Slate on "The Sex Difference Evangelists"

Slate.com's Amanda Schaffer takes on scientists and commentators who believe that certain differences in personality traits in humans are hard-wired based on gender. For women, those traits are (perhaps unsurprisingly) emotion-based and related to empathy. Though proponents of the theory of gender based differences couch their conclusions in terms of an "empathy advantage" for women and girls, Schaffer points out that the science is faulty and the conclusions drawn by the scientists are based more on societal presuppositions than on hard data.

Even though it's being touted as an "advantage," claiming girls are inherently more empathetic than boys also perpetuates a stereotype of what types of behaviors boys and girls should exhibit--probably the same stereotype that fosters the belief that single-sex educational environments ought to be so different from one another.

Coed's Parents File Suit in Oklahoma

Wagoner (Oklahoma) Public Schools have been sued by the parents of a sophomore female athlete, who allege that the schools are discriminating against female athletes by providing equipment, uniforms, facilities, and coaching that are inferior to the boys.'

According to the Muskogee Phoenix, the lawsuit "was filed by a University of Tulsa law professor and an associated Tennessee law firm on behalf of the Wagoner co-ed’s parents" (emphasis added). The fact that the local paper uses the word "coed" to refer to a female student surely underscores the importance of addressing sex discrimination in the local public schools. (In case it's not obvious, this blogger explains the problem with coed-as-a-noun far more articulately than I could.)

That law professor, by the way, has a pretty good track record -- 40-0, according to this story.

Jury Finds School District Not Liable for Teacher-Student Harassment

On Wednesday, a jury in South Dakota found that the Mitchell School District is not liable for a teacher's sexual battery of one of his students. In a lawsuit filed last year, plaintiff Brittany Plamp alleged that Andrew Tate touched her in a sexual manner while the two were alone in his classroom, and that he made sexually harassing comments to her. The jury accepted that Tate's conduct amounted to a sexual battery, but did not believe that the school district was liable for his conduct. Given the legal standard for employer's vicarious liability for an employee's tort, the jury presumably determined that Tate's conduct was not reasonably foreseeable by the school district.

This case also included a Title IX claim, as we noted when we first blogged about this case last month, when the district court magistrate denied the school district's motion for summary judgment. However, the Daily Republic reports that the Title IX claim was not part of the jury's verdict, having been dismissed after the close of testimony for lack of evidentiary support. Plamp was not allowed to call witnesses to testify of past sexual misconduct by Tate that was not reported to the school district, and the only accusations of Tate's misconduct that were directed to school officials were determined to be either too remote or too vague to give rise to knowledge that Tate posed a risk to students like Plamp.

Jury Foreperson in Johnson-Klein Case Files Retaliation Case of Her Own

Yesterday, the woman who served as the foreperson of the jury in Stacy Johnson-Klein's discrimination case against Fresno State filed a retaliation case of her own, alleging that she was fired because of her jury service. The former juror, Yolanda Cerrillo, was the assistant principal at West Park Elementary School, outside Fresno. She claims that she was fired two days after returning to work, despite exemplary service in the past.

Though it's not clear from the news report I read, it seems her claim is that she was targeted because of the verdict that the jury reached -- $19 million for Johnson-Klein (later reduced) -- and not the fact of her jury service for the two-month trial, which would have required her to miss a ton of work.

But either way, I think her claim is covered by the California law that governs public schools (Education Code s. 44037), which states:

It is unlawful for ... any school district to ... discriminate against any employee with respect to assignment, employment, promotion, or in any other manner because of such employee's service on any jury panel.

Though juror protection statutes like this are most frequently used to ensure that jurors don't get fired or lose pay for taking time off to serve on the jury, the statutory language "because of such employee's service on any jury panel" seems broad enough to cover retaliation motivated by the jury's result in addition to the act of service itself.

As in any retaliation case, the hard part for the plaintiff will be proving a causal connection between the protected activity (serving on a jury and rendering a verdict) and the adverse employment action she experienced -- especially if the school district argues convincingly that she was fired for some other, permissible, reason.

Programming Note

Sorry for the lack of fresh content lately. It's been a slow news week on the Title IX front. Kind of makes me miss the Fresno litigation and the excitement it provided to the blog last summer!

Hopefully, the mere fact of saying the words "slow news week" out loud will cause the floodgates to open, and Title IX news stories to come pouring forth!

Settlement Will Force School District to Deal With Anti-Gay Bullies

The ACLU of Northern California announced today that it has reached a settlement with the Upper Lake Union School District, under which the district has agreed to undertake a list of protective measures designed to curb anti-gay harassment and discrimination.

ACLU's client is a middle school student named Robby who "can't remember a day at school when [he] wasn't called a faggot or gay." When Robby was beat up after gym class by classmates shouting "queer," Robby's parents got the ACLU involved. It does not appear that ACLU had to actually file a lawsuit to get the school district to agree to take remedial measures. This step was presumably not necessary because thanks to Title IX and California's anti-bully legislation, the district has a legal responsibility (not to mention a moral one) to take reasonable steps to protect students from anti-gay harassment.

Here is the list of things that the district agreed to do:

• Revise the parent/student handbooks to include the antidiscrimination and antiharassment policies and the process for filing a complaint;
• Designate an employee for each school to serve as the point person for school-based harassment;
• Provide LGBT sensitivity materials to staff and discuss incidents of harassment at staff meetings;
• Hire qualified trainers to educate students regarding the harmful effects of discrimination;
• Implement the Gay Lesbian and Straight Education Network's "No Name Calling Week" curriculum and other programs that raise awareness about discrimination and homophobia; and
• Support the maintenance of a Gay/Straight Alliance club at the middle school.

If you're an activist, feel free to copy and paste these handy bullet points into your own list of demands!

Interview with Pat Griffin

Two of my favorite bloggers contributed to the current "Pride Month" issue of the Beacon Broadside. Helen Wheelock of Women's Hoops Blog interviewed Dr. Pat Griffin, of It Takes A Team about homophobia in sport. Griffin has recently been involved in some very interesting work on the role of religion in college sports, which can intersect with and contribute to discrimination against gay and lesbian student-athletes. I'm glad Wheelock asked her about it (among other things):

....What challenges do gay athletes face when sports and religion intersect? How can coaches, even coaches at schools with policies that forbid homosexual conduct, support their gay and lesbian athletes?

....Coaches have a responsibility to create and maintain a religion-neutral environment on their teams, but some coaches invite or pressure athletes to attend chapel or Bible studies, to pray together or listen to Biblical quotes as part of their coaching. I think this is wrong, not only because it places lesbian and gay athletes at risk, but it also alienates anyone on the team who does not share the coach's particular faith. College and high school sports are not church leagues.

I support every athlete's and coach's right to their personal religious or spiritual beliefs as well as their right to individually express that belief, but I think there is a little too much tolerance in athletics for mixing evangelical Christianity with athletics. I would hope that even in religious schools where homosexuality is specifically condemned that coaches and athletes would treat gay and lesbian teammates with respect.

On other topics with Title IX relevance, Griffin praised the NCAA for incorporating a more inclusive message into its athlete training workshops, and pointed out the particular vulnerability of female coaches to direct discrimination and tactics like negative recruiting.

Male coaches win jury verdict in discrimination, harassment case

A jury in Hattiesburg, Mississippi awarded over $1 million to three former coaches -- all men -- who had sued the University of Southern Mississippi, alleging they were victims of discrimination and harassment because of their sex. According to the Hattiesburg American, the plaintiffs, John Vincent, John Mollaghan, and Ged O'Connor were the coaching staff of the women's soccer team until they were terminated in 2000. Vincent, the former head coach, had alleged that he lost his job in retaliation for resisting the sexual advances of a female athletic administrator, the Senior Woman Administrator. The plaintiffs also alleged that it was "made very clear" to them at the time of their termination that USM "preferred to have a woman coaching the women's soccer team."

Vincent received $500K from the jury; Mollaghan $376K, and O'Connor $300K.

Happy 36th Anniversary, Title IX

36 years ago today, President Nixon signed the Education Amendments of 1972 into law. Its most famous provision, Title IX, prohibits discrimination on the basis of sex by educational institutions that receive federal funds.

