Friday, February 28, 2014

Investigation Reveals UConn's Inadequate Response to Professor's Misconduct

The University of Connecticut was the subject of an independent investigation that concluded this week with the release of a report that detailed findings of sexual misconduct by a professor and the university's mishandling of the situation. 

The report, commissioned by the state attorney general and compiled by a private law firm, set forth "strong, credible evidence" that Robert F. Miller, a faculty member who used to chair the music department, engaged in numerous incidents of misconduct.  In addition to generally having poor boundaries with students (taking them on trips, drinking with them, being naked with one of them in a hot tub, and giving massages to them), there were also incidents involving inappropriate touching of other young boys, such as a colleague's then-13-year-old son, campers at a camp where he had volunteered, and students at a Virginia middle school were Miller worked in the 1960s.  

The report also describes how university officials, in particular, the former Dean of the School of Fine Arts, ignored rumors that have persisted since as early as 2003 about Miller's misconduct with campers and his inappropriate relationship with students.  In 2006, that same Dean also received an email from one of the former middle school students accusing Miller of sexual abuse.  Yet, according to the report, "no one took appropriate action to ensure the safety of minors on campus or University students."  Later, in 2007, University officials discussed some allegations of Miller's misconduct, but did not follow up with any action to protect students and ensure their safety.  It wasn't until last February that Miller's Dean reported concerns about Miller to the university's Title IX Coordinator, triggering a process that resulted in Miller's suspension and ban from campus. 

It does not appear that UConn is facing any legal action arising from this matter, and no students have come forward as victims.  However, in another matter, the university's policies for protecting students from sexual assault are the subject of an OCR investigation and a Title IX lawsuit.

Thursday, February 27, 2014

Complaint filed by Cal students

Yesterday, a group of former and current students filed two separate federal complaints related to the ways in which the University of California Berkeley has handled and reported sexual assault cases. Thirty-one students/alumni joined together to formally protest the university's response to sexual assault at the Berkeley campus.
The first is a Title IX complaint focusing on how the university has dealt with sexual assault. The second alleges Clery Act violations and is based on allegations that staff discouraged students from reporting sexual assaults (which would lower the number of incidents of sexual assault the university would have to publicly report). This is the second Clery Act complaint in less than a year. A complaint from May 2013 which triggered an audit (as yet to be complete) states that the university is underreporting sexual assault.
Media coverage of the filings include stories from named complainants who have recounted their own stories of sexual assault--some as long ago as the 1970s--and dealing with inadequate policies and inadequately trained staff in the wake of their assaults. The stories are all disheartening (at best), but unfortunately nothing we have not heard from other victims. 
One major issue seems to be the amount of time investigations take including delays in investigations and the lack of communication to victims about the state of the investigation.
A second issue is the way various staff members are handling these reports, the suggestions they are providing to victims, and the remedies--or lack thereof--being provided. A multiple-time assailant who seemed to be targeting women in the same student organization was allowed to stay in the organization so he could have the support of other members who would tell him it was wrong if he did it again. 
Finally, the university is also not taking measures, based on reported incidents, to protect students who report sexual assault. Several complainants said they were continually harassed by their assailant and/or friends of the assailant. Class schedules were not changed to prevent the victim and assailant from being in close proximity. Reports by victims also seem to suggest that the school's judicial process lacks some consistency. 
The filings at Berkeley are one of 60 that OCR has seen in the last three years, according to HuffPo, which has mapped all of the complaints and provides summaries of the cases and their current state (active, pending, closed).

Indianapolis Public Schools Agree to Remedy Violations of Title IX

Indianapolis Public Schools have entered into an agreement with the Department of Education to improve athletic opportunities for girls across the district.  The Department's Office for Civil Rights had investigated IPS and found the district to be in violation of Title IX for failing to offer adequate number of athletic opportunities to female students.   OCR's investigation revealed that girls are significantly underrepresented in athletics, allocating only 35% of athletic opportunities to female students, despite a gender breakdown that is 50/50.   OCR also faulted the district for not providing equal treatment to girls' teams in terms of scheduling, facilities and equipment.

The district will now have to assess the unmet interests and abilities among female students, and  increase opportunities in response to those interests.  The district will also have to create a more accessible procedure for students or others to request new sports.  It must "promptly" address the disparity in facilities, uniforms, and access to "prime" competition time slots.  And it must regulate its booster clubs to ensure that private donations do not create disparities.

