington, Oregon, Idaho, and California -- were effectively dismissed without investigation, we can guess that the "percent of claims investigated" figure would have been rather low.  I'd have been curious to compare that to similar enforcement data for other types of claims. 

Nevada School District Starts Girls' Flag Football

The inaugural season for girls' flag football starts this week Clark County, Nevada. The Clark County School District earlier announced its decision to add the sport to close the gap in athletic opportunities available to girls and boys -- a gap of over 4000 opportunities, so large that the district one of the 12 targeted by complaints filed by the National Women's Law Center  in 2010.  To resolve the complaint, Clark County also added 400 new opportunities for girls by starting a freshman soccer program. 

I haven't seen information on the total number of opportunities that flag football has provided to girls, but it seems from this article that there are many schools in the district who are fielding teams -- so many that the district's league is divided into regions, and schools will compete for regional and district-wide championships after the regular season. Flag football was chosen in a process of meetings to assess the athletic interests of female high school students.  And indeed, interest appears strong -- at one school, 125 girls reportedly tried out for the teams 15 roster spots.

Title IX advocates are sometimes skeptical of schools' decisions to add flag football, which sometimes appears to be a "quick fix" to Title IX problems, and as a substitution for sports that are more expensive and have more opportunities to compete. So I'm glad to see that Clark County's decision to add flag football was motivated by expressed and apparent interest in the sport from among its students.  And I am glad that it appears the teams will have lots of opportunities for competition within the district --  to this end, it helps that Clark is the fifth largest school district in the nation, with almost 50 high schools.  From what I can tell, Clark seems to be doing it right.  I hope they have a great season. 

The story behind the Adrian College complaint

The woman behind the 2007 complaint against Adrian College (which OCR found to be out of compliance in 8 program areas) spoke recently at a Michigan chapter of the American Association of University Women. Molly Ziegler-Moore, an Adrian College alum and former coach, presented her version of the events leading up and during the OCR investigation of the school. We have noted repeatedly that Adrian College was one of the most egregious examples of violations that has been brought to light (click on the Adrian College tag for our many posts on this). I don't think we realized just how much was going on before Ziegler-Moore decided that simply pointing out the inequities to administrators was not going to work.
We highlighted the multi-sport complex that lacked a women's locker room (an administrator told her "oh, it's in there"). A year later the hockey arena the hockey arena was built. It had a women's locker room but it was smaller with inferior amenities. When the college announced it was building a $2 million baseball complex, Ziegler-Moore--the softball coach--was promised her team would also get facilities. But when listing all she desired for the new complex softball would receive--like no more port-o-potties--she was told the softball complex costs were being capped at $200,000. So she asked one of the school's VPs if this was Title IX compliant. "Probably not" was his response.
I often discuss in my classes how discrimination can be subtle, sometimes even unintentional.
Not always, apparently.
I think Adrian College got off pretty easy on this one; largely because most employees were scared and Molly Ziegler-Moore was not out for for any kind of vengeance or compensation for the mistreatment of her or her athletes or female student-athletes as a whole. She just wanted the school to follow the law.

Later, after compiling a “wish list” of improvements to replace the portable johns that female softball students were using, she learned that they would not be the same. The new softball complex would cost only $200,000. So she asked a vice president, “is that Title IX compliant?” #“Probably not,” he replied.

Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/

Later, after compiling a “wish list” of improvements to replace the portable johns that female softball students were using, she learned that they would not be the same. The new softball complex would cost only $200,000. So she asked a vice president, “is that Title IX compliant?” #“Probably not,” he replied.

Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/

Later, after compiling a “wish list” of improvements to replace the portable johns that female softball students were using, she learned that they would not be the same. The new softball complex would cost only $200,000. So she asked a vice president, “is that Title IX compliant?” #“Probably not,” he replied.

Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/

Another side of the story that Ziegler-Moore presented was about her own experiences confronting administrators prior to filing and her relationships within the school after she filed. She said she left due to the chilly environment after 15 years with the school and now works outside of sport. Colleagues did not want to be seen associating with her. She knows that had she stayed and been fired (a not-so-unlikely possibility), she could have filed a retaliation lawsuit. But her motivation for filing was to make the school a better place for all students; to make it a fair(er) institution. Of course people at the school resent the money that has to be spent to remedy the discrimination and probably the attention their combination of ignorance and willful discrimination garnered. Discriminatory practices may have changed, but have attitudes?

"Title IX" Cuts at Towson Reconsidered

Often we read about colleges and universities cutting men's teams, ostensibly to comply with Title IX.  I usually object to this framing, which makes it sounds like the law requires universities to equalize athletic opportunities in this manner and doesn't take into account compliance by other means than statistical proportionality.  But of course, this is a convenient narrative for colleges and universities to employ, as it positions them as innocent victims of the law, rather than free agents making economic and political decisions about how many and which sports to offer.  It's easier to say to disappointed baseball players and wrestlers, "sorry, blame the women," than it is to admit, "sorry, we just value football players' opportunities more than we value opportunities in your sport."  

Because I am sensitive to the "Title IX made me do it" defense to cutting teams, I was interested in this article about the Towson University Athletic Director's proposal to cut baseball and men's soccer.  But when AD Mike Waddell claimed that these cuts were needed for Title IX compliance, that rationale raised questions.  Specifically, the university's Board of Visitors looked into the numbers, the determined that athletic opportunities were actually proportionate to the percentage of students of each sex, so Title IX compliance has already been achieved.  Apparently, Waddell based his proportionality calculation on an unduplicated headcount, which counts the number of student athletes, without taking into account separate athletic opportunities that are enjoyed by multi-sport athletes.  However, as long as athletic opportunities are truly separate, meaningful athletic opportunities in their own right, universities may count them that way for Title IX purposes.  The so-called "duplicated" head count measures opportunities, not participants.  In Towson's case, many female athletes participate in both indoor and outdoor track, so proportionality does not appear satisfied when you use the unduplicated head count, but it does when you use the duplicated one.

In my mind, there are three possible interpretations of this discrepancy.
1. Waddell, despite being an AD at a Division I institution, does not know that it is acceptable to use the duplicated head count.  This is possible, as we frequency encounter gaps in Title IX literacy, even at the AD level.  On the other hand, athletic directors *love* the duplicated headcount because it works in their favor.  In fact, we usually complain about its over-use, such as at Quinnipiac, where certain female runners were triple-counted notwithstanding the apparent fact that winter and spring sports were really not functioning as separate sports but a glorified off-season for the cross-country team.  But it's possible that Waddell didn't get the memo.

2. Waddell knows that's acceptable to use duplicated head count, but has doubts about whether winter track is a genuine, meaningful athletic opportunity in its own right.  Maybe he is using the unduplicated count on principle because he feels that using the duplicated one would amount to taking advantage of a loophole.   This too is possible, though it is certainly at odds with the decision to create a winter track team.  If you object to the integrity of double-counting, why do you have those opportunities in the first place?

3. Waddell wants to cut men's soccer and baseball for reasons that have nothing to do with Title IX, but proffered the unduplicated headcount to provide a convenient excuse.  If this is correct, I think we will soon find out, based on what happens at Towson now that the duplicate calculation is in the spotlight.  If the athletic department goes ahead with the cuts anyway, we'll know they were not in fact motivated by Title IX compliance.  And we'll have one more reason to be skeptical of such a claim in future cases involving cuts to men's teams. 

