Florida State to add sand volleyball

We probably will not be blogging about every school that adds sand volleyball, the NCAA's latest addition to the NCAA's emerging sport list.
But I was intrigued by the brief article about Florida State's decision to add sand volleyball to its roster; largely because there seemed to be some misinformation. And thus it offered me an opportunity to look a little deeper into sand volleyball.
First, the article by Florida Today (an online news site), stated that sand volleyball is the NCAA's "number one emerging sport." Not sure what they mean by number one. I know that the decision to add sand volleyball to the list was, in part, a result of the growth of the sport. But I haven't seen anything that states it is the fastest growing. Also note that women's wrestling has also been growing and that hasn't quite made the list at all yet. (Erin can better speak to this as she attended the NCAA's Gender Equity Conference.)
Anyway, looking at the NCAA website, it does not appear that the emerging sports have, in any way, been ranked, so why sand volleyball is claimed as number one is odd. It has been the most recent emerging sport but that does not make it "number one."
Second, the article stated that play would begin at FSU in fall 2011. And though that is not untrue, spring will be the traditional season for sand volleyball. Only (up to) four contests will be allowed to be scheduled in the non-traditional season.
And third, the article stated that "team members will be separate from the current women's volleyball program, and the team will require an additional coach." I think many concerns still exist about how separate the teams will be and whether the current indoor coach may be hired as the sand coach as well.
And since I was looking into it, I decided to go straight to the source. Here is the NCAA's page on sand volleyball which provides info on start-up costs, facility, scholarship, and coaching requirements.

Softball facility improvement forthcoming in NC

It does not appear that we blogged about the complaint filed with OCR in 2009 out of Richmond County in North Carolina. But the allegations of disparities in the treatment of women's athletics, specifically softball, are currently being investigated. And Richmond Senior High School has promised to improve the facilities--to make them comparable to baseball's facilities.
This is not especially ground-breaking (well except when they actually break new ground on the new facility!). We have been blogging about softball facilities pretty much since we started this blog. And there has been great success in proving disparity by comparing the treatment of softball teams to baseball teams even though Title IX does not mandate such a one-to-one comparison. [Part of the complaint though alleges that the football team gets priority on the practice field.]
But I liked this particular article for a few reasons.
First, we got the list of facility issues: lights (which every other school has apparently), dugouts, locker room facilities, and concession stands.
Also we are reminded of another Title IX compliance issue that does not get a lot of attention: publicity. It appears that boys' games are advertised on a local radio station.
And finally, the Richmond County Daily Journal has filed a Freedom of Information Act request seeking copies of the complaints from the school district and the Department of Education. Nice to see a newspaper making a concerted effort to get all the facts.

Quinnipiac Plaintiffs Certified as Class Action

A district court judge in Connecticut ruled last week granted class action status to a lawsuit filed by Quinnipiac volleyball players who are suing for a permanent injunction against Title IX violations that would result from the university's decision to terminate their team. The plaintiffs (the volleyball players) petitioned for a class action certification, which would allow them to represent:

a class of all present, prospective, and future female students who are harmed by and want to end [Quinnipiac University's] sex discrimination in: (1) the allocation of athletic participation opportunities; (2) the allocation of athletic financial assistance; and (3) the allocation of benefits provided to varsity athletes. They also file this action on behalf of females who are deterred from enrolling at [Quinnipiac] because of the sex discrimination in its athletic program, including its failure to offer the varsity sports in which they want to participate (despite [Quinnipiac's] failure to provide equal athletic participation opportunities to females).

To grant the plaintiff's motion to certify a class, the judge had to find that the class members were ascertainable (which is not the same as ascertained), too numerous to file as individual plaintiffs, must be similarly affected by the legal questions raised in the case, and that class members interests will be adequately represented by the named plaintiffs. Not surprisingly, the judge found that the Quinnipiac plaintiffs satisfied this standard.

Class actions are fairly common in Title IX cases. Cohen v. Brown was a class action, as was the female wrestlers' case against UC Davis and the female athletes' case against Slippery Rock (to name a couple). Class action posture helps ensure that the plaintiff's claims for prospective relief (such as a permanent injunction like the Quinnipiac players are seeking) doesn't become moot when the named plaintiffs graduate.

