Entire Georgia County Moves to Single-Sex Schools

Even the National Association for Single Sex Public Education thinks that Greene County, Georgia, is going too far in its plan to convert the entire district to single sex schools by next fall. Hundreds of school districts have incorporated single-sex education into their curricula since the Department of Ed made it legal in 2006, but this is the first time the practice has been implemented county-wide.

The superintendent says the move is necessary to improve test scores and graduation rates and to reduce pregnancy and disciplinary problems in this poor, rural school district. But NASSPE's Leonard Sax told the Atlanta Journal-Constitution that the county's move was likely illegal, since parents must also have the option of a public coeducation as well. He further described Greene County's action as "embarrassing" and "the worst kind of publicity for our movement" because it "misses the whole point" of creating a single-sex alternative to coed classrooms so that parents can choose what's better for their children.

I think, of course, that the district's policy is extremely troubling. As I've said before, I'm skeptical of the claims of benefits from single-sex education and I think that schools should raise test scores and graduation rates in other ways that don't rely on and promote the myths that all boys learn one way and and all girls learn another way. I think the fact that NASSPE finds itself now in the position of arguing against single-sex education proves how dangerous it is to promote the difference theory. Of course our culture, susceptible as it is to a hegemonically-induced mythology of natural gender differences, would hear an argument that some classrooms should be segregated and generate from that the belief that sex-segregation is a magic bullet for all educational challenges in all educational settings. How did NASSPE not foresee that?

Another Thing in Common

Fresno State and Florida Gulf Coast University have been compared for evoking similar claims of widespread sex discrimination in their athletic departments. So it is worth noting another thing they have in common. They both hired female head coaches this week.

Fresno State announced that it has hired Lauren Netherby-Sewell, formerly of Hofstra, as its new volleyball coach. The other two finalists for the position were men. Netherby-Sewell succeeds Ruben Nieves, who went 18-71 in three seasons after taking over for Lindy Vivas in 2005. This brings the total number of female head coaches at Fresno State to four (out of fourteen): Margie Wright (softball), Becky Malmo (equestrian), and Angie Cates (golf).

On the other coast, FGCU announced that Jennifer Magley, a woman of color currently serving as an assistant coach at Wichita State, would be new head coach of it women's tennis team. She takes the reigns from Webb Horton, the men's tennis coach, who had doubled as the interim women's team coach for the last two seasons. Also, it has hired LPGA veteran Terry Jo Myers to coach the men's and women's golf team. She replaces former women's golf coach Holly Vaughn, who "resigned" last fall, and men's golf coach Jim Suttie, who will "remain with the program and provide instruction." With these new hires, FGCU now has two female head coaches (not counting Carry Lundy, who is serving as the interim women's volleyball coach in the wake of Jaye Flood's termination) out of 12.

Hopefully, with these new hires, both universities are on the way to establishing a critical mass of female head coaches in their respective athletic departments. This would be a step in the right direction if these univerities want to mitigate and move beyond the hostile and retaliatory environments that female coaches have been subjected to, or allegedly subjectly to (in FGCU's case), there.

Johnson-Klein Accepts Revised Damages Award

A brief update to last week's post about the choice confronting Stacy Johnson-Klein in the wake of a judge's ruling on Fresno State's post-trial motions: accept a revised damages award of $6.6 million in place of the $19.1 million the jury awarded her in December, or roll the dice with a new jury.

We thought she would take the $6.6, and she did.

Fresno State could still appeal the judge's ruling. But SJK is looking forward to getting on with her life, telling the Bee that she plans to write a book about her life and become a national advocate for stronger gender-equity laws.

Pre-trial offers in Long Beach

Set to go to trial next week is the case involving the Long Beach United School District and the displaced gymnastics team of Wilson Classical High School. Brief re-cap: the gymnastics team's dedicated facility within the high school was taken away from them last year and turned into a weight room allegedly for everyone but others contend it will be used primarily for boys' athletics. In this room was a spring floor. The gymnastics team has been allowed to return to the room pending the trial but the floor was damaged and has not been repaired or replaced.

Last week, in an attempt to avoid trial the co-principal sent a letter to parents saying that the school had worked to secure on off-site facility for the team which they could use 5 days a week and the school would provide bus transportation to the gymnastics academy located just under 3 miles from the school.

According to the team's lawyer, Danika Vittitoe, who had not read the letter yet, the school had tried to offer an off-site facility to the team back in a January negotiation but they turned down the settlement.

“We believe that Title IX requires equal resources on campus, and this facility should be kept on campus,” Vittitoe said. “With the elimination of this room, there is not a single facility on campus dedicated to girls’ sports, while there are several dedicated for boys’ sports.”

As in the case of Darien, CT, the issue of "dedicated" facilities comes up again. It will be interesting to see how (if this case does make it to trial--there are still a few days to go) how a judge and/or jury will address this aspect of the case.

Two years, two complaints in Darien

OCR headed to Darien, CT for the second time in two years last week. In 2006 after a complaint filed by a parent of a female swimmer, OCR visited Darien High School only to find no problem with the swim programs but an issue with the number of opportunities female student-athletes were (not) getting. Girls' teams have, subsequently, been added.

But a complaint about facilities has drawn more attention to the school. A complaint was filed this past fall (how is it that DHS gets such quick turnarounds from OCR??) that again seems to stem from issues around the girls' swim team (less practice team and access to facilities) but has expanded to include issues of dedicated facilities that affect all female student-athletes. Additionally the softball team is citing inferior facilities to those afforded the boys' baseball team. Swim team boosters are also complaining that they have not been allowed to raise funds for a new pool in the same way supporters of boys' baseball raised money for a new field.

No word on when OCR will issue its report.

Single-Sex Education Stereotypes Boys

After reading Professor David Cohen's "No Boy Left Behind: Single-Sex Education and the Myth of Essential Masculinity" I am more convinced than ever that the single-sex education craze prompted by the Department of Education's 2006 policy has already started to entrench harmful rigid stereotypes about gender that are harmful to boys as well as girls.

From the abstract:

The public narrative about the need for single-sex education focused, in substantial part, on boys and an essentialized form of dominant heterosexual masculinity. This article catalogs the important components of this masculinity: heteronormativity, aggression, activity, sports-obsession, competitiveness, emotionlessness, and not being girls. The article then shows that this conception of masculinity is harmful to both girls and boys. Instead of pushing this form of masculinity, the law and schools should make room for multiple and varied masculinities for boys (and girls). By adopting strong interpretations of already-existing jurisprudence about gender stereotyping from both constitutional law and Title IX, the article shows how de-essentializing masculinity is possible and preferable in the law. The article concludes that schools that implement single-sex education must do so for reasons other than promoting an essentialized notion of masculinity and that the law must be vigilant in ensuring that schools' implementation not further reify dominant conceptions of what it means to be a boy.

UW Must Defend its Handling of Student Rape by Football Player

Yesterday the Washington State Court of Appeals reinstated a Title IX case against the University of Washington, paving the way for UW to defend at trial whether its handling of a football player's alleged rape of another student violated Title IX.

The plaintiff, referred in the opinion as S.S., was the student equipment manager for the UW football team. She alleges that in 2000, she was raped by then-UW football player Roc Alexander, (who is now in the NFL) , with whom she had recently ended a relationship. When athletic department officials found this out, they encouraged S.S. to submit to a mediation with the University ombudsman and did not inform her of the University's judicial disciplinary process or other options available to student rape victims. S.S. felt pressured to agree in order to keep her position with the Athletic Department.

The mediation was attended by the ombudsman, S.S., Alexander, and the assistant athletic director, Marie Tuite. S.S. argued that Alexander should be suspended from several games. Alexander recanted earlier statements of contrition and denied the allegation of rape. He also threatened to leave UW if he was suspended. Tuite stated that she would not consider suspending Alexander because the media "would ask why he was not playing" -- a statement that suggests she was primarily concerned about keeping the case out of the news. In the end, Tuite and the ombudsman decided that Alexander should attend counseling and perform community service.

The Court of Appeals determined that these facts, if proven, would satisfy the liability standard for peer harassment under Title IX. A jury could find on the facts alleged that the school's response constituted "deliberate indifference" to the reported rape, including such facts as: "a lack of appropriate discipline of her rapist,... keeping the matter out of the public eye to avoid negative publicity, offering only repeated mediation as an alternative remedial measure, repeatedly suggesting that S.S. leave her job with the football program where the rapist would remain, [and failing] to investigate...her rape report, and--in the absence of investigation--questioning her truthfulness...." (among other reasons).