Unfortunately, pointing out the age of Title IX runs the risk of feeding the misconception that the statute has been around for more than enough time to eradicate sex discrimination in curricular and extracurricular aspects of education -- a belief that underscores arguments that its time to "retire" Title IX. So while commemorating Title IX on its anniversary, I want to also point also out that despite the statute's 36 years, Title IX enforcement -- especially in the context of athletics -- is not nearly so old. Opponents tied up the enforcement regulations governing athletics with political and judicial battles throughout the 1970s and 80s, and even succeeded in getting the Supreme Court to hold the statute inapplicable to programs, like athletics, that don't directly receive federal funds. Even though Congress amended the legislation several years later to restore Title IX's applicability to athletics, the Reagan and Bush administrations weren't exactly enthusiastic about enforcing Title IX's mandate. In fact, it wasn't really until the Supreme Court held in 1992 that plaintiffs could sue institutions under Title IX for money damages that they began taking compliance seriously. Judicial confirmation that Title IX's private right of action extends to sexual harassment by one's peers, and retaliation against third parties, is an even more recent development.

So Happy 36th Anniversary to Title IX...
...And Happy 20th Anniversary to the Civil Rights Restoration Act of 1987 (Mar. 22, 1988)... And Happy 16th Anniversary to Franklin v. Gwinnett County Public Schools (Feb. 26, 1992)...And Happy 9th Anniversary to Davis v. Monroe County Board of Education (May 24, 1999)...And Happy 3rd Anniversary to Jackson v. Birmingham Board of Education (March 29, 2005)...

Fresno State drops appeal of Johnson-Klein verdict; agrees to $9 million settlement

Fresno State will drop its appeal of Stacy Johnson-Klein's jury verdict, a $19.1 million figure that the court later reduced to $6.6 million, plus $2.5 million in attorney's fees and $700,000 in court costs. The university has agreed to pay Johnson-Klein a total of $9 million--which includes attorneys fees and costs -- over the course of 23 years.

Johnson-Klein, the former women's basketball coach, sued the university last year. The jury found that she was fired in retaliation for complaining about sex discrimination and harassment within the athletic department. (What a difference a year makes, huh? Fresno State reportedly turned down Johnson-Klein's offer to settle before the trial for $950,000.)

This seems like a pretty good deal for Johnson-Klein, as it is only a slight reduction from the $9.8 million she and her lawyers would have received in total if the district court's ruling had stood. However, as the Fresno Bee notes, the payout will actually cost the university considerably less than $9 million because it includes annuities for Johnson-Klein's six children, which the university can purchase at a discount. That discount, along with the long-term payment schedule, must have been important to Fresno State, as that seems like the only real concession Johnson-Klein had to make to get the university to drop its appeal.

Here's hoping that Fresno State will resolve Lindy Vivas's case in similar fashion. Vivas, the former volleyball coach, also convinced a jury that the university had fired her in retaliation for her opposition to sex discrimination in the department. The university is still appealing the jury award she received last summer, a $5.8 million figure that was later reduced to $4.52 million, plus attorney's fees.

[Thanks, W!]

You knew it was coming

The recent spate of studies and articles on injury rates--most of which focus on ACL tears--in female athletes could be part of a trend of inferiorizing the female body, which of course has ramifications for women's sports and female athletes and future female athletes. Maybe I am sounding the alarm a little early here, but this article in Science News that is reporting on a study of amenorrhea in young (teenage or early 20s) female athletes makes me nervous. If you have read Patricia Vertinsky's excellent book The Eternally Wounded Woman you will know why.
As much as research like Michael Sokolove's on ACL tears and even other studies on injuries like concussions provide often good evidence of the cultural factors that influence injury rates, we cannot control or predict how such work will be received. The media that reports on these studies serves as receptor and purveyor of this information and the coverage of this research never fails to mention Title IX. The suggestion is out there for those who want to take it (and do very bad things with it): equality has hurt--literally--women. No one is saying that outright. Most of the work and press mentions the benefits of sport and exercise. But in a culture that already largely believes that women's bodies are weaker such seemingly extreme interpretations of these studies are not out of the realm of possibility.
And as problematic as I find some of the coverage of ACL injuries to be, I am more concerned about this Harvard/Mass General study about amenorrhea. Because knees can be fixed or even replaced if need be. But start talking about a woman's reproductive system and people get a little panicky. The article reports that a quarter of high school and college athletes stop having their period "at some point" which results in "temporary infertility."
The article does point out that this is easily reversible, could be a result of evolutionary tactics that prevent pregnancy in bodies that cannot sustain them, and is not as severe as the other consequence: loss of bone density.
But it's already out there: interruptions in the reproductive system. Never mind that most of these women aren't really all that keen on getting pregnant anyway or that many of them could be on birth control--also something that results in temporary infertility.
And of course, at the end of the article, we get the Title IX mention:
With the 1972 law change called Title IX that ensures girls get equal treatment to boys in educational and athletic programs, more girls have become involved in sports during adolescence. While that has been good in general, [Misra, study's co-author] says, it might also explain why amenorrhea has become more prevalent in recent decades.
Or it could be the rise in eating disorders, which certainly as afflicted female athletes. Or it could be environmental factors. Or it could be specialization. Or it could be a combination of these things. But I am pretty sure that passing a law that mandates equity didn't result in girls' periods stopping.

Wrestling Coach's Retaliation Claim Survives Summary Judgment

Joseph Sabol, former wrestling coach at Montclair State University, won a legal victory earlier this month when a federal district judge in New Jersey denied MSU's motion for summary judgment on Sabol's retaliation lawsuit. Sabol sued the school after he was passed over for the full time head wrestling coach position, despite serving as the part time head coach for one year, because he complained about inferior equipment and the security of the locker room and because he had argued to the AD on behalf of his assistant coach who was facing discipline that was allegedly harsher than what female coaches had received in comparable circumstances.

Despite the efforts of MSU, the district court did not dismiss Sabol's Title VII, Title IX, and state antidiscrimination law claims, holding that Sabol had presented sufficient evidence to raise the possibility that a jury could find in his favor.

Sabol's case presents a claim of gender discrimination that is the reverse of many of the high profile Title IX retaliation cases we've blogged so much about, like Fresno State and FGCU. Here we have a male coach terminated by a (female*) AD in alleged retaliation for his efforts to ensure equal treatment for his men's team. But it's not surprising that of all the men's athletics programs, it would be a wrestling coach litigating a case that is, but for the plaintiff's gender, very similar to the spate of female coaches' retaliation claims we've recently seen. Wrestling is, for whatever reason**, treated like the ugly stepson of men's athletics, a marginalized position not unlike that which is occupied by women's sports -- the difference is that no women's sports are favored to same the degree as football, so women sports can often better avail themselves of Title IX protections.

In other words, while wrestlers and wrestling coaches may experience discrimination, it is hard to characterize this as sex discrimination in light of the fact that men's sports are more privileged on the whole. This case is no different. The thrust of Sabol's case is that he was passed over because he advocated better treatment for the wrestling program and its coaches, but the only direct gender comparison in Sabol's complaint is his allegation that the AD disciplined his assistant coach more harshly than female coaches. I agree with the district court that it's possible he could convince a jury that he was retaliated against for objecting to this particular inequity, but it will certainly be difficult to prove that this single incident was the reason he wasn't hired. His claim that he was retaliated for being a staunch supporter of wrestling has more support, but this, unfortunately for Sabol, is not sex discrimination.

Decision is: Sabol v. Montclair State University, 2008 WL 2354553 (D.N.J. June 3, 2008).

* To make my point of comparison, I am focusing on the gender of the plaintiff and his student-athletes and not the gender of the AD, which is of little significance in my opinion. Wrestling gets the shaft in athletic departments run by men as well. Moreover, a number of the current retaliation cases brought by female coaches implicate a female president (Feather River College), a female AD (University of Nevada, Reno), or the Senior Woman Administrator (FGCU, Tennessee-Martin).

**My theory is that wrestling is marginalized because it strikes people as a little bit queer, what with the men in tight outfits grappling other men on mats. If this is right, maybe wrestler discrimination could constitute sex discrimination on a theory of gender nonconformity?