Next up in the Quinnipiac litigation is the bench trial, scheduled to begin on June 20.

The judge's order can be found at 2010 WL 2017773 (D. Conn. May 20, 2010)

Are Flag Football Opportunities Equal Opportunities?

Recently, the New York Times profiled the increasing popularity of flag football as a high school sport for girls, particularly in Florida. In trying to examine this trend, the article managed to add controversy by sensationalizing the positions of some women's sports advocates and casting them as the mean, feminist foils to good wholesome fun.

Flag football for girls is controversial in Florida for the same reason competitive cheer is controversial. When schools count activities like sideline cheer or flag football as athletic opportunities, it reduces resources and legal incentive to add other athletic opportunities for girls, opportunities that would give girls who want it similar access to college or life-long play. Nobody is knocking flag football (or cheer for that matter) as a valid and valuable activity. But it is relevant to ask what responsibilities sports organizations have to act in a coordinated fashion when deciding to adopt an undeveloped sport. Women' sports advocates are only questioning the sports organization’s obligations to provide boys and girls with the same types of experiences, particularly when both boys’ and girls’ opportunities are so constricted.

In a letter printed in yesterday's Times, the Women's Sports Foundation's Director of Advocacy, Nancy Hogshead-Makar, tries to set the record straight. I say "tries" because the paper edited her letter to obscure its main point: Hogshead-Makar doesn't object to flag football itself, but to the Florida High School Athletic Association's strategy of discouraging more traditional, competitive, (and perhaps tellingly, more expensive) sports for girls like crew, water polo, lacrosse, and archery by offering them easier, cheaper, but less comparable alternatives in the form of flag football (and cheer). The fact that the FHSAA is promoting flag football (as opposed to other emerging sports on NCAA's horizons) without putting in the work to support the sport's infrastructure -- governance and promotion outside of Florida's high schools -- further suggests that the association cares more about helping schools find a quick fix to major Title IX compliance problems than trying to truly equalize opportunities for Florida's girls.

Judge Dismisses Heterosexual Bias Case

Last year, a former player for the Central Michigan State women's basketball team sued her coach, the university, and other university officials, challenging the coach's decision to revoke her scholarship and the athletic department's affirmation of that decision. Plaintiff Brooke Heike's primary complaint was that the coach's decision was motivated by discrimination against her as a white, straight player. You may recall that we were skeptical that Heike would prevail, due to the meager basis for her claim that the coach's decision was motivated by discrimination.

Indeed, I read yesterday on Pat Griffin's blog that the federal district court judge has dismissed the Heike's case in full. She had filed a total of nine counts, and asserted many of them against the coach, Sue Guevara, the university, the athletic director and other athletic department officials. So the dismissal of this case has been occurring in piecemeal fashion since last fall.

First, in September, the court dismissed Heike's claims against the university, which included claims that the revocation of her scholarship violated her constitutional rights to due process and equal protection. Specifically, the claims against the university were barred by the doctrine of sovereign immunity, which says you can't sue the government without its consent. While Congress has abrogated state sovereign immunity from liability under civil rights statutes, the plaintiff did not argue that CMU violated Title IX or any other federal statute. For similar reasons, the court dismissed these claims as asserted against the individual defendants. However, the order only covered Heike's claims that the individuals could be liable for money damages; the court did not dismiss her claims for prospective relief at that time.

In November, the court dismissed the plaintiff's defamation claims against athletic department officials, as well as claims that they were negligence in hiring and supervision of Guevara. This was followed, in February, by dismissal of Heike's claims that Guevara defamed her by presenting false and damaging statements about her. The court reasoned that defamation did not apply to these statements, which were made to the committee considering Heike's appeal of Guevara's decision to revoke her scholarship, because Heike consented to the statements by filing her appeal.

