Settlement at Iowa

[this is officially old news now but still important to note]

It was always going to be a toss up. Which would come to an end first: the pandemic or the lawsuit against University of Iowa? 

University of Iowa for the...win? 

The lawsuit, brought by women athletes at the school in the wake of the attempted cuts in fall 2020, has ended with a settlement. The women's swimming and diving team had been reinstated while the lawsuit was pending and it will continue on for at least seven years. (Terms of the settlement state that it cannot be cut until then.) AND...

...there will be a new women's wrestling team!! Iowa will be home to the first women's wrestling team in any of the power 5 conferences. And that is quite fitting given Iowa wrestling's renown. Let's give an enthusiastic cheer:

HIP HIP HOORAY!

And now the "really?" part of this post. 

The conditions of the settlement, in addition to keeping women's S&D for seven years and $400,000 which will cover expenses, was to add another women's team and the administration chose wrestling. According to Athletics Director Gary Barta, conversations about adding women's wrestling had allegedly been happening prior to the lawsuits and settlement. However:

“Were it not for the Title IX lawsuit, I wasn't ready to add women's wrestling yet,” Barta said. 

[How does this man still have his job? Has any athletic director had so many lawsuits during their tenure as Gary Barta? (Probably, but still, I reiterate past statements about his Teflon-ness.)]

So this historic thing is about to happen and because Gary Barta is the athletic director and it will happen under his watch, he will get credit for it even though it was 1) the result of a lawsuit over the denial of sporting opportunities to women and 2) he didn't even want to do it. 

A significant, but less touted condition of the settlement, is a roster cap on women's rowing. The team cannot exceed 75 spots. Roster inflation has long been an issue and especially so in women's rowing which some schools have used to "balance" out the (inflated but widely accepted as normal) football rosters (approximately 120 students). 

The lawyer for the plaintiffs expressed hope that the capping trend would continue thus creating more quality experiences for women athletes.

On suspending seasons

Yesterday, Amherst College suspended all team activities for the men's cross country team after a student publication revealed social media messages and emails to incoming team members that included racist. misogynist, and homophobic comments.

Last month, Harvard suspended the men's soccer season in the wake of revelations that the team has continued its practice of ranking first-year members of the Harvard women's soccer team in sexually explicit ways.

In a few weeks, the Baylor football team will play in the Motel 6 Cactus Bowl against Boise State despite accusations of sexual assault by 17 women against current and former football players and a clear evidence of cover-ups.

One of these things is not like the others.

Things have been brewing, arguably boiling over, at Baylor for some time, which is why Paul Finebaum, ESPN commentator, expressed outrage last month that the team had not been suspended. Finebaum said on-air that Baylor's football season should have been suspended in light of its many misdeeds (chronicled here--and everywhere). Finebaum was calling for the Big 12 to issue the suspension because neither the NCAA nor the university itself will do so. The NCAA is not planning  anything in response to the cover-up of the sexual assaults and to an institution that does not have control over its athletics program. Baylor hired a law firm to do an external investigation and then failed to make changes and refuses to acknowledge a culture of sexual hostility and athlete privilege.

The two events at Amherst and Harvard have commonalities: introduction of the first-year class into team culture using offensive discourse; elite, private schools; men's "minor sports"; both schools will conduct investigations into the matters.

At Harvard the offense was directed at the women's soccer team; a betrayal of what many of the women felt was a familial (non-sexual) relationship. Since the soccer scandal was revealed, it has come out that similar practices have occurred within the men's cross country team. The initial response was meh. The athletic director said Harvard would handle it internally and by trying to make it less of a media thing--he made it more of a media thing. The additional findings that 1) players were not being "forthcoming" about what was happening and 2) it was still happening forced the AD as well as the university president to make stronger public statements and ultimately cancel the season. Investigations are ongoing.   

At Amherst, it does not appear--at the moment--that the commentary was directed at a female team. A June 2015 list of female students has surfaced that includes pictures and comments about their sexual pasts, including guesses about STD infections. The incidents in question are from 2013-15. Of course, as we saw at Harvard, these things often do not just disappear on their own, even when there is new leadership--as there was at Harvard when they hired a new soccer coach a few years ago.