WaPo on single-sex classrooms

The Washington Post ran a feature on the growing trend of single-sex classrooms in public schools. I am not going to go into all the reasons why we here at the Title IX blog think single-sex education is very problematic--you can click on the tag below to find that out.
I don't have to actually because, in part, the article itself illustrates--if you want to see it--some of the ridiculousness. Simply read the opening paragraphs about a classroom in which girls sit politely and read pretty poetry and another down the hall where boys are sprawled about the classroom reading poetry about being hunters. The language the writers themselves choose to describe the situations they witness says it all. The stereotypes are there--we create them and we reify them.
Why do the girls sit "politely"?--because that's what girls have been taught to do. Why do boys do backbends over their chairs?--because that's what they're allowed to do--because they're boys with allegedly uncontrollable desires to be moving all the time. I liked doing backbends over furniture when I was little too--except I did it at home. If it was acceptable school behavior, I would have done it there too.
These pieces are so frustrating because they spend so much time indulging the stereotypes and so little time engaging with the experts and the studies. And even when doing the former, they fail to acknowledge the inconsistencies. For example, the WaPo article mentions that the boys' classroom has desks that are scattered throughout the room, which gives the boys more room to move around. But the teacher said he moved the desks because they boys were engaging in a "female trait": chitchatting. So chitchatting is bad but crawling around the floor is just fine apparently because the former is something girls do and the latter is something boys. Never mind that both would seem to disturb the classroom, the teacher, and other students.

Kansas School District Avoids Liability for Athletes' Harassment Due to Lack of Notice

A case that raised an interesting question about a school's liability under Title IX for students' sexual abuse in an extracurricular program run by non-employee was instead resolved in the school's favor on other grounds this week.

For many years, male student-athletes in the Liberal, Kansas, public schools availed themselves of an extracurricular weight training programs run by John Aubrey. Aubrey's program ran out of his home, though he was given access to school facilities for the purpose of conducting weigh-ins. Students allege that Aubrey abused them in various ways, including questionably massages, "sex talks," instructing one student to practice putting on a condom, encouraging students to masturbate, and having boys watch sex videos. Three students, including the one who initially reported Aubrey's conduct, filed suit against both Aubrey and the Liberal School District, claiming among other things that the school district is liable under Title IX for its deliberate indiffernce to the sexual abuse that was taking place under the auspices of a school-sanctioned program. But the court did not reach the interesting question of whether a schools' liability under Title IX even potentially applies a weight training program that is not run by a school employee, but that is apparently endorsed by the school and which provides school access for at least some part of the program. Rather, the district court granted the school district's motion for summary judgment on this issue because of the absence of evidence that the school knew about Aubrey's misconduct while it was ongoing. Once the student reported it, Aubrey's weight training program was curtailed and no further abuse occurred.

A related claim Title IX claim, however, did survive the district's summary judgment motion. The student who reported Aubrey's misconduct suffered ongoing harassment at the hands of his peers as a result, to which he alleged the district failed to adequately respond. The court agreed with the plaintiff that this claim is viable, since the facts alleged would, if proven, satisfy the standard of liability under Title IX.

Moreover, the court denied the school district's efforts to dispose of the plaintiffs' claims under state law that the district is vicariously liable for Aubrey's tortious conduct and that the district itself was negligent in its supervision and "hiring" of Mr. Aubrey. Those claims will, barring settlement, proceed to trial.

Decision is: C.T. v. Liberal School District, 2008 WL 2358667 (D. Kan. June 10, 2008).

ACLU Files Suit Over Single-Sex Education

On behalf of students and parents in Kentucky, the ACLU is suing the Department of Education over the 2006 regulations that relaxed restrictions on single-sex education. This challenge arises in the context of a lawsuit over sex-segregated classrooms in the Breckinridge County Middle School, which the ACLU argues violate Title IX, the Equal Protection Clause of the U.S. Constitution, and Kentucky law prohibiting sex discrimination in education. The county board of education and various officials are also defendants.

According to the complaint, BCMS began to segregate math and science classes in 2003 and offer “differentiated instruction” to boys and girls -- including softer lighting in girls' classrooms, tougher math problems in boys' classrooms, hands-on and demonstrative teaching methods in girls' classrooms, and activities and "games" in boys' classrooms. Since 2003, BCMS has expanded the single-sex framework to other courses, and some officials have recommended eliminating coed classes altogether. While BCMS initially offered parents the opportunity to opt out of single-sex classes, this option was not presented to all parents in the most recent school year. Moreover, the coed alternatives that did were available had different textbooks, scope of coverage, and teaching methods such that the parents did not find to be substantially equal to the segregated classes.

ACLU alleges that BCMS's sex-segregation policy, and the Department of Education regulations on which BCMS ostensibly relied, violate Title IX, which prohibits schools from denying educational opportunities to students on the basis of sex. Also, the Department's unreasonable interpretation of its statutory mandate violates the Administrative Procedure Act. Moreover, the ACLU alleges, the regulations are unconstitutional because the do not require schools to have an "exceedingly persuasive justification" behind its decision to segregate, or that segregated classrooms bear a "substantial relationship to an important state interest" as required by the Fifth Amendment's Equal Protection Clause.

For prior posts about the constitutionality of single-sex education, see here and here.

New (old) book

The Feminist Majority Foundation last year updated its 1985 handbook, Achieving Gender Equity through Education. Eleanor Smeal, president of the foundation and publisher of Ms. has written the forward to the new edition.
More information can be found here on FMF's website.
The book is also reviewed in the latest issue of Feminist Collections: A Quarterly of Women’s Studies Resources (Volume 29, Number 1, Winter 2008).

Will Government Continue to Interfere in College Sports?

In the current issue of Journal of College and University Law, University of Massachusetts professors Todd Crosset and Lisa Masteralexis suggest that state regulation of gender equity in college athletics is "on the brink of change." They argue that sociologically speaking, the state regulates private associations only when certain conditions are met -- conditions which existed in 1972 when Title IX was passed, but are increasingly less relevant today. Expanding alternatives to intercollegiate sports for participants, the increasing commercialization of college sport, and the decreasing educational relevance of college sports, they argue, have all made it less likely that the state will continue to intervene in private, institutional affairs by legislating gender equity, and more likely that market forces will take over.

Citation: Todd Crosset & Lisa Masteralexis, The Changing Collective Definition of Collegiate Sport and the Potential Demise of Title IX Protections, 34 J. College & Univ. L. 671 (2008).

Oregon Wrestlers File Suit

On behalf of the disappointed wrestlers at the University of Oregon, Equity in Athletics has sued the University of Oregon over its decision to cut wrestling when it added baseball last year.

According to an EIA press release and SaveOregonWrestling.com, the state court complaint alleges that the University's decision to cut wrestling was procedurally flawed and that substantively, it violates the equal protection clause of Oregon's constitution as well as the state's antidiscrimination law, Section 659.850. University officials have acknowledged that Title IX did not require them to cut wrestling when they added baseball, and that they selected wrestling for elimination based on other criteria, including lack of a facility, lack of competition, and absence of fan support. EIA argues that the University should have applied this same criteria to both men’s and women’s teams in deciding what sports to cut, pointing out that women's lacrosse and competitive cheerleading also lack competition and support.

On the other hand, since women are already underrepresented in Oregon's athletic opportunities, cutting women's team would have a more discriminatory impact than cutting a men's team. It certainly would violate Title IX for the school to cut a viable women's team in light of the existing gender disparity in opportunities. For this reason, I'm not sure that EIA's argument that Oregon should have cut a women's team instead will carry much weight.

Supreme Court Will Resolve Circuit Split on Title IX's Preemption of 1983 Claims

The Supreme Court just announced that it will review the First Circuit's decision in Fitzgerald v. Barnstable School Committee. As you may recall from prior posts (see here and here) the dispute in this case was whether the school district responded adequately to the sexual harassment of a kindergarten girl by a third-grade boy who rode the same bus. The First Circuit held that the school district satisfied its obligation under Title IX to avoid "deliberate indifference" to the kindergartner's plight once the harassment became known to appropriate officials -- even though the district did not suspend the boy from the riding the bus. In addition, the First Circuit refused to consider the plaintiffs' constitutional claims filed via the remedial statute, 42 U.S.C. 1983, holding that the potential availability of relief under Title IX preempts additional, constitutional claims. The plaintiffs filed a petition for certiorari (review by the Supreme Court), which the Court granted today.

The circuit split on this issue clearly contributed to the Court's decision to grant cert. The Sixth, Eighth, and Tenth Circuits all allow plaintiffs to bring both Title IX and 1983/constitutional claims for the same conduct. See Communities for Equity v. MHSAA, 459 F.3d 676 (6th Cir. 2006); Crawford v. Davis, 109 F.3d 1281, (8th Cir. 1997); Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996). The First, Second, Third, and Seventh Circuits have all held that Title IX preempts 1983/constitutional claims. Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165 (1st Cir. 2007); Bruneau v. S. Kortright Cent. Sch. Dist., 163 F.3d 749 (2d Cir. 1998); Williams v. Sch. Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993); Waid v. Merrill Area Pub. Sch., 91 F.3d 857 (7th Cir. 1996).

