Female Baseball Player Challenges Exclusion from Junior High Team

In Mesa, Arizona, after an eighth-grade girl named Jasmine Miles was excluded from her public school's baseball team, her grandfather filed a complaint with the school district. But the school district is still refusing to let her play, arguing that reserving baseball for boys is "in compliance with Title IX, as an equivalent team [i.e., softball] is offered for girls." 

I contend that the "softball defense" is a misinterpretation of the Title IX regulations about cross-over participation:

"...[W]here a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport."  34 C.F.R. 106.41(b).

According to this provision, a school can offer separate teams for girls and boys "in a particular sport" as long as there is a team for members of each sex.  (The exception to this rule for contact sports does not apply, since baseball is correctly omitted from enumerated list of contact sports that appear later in this regulation.)  The regulation says nothing about "equivalent" sports or "similar" sports.  The idea that baseball and softball are interchangeable for Title IX purposes, while convenient for athletic directors, does not derive from this regulation, but from tradition rooted in stereotypes that sought to preserve the sport of baseball as an exclusive male preserve.  I agree with Miles's grandfather, quoted in the article, that baseball and softball are different sports.  They use different facilities, they have different rules, and different equipment.  Just as a school can't hold up its girls' volleyball team as a reason to exclude girls from the boys' golf team, it should not be able to rely on softball as a justification to exclude girls from baseball.    


I hope that Miles and her grandfather continue to fight the school district on this.  Perhaps they can do for Arizona what another baseball-playing girl, Logan Young, did for Indiana.  She too challenged her school's policy of excluding girls from baseball on the grounds that softball was an equivalent sport.  The lawsuit she filed eventually pressured the high school athletic association in that state to change the rules.

Sand volleyball trickles down

The NCAA approved sand volleyball for its emerging sports list for DI and II schools in 2010. Now it seems state interscholastic sports associations are testing its feasibility at the high school level. Well, at least in Arizona which recently held its first high school sand volleyball championships. This is the first year of the two-year pilot program for the sport that the Arizona Interscholastic Association approved. And it looks like next year the program will see an additional 15 teams participate. (There were only a handful this year.)
What I found interesting was that student-athletes in Arizona were speaking of their preference for indoor or outdoor volleyball, which confirmed some of our concerns that schools were just doubling up numbers for Title IX purposes rather than creating new opportunities. In other words, sand volleyball teams would likely be comprised of indoor team members. This is certainly happening at the high school level, but how prevalent it is at the intercollegiate level remains unknown. But I was encouraged by the fact that current and former high school volleyballers were talking about choosing either an indoor collegiate program or a sand volleyball program. In fact, one player turned down an offer for an established indoor program to go to a new sand program at USC.
Also our concerns about the sexualization of student-athletes in the sport seemed to also be a concern for Arizona officials. Sand uniforms are the same as indoor uniforms. Spandex shorts (which are admittedly quite short and nothing like men's volleyball shorts) and full-length tops. No bikinis or bathing suit tops.

Badminton Proves Popular Addition in Deer Valley, Arizona

Girls' badminton, the newest sport offered by the Deer Valley Unified School District in Phoenix, Arizona, easily filled up at the district's five high schools, providing new athletes with a sport and demonstrating once again the "if you build it, they will come" relationship between Title IX, opportunity, and interest.

Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.

With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.

Student Whistleblower Loses Retaliation Case

A court in Arizona dismissed a Title IX case against the Gilbert Public Schools, in which the plaintiff argued she was retaliated against for reporting sexual comments by her coach. The plaintiff, Madison Power, was a sophomore on the basketball team when she reported to her parents and ultimately the school district that she had been made uncomfortable by the assistant coach when he made some comments of a sexual nature during a ride home from a tournament out of town. Based on this report, the school district decided not to hire the assistant coach for the subsequent school year.

Power alleges that she faced reprisal from the head coach, who was married to the terminated assistant coach, and other members of the basketball team. She alleges that the coach expressed anger about Power and defended her husband to other players. As a result of her report, she was demoted to junior varsity the following year, and that other members of the varsity team sought to punish her by tripping her, fouling her hard at practice, and calling her a bitch on a MySpace page.

But the court determined that Power's case does not constitute a violation of Title IX. The head coach was recused from tryouts and did not participate in the decision that assigned Power to junior varsity, so that allegation could not support a retaliation claim. The court also found that the the other students' behavior lacked requisite severity and did not deprive Power of educational opportunity. Moreover, the court found that the school district had responded appropriately when Power complained about the head coach an the harassing students, issuing warnings as the situation warranted.

Here, the plaintiff charged that was punished by her peers and her coach for reporting the sexual inappropriateness of her assistant coach. No student should face such reprisals. But in this case, the the school district's reasonable response to the situation insulated it from second-guessing by the court.

Getting the facts right

This is my somewhat belated follow-up to this post about the UA water polo team and the misrepresentation of Title IX in the media.

In a follow-up to his initial reporting of University of Arizona administrators deciding to add water polo to their list of varsity sports for women, Arizona Star columnist Greg Hansen wrote another column criticizing the decision. This one too was riddled with inaccuracies and something that was supposed to resemble support for Title IX but begins by Hansen noting that the decision to add water polo is an example of "Title IX run amok."
Why? Because high schools in Arizona don't have water polo. But lots of high schools in CA do and CA isn't that far away. Plus Hansen fails to research whether there are water polo club teams in the state. He also fails to acknowledge that adding water polo at UA could actually create more opportunities for high school girls. His earlier article complained that water polo could not be revenue-generating. Know what generates a lot of revenue (and publicity)? The only summer water polo camp in the state which is what UA will establish if they are savvy enough to see the opportunity here.

Hansen does get some things right, though: water polo was added to account for "football-bloated male participation numbers." But then he attempts to make an economic argument:

"No women's sport comes close to football's numbers in participation and, more importantly, in revenue. Indeed, football pays for women's sports on almost every college campus in America, yet, because of Title IX ratios, men's sports are inherently penalized because football is so big."

It takes a smidge of research (which Hansen--or his editors--apparently did not have the time to do) to find out that football programs on most college campuses DO NOT PAY for women's sports. 78% of them cannot even pay for themselves!

And unfortunately the people who commented on the article also took up the "but football pays for everything; without football where would athletic departments be?" type arguments. I don't know, maybe we should ask Boston University who cut their football team years ago. Hasn't seemed to affect their perennially strong men's hockey team or the school's reputation as an excellent educational institution.

It is certainly possible that UA is one of the schools with a football program that actually makes more money than it spends. On the one hand, the university reports football revenue outpaces expenses by $6 million. But on the other hand, expense figures such as these could exclude capital costs including the bond debt on the football stadium. (It is also worth pointing out that while UA may, coincidentally spend $6 million on women's sports, it is not exactly a convincing argument from an equity standpoint to say that "football pays for women's sports" given that the $6 million spent on women's sports amounts to less than 16% of all athletic department spending overall. Nor it is an accurate one, given that women's teams themselves offset $2 million in costs with the revenue they bring in from ticket sales and camps.)

But what is truly disappointing about the article is the praise Hansen seems to heap on Title IX because, for example, it has sent Arizona softball players across the country to coveted coaching positions or made college soccer more mainstream. He even says "Thank you, Title IX" which rings a little hollow when just paragraphs before he instructed us "Title IX activists" to "accept that it works, has worked, and stop digging for more."

I cannot bear to end on such a sour note so in an attempt to make some lemonade I have to say that the blatant inaccuracies and false praise for Title IX only make this activist want to dig all the harder.