This week's order addressed plaintiff's claims for prospective relief against individual defendants under federal constitutional law, a context that required the court to address the sufficiency of Heike's allegations of discrimination. First, the court found that Heike's only allegations in support of her race discrimination claim -- her a interpretation that Guevara's statement that Heike was not "her type of player" -- did not qualify as an allegation that Guevara was motivated by race, even considered in the context of Heike's other allegations that Guevara preferred players who were "thug" and "ghetto." (Seriously? Those are Heike's allegations and she's charging someone else with race discrimination?) Nor did Heike allege race discrimination by contrasting the coach's treatment of her to that of black players with similar playing statistics. None of the players Heike selected for this comparison, who had all retained their scholarships, were similarly situated to Heike because they had positive attitudes and fostered good team chemistry, while Guevara terminated Heike because she had a negative attitude and caused problems for the team.

Heike's other discrimination claims, based on her sexual orientation, was subject to less scrutiny than her race discrimination claims because because sexual orientation is not a protected characteristic under federal constitutional law. The court required Heike to show that Guevara's decision to terminate her scholarship was motivated by animus or bias. Heike's allegations that the coach encouraged her to toughen up and told her not to wear makeup did not satisfy this high standard.

Interestingly, Heike did not argue that these statements constituted gender discrimination.
If she had, this would have subjected Guevara's alleged statements to heightened scrutiny, and could have also allowed Heike to pursue a Title IX claim. Not that Heike would have necessarily succeeded on a gender discrimination theory, but it would have produced additional analysis. Specifically, analysis of the legal question whether sex discrimination includes discrimination based on gender-conforming behavior, as well as factual questions about whether Guevara revoked her scholarship for reasons to do with gender rather than her performance and attitude.

Heike could appeal the court's decision, though I would be surprised if she kept fighting. The district court readily dismissed all of Heike's claims that could have been remedied with money damages. The only claims that required the court to do any heavy lifting were those that could only be remedied by prospective relief. I doubt that Heike would be motivated to fight on by the hopes of obtaining order prohibiting CMU and its officials from engaging in discrimination in the future. Moreover, it is too late to add another claim such as one alleging gender discrimination in violation of Title IX or the Equal Protection clause.

OCR and Kansas Reach Agreement Over Title IX Complaint

According to news reports, the University of Kansas and the Office of Civil Right have agreed that KU will document its Title IX compliance, in resolution to a complaint that KU violates Title IX by discriminating against men in the distribution of athletic opportunities. As we have mentioned, KU is one of the rare schools where the percentage of female athletic opportunities is greater than the percentage of women in the student body. (How much of a disparity is not entirely clear to me. The article cited here says there is a 5 percentage point disparity, while my calculations today based on 2008-2009 EADA reports shows a disparity of less than 2 percentage points, and my earlier blog post, presumably based on earlier EADA data, suggested that the disparity was 4 percentage points. As we have recently noted, EADA data is not always accurate.)

While the agreement between KU and OCR will resolve the complaint, the agreement does not suggest that KU currently is not in compliance with the proportionality prong, KU's chosen method of compliance. Rather, it requires KU to demonstrate compliance by taking the following steps: assess its participation rates and enrollment rates for men and women (by March 2011), submit a plan to demonstrate it is in compliance with the proportionality prong (by April 2011), and follow up with documentation it is in full compliance (by December 2011).

The men's swim club, on whose behalf the complaint was filed, hopes that KU's compliance plan includes adding men's varsity swimming back. But because KU is so close to proportionality already, it seems like it could demonstrate compliance by making minor adjustments to men's and women's athletic rosters, without adding a team. Depending on the numbers KU uses as the basis for its compliance plan, it could be that adding an entire men's team would swing the balance too far the other way.

News of this agreement also raises the question of what exactly it means that KU pledges to demonstrate compliance with the proportionality prong? Is exact proportionality required? Clearly, OCR thinks the existing disparity (whether it be 2, 4, or 5 percentage points) is not an example of substantial proportionality, otherwise this agreement would not have been necessarily. In fact, OCR has indicated in earlier policy documents (the 1996 Clarification) that proportionality compliance requires either an exact match in the percentage of students of each sex and the percentage of athletic opportunities for each sex, or minor (1 or 2 percentage point) disparities caused by fluctuation in enrollment. Perhaps OCR is using KU's case as an example to dispel the common misunderstanding that schools can demonstrate compliance with the proportionality prong as long as they are within 5 percentage points. I hope this is the case, though it is interesting to me that the mythical 5 percentage point rule is usually used to justify athletic imbalances that negatively affect women. Now that men are underrepresented, a stricter proportionality rule comes into play.