Also, the cross country season is over. "Team activities" would likely include team banquets or coach-led practices, but it's finals week at Amherst, and I assume there is not much on the docket for the team. So now Amherst must decide how to proceed. Will athletes involved be individually punished? Will the be prevented from running next season? Many cross country runners will also run indoor and outdoor track. Will team members be allowed to compete for their other teams? To its credit, Amherst, under its (not so new anymore) president, has taken issues of sexual assault and harassment more seriously than in the past. The school's response was immediate and the AD and president are seemingly on the same page. I hope this one does just fade away. Investigations are ongoing.

What have we learned? Well male privilege and sexual misconduct are not just the province of football players. This is obvious when taking a broad look at the cases of harassment and assault involving athletes. Baylor gets the most attention because it is a big-time football program. (There is also the issue of adherence to "Christian values" that are the alleged bedrock of the institutional mission; this has received less attention.) So what it looks like is that there is more at stake at Baylor--for the athletes, for the coaches, for the school. I do not agree with this view because what I know for sure is that the stakes are the same for the women who are the victims of these athletes and for potential victims. They are on campuses where sexual violence is a known reality (as it is on most campuses). The crimes and misdemeanors may be different and, at the individual level, the effects on victims may be different (in part because of school response). But all these schools have a climate of sexual hostility and it is manifesting in their athletic departments, among their male-student athletes (and probably at higher levels as well). And this means that students do not feel safe at their schools.



PS. More on Baylor:

The university received word this week from the Southern Association of Colleges and Schools, an accrediting body, that it would be monitoring Baylor's ability to 1) maintain institutional control over intercollegiate athletics, 2) create a safe and healthy environment for students, and 3) provide adequate student support services.

In other words, while there are a lot of external pressures on Baylor, it continues to do very little. Baylor fans might say that ditching Art Briles was enough. Finebaum, and many others, do not think so. Firing Briles (who is suing the school for libel) was cleaning house. It is was not shoring up the structure of the house. In fact (to continue to metaphor) Baylor brought in a temporary coach, Jim Grobe, who seemed to be predisposed to making things dirty again and further weakening the structure. (Based on comments during his early press conferences and interviews.) The new coaching staff has been named. We shall see what those press conferences bring.

Investigations are over.

PPS. Columbia wrestling
I knew I forgot something! Columbia University (also elite, private) suspended its men's wrestling team ("minor sport") after some members' racist and misogynist texts were discovered. Columbia completed its investigation last month. While the investigation was pending, members were not allowed to compete. The team was still practicing.

The messages were sent in a group message format. Those not participating in the group message were allowed to resume competition. Some members were suspended for the rest of the season. Others were suspended until the start of spring semester.

Notable in this case: former assistant coach Hudson Taylor who founded Athlete Ally, a group that supports LGBT athletes, took some responsibility for the culture that engendered these messages:

"[The actions] are a reflection of our culture and my coaching. I apologize to the Columbia campus, to the alumni, and to my former wrestlers for not doing more to develop them into young men of better character.”

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

Catholic Diocese in PA Bans Schools' Participation in Coed Sports

The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents.

The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female student's right under the Constitution's Equal Protection Clause to try out for her public middle school's wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the court's decision was at least part of the Diocese's motivation to enact its new policy.

Are there any legal implications of the Diocese's new policy?  After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. 

But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools' decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that school's coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools. 

Harassment cases roundup

Here are summaries of November decisions in Title IX sexual harassment cases: 

A federal judge in Massachusetts refused to dismiss a Title IX case against Stoughton Public Schools, stemming from an incident in which students circulated nude photographs of the female student plaintiff, precipitating name-calling like "slut" and "whore."  The judge agreed that the plaintiff's allegations, if proven to a jury, could satisfy both the requirement of hostile environment, given that many students were involved and that the hostility was prolonged over many months, as well as deliberate indifference, since the plaintiff claims that the school did not impose any discipline on the students involved, or even call their parents.  Doe v. Town of Stoughton, 2013 WL 6195794 (D. Mass. Nov. 25, 2013).

A federal judge in Arizona determined that a graduate student plaintiff's entire Title IX claim against the Arizona Board of Regents was timely, even though some of the instances of harassment and retaliation she experienced after breaking off a relationship with a faculty member were outside the two-year statute of limitations.  Hostile environment harassment claims constitute a "continuing violation."  Under this designation, since some components of her hostile environment claim took place within two years before she filed suit, the court will consider the entire timeline of harassing events.   Kunzi v. Arizona Board of Regents, 2013 WL 6178210 (D. Ariz. Nov. 25, 2013).  

