Resolution in Butte?

The issue of inequitable facilities has been resolved according the Butte (Montana) school district and the Office of Civil Rights. The district has a provided OCR a report that states facilities are now equitable or close to it with efforts in progress or on the schedule to ensure that equity is forthcoming. But community members, including the original complainant, are contesting some of the "facts" of the report. It seems the district might have exaggerated just how close to finished it was with renovations to the softball field. Also the changing room at the softballs is in disrepair and lacks electricity and running water. Bleachers are allegedly not up to code and there is no storage facility--as was promised.
Sid deBarthy, one of the former softball coaches who filed the complaint, said he has contacted OCR about these discrepancies. He is also concerned that the committee created to ensure ongoing Title IX compliance is a little too insular, comprised entirely of school or district officials.

Thursday is the Deadline for Public Comment on the Department of Education's EADA Data Collection Practices

The Department of Education is collecting input from the public about its efforts pursuant to the Equity in Athletics Disclosure Act to collect information from colleges and universities regarding gender equity in athletic programs.  Here is a link to the electronic docket, where you can read more about the Department's existing efforts, as instructions (so easy!) on how to submit your own comments on line.  Or, you can visit the National Women's Law Center website, where you can submit comments using suggested sample text.  But either way, act soon. The deadline for comments is Thursday.

I submitted my comments today.  Here is what I wrote:

As a law professor who researches and writes (and blogs) about Title IX, I strongly encourage the Department of Education to continue aggressive efforts to gather and report data related to the athletic opportunities and resources available male and female students at federally-funded colleges and university.  These efforts are crucial to maintaining public awareness about Title IX compliance and to the public's efforts to initiate both government and private enforcement.   

To this end, any efforts that the Department of Education can make to enhance the transparency on questions of institutional compliance would be most helpful.  A few suggestions are as follows:

• Develop an auditing process to ensure that all reported opportunities are "genuine and not illusory" -- that institutions are not misreporting male practice players, cutting or adding students after the EADA reporting deadlines, or rostering students in name only. 

• Require institutions to allocate all expenditures which are currently listed as unallocated. This can be done by prorating the expenditure to each team in a manner proportionate to the number of opportunities associated with each team.

• Require that institutions report capital expenditures and assign them to the team (or teams) associated with the capital expense.  E.g., the debt on a stadium devoted to football should appear as an expense for that team. The debt on a multi-use facility should be allocated among the teams that use the facility. The exclusion of capital expenditures hides the true cost of athletic opportunities, as well as any gender inequality related to those costs. 

• Require that institutions report generated revenue, to the exclusion of revenue that may be allocated from the institution.  The inclusion of the institutional subsidy as "revenue" gives the false impression that athletic programs profit, or break even, when they do not.  

Appellate Court Reinstates Retaliation Case Against Hofstra

This week, the Second Circuit Court of Appeals reinstated Lauren Summa's retaliation case against Hofstra University.  Initially filed in 2008, Summa's lawsuit arose out of sexual harassment she experienced as part of her job as the graduate student manager of the football team. She alleged that not only did coaching staff fail to adequately respond to her complaints of certain incidents that created a hostile environment for her, she was also replaced as the student manager the following season, as well as denied a graduate student position  elsewhere on campus, in retaliation for having complained about football players' harassing behavior.  A federal district court dismissed both her harassment and retaliation claims after concluding that she had failed to provide sufficient evidence to support either claim. The Court of Appeals' decision this week agreed with the district court that the university's response to the harassing incident was sufficient.  But the court reversed the prior dismissal of Summa's retaliation claim, allowing that claim to move forward toward trial.

Title VII, which applies coextensively with Title IX in this case because Summa was a student-employee, requires retaliation plaintiffs to prove, in the first instance, that they engaged in protected activity, that they experienced adverse employment action, and that the latter happened because of the former. The appellate court determined that Summa had the requisite "good faith belief" that her complaints to campus safety and to the University' Equality Office about the football players' behavior constituted a complaint about a legally actionable harassment.  Retaliation plaintiffs are protected even when it turns out that what they complained about is not actually a violation of law.  The fact that the university responded to Summa's complaints, such as by investigating an incident that took place on the bus, and by requiring the athletics staff to undergo harassment training, also reflects on the reasonableness of her belief that something unlawful had occurred.