Question the parentheses

I, too, read the news that Orange County, North Carolina schools had been given a clean Title IX bill of health. This article from the Chapel Hill News goes so far as to say that any statistical disparities favored girls--but not the detriment of boys.
Notes the writer: "[girls'] coaches were paid more than coaches of boys' teams when compared to the proportion of students participating in athletics by sex (excluding football)." (emphasis added)
So this is a little confusing. Orange County clearly met one of the three prongs regarding equitable opportunities. But it was not necessarily proportionality. How does this affect our understanding of the above statement? (And as Erin noted, just because it seems that salaries are equitable, does not mean there was not discrimination against the one fired coach--the catalyst for this investigation.) And more importantly, why was football excluded from these calculations? And how many other statistics do not include football?
I haven't been able to find any answers yet, but would love to be enlightened.

North Carolina High School Cleared of Title IX Charges

After school officials at Cedar Ridge High School in Orange County, N.C., decided to terminate the highly successful volleyball coach, Laurie Calder-Green, and replace her with a less experienced male coach, parents there filed a complaint with OCR, claiming that Orange County Schools discriminated against high school girls and their coaches by paying the coaches less, providing less qualified coaches and not working to recruit and retain their coaches. But after an 18 month investigation, OCR has determined that both county high school athletic programs comply with Title IX.

In its investigation report, OCR acknowledged that the "that the complainant disagrees with the district’s termination of a particular coach." But, it continued, "termination of one coach is an insufficient basis on which to find that the district has denied girls equitable opportunities with respect to coaching, and there is no other evidence that supports such a finding."

Notably, however, OCR's conclusion that the firing of this particular coach deny girls equal opportunities with respect to coaching does not address whether the school's decision to fire the coach was itself discrimination, either directly or in retaliation for voicing concerns about perceived discrimination. A lawsuit addressing such claims is certainly possible.

Trial Held in Potera-Haskins Case

We've been following the Title IX retaliation case against Montana State University, filed by former basketball coach Robin Potera-Haskins. Potera-Haskins claimed that she was terminated from her position because she complained about the inequitable conditions for the women's athletics including coaching salaries and benefits, access to facilities, funding for tournaments, and the university's efforts to secure corporate sponsors and otherwise promote the team. She also alleges she received pressure from Athletic Director Peter Fields to offer a spot on the team to a friend of his who lacked the talent required of Division I program, and that her reluctance to do so also made her a target for retaliation.

Last week, the district court in Montana held a four-day bench trial, during which Coach Potera-Haskins testified in support of her allegations. The former men's basketball coach and an associate athletic department officials also testified "they knew of no instances when administrators meddled in the activities of men's coaches" to the degree Fields had micromanaged Potera-Haskins. Her former assistant coach testified that the coach had not mistreated players, as the athletic department claimed as the basis for her termination.

The judge -- who had prior to trial ruled that Potera-Haskins could not recover any monetary damages (because MSU already paid Potera-Haskins for terminating her employment, pursuant to the liquidated damages clause in her employment contract) and refused to give her a jury trial -- is not expected to make a ruling on MSU's liability and Potera-Haskins's eligibility for injunctive relief such as reinstatement for at least two months.

Delaware State P.S.

The Delaware State University equestrian team wrapped up its season a couple of weeks ago. As we noted, the team will continue on for one more year, according to the university whose decision not to cut the team this year was reversed after two lawsuits were filed.
One of those filing a lawsuit, recruit Melia Blakely, has signed a letter of intent with University of South Carolina.
Current team members are still working with lawyer on Title IX compliance issues.
I suspect will we hear more eventually on this issue.

Eleventh Circuit Reinstates Teacher Harassment Case

The Eleventh Circuit Court of Appeals recently decided a Title IX case in favor of the plaintiff, who alleged that a school district was liable under Title IX for sexual harassment perpetrated by her 9th-grade math teacher. The plaintiff, identified as Jane Doe, sued the Broward County, Florida school board after teacher Conraad Hoever sexually assaulted her in his classroom. She claimed that the school board was liable because it had failed to appropriately respond to two prior complaints that the same teacher had sexually harassed other female students. The district court granted the school district's motion for summary judgment, finding that the principal's response to the earlier complaints was sufficient. But this week, the Eleventh Circuit reversed the lower court's decision in this respect, paving the way for the plaintiff's case to proceed to trial.