The availability of both Title IX and constitutional remedies is important to sexual harassment plaintiffs like the Fitzgeralds because constitutional claims are not subject to the case law limiting liability to cases involving "deliberate indifference." Moreover, unlike Title IX claims, which may only proceed against institutions, 1983 plaintiffs may sue individuals who were acting "under color of law" when violating the plaintiff's constitutional rights. Lastly, some courts have held that Title IX plaintiffs are not entitled to punitive damages, a remedy that 1983 allows.

Stay tuned for the Court's resolution of this important question.

h/t to Paul Secunda. See his post at Workplace Prof Blog here.

S.D. Harassment Case Survives Summary Judgment

In South Dakota, a teacher-student sexual harassment case survived the school district's motion for summary judgment. Consistent with other cases, the federal magistrate rejected the district's argument that other victims' complaints about this teacher in the past did not constitute actual notice of the teacher's harassment of this particular student plaintiff as a matter of law. The magistrate held that it is up to the jury to decide whether those prior complaints about the teacher put the district on notice of the teacher's propensity for harassing behavior and triggered an obligation to act reasonably to protect the students in his charge.

Decision is: Plamp v. Mitchell School District 7-12, 2008 WL 2277519 (D.S.D. June 3, 2008).
See also this story in the Mitchell Daily Republic.

V-Ball Coach Weighs in on Lawsuit(s)

The College Volleyball Coach blog has a good post about the Tennessee-Martin case, putting it into context with the other volleyball coach lawsuits we've seen recently at Fresno State and FGCU. Among other fine points, the author surmises that until volleyball coaches have the bargaining power to negotiate employment contracts with "safety nets," like football and basketball coaches have, "Athletic Directors are able terminate volleyball coaches with very little cost."

This point highlights one of the reasons why this new trend of anti-retaliation litigation is so important -- the threat of litigation adds to the cost of firing a coach, helping to ensure that the AD is basing employment decisions on genuine performance concerns rather than discriminatory or retaliatory reasons.

Oregon Teacher's Retaliation Case Settles

A gender discrimination lawsuit between a teacher and her Oregon school district that we blogged about last fall settled this week for $20,000. The teacher had sued the Salem-Keizer School District, alleging that her after she reported harassment by her fellow teachers, she was retaliated against with unsatisfactory performance reviews. After a mediation, the parties agreed to a settlement amount designed to cover the plaintiff's legal fees, and also to expunge the negative reviews from her record.

Moving forward with women's wrestling at YVCC?

It seems that coaches and supporters of men's wrestling at Yakima Valley Community College are moving ahead with plans to add women to their team in the hopes of saving the men's program which was slated to be cut. [Click on the YVCC tag for past posts on this situation.] The goals of co-head coach Mike Schmitt are to raise money to support women initially as part of the men's team and then create a separate team for them. But even as he and others are planning, the administration continues to pull on the reins of reality.
And here is some of the reality:
Despite the popularity of women's wrestling in Washington, and its growing popularity elsewhere it has not become a sanctioned or emerging sport. YVCC is a member of NJCAA (National Junior College Athletic Association) which does not sanction women's wrestling. The women can compete with the men, though (not because of Title IX, which has a contact sport exemption--but because of an equal protection argument).
Another reality is that YVCC has a Title IX problem in the form of an ongoing, unresolved complaint from 2002. Sixty-seven percent of its undergrads are women and according to the VP for Instruction and Student Services Tomas Ybarra this makes it impossible to comply with prong one. I take a little bit of exception with the impossibility of the situation, but given YVCC's budget woes--which include the inability to fund a women's wrestling program, another reality check--it does not seem like proportionality is short-term option for the school. Ybarra and other administrators are working with OCR to try to come into compliance with either prong 2 or 3 at this point.
So while Ybarra is saying things like this:
"We haven't decided whether we are in a position to go ahead with the concept of accepting women as a part of the men's team," he said. "We're not in a position to make that decision yet, nor are our resources sufficient to support another team. We're not ready to make a decision quite yet. But we're working on it."
Schmitt and other supporters are talking like this:
"We're fundraising like crazy. I think it's going to be huge because of the growth of girls [sic]wrestling, not only within the state but throughout the country. We've received six verbal commitments so far, and none happen to be from Washington."
I imagine there will be future posts about this struggle.

HS Golfer Awarded $19K in Discrimination Claim

Remember Lindsey Thomka? She's on the boy's only golf team at Cathedral High School in Springfield, Massachusetts, but in 2005, she wasn't allowed to compete individually in the state tournament for boys golf, despite finishing fourth in the regional qualifier. Last year, the Hampden County Superior Court ruled that Massachusetts Interscholastic Athletic Association's policy that excluded Thomka violated the state constitution's equal rights amendment.

Thanks to a ruling by the same court last week, Thomka's lawyer will get paid. Barring a successful appeal, MIAA must pay over $19,000 in attorneys fees to Thomka's family. Attorneys fee awards are important equalizers in discrimination cases like this one, where the discrimination, while actual and unlawful, does not cause a harm that can be remedied with money damages. Attorneys fees operate to deter institutions from engaging in unlawful discrimination, and they make it a little easier for civil rights plaintiffs' lawyers to stay in business. (Thomka's lawyer had not billed her family for his legal services.)

Thomka graduates this week and will play golf at Elon College in North Carolina next year.

[thanks, Jeff!]

Gender gaps in math: A new study says it's nurture, not nature

New research published in the journal Science (subscription required to see full article) finds that any gender gap between boys and girls in math achievement "disappears" in countries with higher levels of gender equity. The research, reported in The Guardian (UK), looked at 40 countries, and found that those nations with equal access to education, as well as other opportunities and support for girls, showed no gender gap in math scores. When it comes to reading, girls in "equal opportunity" countries tended to do significantly better than boys. This last finding may beg the question of whether more research is needed to figure out how best to support boys to become equally accomplished readers.

More on the Gender Gap in Coaching Salaries

John Wolohan and Laura Bowman's article "Check Swing" (nice!) in the current issue of Athletic Business explores the legal issues surrounding the gender gap in coaching salaries, an issue that has been receiving some press lately.

The authors examine the Equal Pay Act's applicability to coaches' salaries using as an example a lawsuit by Cara Hankinson, who sued the Thomas County, Georgia school district to challenge the salary she was paid as the softball coach, which was less than what the baseball coach was paid. The district court had denied her claim, but the Eleventh Circuit reversed the ruling and required the district court to determine whether the baseball coach's job is substantially similar to Hankinson's job coaching softball, as she had alleged. In Thomas County, the baseball coach's responsibilities included more games, longer games, and more players that the softball coach, but on the other hand, the baseball coach was given more assistant coaches to help him out. This made the similarity of the jobs in subject to dispute, and thus inappropriate to dismiss without a trial.

The authors point out that the court's reasoning is consistent with the guidance that the Equal Employment Opportunity Commission provides (Notice No. 915.002) on this issue. The EEOC says that while coaching positions are substantially similar, there are legitimate justifications for paying coaches different salaries, such as the market value of the coach's particular skills and qualifications, different levels of experience, and a greater range of duties. It remains to be seen whether Thomas County can successfully prove that the baseball coach had a greater range of duties to justify his higher salary. But, as the authors conclude, what is clear is that "the gender of the coach — or of the athletes under the coach's care — is not considered an acceptable factor in trying to justify paying one coach less than another."

University of Tennessee-Martin Sued by Former Volleyball Coach

I read in USA Today that Amy Draper, formerly the head volleyball coach at the University of Tennessee-Martin, has filed a lawsuit challenging her termination as discriminatory and raising other violations of Title IX.

Draper's complaint, filed in federal district court, alleges that the University and athletic department officials violated Title IX and other law (including the U.S. Constitution's due process clause) when it terminated her contract without a hearing and in alleged retaliation for her challenges to gender discrimination within the department. She says she received inferior treatment relative to male coaches in the department and that her volleyball program received support that was inferior to the other teams. When she pointed out disparities in an email to the athletic director, she was told that if she continued to make allegations of gender discrimination, he would "bring the curtain down" on her. She was eventually fired before the end of her contract and without a hearing -- ostensibly for her team's "poor performance," in contrast to many male coaches whose employment continued despite never having a winning season.

