Sexual harassment in the digital age

I have to admit that the first time I heard of sexting (the sending of sexually suggestive--or explicit!--text messages) was on Glee a few weeks ago. The subject was treated with the amount of levity that is appropriate for the show, but apparently sexting is not always very gleeful for those involved.
In fact, it often leads to harassment and in two cases in the past year has resulted in the suicides of two teenage girls. The article linked above does a very good job of outlining the harassment involved and potential remedy under Title IX, including the criteria established by the Supreme Court in 1999.
The parents of one of girls is indeed suing the school for failure to remedy the harassment their daughter experienced after sending a text containing a nude photo of herself to her then boyfriend. The article out of a Cincinnati paper makes no mention of Title IX, though I assume the law is a factor given that the case was dismissed from state court in order to move it to federal court.
In this case, the school was made aware of the harassment, so it seems fairly straightforward--at least given when I have read of the case to this point. But in this digital age, I wonder both how much harassment is going on that officials never become aware of because they do not even have an opportunity to see it, (though previous harassment cases have indicated that some people fail to see what it happening right in front of them) and also whether we may see a sort of "they asked for it" defense when it comes to sexting. It may not be as blatant as in past times (and present!) when women who have been raped or assaulted have been subject to questions about their moral character, behavior, and sartorial choices, but I would not be surprised to see it emerge in cases of sexting when girls are sending messages and photos and thus assumed to be willing participants in the process.
And finally, does this new medium create more harassment and/or even greater under reporting of harassment?
I see many issues arising from such cases. It will be interesting to see both how schools and the courts address them.

Study Uses Title IX to Show Effect of Athletic Participation on Educational Attainment

Via Gregg Easterbrook's recent column at ESPN.com, which criticizes college athletics for failing to seriously incorporate an academic mission, I learned of this forthcoming article by Wharton School professor Betsey Stevenson (draft here), which studies the effect of athletic participation on educational and professional attainment. Stevenson uses the early years of Title IX to simulate a laboratory designed to test for the causal relationship between athletics and academics and avoid the problem of selection effects that is typical of such studies. (Selection effects means that the merely correlating athletic participation and educational attainment doesn't tell you whether one influences the other, or whether it just happens to be that the same kids who already do well in school are those who have the self-confidence, parental support, lifestyle, or whatever, that makes them select into sports.)

Between 1972 and 1978, the rates of girls' participation in high school athletics rose from 1-in-27 generally, to 1-in-4. She then measured other outcomes, such as college attendance and employment, for women who would have been in high school during that time. By comparing those outcomes to those for boys, whose athletic participation rates held constant during the same time, she demonstrated that athletic participation contributed to, rather than just merely correlated with, those outcomes. Specifically, she concludes that every 10% increase in girls' athletic participation lead to a 1% increase in college attendance, and a 1-2% increase in women's participation in the work force.

Stevenson's research, forthcoming in the Review of Economics and Statistics, thus provides support for continuing to expand athletic opportunities for girls as well as boys. It also supports Easterbrook's conclusion that college athletic departments should be promoting -- rather than undermining -- the benefits of sports participation in the classroom.

UNCC decides to add football

The trustees at the University of North Carolina Charlotte have decided to go forward with the plan to add a football team. The team will make its debut in 2013.
This is also a good time to mention that Hofstra University cut its team last week, shortly after Northeastern University announced it was cutting its team due to the expenses associated with the team and the inability to properly upgrade facilities.
And in the wake of these two announcements there was a fair amount of desperate "football is dying" talk.
But it seems UNCC has granted some people's holiday wishes and brought peace on earth to football-loving folks.
It will not be a cheap endeavor, however. The stadium will cost $40.5 million and the student body is slated to bear most of the financial burden with fees predicted to be raised by $320 over the course of the next few years. This number could go down, according to the Chancellor, if private donations increase. Of course, by this logic, they could also go up if donations go down. I mean they say the recession is over, but...
It was not an uncontroversial decision as you might imagine--especially because of the above-mentioned economic uncertainty. But it had many proponents as well.
The decision is not final final yet. It has to be approved by the Board of Governors in February.

Invitational in DC to focus on athletics and equity

We can tell there has been the proverbial changing of the guard in Washington in many ways including the upcoming and inaugural Title IX Holiday Invitational and Conference Classic. Part of its goal is to "celebrate the fact that the Nation’s Capitol is focusing on raising gender equity and program parity with national norms and best practices."
The conference part of the program is on Sunday, December 27. Registration for adults is $15 and only $2.50 for students with IDs. The conference is being facilitated by Phyllis Lerner, a Title IX educator and public policy expert.
The basketball tournament runs from the 28th until the 30th and features some of the best girls' basketball teams in their respective states.
According to the website, the goals of the conference and invitational are to :

Showcase: the academic and athletic accomplishments of our visiting state champions;
Increase: awareness of, interest in and access to the benefits of school based team sports from the elementary to post secondary level;
Educate: parents, players, coaches, administrators and legislators about the need for increased Title IX awareness and compliance.
Learn: about the tools and techniques used to attract and produce academic and athletic champions (national norms and best practices).
Empower: female student athletes, coaches and parents to advocate for program parity and Title IX compliance.

Article Examines Shortcomings in Title IX's Pregnancy Regulations

An article in the latest edition of the Indiana Law Review examines, criticizes, and offers suggestions for improvement to the regulatory provisions that ensure Title IX's protections extend to pregnant students. Author Kendra Fershee, a law professor at UND, first describes and provides historical context for the regulations' main components. First, they ensure pregnant students have the right to stay in school, which is important in light of the historical, pervasive practice of expelling pregnant students. They also provide that pregnant students have the right to choose whether to attend an alternative program during their pregnancy, a provision that counters the practice of hiding pregnant students away in alternative programs. Last, the regulations require that schools offer pregnant students an education equal in quality to that received by their peers, as many then-existing education programs for pregnant students had a limited focus on life skills.

Unfortunately, Professor Fershee explains, the generality and vagueness of the regulations contributes to lack of regulatory oversight and enforcements that allows pregnancy discrimination to persist. She argues that the Department of Education should strengthen the regulations in a number of ways. First, the regulations should provide a mechanism for gathering information about pregnancy in schools and schools' efforts to comply with Title IX. She suggests that thee regulations should require schools to keep and report statistics on the number of pregnant students, dropout rates, transfer rates to alternative programs, and graduation rates. She also recommends that the Department devise an fast-track process for investigating claims of pregnancy discrimination, which would promote enforcement by taking into account the temporary nature of the condition of pregnancy and discrimination resulting from it. Finally, Professor Fershee recommends that the Department conduct routine reviews of schools' policies, practices, that it publish and enforce educational standards to ensure the equity and quality of alternative programs, and that it provide guidelines to school officials on counseling pregnant students.

Citation: Kendra Fershee, Hollow Promises for Pregnant Students: How the Regulations Governing Title IX Fail to Prevent Pregnancy Discrimination in School, 43 Indiana L. Rev. 79 (2009).

Title IX in the comics

A few summers ago I spent some time hanging out in the archives at Radcliffe College looking at the papers from the Women's Equity Action League, a group that was instrumental in fighting for the passage and enforcement of Title IX in the 1970s and 80s.
I was surprised, but pleased, to see several Peanuts cartoons included in WEAL's files and on some of their educational materials on girls in sports. (I am ignoring here the likely copyright violations.)
Turns out Charles Schultz was a strong supporter of Title IX and girls in sport. And the latest collection of his strips illustrates (pun intended) that. It is a collection of the comics from 1973 thru 1974 and includes a very nice introduction by his friend Billie Jean King. Schultz and BJK bonded over Title IX and Schultz would even drop BJK's name in his strips from time to time. (It was a sign that they needed to touch base.)
So if you are a Peanuts fan, check it out.

The older generation

I saw this piece from WBUR, one of Boston's NPR affiliates, and thought I would post it as a kind of tribute to all the older athletic women in my life with whom I have had the privilege and pleasure of cycling, and playing softball, tennis, and golf with and as well as just hangin' with.

And because when I was at the Gay Games in Chicago a few years ago I watched some of the 60+ women's b-ball tournament and was really inspired. So I think more people should know that older women are active and actively creating their own sporting opportunities. Many may not have benefited directly from Title IX, but they certainly are advocating on their own and others' behalf in the spirit of Title IX.

Harassment cases roundup

Here is a roundup of recent judicial decisions in Title IX harassment cases:

• Dominican College in Blauvelt, New York, was unsuccessful in its motion to dismiss a claim alleging that the College's response to charges that one of its students had raped another student, the plaintiff's daughter, who later committed suicide, violated Title IX. The court held that a jury could find that the College's decision to defer the matter entirely to police constituted "deliberate indifference" for liability under Title IX. McGrath v. Dominican College, 2009 WL 4249122 (S.D.N.Y. Nov. 25, 2009).