Additionally, the court agreed that discrimination alleged by S.S. was sufficiently "severe and pervasive" to warrant liability -- even though, as UW argued, S.S. was only raped one time. The court supported its conclusion by comparing this case to others in which discrimination was deemed "pervasive" because the school contributed to the detrimental effects of an initial instance of harassment or assault.

According to the Seattle Times, the plaintiff is glad that "Finally, the courts are on my side -- at least for now." The UW, which hasn't yet decided whether it will appeal, contests S.S.'s version of the facts and maintains that S.S. never called the underlying incident a "rape" until she filed suit against university. But while it may not have direct bearing on the facts of this particular case, it is also worth noting that a "disturbing level of criminal conduct and hooliganism" -- including another instances of sexual assault in 2000 -- by UW football players, enabled and covered by former coach Rick Neuheisel and athletic director Barbara Hedges, has recently come to light.

Decision: S.S. v. Alexander and the University of Washington, 2008 WL 352618 (Wash. App. Div. 1, Feb. 11, 2008).

Changes in Morehead State's Athletic Department

In an effort to increase opportunities for female student-athletes, Morehead State University, is reconfiguring its athletic department. What is especially interesting is how they are going about this. At UNH, OU, JMU all we heard about were cuts, cuts, cuts and the allegedly disparate effect on men.

But at MSU cuts is not a word we are hearing. MSU will eliminate men's and women's indoor track and field. But they are keeping men's and women's outdoor track and field. This means there are probably very few student-athletes who will be without a chance to play as most indoor athletes participate in outdoor track. Also, the men's and women's rifle team will be consolidated into a mixed team. The women's golf team is being elevated to varsity status. And, in the next few years, MSU has plans to add women's bowling and equestrian programs.

The story linked above is actually an MSU press release so obviously the insititution is not going to point out any negatives in this plan. But, from what I have read, this seems like a responsible and creative way to balance financial interests and limitations with gender equity.

Another Day, Another Softball Field Investigation

It's West Perry, Pennsylvania's turn to be investigated by OCR for allegedly inferior softball facilties. According to this story in the Patriot-Ledger, OCR's pending investigation prompted the the school board to allocate $10,000 to replace the backstop and fences, a decision that the board says should not be interpreted as an admission of liability.

The article notes that the investigation was triggered by a complaint filed by a former coach and teacher that "the field used by the girls' softball team was in poorer shape than the field used by the men's baseball team." It is not clear whether decision to describe softball players as "girls" and same-aged baseball players as "men" was the choice of the district solicitor to whom this statement was generally ascribed, or to the reporter for the Patriot-Ledger who relayed it in the press. But either way, it underscores that female athletes in West Perry are not taken seriously. No wonder they didn't have a functional backstop or fences long enough to protect the dugout.

She said that out loud?

The drama that is the Florida Gulf Coast University Athletic Department continues this weekend with the revelation that AD Carl McAloose and Associate AD Kathy Peterson knew what steps needed to be taken in order to terminate volleyball coach Jaye Flood.
The pair was told one year ago by FGCU general counsel, the then president, and the HR director that there was nothing in Flood's file that would warrant firing her. Something like a poor performance evaluation would have to exist for such action to be considered. And in July of 2007 exactly that piece of "documentation" was added to Flood's file. She received a rating of "below expectations."
The report issued by Littler Mendelson, the law firm that investigated the claims of Title IX violation, employment disrimination, and retaliation, found that there was no evidence to warrant Flood's poor evaluation. The report noted that reprimands would be put into McAloose's and Peterson's own files for giving such an evaluation without evidence.
Without evidence, but not without cause, as we now know. Peterson told--as in spoke aloud--investigators that she did not like Flood and that if another coach--one whom she liked--had Flood's record and job performance, she would have given her an "exceeds expectations" rating. Also, the below expectations rating Flood did receive last summer was not the one Peterson and McAloose wanted to issue. They wanted to give her the lowest possible rating of unsatisfactory but were told by HR that Flood's performance did not reflect such an evaluation.
Peterson went back to investigators--after talking to McAloose--the day after her "I don't like her" testimony and tried to recant.
What about this isn't retaliation?
The investigation report downplayed the performance evaluation by simply saying there was not enough evidence to support Flood's rating. But there was clearly so much more going on. And this makes me--and it should make others--wonder about validity of this report. Littler Mendelson is being paid by FGCU and we have to ask whether the findings were presented in such a way as to benefit the client.

Take the $6.6

Yesterday a judge in Fresno issued an order throwing out the $19.1 million judgment against Fresno State awarded to former women's basketball Stacy Johnson-Klein last fall, saying he will order a new trial unless Johnson-Klein accepts a reduced award of $6.6 million instead. She has until February 22 to decide. (Fresno Bee's coverage is here.)

Judge Black reasoned that while the component of the jury award based on past and future economic damages (lost pay) was supported by the evidence, there was insufficient evidence to support its conclusion that Stacy Johnson-Klein deserved the $14 million in noneconomic damages (emotional harm). He noted, "In an extensive search of the case law involving employment discrimination, the court has located not a single case where a comparable emotional distress award has been made....Even in this state famous for runaway juries, nothing was found approaching this award." Consequently, he reassessed the value of Johnson-Klein's emotion distress to $600,000 (past) + $950,000 (future).

In our earlier post about Fresno State's post-trial motions, we suggested that this was the aspect of the jury's decision that was most vulnerable to reversal, and suggested that would seem to be an appropriate result. I think this is actually a no-brainer for Johnson-Klein: take the $6.6. This is an appropriate assessment of damages for past and future economic harm and a generous assessment of emotional harm. Fellow Fresno State plaintiff Lindy Vivas received $5.8 million a case where Fresno State's defense was, IMHO, even weaker.

In the same order, Judge Black rejected Fresno State's arguments that lack of evidence on the jury's findings on liability (as opposed to damages) warranted new trial or a judgment notwithstanding the verdict. The jury had substantial evidence from which to find that sexual harassment, gender discrimination, and retaliation occurred, he concluded.

Judge Black also rejected Fresno State's argument that juror misconduct occurred.

The push for more football

The season is over. No more bowl games, no more NFL playoffs. But people still want football. Over the past month or so I've come across several stories of schools where someone(s) is pushing for the revival or institution of intercollegiate football.

The study on the viability and feasibility of adding football at UNC Charlotte concluded not too long ago. Not surprisingly the committee has decided to issue a recommendation to the chancellor that states football would be a positive addition to the institution.

The popular conception that football brings in alumni dollars and increases school spirit was likely a huge factor in the committee's decision. They did not take lightly, though, the huge expense adding a football team--a team that they want to eventually take to Division 1A--adds to the budget. And the increase in the budget also necessarily includes the costs associated with adding women's sports to keep in line the opportunities for male and female student-athletes.

Across the country in California, there is movement afoot at Cal State Fullerton to reinstate football at the school. Football was cut over 15 years ago in order to save money. Bringing back the sport at the Division I Championship Subdivision Level (formerly known as IAA--a far easier label, I thought) would cost, according to a guesstimate from athletic director Brian Quinn, at least $4 million--every year. It's not entirely clear from the article who is leading the push to bring back football but those involved have suggested raising some of the money by increasing student fees--likely above and beyond the 10 percent increase called for by Governor Schwarzenegger. Beyond the costs of a football program are--again--the costs that would be incurred when the university adds women's teams to keep the number of opportunities proportionate to the percentage of undergraduates at Fullerton (58 percent are women but only 52 percent of athletic opportunities currently are provided to women). Adding a football team at the DI level usually means a roster of at least 100 players. Fullerton doesn't currently have women's crew--they may want to consider it if the plan to reinstate football moves forward because they are going to need a lot of opportunities fast.

Also in California, UC San Diego (DII) has put together a task force to look at the possibility of adding a football team. But unlike at UNCC it looks like the task force is a student-run one out of their student government association. The debate over a potential addition has generated some discussion, both in person at meetings and on the internet where two opposing Facebook groups have formed to debate to the issue. Even though the task force will look at all the attendance issues addressed by the UNCC committee, the CUSD chancellor has said there just isn't enough money right now and argues that the pro-football Facebook group that claims the addition would cost $1 million (including covering the addition of women' sports) is underestimating.