Similarly, a case against the University of Michigan was allowed to proceed despite a motion for the university that argued that the case was untimely.  There, the plaintiff, a female engineering graduate student, alleged that she was subjected to severe and pervasive sexual harassment and discrimination by her male peers, as well as retaliation by university faculty and employees. The court denied the university's motion to dismiss because even though the harassment began earlier than the statute of limitations period, the plaintiff alleged some instances of harassment, deliberate indifference, and retaliation that occurred within the limitations period.  Dibbern v. University of Michigan, 2013 WL 6068808 (E.D. Mich. Nov. 18, 2013).
 
A student's Title IX case against the Board of Education in Prince George's County, Maryland, was dismissed after a court ruled that a reasonably juror could not find evidence of deliberate indifference on the part of school officials.  In this case, the plaintiff was sexually assaulted by another boy after experiencing (and reporting) several earlier instances of sexualized misconduct by that same boy.  Yet school officials responded to each earlier instance in a reasonable manner, addressing them by such means as talking to the offending student, assigning the offending student to separate classes, requiring that he serve a five-day in-school suspension.  According to the court, imposing liability on the school on these facts would discourage schools from imposing any punishment other than expulsion for any instance of sexual harassment regardless of its nature. Doe v. Bd. of Educ. of Prince George's County, 2013 WL 6065269 (D. Md. Nov. 18, 2013).  

A female wrestler's Title IX claim against her school district can go forward, after a court determined that her complaint adequately alleged that she had put proper school officials on notice of sexualized and gender-biased harassing comments by the wrestling team's two assistant coaches.  Moeck v. Pleasant Valley Sch. Dist., 2013 WL 6048131 (M.D. Pa. Nov. 14, 2013).  

Ottawa College to add wrestling

Two of the many things we at the Title IX Blog are interested in are: 1) the reasons behind why schools choose to add specific sports; and 2) wrestling programs.
The news that Ottawa College in Kansas is planning on adding both women's and men's wrestling to its roster of intercollegiate athletics, then, caught our attention.
Wrestling, of course, has been central in many of the debates about Title IX with some supporters arguing that the decline in wrestling programs at the intercollegiate level has been caused by the legislation, despite evidence to the contrary.
We have seen, though, that non-Division I schools are considering wrestling a viable option when adding sports and that women's wrestling can help preserve Title IX compliance and, at times, men's wrestling. This is not the case at Ottawa which will begin both programs from scratch.
The school, which will introduce the sport in the 2014-15 academic year, has begun looking for a head coach and student-athletes.
One of the reasons why the school chose wrestling is because administrators are committed to maintaining a high level of student-athlete academic achievement and wrestling. They found that elite high school wrestlers at the national championships maintain an average 3.0 GPA. Additionally they see the promise in women's wrestling, which continues to grow.

Boston University drops wrestling as varsity sport

After the of 2013-14 season, Boston University will no longer support a varsity wrestling team. Wrestling has been a varsity sport at the university for just under 50 years. Officials within the athletics department said that the decision was made for several reasons including BU's imminent conference move to the Patriot League which does not have wrestling and the team's mediocre performance in the past decade+. To remedy the latter, a lot more money would have to be put into the program including into facilities, something the department says is not feasible. They immediately ruled out the possibility of fundraising as a possibility to save the team. It seems the decision has been made.
The good news is that the articles I have read have not invoked Title IX as a "the law made me do it" excuse. And BU eliminated football in the late 1990s so we know they aren't shuffling the money over to that program.
But that hasn't stopped critics from participating in the Title IX blame game. A quick look at Twitter:
Some named Justin S tweeted "Wrestling programs get cut so girls can take lots of cute uniform pics in the lockerroom before games" with the TitleIX hashtag. This was right after he tweeted that "football and wrestling have literally destroyed my body." Hmm...
Jason Bryant, a sportswriter in Minnesota, tweeted that that was another case of Title IX forcing a school to cut a sport and that it was the addition of men's lacrosse that forced the school to cut wrestling--because it couldn't keep both.
Well it certainly has a numbers problem. Men comprise, as of the 2012 EADA reporting, just a smidge under 40 percent of the undergraduate population. The same data show that there is a 7.7 percent disparity between the percentage of female undergraduates and the percentage of female student-athletes. That is equivalent to 52 opportunities. So they have to keep the number of male student-athletes in check or add a woman's sport--or increase the number of men in their undergraduate population. Adding men's lacrosse made the school vulnerable. If a woman's club team, for example, came forward and asked for elevation to varsity status the school might have trouble denying them that opportunity given that their numbers are off and that the last women's team they added was in 2005.
If BU had all the money in the world, maybe wrestling would have been retained and two more women's sports added. But maybe they are simply trying to maintain a highly successful athletics program in which all their sports are regionally popular and given what they need to succeed.