• A federal judge in South Carolina dismissed a plaintiff's claim against Charleston College that it failed to protect her from sexual harassment by a professor. Specifically, there were no allegations suggesting that college officials knew about the harassment while it was going on, or that they knew about any past incidents of harassment committed by the professor. Once the college found out about the harassment, it took action against the professor, immediately conducting an investigation and eventually disharging him from his tenured position. Ray v. Bowers, 2009 WL 4111576 (D.S.C. Nov. 23, 2009).

• A plaintiff's complaint based on a high school gym teacher's harassment of cheerleader, survived the Clarksville Montgomery County School System's motion to dismiss. The judge held that the plaintiff sufficiently alleged that the principal had adequate notice of the teacher's inappropriate relationship with another cheerleader, and his failure to respond to that incident put the plaintiff at risk. Doe v. Farmer, 2009 WL 3768906 (M.D. Tenn. Nov. 9, 2009).

• A male student, who had been sanctioned after the university found he had sexually assaulted a female student, sued the University, arguing that the disciplinary procedures and sactions were discriminatory on the basis of sex under Title IX. A federal court dismissed this claim, holding that the plaintiff's did not allege that the university's investigation or sanction were motivated by bias against the plaintiff on the basis of his sex. Doe v. University of the South, 2009 WL 3297288 (E.D. Tenn., Oct. 10, 2009).

Mesa Coach Wins Damages in Retaliation Case

A jury in San Diego Superior Court found that Mesa Community College retaliated against former basketball coach when it terminated her position for speaking out against inequities in women's athletics, in violation of Title IX. Lorri Sulpizio's complaints had triggered an investigation by the Office for Civil Rights, which lead to an agreement by the college to remedy disparities in support and resources between men's and women's teams.

However, the jury did not find that the college discriminated against her directly on the basis of sex and sexual orientation, as she had alleged. This is not entirely surprising to me, given how hard it is for discrimination plaintiffs to successfully prove that an employer was motivated by bias. I did not witness the trial, but I am guessing the jury heard evidence that athletic director Dave Evans fired Sulpizio and her partner Cathy Bass, an assistant coach, soon after having been identified in a local news story as domestic partners. But the timing alone does not demonstrate that Evans acted with bias. The jury may have also may have heard testimony that suggested Evans had in the past asked questions and made derogatory statements about the sexual orientation of Sulpizio, given that these allegations are contained in the complaint as well. However, the jury could have found this evidence insufficient to support a conclusion that Evans was biased at the moment he fired his lesbian coaches. I think that the jury's finding that the college retaliated but did not directly discriminate against Sulpizio suggests that a retaliatory mindset may be an easier one to prove, given that it is response to the plaintiff's demonstrable conduct, i.e., complaining, whereas direct discrimination requires a link between the response and the plaintiff's membership in a particular group.

The jury awarded her $28,000 in damages. Attorneys fees and costs are not included in this award. While this award seems paltry in comparison to the million dollar jury verdicts in retaliation cases against Fresno State in recent years, the difference does not so much reflect a lesser culpability of Mesa than it does the degree of economic harm to Sulpizio that the retaliation caused; $28,000 is the equivalent of a year of Sulpizio's salary.

ESPN Profiles Case of Pregnancy Discrimination in High School Sports

Via Womenstake (among other blogs) I learned that ESPN recently profiled a case of discrimination against a pregnant high school athlete in an episode of Outside the Lines. Mackenzie McCollum was a star setter on her high school volleyball team in Fort Worth, Texas, until. But when the school officials learned that Mackenzie is pregnant (from the parent of a teammate in whom Mackenzie had confided), they refused to let her play until she secured clearance from a doctor, citing a district policy. Her coach subsequently informed her team that she was pregnant, in violation of student privacy law. After Mackenzie produced a doctor's note clearing her to play, her coach was forced to let her back on the team, but he cut her playing time in half. Mackenzie and her mother believe that the district selectively applied the policy, and that the coach outed her reduced her playing time, in discrimination against her and in attempt to shame her because of her pregnancy.

Mackenzie's mother filed a complaint with the Department of Education's Office for Civil Rights, charging the Fort Worth school district with violating Title IX. An investigation is now underway. Mackenzie is also represented by the National Center for Women's Rights, who via its Womenstake blog add to the story that Mackenzie's missed playing not only caused her emotional anguish, but reduced her opportunity to impress college recruiters and compete for scholarships. NWLC also points out that discrimination against pregnant students (not just athletes) is common, and few people realize that it is prohibited by Title IX. In fact, it seems to me that the only time there is public pressure to comply with this aspect of the law is when ESPN runs an OTL special on it!

Helpfully, the National Women's Law Center has a resource page with guidance for schools and students on how to accommodate, protect, and nurture students who are pregnant or parenting. The NCAA has also addressed the issue of pregnant student-athletes, and produced these additional resources found here.

Deford addresses cheerleading

When someone I rarely see says, when I sit down for a catching-up chat, "I heard something about Title IX recently," and ponders where he heard it, it means that I probably should have posted about Frank Deford's commentary last week on Morning Edition. Deford took up cheerleading as sport and its effects on Title IX. It did not seem to have a particular angle; it was not inspired (it seems) by any one events nor did he really say anything we have not heard before on this issue. But it obviously reaches more people than when the issues are presented in stories that we read on a regular basis such as the recent kerfluffle in Florida.
So in case you are keeping track of the pros and antis, Deford seems to be against counting cheerleading as a sport. Here is his commentary.

Fundraising at Issue in Complaint Against Oregon School District

The Office for Civil Rights is currently investigating an anonymous complaint against the Lebanon (Oregon) Community School District for sex discrimination in its athletics program. District officials told the local press that the complaint addresses the fact that the softball team does not have an all-weather batting facility like the baseball team, and that the boys' baseball team, but not the softball team, travels to Arizona for spring break. The district also stated that the baseball team "built its own batting cage" and "raised money on their own to take the trip" -- suggesting that it might be considering this a defense to Title IX liability. However, the source of funding will not likely absolve the district of obligations to provide equitable resources to girls and boys. Unless the trips or the facilities are entirely private and not part of the school athletics program (i.e., it just happens to be the case that the 2o guys on the same flight to Phoenix happen to also play for Lebanon High) then any funds raised by "the team" (read: the team's booster club) is considered a donation to the school. And while schools can accept donations and even use them for earmarked purposes, opportunities and resources still have to be equal. The school can either use other funds for equivalent perks for girls, or else decline the earmarked donation.

This seemingly harsh result is put in context by the fact that the baseball team can successfully raise funds because it is privileged to enjoy the support of parents and the community. Title IX does not require parents and communities to embrace girls' sports and help the softball team raise funds. But it does require that schools receiving federal funds do not reflect society's disparate preferences.

Is collegiate football dying?

Well if you listen to the commentary that has come with the announcement that Northeastern University has cut its football program you would think we were back in the early 1900s when football almost died a quick death due to concerns over morality and mortality.
The story on NESN (New England Sports Network) keeps running over and over. It starts with footage of Doug Flutie's Hail Mary pass 25 years ago when he was Boston College's quarterback and then shows footage of NU's women's hockey team (probably one of the few times women's ice hockey makes it to NESN) where the network found NU AD Peter Robie who made the announcement last week. But the whole story is framed around Boston football and how Boston University cut its football team (years and years ago) and now Northeastern is "following suit."
It is unfortunate when any sport gets cut--as we have noted time and time again. But the loss of NU football is not an augury or comment on the state of football. After all, as the NESN story noted, BU has done just fine since cutting its program. (I heard the other day that it offers the 2nd-most expensive undergraduate education in the country. So the lack of a football program has not hurt enrollment.)
When the story first broke, and before the panic attack, I looked at NU's numbers. The school has a 50/50 male/female undergraduate ratio and women receive 47 percent of athletic opportunities. So Title IX was not a factor in the cuts. It was truly a money issue, primarily over the cost of renovating facilities that would attract quality players in order to become competitive again.
But what I did notice was that with football gone, NU would--if it chooses to comply with prong one--be able to add a men's sport. They have women's swimming and diving already. They could add men's swimming and diving which is generally considered a lower cost sport (they already have the pool after all!). And at a time when many eastern schools are cutting men's swimming, it might make NU a popular destination. (Note that I do not know several important factors that would influence such a decision including the current state of the swimming facilities or what kind of competition exists in NU's conference or geographic area.)
In other words, the loss of NU's football program will sting for a little bit, but like BU did, NU will move on and likely improve the overall strength of its athletic department. And football is nowhere near dying.