The Eleventh Circuit analyzed the following elements for institutional liability for harassment under Title IX: whether an appropriate official had notice of harassment, whether the substance of that notice was sufficient to alert the school district of the harassment against the plaintiff, and whether the school district responded to that notice with deliberate indifference. First, the court held that the principal, who had received earlier complaints about the teacher in question, was an appropriate person to receive notice because he had been vested authority by the school board to take corrective action in response to sexual harassment complaints. Though the court acknowledged that this element will necessarily require a case-specific inquiry, as officials roles may vary among school districts, its reasoning suggests that notice to school principals will usually be sufficient.

Next, the court decided that the prior complaints against Hoever put the principal on notice of the sexual harassment he committed against the plaintiff. The district court suggested they were not, because prior complaints involved less severe conduct than Hoever's violent assault on the plaintiff. But relying on its earlier decision in Williams v. University of Georgia, the appellate court acknowledged that notice of prior instances of sexual harassment may be sufficient to warn officials of a later sexual assault. In Williams, the Eleventh Circuit held that school officials had notice that one of its students, a football player, had sexually harassed women at his prior institution, and the court reasoned that this constituted actual notice of the student's later rape against the plaintiff in that case.

Finally, the court determined that the principal responded to those earlier charges--specifically, the second one--with deliberate indifference. The district court had decided this element in the school district's favor based on evidence that the principal had confronted the teacher, taken statements of the students involved, and reported the incidents to the appropriate official on the school board. Moreover, in response to the first complaint, the school district placed the teacher on administrative leave while it conducted an investigation, and eventually determined that there was not enough evidence to warranted further discipline against the teacher.

The appellate court's analysis of deliberate indifference focused on the principal's response to the second charge of harassment. Even though the earlier investigation had been inconclusive, the fact of an earlier charge meant that the principal should have responded to the second charge more vigorously rather than less. But in response to the second charge, the principal did not conduct an investigation at all; he merely took the student's and the teacher's statement. And "most unreasonably," when he reported the complaint it to the school board, he did not indicate that the complaint was against a teacher who had been investigated already for sexual harassment. The principal then capped off this lackluster response by giving Hoever a satisfactory performance evaluation, and resigned without leaving any indication for the next principal that Hoever posed a risk of sexual harassment or assault. This, in the Eleventh Circuit's mind, constituted deliberate indifference.

This opinion provides important guidance to lower courts on all three elements discussed, but particular the deliberate indifference standard. As the lower court's decision in this case demonstrates, sometimes courts reason that any response at all by a school official is sufficient to overcome a claim of deliberately indifferent. The Eleventh Circuit has appropriately instructed the courts in its circuit to look at the school's response in the context of an emerging pattern of complaints.

Decision: Doe v. School Bd. of Broward County, 2010 WL 1655918 (11th Cir., Apr. 27, 2010)

Grossman Explains and Analyzes Repeal of Model Survey Policy

In her regular column at Findlaw.com, Professor Joanna Grossman provides an easy-to-understand-but-nevertheless-thorough analysis of the Department of Education's recent decision to repeal the Model Survey policy, including what the policy's repeal may signal, politically.

She concludes:

This reversal of Title IX policy, while narrow, is an important sign of the Obama Administration's support for civil rights. It follows an announcement by the current Secretary of Education, Arne Duncan, that the agency will open investigations in 32 school districts and will look closely to see whether educational entities at all levels are complying with civil rights laws such as Title IX.

Overall, Title IX's future looks bright, but areas for progress yet remain. Women still receive disproportionately fewer playing opportunities, fewer scholarships, coaches who are paid less, and lower budgets, despite more than a decade of active Title IX enforcement and litigation. This policy reversal is a hopeful sign that we can expect further progress – instead of retrenchment – in the crucial area of ensuring that female and male athletes are given equal opportunity.