Opportunities, interest and what else Title IX covers

Last week I attended the North American Society for the Sociology of Sport and will blog in a few days about the Title IX panel held. But in light of the release of a new study in the field of psychology about female interest in sport, I thought it more important to tie that into the presentation Dr. Ellen Staurowsky made at NASSS about the so-called "loss" of opportunities for men when intercollegiate teams are cut.
In a case study of three institutions that cut teams, Staurowsky analyzed the discourse around the cuts, the ways in which Title IX was (or was not) invoked, and the course the respective athletic departments took after the cuts (i.e. building new facilities, upgrading conferences). For many schools, cutting athletic teams allows for things like new stadiums, new athletic centers, new bells and whistles, embellishments and adornments that make the school appealing to prospective student-athletes who might have gone to the school that already had these things. Better recruitment opportunities, better conference, better contracts and sponsorships, etc. Better treatment for a few select students. (By the way, Title IX mandates equal treatment too, so facility-happy schools must ensure that female student-athletes have access to these facilities or ones of comparable quality.)
So what does this have to do with opportunities and interest?
Well Staurowsky noted that the teams that are cut are not disappearing, they just are no longer intercollegiate teams. They exist in places like recreational and club sports. So men retain their opportunities to play sports--they just are not intercollegiate sports. First, I think this is a major issue that we will see discussed and researched much more. I know Dr. Sarah Fields at Ohio State has done some work on Title IX's applicability to rec sports. Second, the (potential) retort is that rec and club sports are not the same. And that is true; some might argue that they are better--for schools and for student-athletes. Regardless, they are an opportunity to play sports--often at a very competitive level. Look at college rugby which is almost exclusively comprised of club teams. And let's remember that sports allegedly exist in schools because they contribute to the educational mission of the institution. Club and rec and intramural sports, following this philosophy, are just as valuable.
And they fall under the purview of Title IX, too.
So, again, in light of this new study on interest, we must look at where women do and do not receive opportunities and the cultures that provide these opportunities. (There are a number of other factors ignored by the researchers which I will discuss at a later date as well.) If former men's intercollegiate teams are being shuttled to a club sports structure, there is 1) a disproportionate number of them and 2) an established team structure. Women who desire they same thing are more likely to have to start from scratch. They have to go through the process of establishing a team and meeting the requirements and raising the money. Many men's sports already have these structures and even funding (from boosters and alumni) in place. That's not about interest; that's about cultural and structural barriers.

Study Uses Athletic Participation to Judge Women's "Predisposition" to Sport

A new study in the journal PLOS ONE cites lower rates of athletic participation among women as evidence that men have stronger predisposition to sports than women.   Richard Deaner, a psychologist from Grand Valley State, and his coauthors conclude that these results suggest "that it may be a mistake to base Title IX implementation on the assumption that males and females have, or soon will have, generally equal sports interest."

The study, titled A Sex Difference in the Predisposition for Physical Competition: Males Play Sports Much More Than Females Even in the Contemporary U.S., acknowledges that girls and women's participation in intercollegiate and interscholastic high school sports is relatively high -- 42 and 43% respectively.  Yet, the authors are concerned that these participation rates may "underestimate the actual sex difference in sports participation."  So, they report on three sources of data other than intercollegiate/interscholastic competition to demonstrate an athletic participation gap between male and female subjects.  First, the authors analyzed responses submitted to the American Time Use Survey, which finds female respondents of various ages engaging in 24% of total sports participation and 20% of team sports participation.  Second, the authors engaged in "systematic observations of sports and exercise at 41 public parks in four states" and observed females accounting for only 19% of individual sport participation and 10% of team sports participation.  Finally, they found that female college students accounted for only 26% of students registering for intramural sports. 

As I told the reporter from Inside Higher Ed who wrote an article about study, I don't find these findings surprising at all, given the historical and continuing discrimination and exclusion of women from sports, as well as cultural constraints on women's participation. What I do take issue with is the apparent suggestion that these reported participation rates are somehow more accurate of women's true predisposition to sports than their participation rates in intercollegiate and interscholastic contexts.  What worries me about this study is the implication that Title IX is somehow artificially inflating women's interest in athletics. To me, the fact that the gender gap is wider in sports contexts outside the scope of Title IX (in parks, for example, and other non-scholastic contexts measured by the ATUS) is actually an argument that Title IX is working, and, if anything, should be extended to those other contexts.  If there was a law as effective as Title IX has been in breaking down barriers and promoting women's opportunities that applied to these other recreational contexts as well, who's to say we would not see interest and participation rising there as well? 