PA Whistleblower Profiled in NY Times

Yesterday's New York Times contained a profile of Robert Landau, a Pennsylvania man who has been filing Title IX complaints -- more than 30 -- against local school districts since his own daughter was a student athlete in 1989. We wrote about Landau last year, when it was revealed that he was the anonymous complainant who had instigated an Office for Civil Rights investigation of Central Bucks School District for discriminating against girls' teams in areas of publicity, scheduling, and equipment. The Times article notes that over the years, Landau has tackled those issues and others, including equity in the number of athletic opportunities, venue of championship games, and deployment of the school mascot. One of the things that makes Landau remarkable is that his own children are grown; his efforts are on behalf of other people's children in communities other than his own. He acknowledges that as an outsider, he is better situated to blow the whistle on gender discrimination because the threat of reprisal and backlash against students can deter them and their parents from doing the same. He is also better situated than established advocacy groups to use a more aggressive, blitzkrieg approach, since organizations must be concerned about building relationships with repeat players and might have to prioritize instances of discrimination in a wider region.

Landau may be a bombastic nudnik, but he is playing an important role in the fight for gender equality in Pennsylvania athletics. There are other rogue enforcers like Landau out there, but hopefully the Times' choice to profile Landau will inspire a few more.

Not a lot of movement in Ohio

Here's an update on the softball field situation at Chillicothe High School in Ohio. I blogged about the letter sent by the ACLU on behalf of a parent to the school district which complained about the sub par conditions of the practice and playing fields of the CHS softball team.
Not too much is happening, apparently. There's a meeting later this month to discuss the situation and the superintendent says he is working on it, and is hopeful there will be a temporary solution by the time the spring season rolls around.
In other words, not much is happening. (And I have doubts about whether anything will happen by spring given the tone I am reading in the superintendent's comments.) And I usually do not bother to report on articles which really tell me very little, except this one I found blog-worthy for two reasons.
First, the above mentioned lack of movement. It seems the ACLU's letter to the district did not shake them that much. Perhaps if someone files an OCR complaint which would subject the entire athletic program to an investigation that would get them moving. They should be grateful it is only the softball team that is complaining right now.
Second, the article spent very little time on the actual softball issues. When the writer started talking about the comparisons to the baseball facilities which have themselves been erratic due to construction, he never went back to the issues with the softball fields. It became an article about renovations to other facilities including all the football repairs that need to be done. In other words, it became a discussion, in some ways, of the economy and lack of funds but it was also about how the boys' facilities would cost a lot of repair/renovate. This kind of framework makes me wonder just how much is going to be done to improve the girls' softball field come April. Hope I am wrong.

Softball coach takes on football

Usually when we hear about a complaint filed by or on behalf of softball players, said complaint usually compares the treatment softball receives or the facilities it has access to as compared to baseball. But a recent complaint, initially filed anonymously and then admitted to by the softball coach at Theodore High School in Mobile County Alabama, compares the treatment the team get to that of the football team. Perfectly legitimate of course and we have been somewhat concerned by all the softball versus baseball references because that, of course, is not how Title IX compliance is measured.
Coach Tyler Murray seems to be a brave person to take on football in Alabama but her version of the facts is pretty compelling. OCR has already done its site visitation so a report is likely forthcoming.
Murray says that her team does not have access to the same kinds of facilities as the football team nor have they received the same portion of donations to the athletic department. The weights her team (and others worked out on) were removed from the weight room they used. They spent most of their season working out in hallways and the shower area. She alleges that 40 percent of the equipment was damaged because of the move which resulted in some of the pieces being put outside where they rusted. And when her players tried to use the weight room the football team uses, they were kicked out, she said.
After the complaint was filed, the high school converted an art room into a weight room.
Murray also noted that football coaches get paid more than other coaches. The response to this complaint was that this is a nationwide trend. Not exactly a compelling retort.
Her issues have been with her athletic director who, not coincidentally, is also the football coach. He will not comment on the complaint, only saying that he is in compliance. Murray said she had accepted that she and her team gets less, but that her tipping point was when what she had began being taken away from her.
Interestingly, the quotations from the superintendent's statement refers to the law as "Title Nine." This worries me a little. But I am looking forward to hearing what OCR found during its September visit.

DII field hockey team in NC cut

It's never good news when I pull out my calculator and head to the Department of Education's Equity in Athletics Data Analysis Cutting Tool. And this time it's bad news for Catawba College in North Carolina. According to a very brief piece in USA Today, the school has cut women's field hockey--effective immediately. It was the school's oldest women's sport.
It apparently has good reasons. The home team's field is grass which is not as desirable as the turf most other schools are playing on these days. That makes scheduling home games more difficult. Installation of turf would cost an estimated half a million dollars. Also, it appears that field hockey is not very popular in the region. There are not even enough teams in the area to comprise a conference.
Good reasons. But Catawba has a little problem with the numbers. Women comprise just over half of the undergraduate population at the school (52 percent). But they receive only 34 percent of the athletic opportunities. With the cutting of field hockey this percentage drops to 30. It is entirely possible that there are plans to add a women's sport immediately--but that was not mentioned in the articles I saw. It is also possible that the school has been adding women's sports continually and thus has a history of expanding its women's program. But this seems doubtful if women still only receive 30+ percent of the opportunities.
None of the coverage mentions players' reactions. But if they are pissed, which I imagine they are, they might consider calling a lawyer.

Illinois high school lawsuit ongoing

In Canton, IL a lawsuit brought by two parents alleging inequities between the girls' sports program and the boys' program remains unsettled. Mediation had been ongoing but the school board rejected this week the proposed settlement and thus litigation remains pending with a trial scheduled for May 2010.
According to a source the proposed terms included moving some girls' basketball games and practices to an off-site gym (which I assume is a better facility though this facility is never explained) and designate girls' locker rooms at this site as well. Eventually all girls' games would be played at the site.
Samuel Schiller, lawyer for the two parents, said he did not know why the board turned down the settlement. The superintendent only said they did not feel it was in the best interest of the district or the two girls. [Well it's actually supposed to be in the best interest of the girls' program generally--not just the two girls (and their parents) who sparked the lawsuit.]
Schiller was also, as we mentioned in a previous post about the Canton lawsuit, the lawyer for a similar case in Lewiston, IL. As Schiller mentions about Canton's refusal to accept the terms of mediation, continuing mediation and preparation for trial will only cost the district more money. It was recently revealed that the Lewiston case cost the district $102,000. The district tax levy was raised to cover the costs of that lawsuit (which ended in a settlement).
The school board is not set to take up the Canton lawsuit anytime soon. We may be into 2010 before we hear more about this case.

Title IX dads

In what is being called a love letter to Title IX, writer, editor and father Mark Schmitt penned his tribute to Title IX, his daughter, Little League and social change last week in a very nice column about the legislation in his magazine The American Prospect.
The people at Bitch magazine found Schmitt's piece compelling and blogged about it and Title IX more generally. Anna Clark included excerpts from the American Prospect piece in which we see Schmitt, an admitted sport outsider, appreciate the effects of the social change that occured in the 1970s: his daughter is now a catcher on her Little League team. This point of view--the outsider--is particularly interesting, and somewhat unique, in the discourse on girls' sports and the role of fathers. Clark cites some of this research as well: that fathers with sport-playing daughters can be vehicles for support of girls' sports. (A view I have certain issues with--but we'll save that for another time.)
What is interesting is that Schmitt identifies not as a Little League Dad but as a Title IX Dad. Title IX dads seem to understand the social change aspect of the legislation and see the broader issues. Sport dads who support Title IX are probably a little more narrow in their vision of the legislation. They see what it does for their individual daughters. We should not forget the father in Nevada who made Title IX claims when the high school athletic association attempted to move girls' soccer to its traditional season (fall) which would have put his own daughter in the awkward position of having to choose between soccer and volleyball. He was not a Title IX dad. [Not all sport dads are like this, of course.]
Clark gives us a shout-out to us and for that we are thankful. [She thinks we're fascinating--well the blog at least!] But we wouldn't be the responsible bloggers we strive to be if we didn't make one little correction to Clark's connection between Title IX and Little League. The Little League lawsuit was not a direct result of the passage of Title IX because Little League, Inc is not subject to Title IX. Certainly the passage and the lawsuit were part of the overall climate that engendered more support of girls' and women's access to sport in the 1970s.
And the women of NOW--who were integral in the lawsuit--were actually not the first to make the connection between Title IX and sports. Women's sports advocates saw the possibilities the legislation offered for increasing funding of and opportunities in women's sports in educational institutions almost immediately.