NCAA Gender Equity and Issues Forum: Part 2

Yesterday the Assistant Secretary of Education for Civil Rights, Russlyn Ali, addressed the NCAA Gender Equity and Issues Forum as the keynote speaker. It was great to be in an audience consisting of mostly of college athletic department officials as we cheered the Department of Education for rescinding the Model Survey policy last week and for promising to get tough with schools that are not in compliance with Title IX. I teach administrative law, and usually don't come across many examples of regulated entities embracing the regulator for strengthening and enforcing regulations. But the fact that they were speaks well of college athletic administrators and the NCAA. Their commitment to Title IX and their support for strong regulations and enforcement demonstrates that they are truly educators, looking out for what's best for students, even if that means their institutions have to work a little harder (or a lot harder, in some cases) to stay out of trouble with the law.

Here are some highlights from Assistant Secretary Ali's speech:

• In response to those who have complained about the past administration's "slippage" in enforcement of Title IX, Ali promised, "those days are over." Ali reports that her staff is "happy to be doing civil rights again."

• A wave of vigorous enforcement is already underway. OCR is being more responsive to complaints that are filed, and is planning to launch a number of investigations of its own in the next couple of months.

• Specifically, OCR is planning to kick off 12 investigations of colleges, universities, or secondary schools by fiscal-year's end, half of these addressing athletics issues and the other half addressing sex discrimination in other aspects of the institution.

• OCR's enforcement priorities in athletics relate to participation rates, financial aid, and the "laundry list" of factors used to determine if men's and women's athletic programs are receiving comparable treatment. The agency will target institutions with reported disparities (such as lack of proportionality, expenditures that favor men's athletics and men's scholarships) and will use the investigation phase to determine if those disparities are the result of discrimination.
  

• OCR will also be examining institutions' compliance with existing monitoring agreements-- making sure that schools are doing what they said they would do in response to a complaint brought against them.

• When it comes to enforcement remedies, "we will use all the tools at our disposal, including withholding of federal funds" if necessary to attain compliance.
  

• Ali mentioned that OCR is also working on other issues, such as STEM education, bullying and harassment, and pregnancy. Regarding pregnancy, the agency plans to release a brochure --possibly a precursor to official guidance -- by fall.

• Is OCR not responding to inquiries and complaints in a prompt and sufficient manner? The Assistant Secretary said, "email me: russlyn.ali@ed.gov."
  

Congratulations!

Go to Nancy Hogshead-Makar who was named Senior Director for Advocacy for the Women's Sports Foundation. Professor Hogshead-Makar is a former WSF president and currently one of the busiest Title IX/gender equity advocates we know!
We are very happy to have her filling this very important role within the organization and we wish her luck!

NCAA Gender Equity Issues Forum: Part I

Greetings from Oak Brook, Illinois, where the NCAA is holding its annual Gender Equity Issues Forum. Tomorrow, I will co-present with Barbara Osborne of UNC about institutional liability for athlete abuse, sexual and nonsexual. But today I had the pleasure of attending very informative plenary sessions.

One of the topics that has been addressed so far is Equity in Athletics Disclosure Act (EADA) reporting. Today's presentation highlighted some very important differences between gender equity disclosures that colleges and universities make to the government under the EADA and gender equity disclosures they make to the NCAA. Because EADA data is public (NCAA's is not), I rely on EADA data all the time as the starting point of an analysis of an institution's compliance with Title IX. However, as today's session highlighted, there are many reasons why EADA may not be providing as clear a picture on maters of compliance as we sometimes like to think. Here are some things that I learned today that will cause me to take EADA data with extra grains of salt from now on.

• Male Practice Players Included in Counts for Women's Teams: EADA instructions on what counts as a participation opportunity encourage institutions to include male practice players in their total count of how many athletes are on a given team. There is the expectation that an institution will explain in the "comments" section of the disclosure form whether and how many athletes that are included in the count are male practice players, but universities don't always (a) include the practice players and (b) address it in the comments. So, we don't always know if the total number of opportunities in women's athletics programs includes some men.

• Competitive Cheer Can Be Counted: OCR has told institutions that competitive cheer can be counted in the total count for women's opportunities, as long as the institution has a letter of approval from OCR. The approval requirement is a good idea -- as long as institutions are complying with it -- because OCR can make sure that institutions aren't trying to count sideline cheer or competitive programs that are not being treated like other athletic teams.