Wednesday, February 26, 2014

University of Michigan, Michigan State Both Face Title IX Investigation

Investigators from the Department of Education's Office for Civil Rights will visit Michigan State this week as part of an investigation into the university's policies and practices for handling reports of sexual assault on campus.  Details about this matter are sparse and it is unclear at least to me whether this investigation is responsive to complaint received by OCR, or initiated by the agency itself. 

The University of Michigan is also under investigation for its handling of student's 2009 report that she had been raped by a football player, Brendan Gibbons. Gibbons was expelled in December for violating the university's sexual misconduct policy.  My guess is that the timing of this result is what gave rise to the complaint, as Title IX requires schools to conduct disciplinary proceedings in a prompt and equitable manner.

Tuesday, February 25, 2014

Department of Education Releases Draft Clery Act Regulations

The Department of Education released draft proposed regulations implementing the changes Congress made to the Clery Act as part of the Violence Against Women's Act reauthorization last year.  The draft was compiled with input from a negotiated rulemaking committee, which is in theory supposed to produce a consensus-based regulation that is less likely to be challenged and hung up in judicial review.  True to form, much of the proposed regulation seems unlikely to garner controversy.  The proposal provides details to the new Clery Act provisions that govern colleges' and universities' obligation to compile and report crime statistics, including sexual violence defined broadly to include domestic violence, dating violence, and stalking. The regulations also detail institutions' obligation to disclose "primary prevention" and awareness-raising efforts, as well as the disciplinary procedures the institution uses for addressing instances of sexual violence that are reported to campus officials.  According to the proposed regulations, such procedures must, "at a minimum comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights."

It is this last point that is proving to be controversial, as noted in this article. Some see the reference to "guidance" as signalling a back-door requirement that institutions adopt the preponderance of evidence standard for student disciplinary proceedings.  That is the standard explicitly mentioned in the Department's Dear Colleague Letter issued April 4, 2011, which spells out universities' responsibilities under Title IX to provide a fair disciplinary hearing that takes the rights of victims and potential future victims into account.  Congress did not specify a preponderance standard or any standard when it passed the Clery amendments last year.  This kind of legislative silence is typically resolved by regulation, as the Department of Education is doing now.  Yet rather than name the preponderance standard directly, the Department seems to be incorporating it by reference to the current guidance.  This itself could reflect a negotiated or compromise solution, as it only gives regulatory force to the preponderance standard for as long as the guidance stays in effect. If the Department changes or repeals the 2011 Dear Colleague Letter in the future, the regulatory requirement under Clery would change with it as well.

Monday, February 24, 2014

Temple Restores Crew and Rowing

Reversing course on an announcement made last December, Temple University will not eliminate the sports of men's crew and women's rowing, after it was announced that necessary improvements to the teams' boathouse would not incur cost to the university.  Instead, the $5 million renovation will be fronted by the City of Philadelphia and a generous trustee.

The other five sports that were named for elimination -- baseball, softball, men's gymnastics, and men's indoor and outdoor track and field -- will not be restored, according to Temple's president.  In refraining to revisit the elimination of these sports, the university appears to disregard efforts that proponents of gymnastics, softball and baseball have also made to secure donated facilities and other pledges of financial support to defray the cost to the university of supporting these teams.  This appears to underscore Temple's explanation that the cuts derived from multiple factors, including cost, facilities, Title IX, and student-athlete welfare.  The Title IX explanation only goes so far. Coupled with the fact that Temple had offered proportionately more athletic opportunities to men than to women, Title IX explains only why it was necessary to eliminate more men's opportunities than women's, but Title IX does not explain why cuts were necessary in the first place, or why seven (now five) teams had to go.  It's also been suggested that Temple is slimming down its athletic department in order to fit in with its new, more competitive athletic conference.  In the long run, the university seems to want fewer, more competitive programs than a variety of programs that compete for less prestige.  That's apparently what they mean by "student-athlete welfare."

Thursday, February 20, 2014

OCR Investigates Complaint Against Stephenville, Texas School District

We recently posted about a preliminary decision in a Title IX lawsuit against Stephenville Independent School District in Texas over the athletic program at its junior high school.  Turns out, the same school district's high school athletic program is also under scrutiny.  According to a February 13 letter from OCR (which I have read, but cannot link to), the agency will open an investigation into claims that Stephenville High School discriminates against female student-athletes with respect to the number athletic opportunities available to them, the scheduling of games and practice times, support for travel, assignment and compensation of coaches, locker rooms, practice and competitive facilities, publicity, and scholarship assistance provided by the school.  OCR will also investigate claims that the school district retaliated against the complainant by removing one of his daughters from a club basketball team and failing to respond to both daughters' reports of bullying and harassment.