Lapchick weighs in on new NCAA president

In a recent issue of Sport Business Journal (which, unfortunately, is only available to subscribers), Dr. Richard Lapchick, who is notable for his many reports on gender and racial diversity in sport and the experiences of collegiate student athletes, has an editorial about the passing of NCAA president Myles Brand and who should take the reins.
Lapchick calls for what he believed Brand would seek in a pool of candidates for his replacement: diversity. Because the essay is not widely available, I am going to excerpt pieces of it here.

This is not to say that I hope that the NCAA will choose an African-American, Hispanic, Asian or American Indian president, or a female one, but I hope it will include the best pool of candidates, including people of color and women.
This would be a tribute to Myles Brand and an important statement to our student athletes on campus, and especially to the student athletes of color in revenue-producing sports.
[...]
The racial composition of conference and athletic department leaders does not reflect the diversity of our student athletes. In addition to having this process be inclusive from start to finish, we also encourage those on college campuses to hold open hiring practices for coaches, athletic directors and other important positions in college sport. The current racial makeup of those positions of leadership tells a one-sided story (see chart). Thus, a diverse pool of candidates for the new NCAA president would be extremely important.

Lapchick also endorses someone for the position, though. He believes Bernard Franklin, currently the executive vice-president of the NCAA is an excellent candidate to take over and continue Myles Brand's vision. Franklin is notable for being the go-to person in the organization on the NCAA's Native American mascot policies.
Other than Lapchick's endorsement of Franklin, I myself have not heard many other rumblings about potential or desirable candidates.

[many thanks for JB for sending me the editorial]

Fresno State Settles With Former Assistant Track Coach

We blogged earlier this year about Ramona Pagel's case against Fresno State, in which she claimed that the athletic department failed to renew her contract and passed her over for promotion to head coach because she advocated for equal treatment for female athletes.

Last week, this litigation reportedly settled for $300,000. Fresno State admits no culpability but stated that it settled to avoid more lengthy and costly litigation. This statement refers, of course, to the five other lawsuits filed by former female coaches and employees of the athletic department, for which Fresno State has had to pay more than $16 million.

OCR to Investigate Whether University of Kansas Athletics Discriminates Against Men

According to CollegeSwimming.com, the Department of Education's Office for Civil Rights will investigate a complaint filed against the University of Kansas last month, alleging that the University's failure to offer a men's swimming and diving team violates Title IX. The complaint, filed by an alumnus who also swam in the 1980 Olympics, specifically alleges that the University violates all three prongs of the three prong test: that men are disproportionately underrepresented in the athletic participation opportunities; that the university does not have a history and continuing practice of expanding athletic opportunities for the underrepresented sex because the last men's sport added at Kansas was golf, 73 years ago; and that there is unmet interest and ability among the underrepresented sex, as demonstrated in part by a petition to bring back men's swimming & diving.

According to data submitted by the University and publicly available on the Department of Education's website, Kansas is a rare example of a university at which men are statistically underrepresented in athletics. The gender breakdown of the student body is very close to 50/50. Yet men receive only 46% of the athletic opportunities. Even though Kansas has a large-roster football team, it only offers a limited number of additional opportunities to men, in sports of track, golf, baseball and basketball. Women have opportunities in basketball, track, golf rowing, soccer, softball, swimming and diving, tennis and volleyball. Two issues will confront OCR in investigating whether this disparity violates the proportionality prong. First, whether Kansas is accurately counting athletic opportunities, as sometimes schools engage in roster management techniques that end up counting less-than-genuine opportunities or engage in tricks like adding students onto the roster after their official numbers are turned in. Assuming that Kansas's reported numbers are accurate, OCR will then have to figure out whether a 4 percentage point disparity is close enough for "substantial proportionality" required by the test. There is no bright-line test, but OCR has in the past accepted that five percentage point difference between the percentage of female students and the percentage of female student athletes still constituted substantial proportionality. The fact that this case involves underrepresented male athletes should itself make no difference to OCR's decision to rely on that particular benchmark.

The other interesting issue OCR's resolution of this complaint would have to address is whether failing to add a team in 73 years is tantamount to failing to add opportunities for men. Generally, football program rosters have been steadily increasing, and this could constitute evidence of a history and continuing practice of expanding opportunities for the underrepresented sex. Moreover, if men became the underrepresented sex at Kansas only recently, OCR may determine that this prong does not (or not yet?) apply.

In sum, OCR has the opportunity to address many questions about the three-prong test that have only been theoretical possibilities; namely, how the three-prong test applies when the balance of opportunities tips towards women.

Jury Finds for UW in Rape Case

Here is an update to yesterday's post about the trial against University of Washington regarding its handling of a student's rape charges against a football player. While jurors apparently viewed the UW's conduct as constituting deliberate indifference, they did not agree that the plaintiff satisfied another element for institutional liability under Title IX for peer harassment. According to the Seattle Times:

Jurors said they found for the UW, by a 10-2 vote, based on narrow legal ground, determining that the plaintiff's educational opportunities had not been sufficiently harmed by the university's handling of her complaint. She remained in school, kept a high grade-point average, and graduated.

When asked Thursday how the UW handled the case, one juror said: "You want a quote? Piss poorly."

The article doesn't say what evidence the plaintiff put forth to demonstrate that her educational opportunities had been harmed. Presumably, given the sentiments of the jury (the article says they tried to read a statement excoriating the university, but the judge wouldn't let them) even if she had made a modest showing they would have accepted it as satisfying the element for liability. They could have then factored it their perception of only minor harm to their calculation of damages.

More Universities Add Competitive Cheer... I Mean, "Team Stunt and Gymnastics"

A recent article in Athletic Business profiles the apparent trend in college sports -- competitive teams in an activity formerly(?) known as cheerleading, now, at least in some circles, team stunt and gymnastics. Competitive cheer is nothing like sideline cheer, or the predominantly sideline cheerleaders who perform a competitive routine once a year at Nationals. Competitive cheer teams compete against each other in structured meets over the course of a season. AB describes it this way:

Team and individual stats will be compiled during four compulsory stunting rounds, followed by each team's uniquely choreographed final routine judged for its degree of difficulty and the ability of its performers to "hit" their skills passes and limit their "bobbles."

"It's like floor routine in gymnastics but with 20 people on the floor — all synchronized," [University of Oregon Head Coach Felecia] Mulkey says. "It has some stunts in it that may look like cheerleading, but without any of the cheerleading stuff."

Six universities have competitive cheer teams: University of Maryland, University of Oregon (they are the ones who call it team stunt and gymnastics), Baylor, Fairmont State, Morgan State, and Quinnipiac. The NCAA does not currently offer a championship in competitive cheer, but cheer proponents hope to change that. If four more institutions create varsity programs, then NCAA could recognize it as an emerging sport as early as August 2011. As an emerging sport, it would then have 10 years add 40 varsity programs at NCAA member institutions for the NCAA to stage a championship.

The "emergence" of competitive cheer is supported by those who note the sport's popularity. Obstacles, however, include the fact that many universities are not in the economic position to add new teams, and AB also notes expressed concern about the sport's high injury rate. The article does not delve into another concern that competitive cheer programs raise, which is that athletic departments are adding them not to respond to interest and ability of their female student population, but as a cheap and easy way to achieve compliance with Title IX's proportionality prong. For one thing, cheer enjoys popularity as a co-ed sport. Kate Torgovnick's Cheer makes the point that in some non-varsity cheer programs (competitive-sideline hybrids) the co-ed squads are at the top of the cheer hierarchy. If the sport was truly being added in response to interest among the student body, it would include opportunities for men. Limiting the sport to women, on the other hand, suggests that adding cheer so they don't have to add other women's sports. Another reason for concern is that some schools (I'm thinking of Quinnipiac) propose cheer squads that have both larger rosters and smaller budgets than any other women's teams. That too suggests the possibility that a school's primary motive is to pad their numbers rather than offer meaningful athletic opportunities. Hopefully these points do not sound like criticism directed at competitive cheer. Rather, I think that they are concerns the sport, and the rest of women's athletics, should keep in mind as competitive cheer continues to gain ground.

h/t Jeff

UW Rape Case Goes to Trial

A jury will soon decide whether the University of Washington violated Title IX in its handling of claims that a football player had raped another student, his former girlfriend. As we have noted in a prior post, the victim, identified in court proceedings only as S.S., argues that university officials failed to encourage or inform S.S. of her rights to the university judicial disciplinary process so that the case could instead be handled by the athletic department. The athletic department, in turn failed to investigate her case because the perpetrator's status as a football player, suppressed the case to avoid negative publicity, and penalized him with community service and counseling rather than suspending him from games. Last year, the court of appeals in Washington agreed that these facts, if proven, would constitute deliberate indifference for which the university is liable under Title IX.