Happy National Girls and Women in Sports Day

February 6th is National Girls and Women in Sports Day.

The folks at National Women's Law Center are celebrating the day by reflecting on what Title IX means to them -- check them out. Then go here to tell your representatives in Congress to support pending legislation that would strengthen Title IX enforcement at the high school level. Then if you're here in Springfield, register your daughter for the Girls and Women in Sports Day clinic at Western New England College--or find a celebration near you.

As for me, I'm going swimming at my college pool -- a facility that serves all faculty and students but that owes its existence to the fact that we have a women's swim team. Go Golden Bears. Yea Title IX.

Softball Inequities in L.A. County Draw OCR Investigation

The LA Times reports that the Deparment of Education's Office for Civil Rights is investigating the William S. Hart Union High School District upon allegations that softball fields and locker room at its three high schools are inferior to boys' facilities. At one high school, Saugus, repairs finally began this year to the softball field that players haven't been able to use for last three. Another, Hart, has no softball facility, so the team plays at an off-campus park. At the third, Canyon, softball players share a field with the freshman football team. According to the article, each schools' baseball fields, in contrast "are considered high-quality facilities."

A district official quoted in the story says he doesn't believe the district has a problem.

Kansas School District Settles Sexual Harassment Case for $45K

Unified School District No. 259 in Witchita, Kansas, will pay $45,000 to two high school students in settlement of their claims that the District was deliberately indifferent to ongoing instances of sexual harassment by a male classmate. According to the complaint, the male student called them and approached them to make rude, violent, and sexually suggestive comments, that on various occaisions he exposed himself to the girls and attempted to make her touch him, and that he was physically abusive of them. At one point they received a protective order from the police. But, they alleged, school officials were dismissive of their attempts to report this harassment on a daily basis. According to the District, it settled to avoid litigation costs, not as an admission of liability. The District disputed some of the girls' claims that they reported harassment and characterized the girls' relationship with the boy as friendly, suggesting that some of the alleged harassment was actually consensual. However, the District reports that it has changed its sexual harassment policies and appointed a staff member to coordinate Title IX matters.

Case is: Doe v. Unified School District No. 259, 05-CV-1151-JTM
Complaint: 2005 WL 2453748 (D. Kan., Aug. 30, 2005)

Another Student Note Defends Single-Sex Education

In a student note in the Boston College Law Review, author Rebecca Kiselewich argues that there are "inherent sex differences" in learning styles just like there inherent sex differences in athletic abilities. Owing to this similarilty, she suggests that Title IX's "separate but equal" framework for athletics should apply to classrooms as well. (Single sex education is popular among law student authors, as this is the second such article we've blogged about in recent weeks.)

Despite Ms. Kiselwich's efforts, I don't think there's an exceedingly compelling case to be made for either premise: that there are "inherent sex differences" in learning or that sex segregated model for athletics is a paradigm worth replicating.

On the first issue, though the author cites liberally to Leonard Sax and the propoganda at the National Association for Single Sex Public Education, other (less partisan?) research questions the popular assumption that boys' brains are hard-wired on Mars and girls' brains are hard-wired on Venus. Many scientists believe there are more learning style variations among boys and among girls than there are between girls and boys.

And while I'm not arguing for an immediate overhaul of Title IX's framework for sex-segregated sports, I think the separate-but-equal model is one that should be contained, not emulated. For the moment, Title IX's separate-but-equal structure is necessary to ameliorate for past and present structural inequalities that have suppressed women's interest and abilities in sport. If athletic opportunities were handed out on the basis of talent without regard to sex, women would be left out -- not because they are naturally and categorically inferior, but because of the long and recent history (and in some contexts, continuing practice) of banning, discouraging, inferiorizing, trivializing, and sexualizing women's participation in sport. The separate-but-equal framework of Title IX prevents schools from relying on the effect of this past/present discrimination as a justification for excluding women from sports altogether. There is no reason to believe that such a structure is necessary to ensure that girls and boys have access to educational opportunties in the classroom. Segregation, after all, has a tremendous cost. It forces generalizations around difference and it perpetuates a heirarchy of dominant/inferior. As a result, it should only be relied on as a last resort.

Citation: Rebecca A. Kiselewich, Note, In Defense of the 2006 Title IX Regulations for Single-Sex Public Education: How Separate Can Be Equal, 49 B.C. Law Rev. 217 (2008).

How the Civil Rights Act of 2008 Would Change Title IX

This week Democrats in the House and Senates introduced the Civil Rights Act of 2008 (H.R. 2159 & S. 2554). In a variety of contexts, this bill would strengthen civil rights protection and/or restore such protections that have been undermined by recent Supreme Court decisions. Some aspects of this proposed legislation would affect Title IX. One would make it easier to state a cause of action for harassment. Another would confirm that plaintiffs can sue schools for unintentional discrimination that has a disparate impact. I will address each one of these in turn.

I. Harassment

The Civil Rights Act of 2008 would make it easier for students to bring sexual harassment claims against educational institutions receiving federal funds. As noted in the bill, the Supreme Court decisions regarding sexual harassment under Title IX, Gebser and Davis, limit schools' liability to only those instances of harassment about which they had actual notice, acted with deliberate indifference, and which were so severe and pervasive to preclude victims' access to educational programs.

The proposed legislation would "reverse Gebser and its progeny and restore the availability of a full range of remedies for harassment" on the basis of sex, as well as harassment on the basis of race, age, and disability. Specifically, the statute would allow harassment victims to seek money damages against a school unless the school can show that it acted with "reasonable care"and that the victim "unreasonable failed to take advantage" of preventive or corrective opportunties offered by the school that would have likely prevented the harm.

In this article posted by the American Constitution Society, NWLC's Fatima Goss Graves makes a compelling case in support of this reform. She provides examples of real court decisions that dismissed victims' claims under the deliberate indifference standard, but would likely have come out differently had the courts applied a reasonable care standard instead.

II. Disparate Impact

In 2001, the Supreme Court held that plaintiffs did not have a private right of action under Title VI, the statute prohibiting race discrimination in public entities, to sue a covered entity for discrimination that was unintentional but had a disparate impact on members of the plaintiffs' race. Ever since then, the right of action to bring disparate impact claims under other civil righs statutes, including Title IX, has been in question. Prior to the 2001, for example, a court had held that female applicants to a scholarship program could challenge the program's reliance on a standardized test on which men tended to do better. After 2001, similar disparate impact challenges are likely foreclosed.

The Civil Right Act of 2008 would "reinstat[e]" that right of action for Title VI claims and "confirm[]" that right for other civil rights statute. Specifically, the statute would allow a plaintiff to maintain a cause of action against a school if the plaintiff can show that the school "has a policy or practice that causes a disparate impact on the basis of sex and that the [school] fails to demonstrate that the challenged policy or practice is related to or necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner."

The bill is now being considered by appropriate committees in each house.

h/t Feminist Law Profs
See also Workplace Prof Blog

No longer an implication

Not too long ago I wrote about the push to add women's wrestling at a community college in Washington where the men's team was on the chopping block because of skewed proportionality numbers. I suspected that the motives were not exactly pure; that the idea came from a desire to save the men's team and that the benefits to women were secondary, which had the potential to actually hurt the women who got involved.
Well there must be something in the water in Washington. And that water is trickling down over the heads of high school coaches. One coach in the state told the writer of this article that girls were going to save the sport. Not save the sport by keeping it in the (somewhat dim) spotlight because of the decline in male wrestlers, but save the sport by saving men's teams when women's teams are established. Adding women's oportunities takes men's wrestling out of the cutting danger zone, so the theory goes.
Let me just reiterate that I think women's wrestling is a good thing. I hope the sport continues to grow. But I want it to grow for its own sake. It should not be the ugly stepsister of men's wrestling that is tolerated because it serves a purpose that benefits male wrestlers. Perhaps I am being too sensitive. Maybe this is an ends justify the means kind of situation.
But I cannot get over some major worries (some of which I wrote about the other day). But additionally I wonder if this plan that the Washington wrestling community has come up with is really going to work. Women's sports cost money. Women's wrestling costs money. It may help with a school's proportionality score but it may strain an already strapped budget; because who doesn't have budget issues these days? And why women's wrestling? A school could add any women's sport and better its proportionality. Women's tennis? Soccer? How about increasing the number of swimmers on the current women's team?
Again, I am not disparaging women's wrestling. And it's more cost-effective for a school to add a team if the facilities are already in place. But it seems like some of these coaches are thinking about men's and women's wrestling as a package deal. Adding a women's team is not guarantee that the men's team will remain. Budgets get tight and if a viable women's team is already in place and your school is not meeting Title IX's requirement for equitable participation opportunities then men's wrestling could go. There are schools all over the country where there is a women's soccer team but no men's; women's swimming, no men's; women's cross-country, no men's. And I know of at least one college where there's a women's wrestling team but no men's team. Just because there are men's and women's "versions" of the sport does not mean they must both exist at the same institution.
I hope the people in Washington who want to save men's wrestling 1) really have the best interests of women in mind, and 2) have thought through all the potential consequences of this plan.