Draper also alleges that the athletic department maintains a double standard with respect to coaching qualifications. The department has hired men to coach women's softball, volleyball (her replacement), and as an assistant women's basketball coach, notwithstanding their lack of experience playing in the sport that they coach. Yet it insists that female head coaches have college experience in the sport they are coaching. This double standard is common in college athletics, so it will be interesting to see how this particular allegation plays out in the litigation.

Spotlight on Summa v. Hofstra University

A while ago, we briefly noted an ongoing sexual harassment lawsuit against Hofstra University. We had only limited details to offer at that time, but we have since received a copy of the complaint filed by plaintiff Lauren Summa (thanks, reader!). We can now provide a more information about Summa's side of the story.

In 2006, Summa was hired as a student manager of the Hofstra University football team for a one year period that would include the primary fall season and the secondary spring season. Accompanying the team to away games, she was subjected to "relentless sexual harassment" by players on every bus trip. Players teased her for having a relationship with another player, including by creating a mocking webpage on facebook.com that Summa describes as "intentionally demeaning and sexist, implying that [she] was beastly, overweight, hypersexual, and overbearing." They suggested that she and her boyfriend have sex on the bus and made other offensive comments. On one trip, they barricaded her in the bathroom. On another trip, the coaches showed a movie that contained graphic sex scenes. This prompted players to jeer at Summa, and a particular scene depicting sex between a black man and a white women promoted one player to suggest to Summa that all "white women" like her want "black dicks." Summa, crying, asked the assistant coach to turn off the movie and when he did, players objected chanting "we want boobies" and ridiculed Summa even more.

Summa reported the movie incident to Coach Cohen (as she had the facebook incident). Cohen was irritated with Summa for complaining and tried to talk her out of reporting the incident to Campus Safety, arguing that it would bring negative attention to the football team. Summa followed through on her plan to report the incident, and was ultimately put in touch with the university's Equal Employment Officer, Maureen Murphy. Murphy said that she would arrange sensitivity training for the football team, but this did not happen. One of Summa's primary tormenters, Eric Taylor, was kicked off the team for reasons unrelated to harassment. Yet Taylor continued to torment Summa throughout the winter, accusing her of causing his dismissal from the team.

At the beginning of the spring season, Summa reported to work, only to find that Coach Cohen had hired a replacement for her. He told her that he presumed she was not interested in continuing with the position. Summa alleges that this presumption, contrary to custom and to her understanding with Cohen that she would work the whole year, was retaliation for complaining about harassment. The retaliation continued when Summa's offer to work for the University Relations Office was rescinded soon after Summa filed a complaint about the football incident with the state division of human rights.

Summa filed suit in federal district court, alleging that both the underlying harassment and the retaliation she experienced for reporting it violate both Title VII, Title IX, and New York's Human Rights Law. She seeks damages and an injunction against Hofstra's similar conduct in the future.

While we don't know if Hofstra will seek dismissal, attempt to settle, or proceed to trial, it should be factoring in the plaintiff-favoring trend in recently sexual harassment decisions involving college athletics -- including this case against the University of Colorado, this case against the University of North Carolina, and this case against the University of Washington, as well as the big jury verdicts in the retaliation cases against the athletic department at Fresno State.

NCAA Releases Figures on Salary Disparities in Coaching

USA Today reported last week that 2006 salary statistics recently released by the NCAA confirms that people men who coach men's sports earn more than people who coach women's sports. And among schools with big time football programs, they earn way more. The average salary for a Division I-A women's lacrosse head coach is $80,200, while head coaches of men's lacrosse in that same subdivision earn, on average, more than twice that amount -- $165,400. The gender gap was less pronounced among non-BCS subdivision Division I schools ($69,400 to $55,900 in DI-AA and $64,000 to $53,000 in Division I-AAA) but significant nonetheless.

The sidebar graphic itemized average salaries in other sports as well:

Sport	Men	Women
Gymnastics	$107,400	$91,700
Soccer	$93,900	$90,700
Tennis	$87,200	$71,300
Track	$62,100	$63,600

One explanation for the higher salaries among men's lacrosse coaches is the larger roster size for men's lacrosse teams. In fact, salary differentials are not unlawful if they are based on nondiscriminatory factors such as squad size. Yet it is clear that there is more than squad size driving up the relative salaries for men's lacrosse coaches. Because if the size of the salary was tightly correlated to the size of the team, we would see women's track coaches outearning men's track coaches by a similar order of magnitude (instead of only ~2% more). It's likely that other factors are entering into the equation, and it's hard to ignore the likelihood that sexist assumptions about the relative value of men's sports is coming into play.

Women's Wrestling in Demand at Colleges

Today's New York Times reports on the demand for college wrestling programs for women, driven in part by the inclusion of women's wrestling as an Olympic sport since 2004. The article notes that over 5,000 girls wrestled in high school in the 2006-07 school year, but that only eight colleges offer varsity-level women's wrestling teams, and that three of those eight have started in the last year.

Some of the new programs are being developed by small colleges that see women's wrestling as a way to increase revenue through tuition dollars of student-athletes who would probably have chosen a different college but for the existence of a wrestling program. The article then speculates as to why women's wrestling has not gained more traction with larger colleges. One thought: (you guessed it!) Title IX. Mike Moyer, executive director of the National Wrestling Coaches Association and a "critic of Title IX," asserts that colleges have limited resources, and because wrestling is a sport with a team roster of only 20-30 students, if a college is trying to increase the participation numbers of women to comply with the proportionality prong of Title IX, it would likely choose to support a sport like rowing, which can carry a roster of up to 60 people.

Terry Steiner, USA Wrestling’s women’s national coach, and Michael Burch, an assistant men’s wrestling coach at Brown, offer a different explanation: colleges not feeling entirely comfortable with having women play such a high-contact, injury-prone sport. Burch notes, “In general, there’s this resistance to the personification of women as aggressive....We’re O.K. with women who can work hard and hustle out on the field.” Wrestling, he adds, is “another step in the evolution of egalitarian thinking.”

Empirical Study on Gebser's Effect on Sexual Harassment Cases

In 1998, the Supreme Court held in Gebser v. Lago Vista School District that educational institutions could be liable for sexual harassment by its employees only when the institution responded with deliberate indifference to ongoing harassment about which it had actual notice. In the current issue of the Richmond Law Review, student author Justin Paget evaluates the claims of Gebser's critics that the Court's refusal to apply a vicarious liability standard foreclosed remedial options for victims of sexual harassment in an educational setting. Paget compares the the number of times lower courts granted schools' motions to dismiss sexual harassment claims in two one-year periods, one pre-Gebser and one post-Gebser period. He observes that the dismissal rate did not dramatically increase with the adoption of the actual notice/deliberate indifference standard: schools won 10 out of 25 (40%) of their motions to dismiss in 1997-1998 (pre-Gebser) and 15 out of 29 (51.7%) of their motions to dismiss in 2006-2007 (post-Gebser). While it's clear that Gebser has some affect on the likelihood of plaintiffs surviving summary judgment, Paget concludes that this data -- namely, that post-Gebser, plaintiffs still survived motions to dismiss 48% of the time -- challenges the critical assumption that Gebser had a serious affect on the outcome of sexual harassment cases.

Interesting observation, but I wonder if these results are potentially explained, at least to some extent, by Gebser's deterrent effect on potential plaintiffs who would have sued had the Court adopted a vicarious liability standard instead. Since these additional phantom plaintiffs would have also presumably lost at the pleading phase in the post-Gebser era, Paget's 51.7% victory rate for schools may be artificially low.

Student Argues Against Title VII's Application in Title IX Sexual Harassment Cases

In an interesting Comment in the Maryland Law Review, student Michael Buchwald argues that, owing to statutory differences and contextual differences between education and employment, it is inappropriate to import Title VII's "severe and pervasive" standard for employer liability to harassment cases in the education setting. Buchwald makes the case that Title IX requires educational institutions to "take a more proactive approach in identifying and prohibiting sexually harassing conduct" than Title VII requires of employers. Moreover, such proactivity is warranted "because of the trust and natural imbalance of power that exists in the teacher-student [and coach-athlete] relationship." He points out that relaxing the burden in this way "will not overly expose educational institutions to liability" because educational institutions would still only be liable for their own failure to act appropriately in response to notice of ongoing harassment.

Citation: Michael Buchwald, Sexual Harassment in Education and College Athletics: A Case for Why Title IX Sexual Harassment Jurisprudence Should Develop Independently of Title VII, 67 Maryland Law Review 627 (2008).