The appellate court also found sufficient evidence on which a jury could find that Summa was not rehired in the spring because of her complaints. The district court had rejected the possibility of a connection, citing a lack of proof that the staff member directly responsible for discontinuing Summa's employment actually knew that she had complained about harassment.  But given that Summa's position was supposed to continue in the spring, someone must have told that staff member to hire a new manager instead of letting Summa continue.  It would be reasonable for a jury to infer that this order came from the head football coach, who of course knew about Summa's complaints.  Summa's termination also happened close enough in time to suggest it was connected to her having complained, despite the passage of four months between them. Since Summa complained at the end of the fall season and was terminated at the beginning of the spring season, the adverse action took place at the earliest opportunity for retaliation to occur.  Moreover, the court agreed that Summa's exclusion from subsequent employment in other departments of the university happened sufficiently close in time to be related to the subsequent steps she took, such as filing this lawsuit, to continue to press her case. 

Hofstra argued that Summa was not rehired in the spring for reasons other than retaliation -- namely, that she had failed to indicate her intention to continue in the job.  But the court found this claim belied by documentary evidence, such as emails between Summa and athletics staff discussing the stipend she would receive for the spring season. And as for Hofstra's claim that Summa did not receive employment elsewhere in the university due to lack of qualifications, the court cited evidence suggesting was singled out for an additional hiring interview that was designed to turn up evidence undermining of her qualifications.

For these reasons, the court reinstated Summa's retaliation claim against Hofstra, and she can  now proceed to trial.  However, I'd be surprised if the parties decided not to reach a settlement instead. Not only are settlements typical in these sorts of cases, my guess is that that the wages Summa would have received had her student-employment continued, her likely measure of damages, are not so high as to justify the high cost of trial.   

Decision: Summa v. Hofstra University,  2013 WL 627710 (2d Cir. Feb. 20, 2012).

"Transcending Gender Lines: Title IX and Transgender Rights"

Yesterday I had the opportunity to participate in a symposium at the University of Wisconsin about Title IX's application to transgender rights, sponsored by the law school's Journal of Law, Gender and Society.  Devi Rao from the National Women's Law Center kicked things off by discussing how Title IX courts have interpreted sex discrimination to include discrimination on the basis of gender nonconformity, clarifying the law's protection against harassment to include transgender and other gender-nonconforming students.  I followed by talking about legal precedent from the employment context, that if applied to cases involving students, could broaden Title IX's protections for transgender students to cases outside of the harassment context, where gender nonconformity theory may be less useful.  Rounding out the morning, we heard from Professor Jillian Weiss from Ramapo College, who emphasized the limits of Title IX in securing transgender rights, and advocated for judicial recognition of a constitutional right to gender autonomy as a way to supplement efforts to secure their legal protection. 

In the afternoon, Harper Jean Tobin from the National Center for Transgender Equality argued that Title IX should be interpreted to allow students access to single-sex facilities like bathrooms and restrooms based on their gender identity. Afterwards, Ilona Turner of the Transgender Law Center and Scott Thomspon from the law firm Cleary Gottlieb made a similar argument in favor of transgender students' participation on athletic teams. 

In addition to these presentations, we all enjoyed engaging discussion facilitated by able moderators.  It was a great day of insight and inquiry in Madison. I'm looking forward to the publication of these conference proceedings in an upcoming issue of the Journal.   

Cuesta College OK says OCR

Well the three-year OCR investigation into opportunities at Cuesta College in California has ended with a finding of no fault on the part of the college. But it is not clear why.
The complaint was filed in 2010 after the women's tennis team was cut due to budget reasons.
Unclear is why an investigation only into one program area--opportunities--took three years. Also, not sure why it was not revealed how Cuesta is meeting its Title IX obligations. It seems as though Cuesta is using prong one and benefiting from the fact that it has more male undergraduates than female ones. Unless this breakdown is a new phenomenon, I have to wonder why the complaint was filed and/or investigated in the first place. If I can run the numbers in less than five minutes...
Was there something else here? Suspicions of roster inflation, perhaps? If so, it does not seem that we will be privy to that information.

High School Coach's Retaliation Case Moves Forward

Last week, a federal district court ruled in favor of Connie Morris, a high school coach in Bessemer, Alabama, in her retaliation and employment discrimination case against the Bessemer School District.  The court agreed that Morris had presented sufficient evidence in support of her retaliation claim and thus survived the district's motion for summary judgment. 