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.

$1.35 Million Settlement Ends UC Davis Litigation

Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.

The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.

Alma College wrestling reborn

We've largely gotten away from correcting all the little mistakes, misinterpretations, and misrepresentations of Title IX that occur in the media.
But sometimes one of them just strikes that nerve and...
A story about the rebirth of intercollegiate wrestling at Alma College in Michigan says that the program was cut in 1984 "in large part because of Title IX." This bothers me for two--related--reasons. One, a majority of the wrestling community blames the enforcement of Title IX for its demise in the 80s. And two, Title IX was not being applied to athletic departments in 1984. The Grove City decision came down in 1984. No school is going to cut a program for Title IX reasons while a Supreme Court decision over whether it will have to or not is pending.
Wrestling advocates argue that wrestling is growing in popularity. And the numbers support this. But that does not mean it has retained a consistent level of popularity or support over the past 40 years. That some wrestling programs are being (re)introduced is indicative of the ways in which athletic programs change with the times. And this is a good thing.
The president and trustees of Alma College say that the time was right to reintroduce wrestling because of the benefits it will bring to the athletic department and the school as a whole.
They did a feasibility study. Which means they must have run the numbers I just did.
So Alma has a 105-member football team. (These are the latest numbers reported to the Department of Education.) This presents a certain amount of challenges especially when the student body is 58 percent female. They added 26 opportunities for men with wrestling. Fortunately they added 28 for women when bowling and lacrosse got put in place this year as well. So these new numbers added to the old numbers (in other words, this is approximate) look like this:
Fifty-nine percent of athletic opportunities at Alma go to male students. Prior to the addition of wrestling and women's lax and bowling this year men had 60 percent of the opportunities.
In other words, not much changed.
Alma remains in compliance under prong two. Still the implication that the wrong/discrimination men experienced when wrestling was cut in the 80s seems a little misplaced given that women then and now have fewer opportunities at Alma College.

I wasn't going to say anything but...

...I can't not.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.

District Court Reaches Decision in UC Davis Title IX Case

U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.

What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.

Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.

Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.

Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.

Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.

Female Wrestlers' Case Against UC Davis Goes to Trial

On Wednesday, a federal district court judge in California heard closing arguments in the trial to determine whether the University of California at Davis violated Title IX when it denied opportunities to female wrestlers in 2001. The case has been in litigation for a many years, and we have blogged about it several times (see here, here, here, and here.)

The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.

What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.

Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.

Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.

The judge's decision is expected in July.

Liberty explains

The good news is that Liberty University, which dropped its men's wrestling program from the varsity roster this week, is aware that they currently meet the criteria for compliance with prong two. But they believe that in three to five years this will not be enough. This is despite their plan to continue to decrease roster spots in men's sports and increase spots in women's sports. Compliance with prong two remains somewhat subjective. How many and how frequently a school has to add opportunities is not neatly outlined. And while I applaud Liberty's forward-thinking--many schools get caught having to make lesser-of-the-evil type decisions because they have not thought ahead--it still seems somewhat curious that Liberty would make this cut now. Liberty officials argue that wrestling was the sport to go because it had a large roster (38) and because it was the only sport not in the Big South Conference--it actually had no conference affiliation. I still have not run the numbers myself, in part because the most recent women's sport addition will not be present in the latest set of data. But according to Liberty, their undergrad population is 52/48 women to men. And even with the addition of the three sports they are still not achieving proportionality! Makes me wonder what things looked like when wrestling was added in 2006 (and earlier).

Liberty reclassifies wrestling

Liberty University reinstituted its DI men's wrestling program in 2006. This was a move that bucked the trend of dropping men's intercollegiate wrestling. And they produced a successful program in that time. But the university announced this week that it would be dropping the team from the roster of intercollegiate sports and reclassifying men's wrestling as a club sport. In order to comply with Title IX. Or so they say. Liberty has added three women's sports since 2009 but says that even those additions are not enough to achieve proportionality. True, perhaps. But we don't even need to go look at their Department of Education Equity in Athletics data--because they are already in compliance. They don't have to achieve proportionality right now because they are adhering to prong two. Adding three sports in three years demonstrates a history of expanding opportunities for women. The only reason they might be seeking proportionality is if they intend on dropping a women's program. Once a women's sport is cut, then proportionality becomes the only option. Or they might want to add a different men's sport in the future. The wrestling community and the Title IX community are often seen as adversaries, and Liberty saying that they cut wrestling because of Title IX is not helping things. Liberty already is in compliance (regarding participation). So if I was a wrestler, I would start questioning Liberty's rationale.