Another thing that bothers me about this study is the odd extrapolation from women's low interest/participation in recreational contexts like parks and intramurals, to a suggestion of  women's similar low interest in interscholastic and intercollegiate athletic opportunities as well.  This is like saying, women don't like apples; therefore, they must not really like oranges, because both are fruit. In this case, the "oranges" are athletic opportunities that are well-coached, supported by the institution, allow athletes to compete in front of fans, to travel, and to possibly to earn a scholarship.  Saying that women are not interested in these opportunities because fewer women have the interest (or, I would say, the privilege) of playing pick-up basketball at the local park is a pretty attenuated connection to me. 

Finally, it seems to me that the authors have constructed a straw argument that Title IX implementation is in fact based on as assumption of equal interest.  It's not.  One of the compliance options in the three-part test (prong three) expressly allows schools to offer disproportionately low number of opportunities to female students, provided that there is no "unmet interest" in athletics among the female student body.  Lack of interest, properly measured, does factor into compliance obligations under Title IX.  That being the case, I worry that the point of this study is simply to supply inflammatory rhetoric rather than to address any real policy concern.   For this reason, I hope this study does not gain traction in the media but instead lays low as the non-story that it is. 

Sexual harassment roundup

Here is a round-up of recent judicial decisions in Title IX cases involving sexual harassment and sexual abuse.

A federal district court denied a school district's motion to dismiss Title IX claims (as well as claims based on the ADA and Rehabilitation Act) filed by a student with Asperger's syndrome who was bullied throughout middle school and high school. Several instances of alleged harassment were sexual in nature, including the plaintiff having been taunted by other students to "touch my dick, you know you want to," having his pants pulled down, and several occasions where another student would grind his penis into the plaintiff's back.  These allegations, as well as the plaintiffs claim that his reports of harassment were ignored because of his sex and/or perceived sexual orientation, were sufficient allegations to satisfy the law's requirement that discrimination be "because of sex."  Galloway v. Chesapeake Union Exempted Village Schools Bd. of Educ., 2012 WL 5268946 (S.D.Ohio, Oct. 23, 2012).

In Arkansas, a similar case survived the defendant school district's motion for summary judgment on plaintiff's Title IX and other claims arising from a disabled student's ongoing sexual assault by another student in his alternative classroom. The plaintiff's evidence supports allegations that school district officials knew of the abuse and responded with deliberate indifference, precluding summary judgment.  Braden v. Mountain Home School Dist., 2012 WL 5183575 (W.D.Ark. Oct. 18, 2012).

The federal district court in D.C. dismissed a Title IX claim against Howard University, filed by a group of students who alleged they were sexually harassed by a university employee in the course of their work-study employment at the library. The plaintiffs' complaint does not allege that an appropriate university official had actual notice of the harassment that was going on, as those individuals named in the complaint as having notice of the harassment were not individuals with authority over the offending employee. Bello v. Howard University, 2012 WL 4893727 (D.D.C. Oct. 16, 2012).

An Oregon school district won a motion to dismiss plaintiff's claims in a peer harassment case involving the persistent bullying and harassment of a middle school boy, including an incident in the locker room where another male student who was partially clothed "thrust his groin" against the victim's.  The court determined that this was not actionable under Title IX because there was "not more than a scintilla of evidence" to support plaintiff's claim that the harassment was motivated by his perceived homosexuality and thus covered by Title IX's prohibition on discrimination "because of sex."  A.E. ex rel. Evans v. Harrisburg Sch. Dist. No. 7,  2012 WL 4794314 (D. Or. Oct. 9, 2012)