The case has tried before a jury in King County, Washington. The jury received the case yesterday and is deliberating today. At stake are damages up to $800,000.

(Via Ombuds Blog.)

Court Dismisses Retaliation Case Against National Geographic

A federal district court recently threw out Title IX claims against National Geographic Society after determining that it did did not retaliate against against the plaintiff, who had been the director of the NGS-affiliated entity that operated the National Geography Bee in North Dakota. This decision caught my eye at first because of the unusual (for Title IX) defendant. Usually Title IX cases proceed against universities, school districts, and other educational entities whose connection to federal funding is obvious. Interestingly, Title IX's applicability to NGS was not in dispute or even explained in this case. It must either be the case that NGS (or the NGS Education Foundation) itself receives federal funds, or that its practice of operating the Geography Bee through an alliance with a local educational institution (in this case, Minot State University) was in the court's mind a sufficient connection to federal funds.

The court's decision itself also warrants some analysis. The plaintiff, Eric Clausen, argued that he had complained that the National Geography Bee was biased against girls in North Dakota, pointing out that boys win 90% of the time. He further alleged that he was forced to resign as a result of his complaints. Yet the court found that he did not state a claim for retaliation because Clausen's complaints about the geography bee's bias was not itself discrimination under Title IX ("The Court finds as a matter of law that an alleged failure by females to win the national geography bee as often as males neither establishes nor supports a Title IX violation. Title IX neither guarantees nor suggests that females must win as often as males."). Thus, his complaints were not "protected activity" as required to establish a retaliation claim.

The court was right that Title IX's focus is on equal opportunity, rather than equal outcomes, and that the law does not "guarantee that females must win as often as males." However, there are two reasons why I think it concluded too quickly that Clausen did not engage in protected activity. First, retaliation law only requires that the plaintiff have a reasonable belief that the conduct or practice they are challenging constitutes unlawful discrimination. Thus, even though the court may be correct that the Geography Bee did not violate Title IX, the right question is whether Clausen reasonably believed that a 80-percentage-point gender gap in Geography Bee winners might be the result of unlawful discrimination.

This brings me to my second criticism of the court's conclusion that Clausen did not engage in protected activity. I think Clausen could have reasonably believed that the Geography Bee was unlawfully biased. Title IX's prohibition is not limited to intentional discrimination; the law also forbids practices that have an unintended discriminatory effect on a particular sex. For example, New York state used to award scholarships to high school students based on their SAT scores, a practice that unintentionally awarded more scholarship dollars to male students. A federal court ruled that this was discriminatory under Title IX, because there were other criteria the state could use that would provide as good or better measure of academic merit and would have a less discriminatory impact on female students. Sharif v. N.Y. State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Viewed as a possible case of disparate impact discrimination, it seems much more likely that Clausen's complaints about the National Geography Bee's tendency to favor male students were rooted in his reasonable belief that it reflected unlawful discrimination. Sometimes test questions -- either because of their content or their format -- unintentionally favor a particular group, and an extreme disparity reflected in the test results is usually the first sign to the testing entity of a potential bias. An employee who points this out and asks the testing entity to correct or at least examine the test for potential bias ought to be protected from reprisal.

Unfortunately for Clausen, even if he successfully appealed the court's conclusion that he engaged in protected activity, he would also have to surmount the court's conclusion that he did not sufficiently allege that he was forced to resign because of his advocacy for gender equity. Apparently there was evidence that he resigned for other reasons relating to business decisions made by the entity that he directed. I leave it to Clausen's lawyer to figure that one out.

Decision: Clausen v. National Geographic Society, Inc., 2009 WL 3271355 (D.N.D. Oct. 10, 2009).

Connecticut Boy Calls State Field Hockey Policy Into Question

The Hartford Courant recently profiled a middle school field hockey player in Avon, Connecticut, named Blake Armistead. Though he has been allowed to play on the girls' team in middle school, the Connecticut Interscholastic Athletic Conference does not allow boys to play on high school teams. So Blake, who learned the sport in his native Australia, a country where many boys and men play field hockey, is going to have to give it up. The CIAC justifies the policy with arguments about gender equity; if its rules allowed Blake to play, boys would take away opportunities for girls, who are already underrepresented. Others quoted in the article question the safety of allowing boys and girls to play together.

The legal status of policies excluding boys from girls' sport has been covered in prior posts (see here and here). It would likely be upheld under Title IX's regulations governing separate teams, but Title IX is not the only source of nondiscrimination law applicable to this situation. In 1979, the Supreme Judicial Court in Massachusetts, for example, struck down a similar exclusionary policy for violating the state constitution's equal protection clause. The court's analysis addressed many of the same objections raised in Blake's case. The court was not persuaded by arguments about safety, because a policy excluding boys for safety reasons is based on generalizations about boys, and is not narrowly tailored to address safety concerns. Some boys are large and may pose a safety threat, but then again, so are some girls. Sex is not a perfect proxy for size; if you want to exclude people whose size poses a safety risk, exclude people based on size, not sex (see also a related prior post here).

The court in Massachusetts also rejected the argument that the policy was justified to preserve athletic opportunities for girls. Schools and conferences can figure out for themselves how to avoid discriminating against male field hockey players on the basis of their sex, and simultaneously offer balanced athletic opportunities for girls and boys. For example, if so many boys wanted to play field hockey that girls are losing out, the appropriate response is to add or reallocate athletic opportunities so that there are enough opportunities in field hockey to accommodate both sexes.

Interestingly, the Hartford Courant article points out that in Massachusetts, the number of boys playing field hockey is extremely low: 26 out of ~8000 players. Perhaps due to the low numbers, or perhaps because people have gotten used to it, the presence of male field hockey players is not very controversial any more. The article does not say whether Blake and family plan to challenge the CIAC's policy, but if they did, it would be interesting to see whether the reasoning of the Massachusetts court, or the experience of the CIAC's Massachusetts counterpart over the last 30 years, holds any sway.

U.S. Commission on Civil Rights to Look at Admissions, Athletics

InsideHigherEd.com reports today that the U.S. Commission on Civil Rights has commenced an "inquiry" into admissions standards that may be favoring male applicants who are increasingly underrepresented in the student bodies of many liberal arts colleges. The article suggests that the Commission (which does not have enforcement authority, only the power to make recommendations) may be using concern for female students as cover its real target, Title IX's application to men's sports. Colleges would not need to rely on discriminatory admissions standards if they could only attract more male applicants; they could do this by offering more athletic opportunities for them, but they are, sadly, hamstrung by Title IX.

This line of thinking is logically flawed, factually inaccurate, and steeped in stereotypes. First, no one is forcing colleges to lower their academic standards for male applicants. There is certainly no mandate that colleges admit men and women in equal numbers, just as there is no requirement that their student bodies are proportionate to the nation's racial demographics (imagine the uproar if that were so!) Colleges are afforded at least as much flexibility to consider sex in admissions as to consider race (the plus factor approach) and within constitutional limits, it is up to school how to incorporate academic standards and diversity into admissions decisions.

Second, Title IX is not the reason schools can't add men's sports -- the fact that men still have more athletic opportunities than women, both in absolute and relative terms, is the reason why schools can't add men's sports. Third, at least some colleges are adding men's sports -- we've blogged about it, see here, here, and here, e.g.! -- so even taking it out of the context of admissions, the suggestion that Title IX is preventing schools from expanding their men's athletic programs doesn't withstand scrutiny.

Fourth, the idea that colleges need to solve their admissions problem by adding sports for men operates from the annoyingly premise that it is more important to satisfy the athletic interests of men who are not, apparently, otherwise bound for college than it is to satisfy the women who are already there -- women are interested in sports too, and women have fewer athletic opportunities even though there are more of them in college!

Last, it sells men short; it suggests that they need to be tricked into applying to college by an admissions brochure with a lot of pictures of guys playing sports. To again use the race as an analogy, imagine the outrage if a government office expressed sympathy with colleges seeking to boost their racial diversity by adding athletic opportunities for minorities. Some would argue that such a plan exploits the minority student athletes and stigmatizes the minority student population in general by suggesting they otherwise would not be college bound. Some would argue that such a strategy provides clear evidence of the school's intent to promote athletics above academics. Others would argue that it's unfair to the white kids to limit their opportunities. All would be a little bit right.

It will be interesting to see what the Commission's inquiry reveals. Hopefully, it will steer clear of the misinformation and stereotypes discussed here.

UPDATE 11/3/09: More from today's Inside Higher Ed here; and Women's Sports Blog has a good take on it here.