End of the Road for Cincinnati Rowing?

It seems that the final shoe has fallen on the University of Cincinnati rowers' efforts to reinstate their team. As readers know, Cincinnati cut the rowing team (and replaced it with lacrosse) in the fall of 2006, coincidentally (or not?) after the rowers filed a complaint against the University for failing to provide adequate equipment and facilities. The rowers then challenged the University's decision to cut rowing, arguing that it was unlawful because the reduction in opportunities for women athletes would bring the University out of compliance with Title IX, and because of the seemingly retaliatory nature of the decision.

In September, the rowers lost their effort to obtain a preliminary injunction against the cut when they failed to convince a judge that they were likely to win on the merits (a necessary showing for an injunction). The rowers attempted to show that the University would be out of compliance with all three prongs, including proportionality, using a proportionality score that was based on the "duplicated" athlete head count (where athletes who participate in more than one team count once). But relying on the unduplicated count (number of actual athletic opportunities), that OCR says is correct, Cincinnati's athletic opportunities are proportional even after cutting rowing. So the judge denied the preliminary injunction, predicting that the rowers would not win on the merits.

This turned out to be the right call. Last week, the court granted the University's motion for summary judgment and dismissed the rowers' claims. The court affirmed that using unduplicated head count, the university complied with prong one and thus could lawfully cut a women's team. And even though the rowers seemed to no longer be pressing their argument that the University cut rowing in retaliation for their efforts to secure better equipment and facilities, the court noted "the absence of any evidence that the University's actions were motivated by exercise of Title IX rights."

I think it's unlikely the rowers would appeal this decision. An appellate court is unlikely to reverse the lower court's decision to follow OCR's instructions on how to measure proportionality. And even if the rowers could convince the district court that the retaliation claim was still active, the judge has sent a pretty clear signal that he doesn't think that argument has merit.

It must be terribly disappointing for these rowers, or any student athlete, to lose their team in the middle of their college career. I hope they are able to stick with the sport as a club or by transferring to other programs. Perhaps Cincinnati, and all universities that cut active sports, could have done a better job at long term planning to avoid the situation of having to downsize. But on the legal question, however, this case reaches the right result. Title IX protects women's sports from cuts when (and only when) women get less than their fair share of athletic opportunities. It does not afford this protection when the university is in compliance. Nor should it -- out of fairness to all teams, and because the autonomy that comes with compliance helps motivate universities to comply.

Decision is: Miller v. University of Cincinnati, 2008 WL 203025 (S.D. Ohio Jan. 22, 2008).

Football Skews Numbers at Benicia High School

As OCR continues to investigate an anonymous complaint about gender inequities in the athletic offerings at Benicia Unified School District, the school has publically defended its high school athletic programs by relying on the old "football is special" argument. Professor Nancy Hogshead-Makar, interviewed by the local paper, points out that that argument is as old as Title IX and has never been accepted as a justification for programmatic inequalities.

Benicia High School has three football teams providing a total of 150 participation opportunties for boys. This skews the overall athletic participation rate in boys' favor: 390* to girls' 238. Moreover, the girls' figure counts sideline cheerleaders, which are unlikely to satisfy OCR's strict criteria for qualification as a sport, especially because cheerleading is not recognized as a competitive sport by California's interscholastic athletic association.

*This is a correction posted at 6:18 pm. I originally said the ratio was 328 to 238, but those are 06-07 numbers before the addition of the freshman football team created 62 more opportunities for boys. Thanks to the reader who pointed this out.

Specifics of Adrian College complaint

A couple of weeks ago investigators from OCR showed up at Adrian College to look into the gender equity complaints that have been filed against the college's athletic program.

Since then more details about the complaint's allegations that there has been different treatment of women's and men's coaches, access to facilities and equipment and, in general, greater attention to men's athletics have come out.

But the college's executive vice president* Rick Creehan, who has been the spokesperson on this issue, has said that the complaints have been over exaggerated.

For example, the fact that the new Multisport Performance Stadium does not even have a women's locker room let alone one with lounge furniture and a plasma television as the men's does was simply an "oversight" according to Creehan. They must have just forgotten that women play sports for the entire time the project was being planned and executed. Forgetting to order a chair for the ticket booth is an oversight; forgetting to build a women's locker room is discrimination.

Creehan attempted to diffuse that particular complaint by noting that the Merillat Sport & Fitness Center right next door has a women's locker room. Such a rationale only makes the absence of one in the new building all the more egregious. That a university could build, in the past, a facility that women could use but forgets that women may want--actually are required to have--access to the new facility is not earning points for the administration.

Also at issue are: updates planned to the baseball stadium that are more extensive than those planned for the softball complex; male athletes' greater access to athletic trainers; more publicity for men's sports.

No word on when OCR will issue its report.

* I know the American university is becoming progressively corporatized but an executive VP!?

NCGWE Reports on "Title IX at 35"

The National Coalition for Girls and Women in Education has released a report on the status of gender equity in several aspects of education to which Title IX applies. The report, Title IX at 35: Beyond the Headlines, demonstrates that while progress toward gender equity has been made, many challenges still remain. Among its conclusions:

• Colleges and high schools have significantly increased the number of athletic opportunities offered to women and girls, but female athletes still receive proportionally fewer opportunities, resources, and scholarships than men. Women also are also significantly underrepresented among head coaches and athletic administrators.

• While the number of girls taking high school science and math courses has increased, women are much less likely to earn a bachelor's degree in many technical fields, including math, physics, and computer science, and engineering. The report attributes this trend to stigmas and stereotypes that female students internalize early on, as well as direct discrimination in which schools are complicit.
  

• Schools are also complicit in gender-stereotyping students in vocational programs, resulting in near absolute sex segregation in programs such as, for example, welding (95% male) and cosmetology (98% female).

• The report made several findings about employment discrimination in education, including the absence of women in positions of leadership (such as principals, only 44% female despite women making up 79% of public school teachers), a greater percentage of women holding part-time/adjunct than full time positions, and persistent wage discrimination against female teachers, instructors, and professors.
  

• Sexual harassment targets girls and boys, and is prevalent at all levels of education. 62% of female college students and 61% of male college students report having been harassed at their universities. Among K-12 students, 4 out of 5 report they had experienced some type of harassment.

• That public schools are increasingly segregating classrooms (and in some cases, entire schools) on the basis of sex, even though gender is not an accurate or consistent determinant of a student's learning style. Sex-segregation perpetuates the educational stereotypes at the root of many of the educational inequities already described, and its careless implementation could undue many of the progress that has already been made.

These are just the highlights; the full report offers much greater detail on all of these points, including citations to the research on which it bases its conclusions. For each of these areas, the report also and it includes recommendations for legislators, regulators, and educational institutions.

Another Retaliation Case of Note

Last September, the federal district court in Montana denied Montana State University's motion for summary judgment on a Title IX retaliation suit filed by former head women's basketball coach, Robin Potera-Haskins. Her case is now heading for trial, but is unscheduled as of now.

Potera-Haskins headed the women's basketball program in Bozeman from 2001 until 2004, when the University president gave her the choice between resignation and termination. In her complaint, Potera-Haskins maintains that she was retaliated against in this manner for complaining about the inequitable conditions for the women's program relative to the men's in areas including coaching salaries and benefits, access to facilities, and the university's efforts to secure corporate sponsors and otherwise promote the team. She also alleges that she was singled out for this treatment because she resisted pressure from Athletic Director Peter Fields to offer a spot on the team to a friend of his who lacked the talent required of Division I program.