A high school student in New York did not sufficiently allege Title IX violations by her school district in a case involving ongoing molestation outside of school by student in the same school, as well as ongoing teasing and harassment by other girls.  The court said that allowing the molesting student to remain in the same lunch period as the victim was not an example of "deliberate indifference," since she was not in danger of being molested in the lunch room.  As for the harassment by other girls, the complaint did not support the plaintiff's claim that the harassment was "because of sex" rather than for other reasons.  The fact that some sex-related epithets were used by the harassers -- e.g., "whore" and "bitch" -- did not reveal their gender animus, given that they used other, non-gendered epithets as well. HB v. Monroe Woodbury Cent. School Dist., 2012 WL 4477552 (S.D.N.Y., Sept. 27, 2012).

A Colorado school district is not liable for sexual abuse and sexual harassment committed by a teacher against three female student victims because school officials did not have notice that the teacher posed such a threat. The plaintiffs argued that the teacher had been the subject of complaints during a stint, 6 years prior, as a student teacher at another high school in the same school district. However, the court determined that those earlier complaints -- which involved inappropriate contact and phone calls that made female students uncomfortable -- were too distant and too dissimilar from the present abuse to put school officials on notice that this teacher posed a threat of abuse. The court reached this conclusion about dissimilarity based on the fact that the earlier complaints did not expressly allege inappropriate contact that was sexual in nature. The court did not seem concerned that whatever the nature of the earlier complaints, they were serious enough to warrant the student-teacher's dismissal from his field placement, suggesting that officials at the first high school thought he was a threat.  Doe No. 1 v. Boulder Valley School Dist. No. Re-2, 2012 WL 4378162, (D.Colo. Sept. 25, 2012).

Nor was an Alabama school district liable for an incident in which a janitor inappropriately touched a female student in the hallway.  The plaintiff alleged that the school district had actual notice of the threat posed by this janitor given past complaints of sexual harassment filed by other teachers and employees at the school.  The court reasoned, however, that because these complaints were filed by employees, not students, school officials were not on notice that the janitor posed a threat to students. E.S. v. Daleville City Bd. of Educ., 2012 WL 4378190 (M.D.Ala. Sept. 25, 2012).

NCAA Reports on Status of Women

Commemorating the Title IX's 40th anniversary year, the NCAA published a report on the status of women in college athletics.  Authored by Amy Wilson, the report focuses on three areas: participation opportunities, resource allocation, and leadership opportunities. Regarding participation, the report provides current data on the exponential rise on women's college and high school opportunities in the last 40 years.  While women now have over 191,000 athletic opportunities at the college level, up from 64,000 30 years ago, women's opportunities amount to 43% of the total, despite the fact that women constitute a 54% majority of college undergraduates overall.  This graph from the report provides a nice visual aid to help refute any suggestion that women's lack of interest in sports is the reason for this gender gap.  Over 3 million women play high school sports, so a pool of potentially interested and qualified recruits would clearly support the addition of new collegiate opportunities for women.

The report also contains participation data broken down by division, and includes data on diversity as well.

In terms of  resource allocation, the report demonstrates that a gender gap persists in this area as well.  Universities in the Football Bowl Subdivision of Division I spend 2.5 times as much on men's sports than women's, and men's sports receive the lion's share of resources in other divisions as well.  In every division, women's share of resources was closer to equitable in schools without football. 

Lastly, in terms of leadership opportunity, the report confirms that the gender gap among college coaches still persists.  The only good news in this area is that at least this gap seems to be holding steady, rather than widening in recent years, according to data cited from Carpenter & Acosta's longitudinal study.
Women comprise 19%  of college athletic directors, up 3% from data collected 15 years ago.  The gap in leadership is even wider for minority women.



In all, the report shows progress but persistent gender inequality in college sports, confirming the pervasive view among Title IX advocates, that the law's 40th anniversary provides an opportunity not only to celebrate, but also to take stock of how much more remains to do.