AAUW Report Debunks "Boy Crisis"

The American Association of University Women released this study on Tuesday about gender differences in educational achievement. The study, titled Where the Girls Are: The Facts About Gender Equity in Education, examines girls' and boys' performances on national standardized tests and other academic indicators. Its conclusions largely debunk the "boy crisis" we've been hearing so much about. Here are some of its major points:

• Like girls' test scores, boys' scores are on the rise, a fact that by itself challenges the misperception that girls' academic success is coming about boys' expense.
  

• Though college students of nontraditional age are predominately female, men and women who enroll in college right of out high school are doing so at relatively equal rates.

• Differences in race and family income correlate significantly with disparities in test scores, while test score differentials between boys and girls vary with race, family income, and subject matter. For example, the general claim that girls outperform boys on standardized reading test is only significant with respect to white students. Boys outperformed girls on the math and verbal sections of the SAT, but this advantage is concentrated largely among students of lower income.
  

• When gender is viewed in isolation of other factors, the gaps that do exist are small and long-standing. For example, while girls do better on standardized reading tests, this has been the case since the test was first administered in 1971! And for the last 30 years, that gap has either narrowed or stayed the same. Moreover, this advantage favoring girls is limited to standardized reading tests, as boys enjoy a slight edge on standardized math tests and on both sections of the SAT.
  

The absence of evidence that boys are suffering across the board, and the existence of large discrepancies by race and family income, show that recent efforts at educational reform in the form of single-sex classrooms is misdirected. Single-sex education is problematic not only because it unnecessarily imposes gender segregation that perpetuates stereotypes about appropriate interests and behaviors among boys and girls, but also because it diverts support and attention from the African-American, Hispanic, and low-income children whose education actually is at risk.

Via the New York Times and the National Women's Law Center blog.

FGCU Files A Lawsuit of Its Own

The National Law Journal has this account of Florida Gulf Coast University's efforts to enjoin former general counsel Wendy Morris from releasing information about the university that it claims is protected by the attorney-client privilege. Morris, we've noted, filed suit against FGCU in April, claiming that she was discharged in retaliation for encouraging the President to investigate allegations of Title IX violations within the university.

Experts interviewed by the Journal say FGCU's case is weak because the Florida Bar Rules of Professional Conduct contain an exception to the attorney-client privilege rule for lawyers who are suing their former employers or need to defend themselves. To qualify for the exception, Morris need only show that the information she's revealed in her complaint or other public sources is "germane to her suit" -- as opposed to extraneous information whose only purpose of to embarrass FGCU.

I've read Morris's complaint, and while all it says should embarrass FGCU, it's certainly germane to her retaliation suit.

What people are saying: Arizona State

Even as classes wind down and students head back from whence they came [unless you're on the softball team in which case you're headed back to campus to host a Super Regional (congratulations!)], the discussion at Arizona State over the recent athletic department cuts heats up.

The inevitable back and forth has begun. Unlike other institutions (ahem, JMU), ASU is not blaming Title IX for the cuts. As I said a week ago, school administrators have cited budget reasons for the cuts. And in keeping with federal law, ASU cut sports in a way that did not further disadvantage women. And some people see this (though this article cites equity as distribution of scholarships only). But others are talking vaguely about "interpretation." An interpretation that at least one guy thinks has become a "de facto quota system." Well no. ASU does is not in compliance with prong 1--which is what I assume he is referring to with the quota system comment. That means when a school chooses to comply with prong 2 or 3 (we're not sure which ASU cites) it cannot cut a viable women's team because it would result in (prong 2) not expanding the women's program or (prong 3) not meeting the interests and abilities of the underrepresented sex.
There is also evident a certain amount of fear about the future as the percentage of women attending college continues to grow. The "predicament of athletic directors...becomes ever more impossible" allegedly.
This sentiment and also this short piece, that initially seems to express support, indicates some problems in people's thinking. Erin's post yesterday about accounting practices addresses one of the issues briefly brought up: cost of adding women's teams. Athletic director Mark Brand noted to a reporter that the addition of women's soccer in 1996 and women's water polo in 2002 brought the department into compliance but "hurt the department economically" according to the article. Anyone want to guess the costs associated with recruiting and keeping an ASU football player versus a female soccer player? Or the costs of their respective facilities?
The commercial mindset (so intertwined with the patriarchal one) results in the idea that it's a "predicament" when women want to actually get their share of the resources of (some of which they pay for through tuition and fees) and benefits from an educational institution.
So when a male wrestler asks if not cutting a women's team is "a Title IX thing"? You can say, yes--it's also known as fairness. Isn't that one of things athletes are allegedly learning through sports--the concept of fair play?

NCAA Releases Report on Athletic Department Profitability

The Chronicle of Higher Education reported last week that the NCAA has released a report on the finances of college athletic departments. The report is notable because it is the first time the NCAA has broken out "allocated" revenue (money the department gets from the institution itself) from "generated" revenue (money that it gets from outside sources, such as ticket sales and private donations) in reporting on the profitability of athletics. Past NCAA reports as well as government data fail to make this crucial distinction, and this fuzzy accounting has obscured the true cost of college athletics.

When you don't count institutional subsidies as revenue, only 17 out of 300 Division I program (5%) were profitable during the 2004-2006 period that was the scope of the study. 16 of these programs were in the Football Bowl Subdivision (formerly, DI-A). Moreover, DI institutions' expenditures rose an average of 23%, outpacing the increase in revenue, which rose 16%.

Why is this important and what does this have to do with Title IX? The new report is important because it begins to dismantle the common misperception that college athletics can generate "profit" for the institution, which is to blame for the epidemic of profit-seeking that has unmoored college athletics from its educational mission. Among other problems the commercial mentality has caused (commodification of athletes, low graduation rates, etc.) it has also incited an arms race of spending on state of the art facilities and other amenities that are designed more to help recruiting than to contribute to a meaningful student-athlete experience.

To be sure, some of this spending trickles down to sports that do not operate in profit-seeking mode, a category that includes nearly all women's sports. The Chronicle gives some examples "state of the art facilities for sports that have no chance of recouping the costs of those structures" like softball, swimming, and soccer. This statement illustrates the problem with the commercial mentality of sport and why it is bad for women. The ability to "recoup costs" is inconsistent with not-for-profit, educationally sponsored athletics. This irrelevant consideration also results in a spending bias against sports that happen not to appeal to the public, which, unfortunately includes nearly all women's sports. The so-called profit sports still receive the lions share of the money. And the minority of funds that do wind up in "state of the art softball fields" are usually blamed as the sole source of economic strain that causes universities to cut teams, a burden borne largely by men's teams (but only because women are underrepresented in the first place). This situation creates backlash against Title IX and women's sports and alienates women's sports from its natural allies in men's sports like wrestling.

I have no optimism that colleges will change their paradigms out of concerns for the educational mission of sport. But rational administrators, confronted with the reality of the low likelihood of turning a profit, should think twice before entering into or sustaining a commercial mentality. Athletic departments need to accept their role in not-for-profit education, and spend accordingly --in a manner proportional to the value of sports to the students themselves, sacrificing "state of the art" in select sports in order to more equitably support a wider array of student-centered athletic opportunities.

Retaliation Cases Make Page 1 of USA Today

Tuesday's edition of USA Today raised the public profile of several retaliation cases we've followed extensively on the blog. The primary piece focused on the Fresno State plaintiffs -- Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein -- whose lawsuits generated multi-million dollar verdicts and settlements in the past year. The article calls the Fresno State cases "part of a series of lawsuits that have landed before courts since the U.S. Supreme Court ruled in 2005 that whistle-blowers who allege retaliation in Title IX cases can sue for monetary damages." Along with other, similar cases "from Hawaii to Florida" they "reflect the ongoing tension over the law that bans sex discrimination at schools receiving federal funds."

Other, related pieces provide a timeline of events at Fresno State, a focused piece on the discrimination Lindy Vivas experienced at Fresno State, a separate article about Johnson-Klein's trial and astounding jury verdict, and an interview with Karen Moe Humphreys, the former Berkeley swim coach whose retaliation case settled for $3.5 million, and an article about a gender equity complaint against the University of Southern California that has been under investigation for 10 years.

[thanks, D.C.]

Henin and Sorenstam Retiring

Tennis star Justine Henin and golf star Annika Sorenstam both recently announced their retirements. The story was covered today on National Public Radio's Morning Edition, with the commentary that although the sports of tennis and golf will miss these two athletes, the advent and success of Title IX has ensured that there is no dearth of exceptional women athletes coming up through the ranks in these two sports (or a host of other sports, I would add).

