Yes...and...but...well...: The NCAA Tourney and Issues of Equality

 The following is an only slightly less contorted path through my original thought process in the wake of  Sedona Prince's Tik Tok revealing the gross inequities between the workout facilities for the women and men at this year's NCAA basketball tournament. (There was also an issue with the swag bags. Side note: interesting that the NCAA is allowed to give gifts to athletes, but no one else is.)

Initial thought: 

Anyone who is surprised has not been paying attention. 

Some less cynical second [and so forth thought(s)]: 

It seems that this very obvious disparate treatment brought some needed attention to the issue. We rarely see more than a handful (fingerful? thanks for all you do, Dawn Staley!) of women coaches speak up about issues of inequality. Not surprising given that women coaches are often fired for speaking up (#Iowa, #FresnoState, #FloridaGulfCoast, #manyotherplaces). This is good--the speaking up, not the firing. 

But of course the condemnation was of the NCAA, which is pretty low hanging fruit in terms of places to blame. No institution is going to retaliate against a coach for criticizing the NCAA over this clear mistreatment of women athletes. In short: they spoke out about a fairly one-sided issue. I feel this to be true because I have yet to hear any utterance of "keep politics out of sports." This is interesting because...

...politicians got in on this too. Most notably, Mikie Sherrill, a representative from New Jersey, is leading a group of three dozen representatives in demanding a response from the NCAA. I read this as opportunistic. There is nothing in the recent past regarding Congress's efforts to reform sports or hold organizations accountable (NFL concussion crisis, steroids in baseball) that makes me believe this action will create a reckoning for the NCAA in regard to gender equity. 

The truly less cynical part:

I chose to come to the conclusion that the reason this disparity was so glaring and that the reason Prince and her peers recognized it right away was because there has been a large improvement in the quality of experiences women intercollegiate athletes are receiving. These women are accustomed to better treatment. They have great weight rooms and other training and practice facilities; they have access to amazing coaching staffs and medical staffs, etc. 

Erin and I wrote about Title IX's equal treatment mandate in 2012. We had many, many, many examples of disparate treatment that schools were forced to resolve. I don't know if things have gotten better universally, or even just within intercollegiate sports (versus interscholastic) in terms of equal treatment. Or rather, I don't know how to measure that. 

I suspect that things are better for the top teams. So Oregon State probably does treat its men's and women's basketball team fairly equally. But that is easier to see and achieve because it is a like versus like comparison. How is the field hockey team treated? How is the field hockey team, plus the women's soccer team, plus the cross country team, plus the women's tennis team treated in comparison to the football team? Because that is how treatment is supposed to be assessed. It is not team versus team; it is based on the quality of experience for men athletes and female athletes. So if the 125 members of the men's football team receive locker room space with TVs and couches and other sweet amenities, 125 women athletes should be receiving something comparable. Are they? 

Who knows? Accountability only comes when a complaint or a lawsuit is filed. Some schools do Title IX self studies, but...self studies. How effective are they? 

The NCAA used to have an accreditation process for Division I schools which included a Title IX component, but they stopped those years ago. I argue that one (but not the only) reason this weight room fiasco happened was because the NCAA is out of touch with what is happening on campuses. If NCAA folks were going into schools, they would see what equal treatment looked like. Prince and the other women expected something better because they get much better on their respective campuses. 

What I hope will come out of this:

More student athletes learn about Title IX and what they are due because of this law and act on it.

More student athletes advocate for the equal treatment of all women's teams on campus, not just the ones that are popular or successful.

I was going to add something here about wanting the NCAA to get back into schools, but I don't think the organization, as a whole, has proven itself trustworthy or effective. My wish for its effective governance is countered by my hope that it collapses under the weight of its own dysfunction. So that's a wash. 

Congress will give more funding to OCR so it can effectively investigate Title IX complaints. Maybe it could even do something very pro-active and institute a system through which schools report how they are providing equitable treatment and not just equitable opportunities.

 

Roundup of Campus Sexual Assault Cases

Here is a summary of recent judicial decisions in cases alleging institutional liability for sexual assault under Title IX.

A student at the University of California at Santa Barbara was drugged at an off-campus party and then raped by a fellow student.  Three months later, she withdrew from school after being put on academic probation. She sued the institution under Title IX, first challenging its failure to conduct an investigation or disciplinary proceedings and for making statements capable of dissuading her from seeking such recourse. For example, one campus official told that plaintiff that university investigation might interfere with an ongoing criminal one. Confusingly, the court concluded that the university's "delay" does not constitute deliberate indifference giving rise to Title IX liability. Calling it a delay suggests that the university eventually got around to conducting an investigation though it did not. Nevertheless the court interpreted the university's conduct to be possibly negligent, but not clearly unreasonable if it really thought that conducting it own investigation would hamper law enforcement.