• Allocated and Generated Revenue: Here's one we already knew, but I'm happy to have the opportunity to grouse about it again. OCR lets institutions report allocated revenue, i.e., money received from the institution itself, in addition to revenue generated from gate receipts, camps, and other sources. In fact, OCR requires the reported expenses and revenues to match. This is problematic because it allows institutions to send the misleading impression that athletic departments or certain programs are self-funding. It also normalizes the expectation that they are. In fact, colleges and universities ought to subsidize athletic opportunities, which, after all, are supposed to be educational opportunities. But there ought to be transparency about it.
  

• Start-up Costs Excluded. OCR does not require institutions to report expenditures made for a given team prior to actually adding the team. This could allow universities to hide or underreport the true cost of a program.
  

• Harmony with NCAA Reporting. Reporting would likely be more accurate if institutions did not have to prepare one set of numbers for the NCAA and another for the EADA purposes. It would be favorable for OCR to harmonize its requirements with the NCAA's for that reason as well.
  

OCR is ramping up Title IX enforcement efforts lately, and purports to have more in store. OCR director Russlyn Ali is speaking at this conference tomorrow. I expect she will address, or else be asked by conference participants, whether part of that effort will include EADA reform to address some of these issues.

More posts from Oak Brook to follow!

No Retaliation Remedy for Parochial School Teacher

Aado Kommendant was a teacher and girls' softball coach at St. John Vianney High School in New Jersey until the school decided in 2004 not to renew his contract. The school claimed that Kommendant was fired for appropriating school property and misusing funds, but the coach believed he was fired in retaliation for filing a Title IX complaint the Office for Civil Rights about inequitable treatment of the softball team. He sued the Diocese of Trenton, which operates the school, claiming that the school's decision was wrongful discharge under New Jersey common law. An appellate court recently affirmed the lower court's decision to dismiss Kommedant' suit against the school and its officials.

Because St. John Vianney High School is a private school that does not receive federal funds, it is outside the scope of Title IX. Therefore, the court reasoned, Kommendant's complaint to OCR about inequitable treatment of the girls' softball team is not entitled to protection from retaliation under NJ law. This reasoning highlights an important distinction between federal retaliation law, including that of Title IX, and comparable doctrines under state law. Under Title IX, an employee is protected from retaliation if employee reasonably believed that he was complaining about a violation of law. Under state law, at least in New Jersey, the employee only gets protection for complaining about actual violations of law. Whether Kommendant reasonably believed Title IX applied to St. John's or not, he is not protected under state law for complaining about Title IX violations.

I think that protecting employee's reasonable belief, as Title IX does, is superior to the state's more rigid approach. Employees will rarely be certain that their complaint addresses actual violations of law, and will likely be deterred by the threat of retaliation against speaking out against perceived violations of law.

Decision is: Kommendant v. Diocese of Trenton, 2010 WL 1526262 (Apr. 13, 2o1o, N.J. Super. Ct. App. Div.)

Texas volleyball player's case closed

High school volleyball player Mackenzie McCollum's complaint against her Texas school district has been dismissed. The Office of Civil Rights did not find sufficient evidence to suggest that the Fort Worth school disctrict employees violated Title IX when they limited McCollum's playing time after officials found out she was pregnant.
McCollum actually ended her time at the school in December and was apparently in labor when the news of the OCR investigation was made public.
The National Women's Law Center, which represented McCollum, was disappointed in the finding, believing that the school district did handle the situation poorly. But McCollum's lawyer, Lara Kauffman, was looking to the bright side of things by noting the attention this complaint received. It will make schools more aware of their legal (and ethical, I would add) obligations to pregnant students, she said.
McCollum could appeal OCR's ruling, but there is no indication that she will do so. Also, no lawsuit has been filed in this case.