West of the Mississippi...

Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.

Default was not "consequence" of Title IX

There were a lot of issues/controversies raised by last week's story about a male high school wrestler who defaulted his match rather than wrestle a girl. Religion, violence, gender roles. Title IX was not one of them. Why? Because of the contact sport exception.
So I was surprised to read a blog post on the Chicago Tribune website Chicago Now entitled "The Unforeseen Consequences of Title IX" by Kirk Mango. Note that the title is pretty ubiquitous. Opponents of Title IX use it all the time to talk about a myriad of issues. But the post colon blog title "Top Iowa High School Wrestler Defaults, Won't Face Girl" was a little surprising. Because, again, Title IX does not require integration of teams when the sport is a contact sport. And as Joel Northrup pointed out when he issued a statement about his default to Cassy Hekelman, wrestling is a contact sport.
Girls have gained access to wrestling either because they have just been allowed to participate or because they have sought legal remediation under either an individual state's equal rights amendment or the equal protection clause of the Fourteenth Amendment of the Constitution.
But no one seems to be writing pieces titled The Unforeseen Consequences of Equal Protection.
For more on this I highly recommend Dr. Sarah Fields's book Female Gladiators: Gender, Law, and Contact Sport in America. She specifically addresses the legal and cultural controversies girls' wrestling has engendered.
So I hope Mr. Mango picks up Fields's book. As someone who in involved in promotion of youth sports (he has a website called Becoming a True Champion about empowering individual athletes) he--and all who work in youth through intercollegiate sports--should know what Title IX does and does not do.

2/24 UPDATE: Mr. Mango has changed his post to reflect the fact that Title IX was not a factor in the integration of wrestling. This is the new post.

UC Davis Officials Do Not Have Immunity from Wrestlers' Suit

Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.

So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.

The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.

Ninth Circuit Revises UC Davis Decision

The Ninth Circuit Court of Appeals recently issued a revision to its decision, issued in February, that reinstated female wrestlers' case against the University of California at Davis. The revision does not change the outcome or the court's analysis of the main issue on appeal, which was district court's erroneous determination that the plaintiffs had to provide actual notice to the university before proceeding with their claim that its decision to eliminate women's wrestling opportunities violated Title IX.

Rather, the revision clarified that the various Title IX compliance prongs -- including, prong two, which was UC Davis's professed means of compliance -- measure athletic opportunities, not number of athletes. Thus, UC Davis may count opportunities added in sports like indoor track in its argument that it has historically and continuously added opportunities for the underrepresented sex (as prong 2 requires), even if some of the participants who benefited from the new team already participated in outdoor track. However, even counting the indoor track opportunities, UC Davis still did not meet the prong 2 standard, since it only added opportunities for women between 1996 and 2000. Thus, UC Davis could not satisfy any of the three prongs after it eliminated opportunities for women in wrestling.

Revised decision is: Mansourian v. Regents of the Univ. of Ca., 2010 WL 1542502 (9th Cir, Apr. 20, 2010).

UC Davis announces cuts

As expected, UC Davis will be cutting four sports due to the extreme budget shortfalls being experienced by California schools. Women's rowing, men's wrestling, men's track and field, and men's swimming and diving will not be on the slate of varsity sports next year. As we mentioned previously, Davis fields a much higher than average number of sports than its Big West Conference peers making it a difficult financial juggling act even in good economic times.
The expected savings is $5 million over five years. But the fiscal restructuring plan in the athletic department will eliminate its $1 million+ deficit and make it fiscally solvent in 3-5 years.
Of course Title IX was one factor in deciding which teams to cut. If you read the news that came directly from Davis you will see that the cuts affect 73 female student-athletes and 80 male student-athletes. If you read the news that came from the AP and was re-posted on ESPN, you will read that three men's sports got cut and one women's sport was cut. In other words, it looks like men are bearing the overwhelming brunt of the cuts, which is not the case.
Davis is required, as are all University of California system schools because of a previous Title IX settlement, to maintain proportional opportunities within 5 percentage points. It currently does so and thus cuts would not--and did not as we see--disproportionately one gender.