In the spring of 2010, the school district decided not to renew Morris as head coach of the girls' basketball team.  Morris claimed that this decision, as well as subsequent decisions not to hire her for other coaching positions or to rehire her for basketball, were in retaliation for her numerous internal complaints about disparities in resources for girls' teams, as well as external complaints filed with the U.S. EEOC.  Typically in retaliation cases, it is challenging for plaintiffs to present evidence that shows the causal relationship between the plaintiff's complaints about discrimination and the adverse employment actions that followed.  In this case, though, the court agreed that Morris's case was sufficient in this regard in part because the adverse actions were sufficiently close in time to Morris's complaints. In other employment contexts, a time lapse of more than three months, as was the case for Morris, is not sufficient to establish a causal relationship between the plaintiff's complaint and the adverse action.  But in the school context, the act of hiring/rehiring happens on a prescibed schedule.  What is important is that the school board took action to not hire/rehire Morris at its next opportunity following her series of complaints, even though there was a lapse of three months between her last written complaint and some of the adverse actions against her.

The Board argued that it chose not to rehire/hire Morris for reasons other than retaliation. In particular, the school principal had cited a desire to move the program in a "new direction" and for leadership that could lead the team to a state championship.  However, Morris presented enough evidence to challenge the Board's "new direction" explanation as a pretext, or cover up, for retaliation.  For one thing, the person that was hired to take over the program had no prior experience coaching at the high school or college level, and was as a result considerably less qualified than Morris to lead the team to a championship.  Morris also relied on the testimony of an assistant principal who verified that the part of the principal's motivation for changing the coaching staff was Morris's complaints.

For these reasons, the court denied the school district's motion for summary judgment -- a move that clears the way for Morris's case to go to trial, though a summary judgment victory usually gives the plaintiff leverage to pursue a favorable settlement instead.

Morris v. Bessemer Bd. of Educ., 2013 WL 549896 (N.D.Ala., Feb. 13, 2013).

VCU Adds Lacrosse

Virginia Commonwealth University will add a women's lacrosse team, in an effort to shore up its compliance with Title IX, according to this article in the Baltimore Sun.  The team will compete in the Atlantic 10 conference starting in the 2014-15 season. 

Overall, I agree that this move gives VCU strong arguments for compliance under both prong one and prong three.

VCU's athletics data disclosure forms show that its student body is 56% female, and that the university affords 50% of its athletic opportunities to women.  Women's lacrosse will add up to 30 new opportunities, bringing the percentage of female athletic opportunities to 54.7%.  This is very close to proportionality, and would likely satisfy any court or agency evaluating VCU's compliance under prong one because the number of additional female athletic opportunities the institution would have to add to bring women's proportional to 56% is very small -- 8-9, by my math.  According to OCR, as long as this number is smaller than needed to form an additional team, the institution satisfies the substantially proportionality test.  The only possible argument against VCU's compliance with prong one is that golf, which VCU offers to men but not women, is a small roster team, and theoretically could be added to achieve exact proportionality. VCU's men's golf team has, coincidentally, 8 members. 

Additionally, however, VCU's adding of women's lacrosse bolsters its compliance under prong three, an alternative means of demonstrating compliance by showing no unmet interest among the underrepresented sex.  By adding a sport that is popular in VCU's region and is already played in VCU's conference, it appears to be addressing what would be otherwise be a strong argument for unmet interest.

The one compliance prong VCU would probably not be a good candidate for is prong two, which requires a history and continuing practice of adding opportunity for the underrepresented sex.  I could not find out when VCU last added a women's team, but it must have been at least ten years ago, since EADA reports going back that far do not show any additions during that time.  "Continuing practice" requires more regularity than that -- roughly every 3 years depending on the circumstances.  My guess, however, is that VCU is not concerned about prong two, since it has strong arguments for compliance under both prongs one and three. 

Op-Ed Addresses Income, Sex Inequalities in Schools and Public Parks

A great op-ed on Title IX appeared on Law.com this week to commemorate the 27th annual National Girls and Women in Sports Day.  The author, Kim Turner, a fellow at the Fair Play for Girls in Sports Project, makes the case that despite Title IX, inequalities exist for girls, especially low income girls of color.