OCR declined to investigate a claim that the school district mis-reported participation data in its response to the Civil Rights Data Collection by omitting male participants in a 7-on-7 club football team.  The existence of those opportunities, however, will presumably be probed as part of the agency's investigation into the school district's equitable distribution of participation opportunities overall.

It will be interesting to follow the public and private enforcement against Stephenville ISD as they occur in tandem. No doubt there will be lots more to say as these cases develop.

Wednesday, February 19, 2014

Class Action Against Yeshiva University High School Dismissed as Untimely

34 adults who attended Yeshiva University High School for Boys between 1968 and 1992 allege in a recent lawsuit that they were abused by one or more individuals associated with YUHS during that time, including a former administrator and principal named Finkelstein, a faculty member named Gordon, and a former student named Andron who was not employed by the school, but as a friend of Finkelstein was allegedly "permitted to roam the hallways of the boys dormitory and enter student rooms as he pleased."  The plaintiffs allege that despite multiple reports of abuse to school administrators, the threat presented by any of them was never disclosed to the students or their parents.  Furthermore, Finkelstein was allowed to keep his job and no disciplinary action was taken against him.  While Gordon was fired, the school did not disclose that it was because of sexual abuse; a fact further obscured by the school's later conduct in honoring him at a school dinner and set up a scholarship in his name. Plaintiffs also allege that school officials were dismissive of their reports of abuse.

A federal court in New York recently dismissed this claims as barred by the statute of limitations.  In so doing, the court rejected the plaintiff's argument that under New York's "discovery rule," the applicable three-year statute of limitations did not begin to run until the plaintiff "discovers or reasonably should have discovered the injury."  Here, the plaintiffs allege that this did not happen until a Yeshiva University official named Lamm admitted in an interview with the Jewish Daily Forward in December 2012 that he and other administrators had been aware of the risk of sexual abuse at YUHS when it was occurring.  But the court reasoned that this argument "confuses knowledge of the existence of a legal right with knowledge of injury."  The plaintiffs were aware of their abuse at the time it occurred, and should have worked from that point to develop their case, the judge reasoned.

I disagree with the court's reasoning here for the simple reason that the injury the plaintiffs allege in this case is not the injury caused by the abusers, but the injury caused by the school's own misconduct in covering up the abuse.  The abuse and the coverup are two separate wrongs.  The plaintiffs are not seeking to hold the school vicariously liable for the acts of the abusers, but for their own misconduct, misconduct they did not learn about until 2012. This later discovery is what ought to have started the plaintiffs' statute of limitation to run, and render their later-filed lawsuit timely.   

Decision: Twersky v. Yeshiva Univ., 2014 WL 314728 (S.D.N.Y. Jan. 29, 2014).

Tuesday, February 18, 2014

Student Expelled for Assault Files Lawsuit Against Swarthmore

A Swarthmore student expelled for sexual assault has sued the college over the manner that it handled charges that he committed sexual assault on a fellow student.  The student, called "John Doe" in his complaint, alleges that he was falsely accused and then initially cleared of the accuser's claim that he had coerced her to have sex.  Later, however, his case was re-opened for additional investigation and subsequent hearing, which resulted in Doe's expulsion. Doe alleges that this decision was motivated by negative publicity Swarthmore received as a result of its previous mishandling of sexual assault cases, which served as motivation to use Doe's case as a scapegoat.  The complaint alleges that the subsequent hearing involved a number of procedural violations that produced its biased outcome, and he argues that the sanction imposed was excessively severe in light of alleged anomalies in the complaining student's account of what happened and the lack of corroborating evidence.   He charges the college with violations of its own policies, as well as Title IX and due process.

This case joins a handful of others we've blogged about in recent months, in which an accused student argues that a university's disciplinary proceeding in a case involving sexual assault is discriminatory on the basis of sex. If Title IX enforcement did in fact motivate Swarthmore to violate John Doe's rights, then of course he ought to be able to use the law for vindication.  But even if that outcome occurs, his and the other cases like it do not serve as evidence that Title IX has tipped the balance too far in the favor of female students at the expense of men.  Prior to the April 2011 Dear Colleague Letter, which resulted in increased enforcement and public attention to university sexual assault policies, accused students could use the threat of litigation to motivate universities to dismiss their cases, and victims had no similar opportunity. Maybe that former bias in accused students' favor explains why it seems like such cases were fewer in number than the "trend" we've seen lately. The DCL leveled the playing field by giving a tool to the victims that the accused students already had--the leverage of litigation and complaint.