NYT Profiles Women's Football

Women play football. If you didn't know that, read yesterday's New York Times.

In fact, there are more than 80 tackle football teams for women, all across the country. Many are affiliated with either the Independent Women's Football League or the National Women's Football Association.

The Times article profiles Jennifer Blum, who has played for the IWFL's New York Sharks since the team's inception in 2000. Blum is a New Jersey attorney, a former American Gladiator, and a 2002 alumna of Western New England College School of Law (how I wish that last fact had made it into the article!) As a kid, she fought and won a lawsuit to be able to play on the boys' all star community soccer team. Blum and her teammates seem aware of their role model status, working with the NFL's New York Giants to offer football clinics for girls. Blum's teammate, QB Karen Mulligan says they are "letting younger girls know this is something they can do."

And indeed, girls legally can play football -- though, technically, Title IX exempts schools from letting girls go out for boys teams in contact sports. But there are judicial decisions that rely on the Constitution's Equal Protection Clause to require community and other publically-sponsored football programs to let girls try out for boys' teams. Moreover, under Title IX, a school that does not offer athletic opportunities to girls in proportion to their enrollment (and most don't) can't easily turn down a request from female athletes to start a new team when there is sufficient interest and ability among the students and a reasonable likelihood of competition. The reasonable likelihood of competition would be an obstacle at first, but once the idea catches on in a few places, schools can no longer use that as an excuse. This scenario doesn't seem far fetched to me, as girls' lacrosse and hockey -- both nonexistent here in New England fifteen years ago when I was in high school -- seem to have followed this very pattern.

Could football be next? For those who hope it is, it certainly helps that there are women like Blum who are playing football, sharing their love of the game with girls, and receiving coverage in the New York Times. Now if only we could watch the Sharks play on ESPN...

[thanks, Sam!]

Arizona State budget issues lead to cuts

In an effort to fully fund and support its student-athletes and sports teams, ASU has decided to cut three sports: men's tennis, wrestling, and swimming. ASU had been carrying 22 sports--quite a few for a big-time DI program. Now they are down to 20 (they are keeping men's diving which had been combined with the swim team). The decision seemed swift and firm--probably a good thing in stemming backlash--though signs indicate that an uproar is inevitable. The VP of Athletics decided that cutting teams was preferable to taking away bits and pieces from all teams. No one has ruled out the possibility of the cut teams raising enough money for endowments but in an effort to be fair to student-athletes and give them an opportunity to transfer, the department opted to announce the cuts before fundraising began.
No one at ASU has mentioned Title IX. And rightly so. But members of the local wrestling community have already spoken out and blamed Title IX.
Said one wrestling booster who was particularly irate because he had hoped that ASU would never use Title IX as an excuse to cut wrestling (they haven't, by the way), "all these schools have a book on how to drop sports."
I wonder if that book includes instructions on how to deal with all the anti-Title IX backlash.

Vaughn Joins Lawsuit Against FGCU

It is only our good taste that keeps us from keeping a little thermometer icon in the corner and raising the mercury every time someone files a gender discrimination lawsuit or complaint against Florida Gulf Coast University.

The Trial Lawyers for Public Justice announced yesterday that former women's golf coach Holly Vaughn has joined Jaye Flood's pending lawsuit against FGCU. Like Flood, Vaughn alleges that she was retaliated against for pointing out athletic department's favoritism of men's sports and male coaches. Vaughn complained about such disparities in such things as office space, the autonomy to select assistant coaches, and the option to accept more duties in exchange for full time status. According to the complaint, Athletic Director Carl McAloose told her, "If you don’t like it here, you can get the hell out." Then, after Vaughn assisted former Interim Athletic Director Merrily Dean Baker gather and present evidence of systemic discrimination within the department, she received a negative performance evaluation, whose baselessness was corroborated by an external investigation. The conditions of her employment forced Vaughn to resign last fall.

Between this lawsuit, that of former general counsel Wendy Morris, and a grievance by former assistant softball coach Gina Ramacci, the tally in our imaginary thermometer is at four. Do I hear five?

The media support that Title IX doesn't really need

We comment on quite a few editorials that invoke Title IX. And we let, believe it or not, many just go by with a sigh and a shrug.
But our very patient colleagues at the John Curley Center for Sports Journalism at Penn State have poured through three years worth (2002-2005) of editorials on Title IX in a recent study on how writers discuss and frame the law and its application.
The findings should not surprise anyone who is paying any attention. Despite the liberal rhetoric, despite what looks like support for gender equity, many editorialists continue to frame Title IX as beneficial to women and girls (that's the "support" part) but detrimental to men and boys. And as the study's authors state, such "faulty assumptions" will have long-term (and I would argue short-term as well) effects on the viability of the law.

NYT on Girls and Sports Injuries

The New York Times magazine devoted its main story this week to the rate of injuries for girls playing sports such as soccer, and how the injury rate is startlingly higher than that of boys. It's a long and interesting article that offers a lot to discuss, and this blog post is just a starting point for discussion of the piece and the issues that it raises.

The article focused largely on high school girls playing soccer, and how the rate of serious knee injuries is about five times than of boys. The article explains some of this differential through the biological changes that occur when girls go through puberty, such as ligaments becoming looser in order to afford the body more flexibility, which in turn leads to knee and ankle injuries at higher rates than for boys, whose ligaments are more rigid, which helps keep muscles and bones in place. There also seems to be a growing concern over these injuries as the number of girls and women playing high school and college sports has increased dramatically in the last 35 years since Title IX has been in effect.

Overall, I thought the message of the article was a good one -- if girls are engaged in sports that boys have traditionally played, and the play of those sports requires movements and motions that are perhaps geared toward the way boys' bodies often develop, then we should be aware of the potential for higher injury risk to girls and take preventative measures, such as specific warm-up exercises that have been helpful to strengthen the knees and improve form, to try to reduce risk of injury.

My concerns about the article relate to its premise that people are either blindly pushing for girls to play sports to "even the playing field" with boys, without regard to potential injury risks (described in the article as "hard-liners"), or they are concerned about girls' health and want attention drawn to the disparity in injury rates. What about having it both ways? There are many of us who would like to see more encouragement, support and opportunity for girls and women to play sports, AND who would like to see more health research regarding injury rates and better ideas to prevent those injuries.

The second concern is related to the tone of the piece. The cover art, of a girl with a bandaged head being bonked on the head with a soccer ball, with the words "Hurt Girls" above it, seems to diminish the female athletes, and at the same time not give a second thought to boys who suffer serious injuries in sports. I am a firm believer that health research ought to take gender into account, when appropriate, to analyze problems and develop potential solutions, and we shouldn't just lump knee injuries for boys and girls into the same category when there's evidence that the problem ought to be treated differently. However, the article seemed to be editorializing as to whether it was appropriate for girls to play "rough" sports where they might get hurt, whereas we accept the idea that boys "play rough" and that their injuries are just part of the game (another NYT article discusses the knee injuries of professional football players, and how it's just the price that athletes pay for being able to play the game they love).

Coeur d'Alene High Schools Violate Title IX

Last fall we noted that OCR had reopened an investigation against the Coeur d'Alene (Idaho) school district after an anonymous complainant came forward with new evidence to support a previously dismissed claim of Title IX violations in athletics. We said, "the administrators in Coeur d'Alene seem confident this new information will not alter the initial finding of compliance."

Turns out the administrators were wrong. The Coeur d'Alene Press reported Friday that OCR has determined that the district violates the Title IX requirement that schools provide an equitable number of athletic opportunities to boys and girls, as measured by one of three prongs. The district is not eligible for compliance under the first prong, substantial proportionality, because the percentage of athletic opportunities for girls (39%) is much less than the percentage of female students (48.4%). The district did not satisfy the second prong, which requires a history and continuing practice of expanding athletic opportunities for girls, as the last time a girls' sport was added in CDA, someone named Carter was president. Last, the district failed the third prong because both high schools in the district turned away girls from the volleyball program in sufficient numbers to have fielded another, competitive team. Under prong three, when girls are underrepresented in athletics and when the school has not been proactive about adding girls sports, the school is obligated to ensure that there are at least as many opportunities for all the girls who are interested and able to play competitive sports. The disappointed volleyball players prove that the district had not done so.

OCR's report also contained a finding that the district does not provide adequate support to the girls' swim teams at CDA and Lake City High Schools.

The district has until May to voluntarily comply. The article notes that one of the high schools has already added another volleyball team, so the district is perhaps taking steps in the right direction.