Early talk of retaliation in firing of tennis coach

Last week, Ball State University in Indiana fired its women's tennis coach. Kathy Bull was in her 22nd year as head coach of the team. The firing, according to the athletic department, is the result of NCAA violations. Ball State, until earlier this month, had been on NCAA probation due to a textbook scandal several years ago. In their two-year probation period they self-reported 27 secondary violations. Two of those concerned women's tennis. But if these are the violations in question, we do not know.
One would think that such an abrupt firing in mid-season would be the result of more than two secondary infractions. (By way of comparison, the football team had 5 secondary violations during the same probation period.)
The surprise announcement has a few people thinking retaliation.
Bull had told Ball State's student newspaper that the university was under investigation for gender equity violations.
And this editorial questions whether her firing has anything to do with her complaints about Title IX violations and gender equity within athletics.
The gender equity complaints are still under investigation and Bull has not commented on her firing let alone whether she will pursue a wrongful termination lawsuit.

In case you didn't believe us...

...it's true that most athletic departments do not make money and many are not even breaking even these days. The NCAA released the results of a study this week that looked at the numbers from 2004-2008. In DI, the Football Bowl Subdivision (FBS) consists of 119 schools. Only 15 reported a profit in 2008.
This was not surprising, but I have to say I was shocked (even though I shouldn't have been) by these numbers:
Median salary of FBS football coach: $1.095 million
Median salary of FBS men's b-ball coach: $822,000
Median salary of FBS women's b-ball coach: $277,000

Lax growing in popularity

Hilbert College in New York will be adding men's and women's lacrosse next year, reflecting a trend--a couple actually. First lacrosse is at or near the top of the list of fastest-growing sports at both the high school and collegiate level and for both men and women. Second, even in the lousy economy, DIII schools are adding sports. It's smart move for a school that does not offer scholarships and is looking to draw more (tuition-paying) students. Lacrosse has historically been an eastern US sport and I am sure Hilbert will not have to recruit very far at all to put together competitive teams.

Women's wrestling coming to Texas

High school wrestling in Texas may not be as big as football but 7,000 high schoolers compete in the sport. But there are no intercollegiate wrestling programs in the state.
Wayland Baptist University in Plainview is changing that. The university will add men's and women's wrestling in 2010 and hopes to be a trend setter in terms of the presence of the sport in Texas colleges and universities.
Interestingly, this article about the additions makes little to-do about how it will most definitely be a trend setter in women's wrestling. Although we have seen other institutions add and consider adding women's wrestling which seems to be a sport on the rise (though the NCAA still has not listed it as an emerging sport!), there are still only 13 intercollegiate women's programs.
I found it somewhat appropriate that a Texas institution is instituting one of the first 20 programs nationwide given the issues the state has had with female wrestlers in the past. [See the excellent documentary Girl Wrestler for more on that.]

Settlement Ends Title IX Suit Against FHSAA

The controversy in Florida that resulted when the state's athletic association that proposed a cost-saving schedule reduction for every sport except football and cheer was largely resolved over the summer, when the FHSAA rescinded the proposal in response to a lawsuit. Parents had sued the FSHAA arguing that that the proposal violated Title IX because it disproportionately affected girls' athletic opportunities. Exempting cheerleading along with football did not ensure that the cuts would equally affect girls' and boys' athletic opportunities, they argued, because even putting aside the issue of whether cheerleading counts as an athletic opportunity, football offers far more more athletic opportunities to boys than cheerleading does for girls.

After the proposal was rescinded, the parents continued to press the court for an injunction that would prevent FHSAA from making a similar decision again in the future. Yesterday, however, the plaintiffs announced that they would drop that lawsuit as part of a settlement under which FHSAA agreed to give advance notice to the plaintiffs' attorney, Professor Nancy Hogshead-Makar of Florida Coastal School of Law, before attempting to reinstate any of the rescinded the policy. FHSAA also agreed to pay the plaintiffs' attorneys fees and to conduct Title IX training for its members.

Fields of discontent in Ohio

A parent has notified the ACLU which has sent a letter to the Chillicoth school district saying that they may be in violation of Title IX due to the discrepancies between the high school's softball and baseball fields. Which are the facilities in question remains a confusion because the baseball team's usual field has been out of commission for several years during building facilities renovations. In that time they have had access to two different off-campus sites. The softball team, however, does not have an on-campus field and their off-campus facility is sub par according to the letter and the complaining parent. They apparently don't even have bases when they practice which seems odd but the lack of proper dugouts and fencing are also problems and the team does not have the authority to maintain the field themselves.
No complaint has been filed with OCR yet and the school district has not formally responded.

Also apparently, according to the story linked above, a softball/baseball facilities complaint has just been filed with OCR regarding a Toledo school district.

New Research Addresses Discrimination in Ticket Prices

A new report by researchers at the Wellesley Centers for Women examines the gender gap in ticket prices for Division I college basketball. Significantly, the report explains that ticket prices are set by athletic departments' own judgments of the value of women's sports, rather than by market forces. As the abstract states, "This distinction is critical because previous research shows that lower-priced events are perceived as lower quality and less worth watching or attending." In other words, athletic departments are creating, not responding to, lower demand and attendance for women's sports.

Quinnipiac v-ball not a sure thing

During the midst of court proceedings last spring, Quinnipiac University in Connecticut reinstated women's volleyball under pressure about their Title IX compliance and some questions about doctored rosters.

But the university went ahead with its original plan of adding competitive cheerleading. And with the high turnout for that "team," the university is claiming they are well in compliance now--overcompliant in fact, says the president. This all means that volleyball is not safe from being re-cut. He is pitting sports against academics saying that the money from cutting teams can be used to find 5 full-time professors. There's nothing that says you cannot prioritize academics. But what happens is that sports get pitted against each other as they started to last spring when some of the arguments we heard in court pitted the cheerleaders against the volleyball players.
And despite the fact that we were happy that volleyball got reinstated (and a little miffed at the way men's sports were dropped in a miscontextualized zero-sum game explanation), we here at the Title IX Blog were eager to see how a court would treat competitive cheer in a Title IX case.
We still may get that opportunity. Litigation is technically still ongoing and if volleyball does get re-dropped, we may see another lawsuit about the validity of counting cheerleading toward Title IX compliance.

Alaskan softball players cite inequities

Can't believe Sarah Palin who, during her vice-presidential campaign, espoused the benefits of Title IX, let her home town get away with inequitable treatment of female student-athletes.
But the Mat-Su School District, which includes the town of Wasilla, is facing a lawsuit brought by two softball players (and their parents). The facts, at this early stage, remain somewhat ambiguous but apparently some of the issues brought up in the filing are ones school officials have heard before. The issue of fields does not appear to the prominent one, or at least as prominent in most of the other cases about softball. Wasilla High School's field underwent renovations this past summer. There is some dispute over whether softball has access to an on-campus practice field like the baseball team does.
It seems that funding is the major issue here with the complainants saying that boys' teams receive greater funding than girls' teams. This is not an automatic violation, of course, but it goes on to say that softball has to pay for its own equipment and supplies. If boys' teams are provided these things by the school there is the potential for some trouble. But my guess after reading about economic woes and booster clubs stepping up, is that boys' team may also have to find their own equipment and supplies but that they have booster clubs that raise the money for them. But as we know by now, successful boys' booster clubs do not negate a school's Title IX responsibilities.

Lower Court Dismisses Former AD's Case Against Lafayette College

Eve Atkinson sued Lafayette College in 2001, arguing that the college terminated her from the athletic director position, which she had held since 1989, in retaliation for her advocacy on behalf of women's athletics and Title IX. A federal court initially dismissed her lawsuit on the grounds that Title IX's private right of action did not cover retaliation claims. Her appeal was stayed pending the Supreme Court's eventual decision in Jackson v. Birmingham Board of Education allowing for private enforcement of Title IX retaliation claims, so the Third Circuit reversed the lower court's decision and reinstated Atkinson's case. Lafayette then moved for summary judgment, arguing that Atkinson did not allege sufficient evidence to support a retaliation claim. Earlier this month, the district court agreed, and again dismissed Atkinson's case against the college.

In particular, the district court determined that Atkinson had not sufficiently alleged that she engaged in protected conduct, the first element of a retaliation claim, because all of her advocacy for gender equity advocacy was done in her capacity as Athletic Director. However, I believe that in requiring a Title IX retaliation plaintiff to be targetted for conduct outside her job duties in order to receive the protection of law, the district court imposes a new and unwarranted requirement that is inconsistent with other Title IX retaliation decisions, including Jackson. Moreover, if it is the case that the college terminated her because of her Title IX advocacy (the district court thinks Atkinson's fails on this element as well) then it should not matter at all whether she was acting against or in accord with her role as the athletic director. I hope that an appeal gives the Third Circuit an opportunity to clarify this legal issue.