Monday, February 17, 2014

Lawsuit Against Texas School District Allowed to Proceed

Last summer, a parent and his two daughters sued the Stephenville (Texas) Independent School District, alleging that gender disparities in athletics at Henderson Junior High, where the daughters attend and play volleyball, constitute violations of Title IX.  Recently, a federal judge determined that part of the lawsuit can go forward, having denied the school district's motion to dismiss the plaintiffs' claims that athletic opportunities available to girls are inferior to those available to boys.  Specifically, the plaintiffs allege inequities in the assignment of seasons, the number and quality of coaches, the adequacy of facilities and locker rooms, the scheduling of practice times and competitions, and support from booster clubs and other outside funders.  These allegations were sufficient to survive a motion to dismiss, since they are ripe for litigation and, if proven, would constitute violations of Title IX.  With respect to these claims, the case can proceed to the next stage of litigation, which is discovery.  If the plaintiffs gather sufficient evidence in discovery, the case could go to trial--though settlement is another possible outcome. 

The court did,  however, dismiss the plaintiffs' claim that female students receive an inequitable number of athletic opportunities.  Because the complaint did not allege that the girls were seeking to participate in any athletic opportunities not offered by the school, the court determined that they did not have standing to challenging the absence of those opportunities.  This aspect of the ruling underscores one of the differences between public and private enforcement of Title IX.  Anyone can file a complaint with the Department of Education's Office for Civil Rights--you don't need to be someone personally affected by discrimination.  In contrast, private litigants seeking to enforce Title IX in the courts must have standing in order to do so.  They must maintain throughout the litigation that they have a stake in the outcome of the case.  The plaintiffs here were able to do that with their equal treatment claims because they are current student-athletes at Henderson.  But if they graduate before the case is finally decided, it could potentially be dismissed as moot.  Because of these challenges, we tend to see more public than private enforcement of Title IX with respect to interscholastic athletics.    

Decision: McCully v. Stephenville Ind. Sch. Dist., 2014 WL 292147 (N.D. Tex. Jan. 20, 2014). 

Sunday, February 16, 2014

Winston/FSU case not over

As predicted, the sexual assault allegations surrounding Florida State quarterback and Heisman winner Jameis Winston as well as the allegations that the case, brought by an FSU undergrad in December 2012, was mishandled by the university and the Tallahassee police have not gone away. Despite the findings last fall that there was not enough evidence to pursue criminal charges against Winston, the woman's lawyer, Patrica Carroll, has brought in two lawyers with experience in Title IX and sexual assault cases. Both Blaine Kerr and John Clune of Colorado have worked on high-profile sexual assault cases.
The new team will look at all aspects of the case and the liability of different entities.

Temple University Under Investigation for Athletic Department Inequalities

Temple University's athletic program is reportedly under investigation by the Department of Education's Office for Civil Rights for alleged unequal treatment of female athletes with regard to the condition of locker rooms, practice and competitive facilities, housing and dining services, and athletic financial assistance.  It does not appear to have been reported whether disparities against any particular women's teams are alleged, and the identity of the complaint is unknown. 

Last December, Temple's athletic department announced plans to cut seven varsity teams--both men's and women's.  This investigation does not address those cuts.  But it could, I think, reveal information to potentially underscore the charges of Temple's critics that the university is "betting big on football."  If football is benefiting from higher quality facilities, locker rooms and housing and dining serves than any other team, that would come across in an investigation of gender inequality.

Public data about Temple athletics does confirm a disparity in scholarship dollars.  42% of athletic financial aid is distributed to members of women's teams, compared to 58% to men's.  Title IX regulations require scholarship data to flow proportionately to ratio of student-athletes of each sex, and Temple's student-athletes are 48% female.  