Potera-Haskins turned a losing MSU program around, posting three winning seasons and two conference championships during her tenure as head coach. Neverthess, MSU defends Potera-Haskins was terminated because of poor performance as a coach and "mistreatment and abuse suffered by the student athletes under her leadership." However, the judge acknowledged that this is a factual dispute properly decided by a jury rather than on summary judgment.
Though this post is belated (the judge's decision's recent publication in the F. Supp. 2d finally brought it to my attention), I am eager to mention it because it helps illustrate the trend of Title IX retaliation cases we have seen in the wake of Jackson v. Birmingham Board of Education, the 2005 Supreme Court decision affirming that Title IX also protects coaches (and others) who complain about inequitable treatment of women's sports. Potera-Haskins is another member of the "team" of female coaches and athletic department administrators who have brought retaliation cases against their colleges or universities -- a list that includes Eve Atkinson, Lindy Vivas, Karen Moe Humphreys, Diane Milutinovich, Stacy Johnson-Klein, Laurel Wartluft, Deena Deardurff Schmidt, and Jaye Flood.

Decision is: Potera-Haskins v. Gamble, 519 F. Supp. 2d 1110 (D. Mont. 2007).

Using women to "save" the men

In Washington state some members of the Yakima Valley Community College athletic department are proposing the addition of women's wrestling--in order to save men's wrestling from being cut. Though this is not how those supporting the proposal would likely phrase it, it seems to me that this is the ultimate purpose behind a potential women's team.

Proportionality is currently a problem at YVCC (64 percent of the student population are women but just 47 percent of the athletic opportunities go to women). Other 2-year institutions in the area have similar problems with providing opportunities according to one school official--a lousy excuse for not being out of compliance if you ask me--but YVCC is under more scrutiny because of a Title IX complaint in 2002 that has yet to be resolved.

There has been some discussion about eliminating men's wrestling after next year's season. Those wishing to save it have suggested that adding a women's team might be a better fix. I am glad women's wrestling is growing and that those supporting the addition have cited such growth and seem to believe that a women's wrestling program would draw some of the many girls now wrestling in high school.

But I am a little worried about the motives. Also, there has been no discussion of finances. Can the school adequately support another team? Or will the women, as the newest addition and one that is seemingly meant to be a stop gap measure of sorts, be short shrifted.

FGCU Announces Conclusion of External Investigation

Yesterday Florida Gulf Coast University President Wilson Bradshaw announced conclusions from the University's external investigation into charges of sex discrimination within the athletic department. As part of the announcement, Bradshaw said that the one of investigation's findings, that head volleyball coach Jaye Flood, had an inappropriate relationship with a student intern, was resulting in her termination. Flood, who filed a lawsuit against the university last week, issued a statement calling the claim "completely baseless" and further evidence of the university's retaliation against her for advocating gender equity.

The external investigation, conducted by law firm Littler Mendelson, issued its report yesterday on an array matters involving gender equity. Among its conclusions:

• The FGCU athletic department is in compliance with the Title IX regulations. The athletic department satisfies the requirement for equitable participation opportunities under prong two, because it has continued to add women's teams since its inception in 2000. It also complies with the other requirements that mandate equitable treatment of men's and women's programs, including access to facilities, coaching, publicity, etc. The report also concluded that the lack of female head coaches (only 2) was not the result of discrimination by the athletic director, as charged by former interim AD Merrily Dean Baker. However, the report does not address a major theme in Merrily Dean Baker's complaint, which was about the hostile, intimidating atmosphere for female coaches.
  

• That there is no evidence that volleyball coach Jaye Flood and golf coach Holly Vaughn received a negative performance review in retaliation for their advocacy for gender equity within the department. However, the report also found that there was no evidence support either coach's negative performance review in the first place. The negative reviews will be voided, the athletic director and senior women's administrator who signed them will be reprimanded, and Flood will receive the bonus and retroactive pay increase she would have received had her review been positive.
  

• There was insufficient evidence to substantiate a complaint of an inappropriate physical altercation between Coach Flood and a student-athlete (the "shirt tugging incident"). There was also insufficient evidence to substantiate allegation of inappropriate sexual contact by Coach Flood and a person not associated with the University while on a volleyball road trip.
  

• However, as noted above, there was sufficient evidence to support claims that Flood had an "inappropriate relationship" with a student manager of the volleyball team, more specifically, that Flood used her position of the authority over this student to pursue an "amorous" relationship with her, which, as we've also noted, Flood has denied. But I don't think we've read the last word on this issue. Because Flood cooperated with the investigation, she and her lawyers must have known that these allegations were coming. I doubt she would have gone on the offensive and filed a lawsuit against the university if she didn't have a basis for challenging them.
  

We'll be watching the news from Naples closely for further developments on the lawsuit and any other fallout from the yesterday's announcement.

California Judge Holds Christian High School Exempt from State Civil Rights Law

The principal of California Luthern High School did not violate civil rights of two female students when he expelled them on suspicion of their lesbian relationship, said a California judge earlier this week. Specifically, Judge Gloria Trask held that the state's Unruh Civil Rights Act, which governs private entities who are employers or provide public accommodations, does not cover private, religious schools.

According to this report in the North County Times, Judge Trask reasoned that the First Amendment protects a school's right to educate students on the basis of Christian beliefs and that their freedom of association trumps civil rights law. The paper also reports that the students' lawyer plans to argue on appeal that the Unruh Act applies because the school is in the business of providing education for a fee.

It will be interesting to see what happens to this case on appeal, especially if it the dispute really is about freedom of association. The conflict between a private organization's freedom of association and the public's interest in civil rights is controversial area of law. The Supreme Court has ruled that the Boy Scouts' associational right to promote among its members its beliefs about homosexuality trumps a scoutmaster's right not to be fired on the basis of his sexual orientation. But courts generally approach these conflicts in a very case-specific way, asking how strong is the particular associational interest in question and how intrusive it would be for the association to comply with the antidiscrimination law in question (the Second Circuit's decision in the Chi Iota case is illustrative). A private Christian school can likely make a persuasive case that it has a strong interest in promoting Christian values among its members. But it's not so clear that it is necessary to expel suspected lesbian students -- who, unlike a scoutmaster, are not in a "role model" position -- in order to promote that belief.

Going down "Hypothetical Lane"

As a follow-up to yesterday's post about Slippery Rock University I decided to crunch some numbers. SRU's student newspaper is citing Judge Donetta Ambrose's decision not to re-open the case "a clear-cut victory" for the university. Ambrose, earlier this month, said that because SRU remained within 2 percentage points of proportionality--a number agreed upon in the April 2007 settlement with female student-athletes who filed a lawsuit after teams were cut--she could not re-open the case brought by some of these initial plaintiffs who were, apparently, trying to prevent the university from cutting swimming and water polo at the end of this season.
Ambrose said she would not go down "Hypothetical Lane." In other words, she could not re-open the case based on numbers that do not exist right now.
Fair enough, I suppose. But I decided to take my own stroll down Hypothetical Lane using numbers SRU has reported to the Department of Education. We don't know what enrollment numbers for academic year 2008-2009 will be, but I am going off the assumption that SRU is planning on keeping a comparable class size and that the proportion of male/female students won't be drastically different in the incoming class. (This assumption is probably a little more tenuous given that I hear rumblings about schools instituting an informal and somewhat covert form of affirmative action for male applicants in order to not totally skew the proportions. But I have to work with what I have right now).
So there are currently 230 opportunities for female student-athletes. Cutting swimming and water polo drops that number to 196. If no men's teams are cut this means that women will be receiving only 48 percent of the opportunities. And if enrollment numbers remain similar, women will comprise just under 55 percent of the undergraduate student body thus creating nearly a 7 percent difference--not even close to the 2 percent difference mandated by the settlement.
But I suspect that administrators at SRU know this already. I can't imagine they haven't bothered to crunch the numbers. It's obvious there are concerned students who are following their decisions and are ready to jump back into action should the need arise.

Case still closed at Slippery Rock

Federal District Court Judge Donetta Ambrose will not re-open the Title IX case against Slippery Rock University even if they do decide, at the end of this season, to cut women's swimming and water polo. The ruling by Ambrose states that because SRU has achieved substantial proportionality it can cut the two women's squads. SRU has not made a final decision about the teams which it attempted to cut several years ago but was forced to reinstate because of the initial lawsuit.

Though SRU is currently in compliance, I would imagine that cutting two women's teams, when your proportionality score is currently just under -2 percent, might throw the numbers a little out of whack. No word in the story about how SRU would remain in compliance should the cuts be enacted.