Decision: Atkinson v. Lafayette College, 2009 WL 2949295 (E.D. Pa. 2009).

Law Review Article Addresses Sexual Harassment in Athletics

The current issue of the Virginia Sports and Entertainment Law Journal contains new scholarship by the prolific Title IX expert Diane Heckman, which addresses Title IX sexual harassment cases in the athletic context. Heckman first provides overview about the legal standard for an institution's sexual harassment liability and also explores the unique power dynamic between coaches (particularly, male coaches) and student athletes (particularly, female athletes) that can create sexualized environment rife for harassment. She then profiles all of the cases filed against college and other educational institutions charging liability for harassment committed or facilitated by athletic department employees, . Among others, she examines a number of cases we've blogged about here, including Jennings v. University of North Carolina, Williams v. University of Georgia, and Simpson v. University of Colorado. Noting that these cases (and others) produced settlements that collectively cost public universities millions of dollars, Heckman concludes that the court rulings in these cases "underscore the judiciary's clear intolerance of Title IX sexual harassment on the playing fields and should be a wake up call for all intercollegiate and interscholastic athletic departments to get the athletic houses in order."

Citation: Diane Heckman, Title IX and Sexual Harassment Claims Involving Educational Athletic Department Employees and Student Athletes in the Twenty-First Century, 8 Va. Sports & Entertainment L.J. 223 (2009).

Will Maryland be the next to cut sports?

Hopefully not, says athletic director Deborah Yow. But despite early predictions that the recession is over, the University of Maryland is exploring all scenarios that would enable to survive the current economic crisis.
A recent report has outlined possibilities for keeping the department financially stable enough while remaining successful throughout the coming years of potential hardship. The report includes suggestions for increasing revenues--always the first, through arguably most difficult, task. It is also one that includes reducing expenses. A second option is to scale back on select sports. And the final is the elimination of teams.
But with 27 teams--5 more than the ACC average--the "last resort" option is definitely a possibility if options one and two do not produce the intended results.
The report commented on Maryland's commitment to gender equity. No details on how that commitment might manifest in the above options. But we have to remember that, in Title IX circles, the Maryland athletic department is most (in)famous for making competitive cheerleading an intercollegiate sport despite the fact that it is not an NCAA-recognized sport. And despite the fact that there were other viable women's club teams that could have been elevated to varsity status.
We will have to wait to see how Maryland does both in managing its economic woes and meeting gender equity requirements.

Movie review: License to Thrive

The people at Women Makes Movies very kindly sent us a copy of License to Thrive: Title IX at 35. Despite our best intentions, we had not been able to catch a viewing of it when the documentary was making the rounds in New England last year.
A lot of interesting stories and facts within the 48-minute movie by Harvard alum Theresa Moore. I was particularly struck by the story of the creation of Yale University's endowment for women's athletics that was started by former Yale athletes who attended Yale in the 70s. The fascinating part of the story is that over 50 percent of the donors--all women--had never given to Yale before. Alumnae usually give because they value and remember fondly their college experience. The first-time donor status seems to suggest that many of these women may have a certain ambivalence about their time as female students at the historically male university (Yale began admitting women to the undergraduate colleges in 1969). But their athletic experience must have been one of the most positive ones because the endowment organizers met their initial fundraising goal of $100,000 in a matter of minutes. And it continues to thrive.
The movie, overall, had two major strengths. The first was its attention to areas other than athletics. And related to this was the history of the legislation provided by Bernice Sandler "the godmother of Title IX," Senator Birch Bayh, and the daughter of Hawaii Congressperson Patsy Mink who spoke about her mother's history and her role in Title IX.
The former is an important point to make, especially as the debate over access to science and technology fields grows more heated. But the way in which the movie made this point was confusing. In a segment that was rather abruptly introduced about a program that introduces girls to filmmaking and in another about a local Massachusetts program that encourages girls in science and math, we see the value of exposing girls to these fields. But these programs are not run by the schools (though some do use school facilities). So while they are about education, they are not directly related to Title IX. They do, hopefully, engender social change. So when some of these girls go to high school and college and if they find their access to these programs is limited, they can use Title IX to remedy any gender-based disparities.
The same is true of the White House Project featured in the movie. A great program; certainly one that educates about civic engagement and our government--but not really related to Title IX. We applaud these programs and the attention being given to them. But we worry that they further confuse people about what exactly Title IX does.
Also potentially confusing was the explanation of the ever-controversial 3-prong test (which was given a lot of attention from both sides of the debate). First, the film reversed prongs 1 and 3. And the movie suggested that compliance with Title IX is met when one of the prongs is satisfied. This is a mistake we see all the time, including in the introduction to historian Susan Ware's recent primer Title IX, which otherwise does a good job pulling together historical documents related to the legislation.
The reason we keep pointing out this confusion is because to believe that Title IX is only about opportunities impedes thorough examinations of the quality of the opportunity; from access to quality coaching and facilities to the amount of per diem and travel conditions. The complaints and lawsuits about softball fields and practice gyms are only viable because Title IX is about more than numbers of female versus male athletes--it is about treatment of said athletes.
One final point about License to Thrive. We were pleased to see many representations of women and girls of color; to see programs targeted at these girls. But we were disappointed that there was no discussion of the different experiences these girls have. One of the problems we have seen with Title IX's implementation is that it is has largely benefited--or disproportionately benefited white, middle-class girls.
We realize that there is a lot to cover--especially in less than hour. And we truly appreciated the efforts of the filmmaker to fill in the gaps and raise awareness of often overlooked facets of the legislation.

ACLU Challenges Sex Segregation in Louisiana School

On behalf of parents of students at Rene A. Rost Middle School in Kaplan, Louisiana, the ACLU has sued the Vermilion Parish School District to challenge the sex-segregated classes there. According to the complaint, the district announced to parents over the summer that their children would be enrolled in sex-segregated classes. When parents who objected pointed out that that mandatory segregation was in violation of law, the district responded that it would replace it with a voluntary plan. However, under the voluntary plan, parents' only option for a coeducational environment was special needs classes (which were, apparently, full). The parents and the ACLU argue that this is still in effect mandatory segregation, as the coed option is not comparable to the single sex classes. They also argue that the single sex classes are not equal to each other, as the plan requires teachers to use different methods for boys and girls such as selecting books that "appeal to boys" for their classes and books that "appeal to girls" for their classes. The complaint maintains that the separate tracks "represent exactly the sort of sex stereotyping and discrimination that Title IX and the Fourteenth Amendment seek to prevent."

The ACLU challenged a similar comprehensive sex segregation at an Alabama middle school last year. The school district ended up agreeing to re-integrate its classrooms and to give the ACLU advance notice of future plans to experiment with single-sex education.

Law Review Article Addresses School Violence

In the current issue of the Journal of College and University Law, Georgetown Law Center's Nancy Cantalupo examines the interrelatedness of peer sexual violence and other, more rare forms of school violence such as mass shootings. She argues that schools should address both types of violence with a victim-centered approach that encourages reporting. Among other reforms, Dean Cantalupo argues that schools should abandon the prosecutorial model for responding to peer sexual violence, which she argues no only deters reporting but can put an institution at greater risk for liability under Title IX and other laws. A victim-centered approach to peer sexual violence can contribute to a climate of safety on campus and in particular ways help prevent more extraordinary violence. Cantalupo explains:

Paying attention to the needs of victims gets away from focusing exclusively on the potential shooter and from the impossible task of predicting who is a shooter and who isn't prior to a shooting. Instead, paying attention to victims' needs focuses the institution on what the student has already done, not what he might do, and on the impact those actions have had on others. If Virginia Tech had taken more seriously the effect of Seung-Hui Cho's behavior in class on the other students, some of whom stopped attending class for fear of Cho, or if it had stopped his classmates from laughing at and telling Cho to “go back to China” when he read aloud in class, would Cho have slipped through the cracks as he did? While it is impossible to say for sure, it may be that if the institution had paid attention to either victim/victims, Cho would more likely have been caught in the campus safety-net.

The article is available for download on SSRN. Here is the citation:
Nancy Cantalupo, Campus Violence: Understanding the Ordinary Through the Extraordinary, 35 J. College & Univ. L. 613 (2009).

Myles Brand, 1942-2009

Sadly, NCAA president Myles Brand died yesterday of pancreatic cancer. Christine Brennan has a nice tribute to him. Brand will hopefully be remembered for ensuring academic standards and civil and gender rights in intercollegiate athletics. He pressured schools to get rid of their Native American mascots and recently Brand publicly stated that Title IX should not be blamed--in these tough economic times--for cuts to men's sports.
We will miss his tough stance on tough issues and hope he has set a precedent for his successors.