Even today, it is far too common that a pristine football field with a high-tech scoreboard is reserved for male athletes, while female athletes are relegated to a run-down field shared with other teams. This persistent gap in gender equality is exacerbated in poor areas. We would never tolerate allocating fewer textbooks to girls than boys in any circumstance. Mounting budgetary pressure on schools is no excuse for giving girls fewer opportunities than boys, inside or outside the classroom. Under Title IX, a lack of parity in athletic facilities, equipment and scheduling can be reported, addressed and litigated if necessary. Yet few girls, parents, coaches and supporters know their rights or how to demand equality.

Turner also goes on to describe inequalities in public parks and recreation programs, which, while outside the scope of Title IX, are prohibited in her home state of California under AB 2404, which Turner describes as a "little-known" law.  She then makes the case for stronger enforcement of both laws.

The Fair Play for Girls in Sports Project is part of the Legal Aid Society-Employment Law Center (LAS-ELC)-- the California-focused public-interest law organization that litigated such Title IX cases as Ollier v. Sweetwater Union H.S. District and Cruz v. Alhambra School District.  The Project's website includes information and resources, including a hotline for questions about equity for girls in sports.

Court dismisses case challenging harassment, retaliation, and homophobia in the college athletics environment

A recent judicial opinion sheds light on the interrelationship of sexual harassment, retaliation and homophobia in the college sports environment, as well as the limits of law to address each.  The plaintiff in this case is a former student-athlete named Idana DeCecco. She sued the University of South Carolina over a set of incidents involving the head soccer coach, Shelley Smith and the assistant soccer coach, Jamie Smith, who are married to each other.  DeCecco's case stems from an incident in 2008, in which assistant coach Jamie Smith arranged a "private talk" with DeCecco in an empty locker room behind closed doors.  DeCecco claims that, at one point during the talk, Jamie Smith touched her knee, at which point she "freaked out" and immediately sought to leave the room.  Upon opening the door, however, she was confronted by an angry and accusing Shelley Smith.  DeCecco alleges that from that point on, Shelley Smith retaliated her by limiting her playing time and reducing her scholarship.  Including in that retaliation, DeCecco claims, is an inquiry Shelley Smith made into whether DeCecco was dating another player on the team.  Eventually, DeCecco transferred to another school to get away from what she called a "toxic environment" at USC.

DeCecco filed a lawsuit against the university, relying on Title IX and other law to seek damages stemming from Jamie Smith's sexual harassment and Shelley Smith's retaliation against her, but last month, the federal district court in South Carolina dismissed her case in full.  First, the court reasoned that USC did not know that Jamie Smith posed a risk of sexual hostility to student-athletes, even though other players had complained about his having made inappropriate comments, including about players' appearance.  The court also reasoned that USC lacked notice of the locker room incident itself, given that DeCecco failed to report it as sexual harassment to anyone with supervisory authority over him. 

DeCecco's failure to report the locker room incident as one of sexual harassment also prevented her from being able to pursue a retaliation claim as well.  To challenge retaliation under Title IX, the plaintiff must engage in protected activity, such as blowing the whistle on sex discrimination or harassment, and suffer some materially adverse consequence because of it.  If Shelley Smith indeed retaliated against DeCecco, the court reasoned, it was not because DeCecco had protested or reported Jamie Smith's behavior, it was due to Shelley Smith's ostensible jealousy over what she apparently perceived to have occurred in the locker room -- a motivation that does not qualify as either retaliation or sex discrimination under Title IX.

As for Shelley Smith's inquiry into DeCecco's dating status, the court interpreted this as a benign application of the team's neutral policy prohibiting relationships among teammates, and concluded that it therefore did not constitute sex discrimination against DeCecco.

In all, the court's reasoning reflects a high burden on student-athletes to protect themselves from harassment and retaliation by coaches.  In order to be on notice of Jamie Smith's capacity to sexually harass DeCecco, other players would have had to complain much more specifically about what his "inappropriate" comments entailed, as the university was not faulted for failing to have followed up for these details.  In order for Shelley Smith's reaction to the locker room incident to count as retaliation, DeCecco would have had to actively complain to her about Jamie Smith's conduct, even though the retaliation was motivated by her perception of what had occurred. Meanwhile, things that the coaches can use as leverage over players, playing time, scholarships, and, I'd argue, enforcement of the intra-team dating policy, are unexamined as weapons that create and sustain a power imbalance that keep athletes like DeCecco from speaking up about coaches' bad behavior.  Even if the court is right that the dating policy is neutral because it pertains to teammate relationships, not same-sex relationships, if the policy is being deployed in such a way to scare or suppress a player from complaining about harassment or retaliation, it's discriminatory.  