[thanks, H.]

McCain gets another "fact" wrong

Not much attention is being paid to John McCain's campaign these days. But occasionally we get to hear about some misinformation the Republican candidate for president has been perpetuating, usually involving some confusion over Iran versus Iraq. But this time he's really done it:
The U.S. Department of Education under President Clinton took liberties in interpreting the law and without debate determined that universities must fund men's and women's sports programs in proportion to the ratio of male to female students, or else lose federal funding for any part of the university including financial aid. In doing so, the adverse consequence of this interpretation unfortunately has been that many schools have adopted policies of strictly equal funding for male and female athletic programs. Unfortunately, many popular athletic programs have been cut because the overall amount of funding available for athletics programs will not sustain identical men's and women's programs in every sport.
This wasn't even an on-the-spot response at a news conference. USA Today writers posed the same questions to each of the remaining candidates. I guess, as I have pointed out so many times before, if sports writers across the country cannot accurately explain Title IX, it shouldn't be expected that the guy who wants to be the next leader of the country can either.
I would really like to ask McCain to list all the athletic programs that equally fund their men's and women's athletic programs. Most athletic programs do not even obtain a 50/50 split let alone a proportional one, which, technically, is okay because THAT'S NOT WHAT TITLE IX CALLS FOR nor has that ever been the interpretation under any presidential administration.
What the other candidates had to say: Obama supports the High School Sports Information Collection Act, does not support the survey policy, and believes the growing number of complaints filed with OCR is indicative of ongoing sex discrimination. Clinton's answer was a little more nebulous. She supports the continued enforcement of Title IX and disagrees with the survey policy.

PA whistleblower revealed

A few weeks ago I wrote about the then-anonymous Title IX complaint against Central Bucks School District in Pennsylvania. The superintendent, Robert Laws, was somewhat confused over who would do this and why.
Well all has been revealed. Robert Landau filed the complaint alleging inequities in facilities, practice and game scheduling. Landau is not a parent of an athlete or a former athlete in the district. He is not a coach, teacher, or administrator. He doesn't even live in the district. He is just a man who believes that women's and girls' sports, of which he is a fan, should get equitable treatment. Last year he filed complaints in two other PA school districts.
Landau began his activism in 1994 when his favorite girls' basketball team, Cheltenham, played their championship game in the high school when the boys' game was played in an arena. He got a court to issue an injunction against the boys' game and the district gave in after only three hours and agreed to hold the girls' game in the same location.
And he has been a fan and advocate ever since.

OCR has met with district representatives who have until July to file a report that will be used to evaluate their compliance.

OCR Investigation Clears Scotts Valley

In December we noted that the Office for Civil Rights was investigating alleged Title IX violations at Scotts Valley Unified School District in California. An anonymous person had complained that the high school was violating Title IX by providing female athletes, including softball players, with inferior equipment, facilities, scheduling and coaching.

Yesterday, OCR released an investigation report in which it concluded that Scotts Valley was not in violation of Title IX. According to the Mercury News, the report acknowledged "individual instances of disparities favoring males or females within the athletic program" but determined that on the whole, they "do not show a pattern of disparities or 'second class status' for either gender." For instance, "while some teams had more or better equipment and supplies, and some sports used more athlete-owned equipment, these differences were not based on the sex of the athletes. While more boys teams had full sets of uniforms than girls teams, more girls teams had warm-ups and bags than boys teams."

Regarding a separate claim that Scotts Valley should have added a freshman girls soccer team, OCR concluded that, since there was no "reasonable expectation of competition within the normal competitive region," the school did not run afoul of prong three, which measures compliance by the absence of unmet interest on the part of the underrepresented sex. It also apparently noted that the high school has a history of (in the reporter's words) "supporting expansion of athletic opportunities for girls' teams by approving new sports when there were enough students to support a [competitive] team." I'm not sure if this means that OCR found the high school to alternatively comply with prong two, which measures compliance by a history and continuing practice of expanding opportunities for the underrepresented sex. If so, this seems like a pretty watered down version of prong two, which I always understood to require schools to take a more active role in developing new opportunities that just waiting to be asked by an already-existing team.

Researchers Find Rampant Peer Harassment

The New York Times reported last week that more than a third of middle- and high-school students may be victims of sexual harassment by their classmates, according to a new study in the journal Sex Roles. The researchers also determined that sexual harassment takes an even stronger "emotional toll" on students than bullying -- a more visible and frequently-occurring form of peer abuse. Girls and "sexual minorities" -- openly gay students or those perceived to be gay -- are particularly susceptible harassment and its adverse health effects.

Title IX Sex Abuse Trial Underway in Texas

A Title IX trial commenced today in the federal district court for the Western District of Texas. The plaintiff is a former student at Bowie High School in Austin. He is suing the high school, the Austin School District, and a former color guard instructor named James Johnston, alleging that during the 2003-04 school year, Johnston made "made offensive physical contact" with him at the school and other locations, and that school district officials failed to protect him from this risk of which they should have been aware. According to the Austin Statesman-American, the school district defends that it was not aware of the student's accusations. Thus, the focus of the trial should be one who within the district knew what about Johnston and when.

See also the Houston Chronicle's coverage here.

Conference in India: Save the Girl Child

Last week, India's Ministry of Health and Family Welfare convened a national conference to "Save the Girl Child." Among the topics addressed at the conference were equal educational opportunities for girls and boys, promoting the physical and mental health of girls, and curbing the practice of sex-selective abortion (which is illegal in India, but practiced by some in order to abort female fetuses).

On the topic of promoting educational opportunities for girls, the conference organizers discussed a new government program, Dhan Laxmi, that aims to pay families who fulfill certain benchmarks for their daughters -- including getting the recommended course of childhood immunizations, completing a high school education and holding off on marriage until at least the age of 18.

Female Wrestlers' Discrimination Claim Dismissed for Lack of Notice

Now that last week's decision in the U.C. Davis wrestling case is available online, I can offer the fuller analysis I promised.

The background, briefly, is this: In 2000, U.C. Davis decided that women would no longer be eligible to participate on the wrestling team. The female wrestlers sued, alleging discrimination by the athletic department in the overall treatment of women's athletics (in terms of scholarships, access to facilities, coaching, etc.) and failing to effectively accommodate female students with an equitable number of opportunities to participate in athletics (the three-prong test). Last year, the unequal treatment claim was dismissed as untimely in an application of the Supreme Court's controversial Ledbetter standard.

Last week, the district court dismissed the remaining ineffective accommodation claim because "plaintiffs have not alleged they gave defendant notice and an opportunity to remedy any purported systemic non-compliance with Title IX." The district court relied on a 1998 Supreme Court decision, Gebser v. Lago Vista School District, which emphasized that an institution could not be liable to a private plaintiff for money damages unless it had notice of the discrimination the plaintiff faced, and an opportunity to fix the problem.

Gebser was, of course, a sexual harassment case, and its applicability in athletics context is questionable. If a plaintiff is harassed by a teacher or another student, the discriminatory conduct that can attributed to the institution itself (and thus, subject to Title IX) is its failure to take appropriate steps to protect the plaintiff and prevent the harassment from continuing. It makes sense to emphasize the notice requirement in that context, since an institution can't reasonably be expected to prevent someone else's harassing behavior if it doesn't know about it.

In the athletics cases, however, plaintiffs are alleging discriminatory conduct in the form of institutional decisions to configure its athletics program in a certain way. It doesn't make sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.

The district court cited one other case that applies Gebser's notice requirement against Title IX plaintiffs in the athletics context. That decision is Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). But from what I can tell, that is the only other one. I hope the plaintiffs appeal this decision. Perhaps we'll see a circuit split.

Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2008 WL 1860031 (E.D. Cal. Apr. 23, 2008).

Alhambra High School Softball Team Celebrates New Field

Four years ago, softball players at Alhambra (California) High School sued the Alhambra School District, challenging the disparity between their crappy softball field and the boys' new $900,000 baseball complex as a violation Title IX. After two years of litigation, the District settled, agreeing to construct a two new softball fields with "the same amenities and maintenance as the baseball fields" available to the boys.

On Tuesday, the softball team finally played their first game on the new field. The original plaintiffs, their lawyers, and school officials were all in attendance for a special ceremony to open the new field. KABC in Los Angeles covered the story on the evening news.

According to their lawyers at the California Women's Law Center and the Legal Aid Society-Employment Law Center, Cruz v. Alhambra School District was the first high school Title IX case in California.