Saturday, February 15, 2014

Title IX Lawsuit Filed Against Northwestern

A female student at Northwestern University alleges in a lawsuit filed this week that the university violated Title IX by failing to adequately respond to her reports that she was sexually assaulted by a male philosophy professor in 2012. According to her complaint, the student accompanied the professor to an art show, where he bought her alcohol and then refused her requests to take her home.  Instead, she alleges, he brought her to his apartment where she lost consciousness and awoke the next morning in his bed.  She reported the case to a faculty member, who in turn reported to a university official responsible for sexual harassment prevention.  This official conducted an investigation and apparently made a finding that the professor had  “engaged in unwelcome and inappropriate sexual advances,” including “sleeping with his arms on and around (the student) on the night of February 10-11.”  But the university ignored a disciplinary committee's recommendation that the professor be terminated, and he continues to hold his job.  Meanwhile, the student has attempted suicide and suffers from post-traumatic stress that has required hospitalization.

The lawsuit argues that the university's failure to discipline the professor is "deliberate indifference" that subjects the university to liability under Title IX for the student's damages, including medical and educational expenses and compensation for emotional distress.  The professor is not a defendant to this lawsuit, though he may have to contend with criminal charges.  He, meanwhile, denies the student's allegations, and has sued local papers for defamation, alleging that they falsely characterized the allegations against him as rape in their reports about the case. 

Tuesday, February 11, 2014

Single complaint triggers larger investigation at University of Chicago

The complaint to OCR by one University of Chicago student about the way the university handled the disciplinary procedures resulting from a sexual assault by a (now) former partner has resulted in a broader examination of campus culture and the university's procedures for reporting and adjudicating sexual assault cases. The student filed her complaint in March 2013 for the events which occurred in AY2011-12. But the findings from that investigation prompted OCR to inform the university last month that it would be returning to conduct additional interviews and reviews of policies and procedures. According the student newspaper which ran a series about sexual assault on campus that was partly responsible for triggering the current investigation, investigators are now meeting with students.
The university has responded by forming a faculty committee to address (presumably) current and ongoing issues related to Title IX, sexual assault, and sexual climate on campus. University  representatives have also said that a new discipline policy will be issued this summer.
The original complaint by the one student is ongoing but involves the alleged downgrading of the student's report of a sexual assault to a more benign student dispute for which administrators encouraged informal mediation during which the two students involved would come together to talk it out basically. The complainant contends, among other things, that the downgrading and the suggested conflict resolution would have meant that the university would not have had to report the incident as a sexual assault. This, she said, made her wonder if the university was underreporting sexual assaults. This might be another reason why OCR has broadened its investigation in Chicago, though no one has said this is a Clery Act investigation.

Wednesday, February 05, 2014

Study Finds No Benefit to Single-Sex Education

Even as single-sex education continues to be touted as the solution for everything that ails public education, new research findings reported this week suggest that it provides no advantages over coed classrooms.  Psychologists conducted a meta-analysis of 184 studies from all over the world and going back several decades that examined the benefits of single-sex- versus co-education. Their conclusion derived from these studies are that differences in educational outcomes are "trivial, or in many cases, nonexistent." The subset of studies conducted in the U.S. produced a similar conclusion.

This analysis could potentially influence courts' and regulators' determinations of whether the ever-increasing number of schools purporting to experiment with single sex education are lawful under Title IX.  Title IX regulations require single-sex programs to be "substantially related to achieving" the school's objectives.  Evidence that single-sex programs do nothing would undermine claims that they "achieve" anything. 

Tuesday, February 04, 2014

"Failing" Girls' Charter School in Delaware Sues State for Nonrewal

A charter school for girls, along with several of its students, has sued the Delaware Department of Education, alleging that the state's failure to renew the school's charter violates Title IX and the Equal Protection Clause.  The state concluded that the plaintiff, Reach Academy for Girls, is a failing school based on the low standardized test scores posted by its students, and did not renew its charter on those grounds.  But Reach and its students argue that unless it is renewed for another five-year term, the state will violate Title IX and Equal Protection by supporting a charter school for boys but none for girls.   They seek an injunction against the state that would allow the charter to continue for another five years.

The federal district court in Delaware recently dismissed the claims filed by the school itself, which does not have individual rights under either Title IX or the Constitution.  But the court did grant a preliminary injunction based on the claims against the state filed by the students.  As a result, Reach's charter remains in effect for the time being, until the court determines after further analysis (and possibly a trial) whether a permanent injunction is warranted.

The court concluded that the student plaintiffs satisfied their burden of showing a likelihood of success on the merits, one of the key requirements for obtaining a preliminary injunction.  The court's analysis is sparse at this early stage of litigation; it simply noted that the plaintiffs do not have to prove that the state had discriminatory intent, only that its decision resulted in a discriminatory impact on students of one sex. The court reasoned that the plaintiffs will likely prevail, notwithstanding the fact that it reads the Department of Education's Title IX regulations governing charter schools (see 34 C.F.R. 106.34(c)) to not require parity in the number of schools authorized for each sex.