The court also rejected the plaintiff's argument that the university's failure to provide her with any housing or academic accommodations was deliberate indifference.  The plaintiff argued that, ""[t]he mere presence on campus, without any restrictions, of the student that sexually assaulted [her]” placed her in a sexually hostile environment" and did not try to help her reduce her courseload so that she could stay academic standing. But the plaintiff's claims fail because did specifically ask for accommodations.  Therefore, the university's failure to offer them, while possibly negligent, was not "deliberately indifferent."

This decision seems to me to set the bar for deliberate indifference unduly high.  The university is alleged to have done literally nothing in response to the plaintiff's report of sexual assault. Doing nothing ought to at least create the possibility of a deliberate indifference finding by a jury. Additionally, this case starkly illustrates the difference between judicial and administrative standards for Title IX liability. So much of what the plaintiff alleges directly contravenes the Department of Education's requirements in the Dear Colleague Letter.  But as the court itself (correctly) reminds, violations of Title IX regulations do not necessarily give rise to liability for damages because the standards courts used for that purpose is a much stricter, deliberate indifference standard.

Moore v. Regents of the Univ. of California, 2016 WL 2961984 (N.D. Cal. May 23, 2016)

The University of Tennessee is being sued by a group of plaintiffs who allege that while they were students, they were sexually assaulted by male student athletes on the basketball and football teams.  They claim that the university is liable for the sexual assaults that athletes committed against them because the university's indifference to a known pattern of sexual misconduct by athletes put them at risk of being assaulted as well.  Additionally, they claim that the university is liable under Title IX for mishandling their own reports of sexual assault, and one plaintiff alleges that she was retaliated against for participating in the investigation of one of the other plaintiff's assaults.  Last month, the federal court in Tennessee substantially denied the university's motion to dismiss these claims. The court was not persuaded by the university's argument that the plaintiffs did not allege that the university had actual notice of past sexual misconduct by their assailants in particular. Here the university is not alleged to have ignored a general risk that some students will harass some students, which would not, of course, be actionable.  Instead, the complaint alleges that the university  was "put on notice of a specific and concrete pattern of an 'inordinate' number of sexual assault allegations against members of specific teams within the UT Athletic Department and also allege that such a pattern may be directly related to the culture within the Athletic Department." This is an adequate allegation of notice and deliberate indifference, according to the court. In fact, it goes beyond "indifference" and alleges that the university's own actions in facilitating a culture of sexual assault are to blame for their assaults, which is a basis for potential liability in itself.

Doe v. University of Tennessee, 2016 WL 2595795 (M.D. Tenn. May 3, 2016).

In 1999, the plaintiff was a freshman at Oregon State when she was drugged and raped at a party in an off-campus apartment that was connected to members of the football team.  The plaintiff later learned that her assailant was not a student, but the cousin of a football player named Calvin Carlyle, who was visiting from out of town. Fifteen years later, the plaintiff discovered that Carlyle himself had raped another female student in the same apartment one year prior to her own rape, and that he had merely been suspended from one game as a result. The plaintiff then sued Oregon State, alleging that the university was liable for her rape committed by the cousin because it had been deliberate indifferent to the first rape committed by Carlyle. The court dismissed this claim, however, noting that the plaintiff's assailant (the cousin) was not a student and that the assault did not take place on campus. Given both of those factors, the university did not have power over the situation and cannot therefore be liable.  The plaintiff also alleged that the university was deliberately indifferent to her own reported rape, but this claim was barred by the statute of limitations, which in Oregon is two years.

Samuelson v. Oregon State University, 2016 WL 727162 (D. Or. Feb. 22, 2016). 

"Served its purpose"?

A writer at the Corvallis Gazette-Times believes that Title IX "has served its purpose" and it's time to stop penalizing male athletes--especially football players--and find a better way of enforcing the law.
Speaking to the specifics in Oregon, primarily Oregon State and Oregon, writer Kevin Hampton suggests football get a waiver from Title IX because it requires so many players and there is no female equivalent. The waiver idea is not new, of course, it has been around just as long as Title IX itself and was wisely never implemented. Why? Because intercollegiate sports are not supposed to be a business. They are part of the larger educational experience. And selectively applying a law that is meant to ensure equity in education isn't really equity at all. (Also, by Hampton's rationale, we would have to exempt field hockey which, in the United States, has no male equivalent.)
Not surprisingly, we also get the "but football makes money" argument. The numbers support this claim as it applies to OSU. It appears that football brings in more money there than it costs. But of course this is not universally applicable--it does not even apply to a quarter of Div I football programs, a fact Hampton overlooks. Football is rarely "foot[ing] the bill" for other teams; most often it is taking more than its fair share.
We also have to remember that, as Professor Nancy Hogshead-Makar has said, the actual expenses numbers are not subject to the same general accounting practices as those in the business world because athletics has a tax-exempt status. So, for example, the costs of stadium operation are not factored into team expenses.
Hampton, thankfully, recognizes the cultural bias against women's sports and does not advocate for Title IX's elimination because it would result in decreased opportunities for women. But in his pitch to "reform" the law he perpetuates almost all of the myths we just cannot seem to shatter.