Lawsuit filed against FGCU

We knew it was coming; at least we hoped it was coming. Florida Gulf Coast University is being sued for retaliation and gender discrimination. I suspect that more lawsuits will follow but this first one has been filed by volleyball coach Jaye Flood who, and note that we don't even know everything that has been happening behind the scenes,* has experienced a great deal of hostility at FGCU.

Flood is still on administrative leave pending the findings of an investigation--scheduled to be completed next week--into student welfare issues that stem from an alleged shirt-grabbing incident last fall.

The lawsuit follows a complaint Flood filed with FGCU's employment office. Flood is alleging that she has been retaliated against for her participation in the Title IX complaint that the university received and investigated internally last summer. In addition to her suspension she has been told her contract will not be renewed when it expires this summer. This is despite the fact that she is FGCU's winningest coach, that she built the volleyball program from scratch, and that she was named Atlantic Sun coach of the year this past season.
This site contains an audio clip of a statement Flood made to the media.

Stay tuned for more details of the lawsuit and, of course, the investigation findings.

*But we do know a little more because the complaint filed the other day that contains more details can be found here.

Will cutting swimming create compliance problems?

John Brown University in Arkansas has announced that it will cut women's swimming (the university does not field a men's team) at the end of this season. According to the article linked above, the university has been contemplating this move for a while now because of the demise of swimming programs in the NAIA (JBU does not belong to the NCAA) and in the Sooner Athletic Conference (there are no other swim programs in that conference).
This certainly seems to be a reasonable explanation and the university will, of course, honor the scholarships currently provided to the swimmers for the remainder of their time at JBU.
But there has been nary a mention of what the elimination of the team will mean for Title IX compliance. After some number crunching (thanks, EBuz) it means that JBU may--possibly-- have some compliance problems.
The current percentage of female undergrads is 53.4 percent. With swimming intact the percentage of female athletes is 53.3 percent. When swimming is eliminated that percentage drops to 48.9 giving JBU a proportionality score of -4.5 percent. Given that there is no legal precedent for a school being out of compliance when their proportionality score is under 5 percent, the swimmers may not have much ground for a fight to retain their sport. Unless of course the university has been claiming compliance under prong three in which case the university cannot cut a viable women's team unless they all consent to the fact that they really have no interest any longer in being intercollegiate swimmers. But it's hard to believe a university that meets the proportionality standard would be opting for prong three compliance.

FGCU concluding investigations

It has been a while since we heard anything about the situation(s) down in Florida at FGCU. But according to this article, that may be changing. The three internal investigations are scheduled to conclude next week and the findings must be released to the public immediately thereafter.
Just a reminder: the three investigations center on two complaints by two coaches, former golf coach Holly Vaughn and volleyball coach Jaye Flood that they have been retaliated against (in the form of below average performance evaluations) for complaining about gender discrimination in the athletic department. The third investigation concerns "student welfare issues" and seems, from what we have heard, to stem from an incident during one of Flood's practices where she grabbed a player's shirt. She was suspended for the remainder of the season pending this investigation.
[The article also notes that the complaint issued by former assistant softball coach Gina Ramacci is ongoing but has experienced some delays. Ramacci was let go from her position in the fall after allegations of an inappropriate relationship with one of her student-athletes. The allegations were never proven and Ramacci is alleging discrimination based on her sexual orientation.]
Many eyes are on FGCU--perhaps even more than when they undertook their previous internal investigation into the complaints, culled from female coaches and compiled by former AD Merrily Dean Baker, about gender inequities. Though FGCU is using an outside law firm for the investigations, it remains to be seen just how effective an internal investigation really is when all of the problems come from within.

NCAA Division III Puts Some Limits on Coaches' Use of Male Practice Players

At the NCAA convention in Nashville earlier this week, the NCAA Division III Management Council enacted limits on the use of male practice players in women’s sports. Under the new regulation, Division III coaches are limited during their season to using male practice players at one practice per week and may not use more male practice players than half the number of the sport's starting squad. Male practice players continue to be unregulated in Divisions I and II.

The proposal, which narrowly passed, has been controversial since it was taken up by the NCAA's Committee on Women's Athletics over a year ago. Some argue that male practice players are good for women's sports because playing against men who are bigger, stronger, and faster can help female athletes improve their skills.* But others argue that using male practice players reduces practice time of non-starters, a consequence that is particularly inconsistent with the participatory spirit of Division III. (Initially, the CWA also objected to male practice players for their potential to reinforce generalizations about the inferiority of female athletes. But as the debate progressed, the "quality of athlete experience" seemed to emerge as the preferred argument of those desiring to limit the use of male practice players.)

Notably, the student voice on the Council -- the Student Athlete Advisory Committee -- supported the limits, which I think must have given a lot of credibility to arguments about the effect of male practice players on the student-athlete experience, on which students are the experts. The modest limits that passed seem to me a valid compromise -- on the one hand minimizing the potential reduction in participation of non-starters whose practice time is most likely displaced by the men, while on the other hand providing coaches with some opportunity (once a week in season, and whenever they want out of season) to use the tactic at their discretion. If it's true that, as many supporters of male practice players point out, most coaches use male practice players responsibly, then these limits are not likely to impinge coaches' discretion all that much.

*Another argument against the proposal to limit male practice players, which I heard from a D-III AD I admire, is that overregulation in general is contrary to the spirit of Division III. He thinks that the market provides better enforcement than bureaucracy, at least at schools where athletes pay their own way. Who's going to pay to play for a coach that gives your practice time to male mercenaries? Or, applied to other contexts of NCAA regulation: Who's going to pay tuition to a school with a dismall graduation rate for student athletes?

California Christians' Referendum Effort Falls Short

As we've noted, several conservative Christian organizations are challenging new amendments to California's anti-discrimination law that clarify its coverage of GLBT students. But their efforts to force a referendum vote on the new law recently feel short, as the organization leading these efforts, Save our Children Kids, secured only 350,000 of the 433,000 necessary signatures. However, the group vows to keep trying to force a public voice to repeal the law and its allies continue to seek an injunction against its enforcement.

UNC Settles Sexual Harassment Case Involving Women's Soccer Coach

Melissa Jennings, former UNC soccer player, will receive $385,000 to drop her lawsuit against the university alleging sexual harassment by coach Anson Dorrance. A federal district court had initially dismissed her case saying the sexually-charged atmosphere Dorrance created for his players was not actionable under Title IX. But last year, the 4th Circuit acting en banc reversed the district court decision and reinstated the case, paving the way for trial that was later scheduled for this April. But, as Kris recently predicted, rather than appear in court, the parties agreed to a settlement. Under its terms, Jennings will receive the forementioned $385,000, Dorrance has apologized to Jennings and his former players for his admitted misconduct, and UNC will conduct a comprehensive review of all of its sexual harassment policies.

According to the Charlotte Observer, by settling UNC avoids "a bruising public trial that could have further hurt its reputation" and that "some had predicted... would set important precedents about the relationship between coaches and players." But I think the important precedent-setting work was already accomplished by the 4th Circuit's decision, which confirms that it is illegal under Title IX for universities to ignore sexually hostile environments created by their coaches. I also think that Dorrance's admission that leading his players in group discussions about their sexual activities and relationships with men was "inappropriate and unacceptable" goes a long way to vindicating Jennings's claims. It is unfortunate, however, that a coach can admit such egregious conduct and still get paid to coach college athletes.

Fresno Bee editorial

Check out this editorial in the Fresno Bee where writer Matt James chastises the university, in the wake of its recent decision to add back women's swimming and diving, for its lack of foresight, economic savvy and inattention to Title IX issues. Going through some of the school's recent history, he points out some of the inconsistencies in their decision-making processes.

Adrian College under investigation

Adrian College in Michigan is under investigation for two separate Title IX violations. Complaints received in May and September are being looked at by OCR and, according to the article, are based on facilities including locker rooms, access to coaching, publicity, support services, recruitment, and equipment and supplies. No word on when the investigation will be complete and no comments from school officials as of yet.

What about a Rooney Rule for College Coaches?

I was pleased to read that NCAA President Myles Brand used the opportunity of his address to the annual NCAA convention yesterday to call attention to the lack of women and minorities in head coaching and athletic director positions.