I would expect the court to examine Title IX's application to charter schools more closely in its forthcoming decisions related to the permanent injunction.  It certainly seems like a more complicated issue than the court's preliminary decision made it seem.  After all, if the state of Delaware were enjoined from revoking the charter of a failing school for girls, that too would arguably constitute a violation of Title IX since the state's only charter school opportunities for boys are of higher quality than the charter school opportunities available for girls. In the athletic context, to borrow an analogy, funding recipients have already learned that you can't outsource away your obligation to comply with Title IX. Just as a high school can't say, "it's not our fault that the municipal field that the city lets us use for softball is of lesser quality than the baseball field we have on campus," the state of Delaware should not get away with saying "it's not our fault that the private schools we've chartered are providing inferior education to girls."  Therefore, the court's granting of a permanent injunction would, I think, put the state in a genuine dilemma.  I don't know how the court will resolve it, but I will point out that the dilemma itself underscores my skepticism of single-sex education in the first place: "separate but equal" is hard to ensure. 

Decision: Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 229473 (D. Del. Jan. 3, 2014).

Sunday, February 02, 2014

Mapping sexual assault complaints

This is a brief postscript to Erin's post about greater transparency at OCR about complaints against schools accused of mishandling sexual assault complaints. HuffPo writer Tyler Kinkade has created an interactive map that readers can click on to read a brief synopsis of the issue at hand. The blurb also includes a link to a longer article. The map is coded to differentiate between federal complaints that are pending, completed investigations, and schools where controversies over handling have arisen but no formal action has yet been taken.
Though we try to write about all the cases and controversies, we sometimes miss them. So we're appreciative of such a resource. I hope HuffPo keeps it updated.

Sexual Assault Roundup

There's been lots of news about individual colleges' policies and practices regarding sexual assault.   Here is a brief roundup.
In (albeit anecdotal) evidence of colleges taking sexual assault grievances seriously, the University of Michigan expelled a football player for sexual assault. 

Amherst College expelled a student as well.

At the University of Connecticut, OCR is confirmed to have opened an investigation in response to complaints of its mishandling of sexual assault.  A private lawsuit is also underway. 

Swarthmore announced changes to its sexual assault and harassment policies, in response internal investigations prompted by a federal complaint filed last year. 

University of North Carolina reports a stronger partnership between its department of public safety and other parts of campus in support of a more effective sexual assault response. 

Iowa State students are now required to take an online training on violence prevention, as part of its universities efforts to comply with requirements of Title IX.  

The University of Colorado announced the positive results of an external review of its Title IX policies, while setting goals to exceed the minimum requirements of compliance. Separately, the university made news by removing the chair of its department of philosophy, amid allegations of sexual harassment.

Saturday, February 01, 2014

Title IX and Proposals for a College Football Players' Union

A column in Forbes points out that if the football players at Northwestern are successful in forming a players' union, their likely demands for compensation beyond the full cost of attendance would make it difficult for universities of to comply with Title IX.  A few universities make money on football, and those schools use some of these proceeds to defray general athletic department costs and to partially support women's programs.  If this money is redistributed to the players, it will no longer be available to this end.  A university would have to find other sources of revenue to fill that gap, or else it would risk violating Title IX's requirement for equal treatment of men's and women's programs.  (Cutting those women's teams for lack of funding would also probably violate the law.)  Not to mention (and the column doesn't) the fact that paying some members of a men's sport, but no members of a women's sport, would also violate the equal treatment requirement.

This column ends by calling Title IX the "elephant in the room" that would need to be addressed if players were compensated.  I think that, more than that, the fact this elephant exists highlights the very problem with big-time college sports.  A hybrid of both for-profit business and non-profit, federally-funded education, the former makes the argument for a union seem compelling, and the latter justifies the application of a civil rights law that requires equal treatment on the basis of sex.  The incompatibility of these two ideas illustrates that universities really can't have it both ways.  There are only two solutions: make college sports compatible with education, thus mooting the players' arguments for compensation, or take college sports out of universities, thus mooting the role of Title IX.  Both would drastically change big-time college sports as we know them.  But that just underscores how deeply inconsistent the business of sport and the business of education actually are.