Regardless of its legal liability, USC failed to ensure the safety and well-being of one of its student athletes. In that sense, the case should serve as a reminder to college and universities to carefully monitor the climate within athletics, not only for evidence of harassment, retaliation, and homophobia, but to ensure that players are encouraged and supported to report discrimination when it occurs.

The decision is: DeCecco v. University of South Carolina, 2013 WL 168221 (D.S.C.  Jan. 16, 2013).
Cross-posted at LGBT Issues in Sport Blog. 

Law Review Article Examines Boy's Refusual to Wrestle Girl

Professor Deborah Brake has a new article forthcoming in the Nevada Law Journal, available for download here, called Wrestling with Gender: Constructing Masculinity by Refusing to Wrestle Women.  In it, Professor Brake examines the cultural significance of a recent case in which a boy refused to wrestle against a girl on moral or religious grounds, and the role of Title IX is such circumstances to protect girls' rights to the competitive opportunity at stake.

Here is the article abstract:

In February of 2011, an Iowa high school boy captured national attention when he refused to wrestle a girl at the state championship meet. The media shaped the story into a tale that honored the boy for sacrificing personal gain out of a moral imperative to “never hurt a girl.” Unpacking this incident reveals several “fault lines” in U.S. culture that often derail gender equality projects: (1) religion/morality is interposed as an oppositional and equally weighty social value that neutralizes an equality claim; (2) the agency of persons supporting traditional gender norms is assumed, while the agency of persons contesting them is questioned; (3) opting out or “leveling down” is employed to reinforce status hierarchies while maintaining a semblance of formal equality (neither boy nor girl wrestles); and (4) de-contextualized strands of feminist theory are appropriated and co-opted in service of the existing gender order. This paper asks, what happens when sex equality law is interjected into this narrative? After examining the anatomy of the backlash to the threat to the gender order posed by the entry of girls into wrestling, this paper constructs an argument that Title IX obligates schools and athletic associations to take measures designed to deter gender-based forfeitures that deprive girls of athletic opportunity. It then explores a tougher question: does the introduction of a sex equality claim disrupt the conventional understandings of gender that emerged from this narrative? I ultimately contend that law has a potentially useful role to play in subverting the gender order, but that to do so it must engage the crucial dynamic at the heart of forfeiture incident: the construction of masculinity, both for the boy who forfeited and for the sport of wrestling itself. Feminist legal strategies must contend with how masculinity is constructed and valued for the boys and men who play sports in order to further advance the cause of girls’ and women’s equality in sports.

Amherst College issues sexual assault report

Amherst College issued its report last week on the institution's policies about sexual assault and its practices and procedures for dealing with reported assaults. As you might recall, the college gained national attention last fall when a former student wrote an editorial in the school's paper about the lack of support she received after being assaulted on campus. AC had already begun the process of policy review at that time, which was a good thing given the attention the college received--but handled well.
The school held a meeting (closed to press) last night to discuss the findings and the future. It seems like there is a tactic to use peer pressure: training people who are onlookers to assault and harassment to intervene as well as stopping things before they start (i.e., before the offensive t-shirt designed by the fraternity actually makes its way onto the backs of brothers).  One focus will be on first-year students, according to Margaret Hunt, chairwoman of the committee.
"First year students are the ones that are most at risk for sexual assault. So we're very interested in trying to figure out ways to integrate first year students better, in a more healthy way into the campus community."
This statement is somewhat worrisome. Does she mean at-risk for committing assault and so there needs to be education about the kind of assault-free climate AC wants to create thus discouraging first-year students from committing assault? Or does she mean first-year students are more at risk for being victims of assault? If the latter...well it's problematic. Because what is being implied is that first-year female students put themselves at risk for sexual assault and so they need to be educated about what situations are safe. This kind of tactic puts the onus on the potential victim. Don't drink this, don't be in this space with this person, don't wear this, don't be alone here, or here, or here. That is less about climate change and more about maintaining a system in which some people feel privileged enough to engage in sexual harassment, aggression, or assault, and the rest of us have to figure out how to avoid those people. There is a lot of discussion everywhere--not just at AC--about changing the climate. But if we can't change our way of talking about sexual assault so that the solutions are not about changing the behaviors of potential victims, there will not be climate change.
I have not seen the statistics to which Hunt was referring, so I do not know which interpretation supports those stats. I suspect it is the latter, though I wish it was former.