After remarking that Title IX and the integration of American universities have each created opportunities in sport for women and people of color, Brand continued:

There remain challenges to the full implementation of Title IX and from attempts to roll it back. African-American student-athletes compete well in college sports, making up 63 percent of the Division I basketball teams and 55 percent of the football teams. But there remain challenges for African-Americans in leadership positions, athletics directorships and head football coaches in particular.

There is work to be done to meet these challenges before we can claim that intercollegiate athletics genuinely demonstrates social justice. Among the challenges on which we must focus is the full implementation of Title IX. Women continue to be under-represented in terms of grants-in-aid for student-athletes, coaching opportunities for women’s sports, and leadership positions in terms of athletics director positions. Athletics scholarships, coaching positions and athletics directorships must, of course, be allocated on the bases of talent and hard work. But it is simply incredulous that the talent pool is so weighted toward men to produce this imbalance. The facts, as well as the history of past lack of female representation, point to a continuing problem of injustice.

He then concluded on this topic by suggesting that "the NCAA national office and the over 1,000 universities it represents, must recognize the[se] challenges and commit ourselves to meet them."

This seems like the perfect invitation to (re)visit the issue of extending the idea behind the NFL's Rooney Rule to the NCAA, and to consider expanding its scope to address women as well as racial minorities. Under such a rule, the NCAA would forbid its member institutions from conducting closed, single-candidate searches for head coach and athletic director positions, and it would require them to interview at least one female and at least one minority candidate before filling any such position.

This rule would be subject to some kind of narrow exception for situations where there is genuinely no such applicant or potential applicant to be found, an exception that would probably be most frequently invoked as it applies to female applicants for football head coach positions, since there are not many women among the ranks of former football players, which universities often consider the to be the traditional applicant pool. However, in light of the facts that (1) some women do play football, both in college and in other contexts, and (2) not every head coach is a former player of that sport, this exception would apply only on a case-by-case basis and will require the university to conclusively prove that there's no qualified female applicants in order to avoid the requirement of interviewing one.

Criticism of outgoing athletic director

Outgoing University of Hawaii athletic director Herman Frazier has been receiving some criticism for his commitment (or lack thereof) to gender equity during his five-year tenure.
We have heard about some gender equity issues at Hawaii because of track coach Carmyn James's now-dropped Title IX lawsuit. This article does not mention James or suggest that Frazier, who was bought out of his contract, was let go because of James's speaking out publicly. [His firing appears to be a result of his inability to negotiate a new contract with the football coach. I will refrain from remarking on how this reflects on the university's priorities.]
But it does highlight what was apparently Frazier's blind eye regarding gender equity in his department. According to a civil rights lawyer, who was herself a UH athlete, Frazier frequently received complaints from athletes about not just gender issues but racial discrimination, homophobia, and sexual harassment.
The interim AD, Carl Clapp, will not disparage Frazier and believes he did a good job with gender equity, as compared with other schools. Hopefully the new AD will not base UH's gender equity on other institutions, given the overall lack of true commitment to Title IX compliance, but on the situation at hand in Hawaii.

Some at JMU see benefits

We hesitated to post on this story because it falsely implicates Title IX in the cuts that occurred at JMU. But, in the end, it actually supports the contentions made by many of us who know this was all about budget and priorities.
The article in JMU's student paper, The Breeze, describes the better situation the women's swim team finds itself in now that more funds have been devoted to the team. The number of scholarships has increased which has lead to a strong freshman class of recruits and potential for better recruiting going forward. And both athletes and coaches are noting the improvements.
The writer is clearly wrong when he notes that because of the "Title IX based decision" the team is "fully funded" this year. The swim team benefited from JMU scaling back its very large athletics program and providing the remaining sports with better funding.

Fresno State Adds Women's Swimming and Lacrosse

Fresno State Athletic Director Thomas Boeh announced on Monday that the University will add two women's athletics teams -- swimming/diving and lacrosse -- in the next academic year in an effort to come into compliance with Title IX.

The basis for this decision is the analysis of the University's Gender Equity Task force, which examined all athletic department offerings this fall. It concluded that Fresno State satisfied Title IX's requirements with respect to equitable participation opportunities because the percentage of athletic opportunities for women (59.6%) was proportional -- actually, higher -- to the percentage of women in the student body (58.6%).

However, the University does not presently comply with the additional requirement that the percentage of scholarship dollars to female athletes approximate the percentage of female athletes. At Fresno State female athletes receive only 46% of the scholarship dollars, while constituting 52%* of the student athlete population. Due to NCAA scholarship caps, Fresno State could not increase the number of scholarships awarded in its existing women's sports, so to equalize scholarship dollars, it had to either add new women's teams or reduce the scholarships awarded to male athletes. The decision to add women's swimming and lacrosse, both sports with high NCAA scholarship caps, followed.

Fresno State used to sponsor a women's swimming and diving team, but cut the team in 2003, along with men's soccer and men's track and field and cross country, as a cost-saving measure.

*The percentage of female athletes is lower than the percentage of female athletic opportunities because an individual athlete may compete in more than sport.

Divided 10th Circuit Affirms Dismissal of Peer Harassment Case

The 10th Circuit Court of Appeals recently affirmed a lower court decision dismissing a peer harassment case originating out of the public schools in Steamboat Springs, Colorado. Judge McConnell, who dissented from the panel's decision that the plaintiff failed to make a case under Title IX, presented this summary of the facts:

K.C., a young teenager with learning disabilities, was coerced into performing oral sex on a number of boys who were fellow students at her middle school. Although most of this activity (and all of the actual sexual contact) took place outside of school, she was mercilessly teased at school, the boys threatened to spread rumors about her and to circulate naked pictures of her around the school, and on at least one occasion she was importuned for sex on the school bus. School authorities took no effective remedial measures. Eventually, two weeks after her most explicit complaint to the school, she suffered a series of psychotic episodes, probably caused by the assaults, and on advice of her psychiatrist withdrew from school.

All three judges agreed that K.C.'s complaint to a school counselor in the spring of 2002 that boys were "bothering her" did not give the school adequate notice that she was being assaulted. Judge McConnell called it a "close call" and chastised the counselor for not pressing K.C. for details about the manner in which she was being "bothered." Such follow-up questions would have been particularly appropriate because (1) K.C. is mildly retarded and might have had a hard time describing what was happening to her and (2) one of the boys had previously been disciplined for engaging in sexual harassment. However, even McConnell agreed that Title IX liability can only attach when a school district is deliberately indifferent to harassment of which it had actual knowledge--not harassment that it should have reasonably been able to discover.

The following school year, K.C. finally told a high school counselor that she was being assaulted by her classmates. The court agreed that the district was on adequate notice from this point forward, but disagreed whether its decision not to discipline the boys was deliberate indifference. The majority determined it was reasonable for the principal to defer to the results of a police investigation, in which the police decided not to press charges because the investigation could not conclusively determine which sexual encounters between K.C. and the boys were "consensual" and which were not. In dissent, Judge McConnell would have held the district liable for the principal's decision to do "absolutely nothing" upon receiving the police investigation report, which revealed the names of the boys and the nature and frequency of their sexual conduct with respect to K.C.: "No discipline. No counseling. No communications with the boys' parents. The principal did not even call the perpetrators into his office for an admonitory chat."

This decision helps illustrate the limited scope of Title IX's application in the peer harassment context. It emphasizes that a district does not have a responsibility to engage in efforts, however reasonable, to discover ongoing harassment, and, by absolving the district in the face of its nonresponse, highlights how truly narrow is the scope of conduct that amounts to deliberate indifference.

Decision: Rost ex rel. K.C. v. Steamboat Springs RE-2 School District, 2008 WL 54772 (10th Cir. Jan. 4, 2008).

Last thoughts on the 35th

People were writing about the 35th anniversary of Title IX into the very last days of 2007. This post on AlterNet discusses the origins of the legislation and highlights some of the major effects since its passage 35 years ago. Not a lot of new information, understandably, but some good statistics--always helpful in the heat of an argument with an anti-IXer.
What caught my eye was the careful attention the authors paid to the women who initiated and ensured the legislation's passage. I am always a little wary when a piece about Title IX's history begins with Representative Patsy Mink, because, despite her role in the process, she was not the legislation's initiator. But right after Mink, the authors make sure to note former Congresswoman Edith Green's role and Dr. Bernice Sandler's grassroots efforts. We worry, especially after reading the new The Encyclopedia of Title IX and Sports, that Sandler, who was the first to call attention to the discrimination women faced in education and do something about it, is being forgotten or downplayed in some of the discussions. We were quite disappointed that she did not even appear in the new Encyclopedia.
So kudos to the authors for not falling prey to the Wikipedia version of Title IX's passage (it's only about Patsy Mink) and for even getting a quote from Sandler.