California HS Improves Softball Field After Title IX Complaint

A reader sent me this good news out of California: the Torrance Unified School District has improved the softball fields at West High School after a Title IX complaint filed last fall cited the district with 20 possible violations. The district settled to avoid litigation, and to its credit, moved quickly to install new fields, electronic scoreboards, and spectator bleachers in time for the beginning of the 2010 season -- a total cost of $40,000. But the district gets no credit for needing to be prompted by legal action to prompted into action in the first place. It's neither fair, moral, or safe to require the J.V. softball team to play on a dangerous, dirtless infield and in an outfield that doubles as a practice field for boys in other sports, or to give boys teams favored treatment in terms of fundraising opportunities, field maintenance, and scheduling, as the complaint had also alleged. Moreover, the fact that the settlement also required the district to pay the plaintiffs' lawyers at the California Women's Law Center helps underscore the point that discrimination doesn't pay.

Thanks, C. Vivian Stringer

New Hall of Fame inductee C. Vivian Stringer gave a big shoutout to Title IX during her speech at the Basketball Hall of Fame Enshrinement Ceremony on Friday evening. All the clips I have seen of the speech--including the ones on ESPN!--use the portion of her speech where she thanks the existence of Title IX for giving girls sport options besides sideline cheering for the boys.

ACLU, School District Settle Harassment and Discrimination Case

The Newport-Mesa School District in Orange County, California, has agreed to implement harassment and discrimination training for its students and staff, in settlement of a lawsuit filed by the ACLU. As we noted last March, the ACLU sued the school district on behalf of a former student of Corona del Mar High School, who alleged that school officials did not respond adequately when three football players harassed her and threatened her with rape. These threats apparently related to the student's role in the drama club's intended production of Rent, which the principal canceled (but later reinstated) due to the concerns about the show's gay and AIDS-related content.

Under the settlement terms, students and teachers will receive four hours of training, conducted by the Anti-Defamation League, about what constitutes harassment and how it harms people. District officials will receive 8 hours of training. A district spokesperson believes that the training "will raise awareness for staff and students and will contribute to an overall positive environment at Corona del Mar High School." The student plaintiff, Hail Ketchum, also praised the outcome, saying "no one else will have to go through what I went through."

CVS in the HOF

C. Vivian Stringer, head coach of the Rutgers women's basketball team, will be inducted tomorrow into the Basketball Hall of Fame (right here in Springfield). We here at the Title IX Blog have much respect and admiration for Coach Stringer, and we are thrilled to see her recognized alongside Michael Jordan, John Stockton, David Robinson, and Jerry Sloan, the other inductees.

Stringer's coaching career has spanned the lifetime of Title IX; she began her first head coaching job at Cheyney State, a small, historically black college in Pennsylvania, in 1972, the same year Congress passed the law prohibiting sex discrimination in federally funded schools. Since that time, Coach Stringer has amassed of the best records in women's basketball, with over 800 career wins, as well as the distinction of being the first coach to to reach the NCAA final four with three different teams (Rutgers in 2000 and 2007, University of Iowa in 1993, and Cheyney State in 1982). In the wake of Don Imus's racist and misogynistic comments about her team, Stringer's strength and poise, and that which she showcased in her players, successfully challenged the streoetypes that Imus had espoused.

Over the course of her long career, Coach Stringer has inspired players, elevated the game of women's basketball, and cultivated widespread respect and recognition for women's athletics and female athletes. For this, C. Vivian Stinger is most deserving of the recognition she will receive through enshrinement in the Hall of Fame.

Same-sex classrooms in South Carolina

We have blogged about same-sex classrooms in public schools previously and this article out of Greenville, SC does not appear to say anything new about the situation. It is a quite balanced piece that uses narratives from same-sex classroom teachers and parents as well as research and testimony from educational researchers. Again, it is a lot of the same things we have heard: some students do well in this environment, some test scores are up, most of the same-sex classrooms reify gender stereotypes, the research on the success of these spaces is suspect.
What prompted this posting was the picture attached to the article. It shows boys in a "dukes up" pose. The teacher who appears to be a woman is in a similar pose but we only see her arms.
The article contains numerous descriptions about classroom decorations (the boys have sports paraphernalia and the girls have gingham and flower pots) and behaviors (the boys get to stand on chairs and recite spelling lists and jump around between lessons). All these things are worrisome in themselves. But why are schools teaching boys to box? And why was this activity missing from the text of the article?
Proponents of sex-segregated classrooms counter naysayers who worry about the lack of mixed gender socialization saying that girls and boys can socialize during recess and lunch and before and after school. But what kind of socialization occurs when boys are raising their fists and girls are planting flowers?

New Book Examines Challenges Facing Women Coaches

In her new (2009) book, Gender Games: Why Women Coaches Are Losing the Field, author Christina Cruz examines gendered dynamic of college athletic departments and the tensions that it creates for female coaches. These tensions, which Cruz labels "micro-competitions" likely explain why the percentage of coaches who are female has diminished from over 90% to 43% in the last thirty years. In presenting the narratives of five successful female coaches, Cruz uncovers numerous examples of micro-competitions, many of which the coach is powerless to win, that affect coaches' self-efficacy in aspects of the job outside of the role of coaching itself. The narratives provide examples of coaches negotiating between on-court and off-court personas, their efforts to satisfy athletic department and cultural expectations that are often in conflict, and the toll of working with and for unsupportive or hostile male colleagues. An overall finding is that "male-centered environments cause the coaches to pit themselves against patriarchal forces that promote male power over women and perpetuate preexisting gender regimes. This atmosphere leaves these female coaches vulnerable to self deprecation."

I really appreciate that Cruz then translates her findings into advice for both coaches, on the one hand, and athletic administrators and other "gatekeepers of power" on the other. She encourages female coaches to work together to help reposition those who are "at the margins" closer to the center of power. She encourages them to be aware of and to challenge men's "status
seeking games" and to stand up and challenge those who bully and harass women. Then she implores administrators to guard against inappropriate and oppressive behavior by staff, to create space for all to give input without being dominated by some, to assist coaches in achieving their goals, and to facilitate mentoring and professional development. It is hard to write a prescription to address entrenched cultural stereotypes and biases, many of which are subtle and easy to overlook ("micro") on an individual basis. Cruz's book does a good job not only shedding light on the nuances of the problem, but in addressing the problem in a coordinated and comprehensive way.

Study Finds Correllation Between Sexist Team Names and Women's Athletic Opportunities

A recent article (well, 2008, but it only just now came across my radar) in the journal Sociology of Education examines team nicknames in college and university athletics and suggests that schools that use sexist nomenclature to distinguish their women's teams are also likely to offer disproportionately fewer athletic opportunities to women.

Author Cynthia Fabrizio Pelak focused on colleges and universities in 9 southern states, and found that almost 70% of the employed what she coded as a sexist naming practice. Most of these consisted of the "Lady" prefix, which Pelak explains, is sexist because it connotes "propriety and correct behavior" and "'imparts a tone of frivolity and lightness to the strivings and accomplishments of women.'" In sum, nearly 60% of the 249-school sample used "Lady" to identify it's women's teams (Pelak focused on basketball), while another ~10% used other naming practices Pelak also coded as sexist (e.g., using a male nickname as a false generic -- as in "Bulls" and "Rams" -- or using a feminine suffix -- as in "Eaglette" or "Tigerette"). She then determined that schools with sexist naming practices were more likely to have offer disproportionately fewer athletic opportunities to female athletes. This finding demonstrates how "sexist language practices reflect and reconstruct unequal power relations between men and women." While not being directly causative of discrimination against female athletes, sexist naming "contributes to an institutional gender-equity climate that constructs women students as second-class athletes and treats men students as the rightful recipients of greater opportunities and resources in athletics."

Another component of Pelak's study was to identify characteristics of a school that are most predictive of whether they would employ sexist naming practices. The most predictive characteristic she found was whether the school was a historically black college or university (HBCU). The odds that an HBCU used sexist naming practices were 16.5 times that of a non-HBCU using a sexist name. Pelak proposes that the prevalence of "Lady" teams among HBCUs can be explained as an effort to "promote an image of black women as respectable, virtuous and sexually honorable" in resistance to negative stereotypes about black femininity. It is possible then, she suggests, that "marking black women athletes as ladies may be understood not as sexist, but rather, as part of a racial uplift project for African American women."

Citation: Cythia Fabrizio Pelak, The Relationship Between Sexist Naming Practices and Athletic Opportunities at Colleges and Universities in the Southern United States, 81 Sociology of Education 189 (2008).