Loyola Marymount Hosts Discrimination in Sports Conference

West coast readers may appreciate news of this upcoming conference at Loyola Marymount in Los Angeles called "Discrimination Issues in Sports: Race, Gender & Sexual Orientation." The program includes a wide range of panelists, including scholars, lawyers, and regulators, with connections to a diverse array of sporting practices at the professional, collegiate, and Olympic levels. Title IX will surely be invoked by those addressing sex and sexual orientation discrimination in sports offered by educational institutions; in fact, one panelist is from the Department of Education's Office for Civil Rights.

Via Sports Law Blog -- several of whom I had the pleasure to see/meet today here in NYC at the AALS conference.

Top ten of 2007

[This was promised two days ago but, well, it just didn't happen. Please don't hold it against it us. We promise it does not an indication of a pattern in the new year.]

Below are what we saw as the top ten Title IX stories of the year. As Ebuz noted to a reporter from Inside HigherEd not too long ago, it was a good year to be a Title IX plaintiff. You will see this reflected below, but other events were pivotal as well. The list is in no particular order--we could say it's because we here at the Title IX Blog don't like to hierarchize, but really it's impossible to figure out what was the most significant story of the year. There were so many times this year we just found ourselves saying to one another: "No way. Really?" And in a good way.

1. University of Colorado settles sexual harassment case with two former students who accused the university--now with a new president and athletic director--of failing to do enough to remedy the situation with football recruit parties that lead to their sexual assaults. We expect to see a very positive ripple effect from this case in future sexual harassment cases.

2. All things Fresno State. Three cases of discrimination, three wins (we consider settlement a win in this situation). Great record for Title IX--not so good for Fresno State, California taxpayers, and university president John Welty who we predict (because it is the time of year for making predictions) will not make it through 2008 in his current position. We also predict that as exciting as Stacy Johnson-Klein's $19.1 million jury award was--it will not stand up. We expect a reduction in the amount and hope Fresno does not push for a new trial. And though the cases of Lindy Vivas, Diane Milutinovich and Johnson-Klein seem to have reached the denouement, don't expect 2008 to be a good time for Fresno State. An assistant in the athletic department filed a discrimination suit at the end of 2007. We will have to wait and see what Fresno learned this past year as they approach this new charge of discrimination.

3. The anniversary. 2007 marked the 35th anniversary of the legislation and it seemed every media outlet in the country (and beyond) covered it some way. It was all very celebratory and certainly we celebrated too, but much of this coverage failed to critically address the backlash against Title IX. Luckily there were plenty of opportunities this year to correct all the misinformation about the law that came from sports writers, non-sports writers, television commentators, bloggers, and people with all sorts of opinions. But the anniversary also provided a great opportunity for assessment and discourse about the future. We were excited to be a small part of this conversation not only on this blog but at events like the Girls and Women Rock Conference in Cleveland last April.

4. Jennifer Harris v. Rene Portland. The lawsuit got settled; the terms and gathered evidence were sealed, but we heard things here and there and read between the lines and generally were pleased. Then we were even more pleased when Portland resigned shortly after the season ended. Jennifer Harris deserves the utmost respect and many thanks for being the first person to stand up to Portland's racist, sexist, and homophobic behavior.

5. Florida Gulf Coast University. Pat Griffin has dubbed FGCU "Fresno east." Not a nickname you want to have hanging around your athletic department as it tries to become a more serious contender in DI athletics. What FGCU might learn from Fresno is hard to discern right now. The administration does not seem to think it is, in any way, in the wrong in its treatment of female coaches, very few of whom actually remain at the school. But just like their counterparts across the country, these women are fighting back. And they are making homophobia a more salient issue in the discussion of their treatment.

6. UNC's Anson Dorrance is going to stand trial for sexual harassment. This case has been ongoing for years, but in April, assuming no settlement is reached (which is a big assumption given the precedent that seems to have been set in 2007) head soccer coach Dorrance will finally have to answer for his treatment of his players and the sexualized atmosphere he created on the team.

7. Cheerleading. Yep. We wrote about cheerleading a fair amount this year given it is not even an NCAA-approved sport. This did not stop University of Oregon, though, from creating only the second varsity-level competitive cheer program in the country (after Maryland). The addition of a non-sanctioned sport alone would have created some controversy (as it has at UMD) but the decision to add competitive cheer just as Oregon was cutting wrestling (and simultaneously reinstating baseball) created quite a stir. Things may have settled a bit at Oregon but the issue of competitive cheer as sport that counts toward Title IX compliance is not likely to go away soon and, though it may not happen this year, I would not be surprised to see a lawsuit brought by a club sport player whose team did not get elevated to varsity status because cheerleading did.
The other big cheerleading news was at the high school level where most cheer teams are not considered sports but rather constitute support for sports teams. This means, under Title IX, if you provide such support to your boys' teams, you must do so for your girls' teams. This was the issue at hand in New York, when a mother of a female basketball player protested the lack of cheerleaders at the girls' games and their constant presence on the boys' sidelines. And despite our awareness of entrenched gender norms in this society, we were a little surprised at the backlash engendered by the mandate for equal amounts of cheering that seemed to stem largely from a general feeling that girls should not be cheering for other girls.

8. Softball fields. It is not much of an exaggeration to say that we found about a story almost every week about the condition of softball fields. Most came out of high schools, but a few were about college fields as well. Parents, players, concerned citizens have been filing complaints about how the inferior fields are a violation of Title IX. Why softball fields? They are a very tangible measure of compliance. Look at the baseball field; look at the softball field. Are there lights, concession stands, same level of maintenance, outright ownership, suitable dugouts, fences, bleachers, etc. on both fields? It is difficult to defend a softball field that is lacking in any of these things when the field used by the baseball team has them. And that is why so many softball fields across the country this year got some major face lifts.

9. Seasons of change in Michigan. It finally ended. The case against the Michigan High School Athletic Association ended last April when the Supreme Court denied the organization cert. This has meant that the lower court's decision that MHSAA was in violation of Title IX and the Equal Protection Clause in its scheduling of girls' sports out of their traditional seasons has stood. Michigan high schools have had to change their schedules accordingly. The controversy this case created was enormous and the incivility of the discussions was disheartening. We hope that 2008 is the proverbial calm after the storm and that everyone is working more willingly than not toward dealing effectively with the scheduling changes.

10. Boosters. Almost as ubiquitous as the stories about softball fields were the stories about booster club funds. Yes, money raised by booster clubs must be considered in the quest for equitable support of girls' and boys' teams. High schools in Pennsylvania and California are addressing and accounting for booster club funds right now. More stories like this and the other ones we covered this year are likely to emerge in the coming year.

Reporter's Series Examines Title IX Compliance, Boosters

The Philadelphia Intelligencer's Ed Kracz has been running a series of articles about Title IX and its application to the school districts in his paper's readership area. One of his articles addressed Title IX's early history, including college football coach's efforts to repeal the law's application to athletics. But most of his articles have had a local bent, including this examination of disparities in opportunities and facilities in the paper's 12 school districts, andthis profile of a district superintendent's efforts to balance out the athletic opportunities in his district while addressing a proposal to add varsity football.

Yesterday's installment in this series examined fundraising by booster clubs. Kracz pointed out that misperception -- shared by school officials and boosters alike -- that booster-raised funds are private money, not subject to the law. Some school officials cited this belief as an explanation for why they had no idea how much their athletic team boosters were raising and spending. In fact, as Kracz reports, OCR considers a booster club's spending in support of athletic teams to be donation to the school district, which must factor in those funds when determining that girls' and boys' sports are equitably supported. Some school districts have booster clubs that raise money for the benefit of all sports, rather than a particular sport, a fundraising model that is less likely to result in gross inequities between boys and girls' sports. However, only one of the Intelligencer's 12 districts utilized this type of "all for one" booster club, which many schools resist for fear of losing parents' involvement.

I think that Kracz's article helps illustrate that schools and boosters need to work together to address fairness and equality in high school sports. Schools cannot ignore what its booster clubs are doing, just as parents cannot ignore the fact that individual-sport fundraising creates gender inequities in the aggregate.