Ninth Circuit Revises UC Davis Decision

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

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

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

The round-up on the re-clarification

I have to say I was a little surprised by all attention yesterday's announcement that the Obama administration would be repealing the 2005 policy interpretation allowing schools to rely solely on email surveys to show compliance with prong three received. Much more mainstream press, of course, than the initial "clarification" by George W. Bush's administration. I remain a little worried by how this announcement might play out on the larger political stage, but the press I have seen and heard thus far has been largely positive.
Here is a round-up of coverage:
From McClatchy Newspapers was coverage that focused on George Washington University where Joe Biden made the announcement. There were quotes from a women's studies professor about gender bias in measuring interest. Also interviewed was Eleanor Smeal of the Feminist Majority Foundation who said that the survey method resulted in schools shutting down some women's programs. Not sure which programs these were. We never heard of such a situation and given that when a school cuts a viable women's program it is hard to argue that there is no interest in that sport. It is possible that the survey method prevented that addition of new women's sports.
The Chronicle of Higher Education had a post about Joe Biden's support of Title IX and women's sports generally (Biden was at the women's Final Four a few weeks ago). Biden was, apparently, quite effusive in his praise of the athletic women in his life.
WaPo briefly noted the opposition to the announcement by the College Sports Council who, according to a spokesperson, feel this is a "step backwards in terms of fairness."
More thoughts on the repeal from CSC were reported in Business Week which also printed comments from NY representative Louise Slaughter who is part of the push behind legislation to mandate reporting on gender equity in high school athletics departments.
From Christine Brennan, quotes from Marcia Greenberger of the National Women's Law Center and from Julie Foudy who was part of the committee then-President Bush assembled to look at Title IX. [Foudy and fellow committee member Donna de Varona filed their own minority report to counter the recommendations from the committee that would have further weakened Title IX if they had been implemented.] Brennan also includes, as many columns and articles have, the piece of the speech from Biden in which he says "what we're doing here today is ensuring equal opportunity in athletics, and allowing women to realize their potential--so this nation can realize its potential."
Not to pick nits or diminish the impact of this good news, but "allowing women" is a little problematic (remember Nike's "if you let me play" campaign??) and the nationalist rhetoric though brief was still a little irksome.
A video of (pieces of) Biden's announcement can be found at CNN.com. You can also see the gathering of women behind him which included Girl Scouts (not sure what Girls Scouts have to do with Title IX but...), members of the US Women's National Hockey team, and Joy Cheek of Duke who was recently drafted into the WNBA and introduced Biden, for whom she served as an intern.

Stay tuned for a re-clarification

As Erin mentioned yesterday, the Department of Education is planning an announcement regarding compliance with prong three. Today Vice-President Biden will be the bearer of the news that the 2005 Office of Civil Rights "clarification" of the interests and abilities prong that allowed schools to use email surveys alone to gauge interest will no longer be acceptable. As the NYT article points out, and as we have noticed here ourselves, few schools have taken the interest-survey only approach, in part because of the opposition to the policy by the NCAA. Given the uncertainty regarding the future leadership of the NCAA, I myself am reassured by the timing of this announcement.
The use of surveys will continue, but they will not be allowed to be the sole factor in assessing interest and non-responses will not automatically be read as lack of interest.
The official announcement will be made this afternoon, but the news has already generated national headlines with stories in the as-linked-above NYT article, the AP, and a snippet on NPR's Morning Edition.
If there is further information after this afternoon's announcement we will be sure to report on it.

Government, Lawyers Targeting Title IX Violations

A reporter at the Chronicle of High Education interviewed OCR Chief Russlyn Ali about OCR's enforcement plans for Title IX. Ali says that the agency is stepping up enforcement of Title IX in the next several months. It remains to be seen what this means, but I hope it means that the agency plans to be more proactive addressing violations and responsive to complaints that get filed by others. Moreover, according to Ali, the agency also plans to issue guidance about the 2005 Clarification, the policy that allows colleges to comply with prong three with the results of an interest survey. (For a recent post about the controversial policy, see here.)

Meanwhile, the same article reports that private enforcement is also getting a boost from lawyers Nancy Hogshead-Makar and Kristen Galles, who are channeling their expertise on Title IX into a new organization called the Legal Institute for Gender Equity in Athletics. Their organization will provide support to lawyers who are bringing cases against institutions in violation of Title IX, offering sample pleadings and other litigation resources, as well as victims looking a referral. Just judging by the number of inquiries this blog receives from lawyers and victims seeking assistance, Galles and Hogshead-Makar are stepping up to fill a real need. We look forward to blogging about the project more as it gets off the ground.

UC Davis announces cuts

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

Title IX Covers Harassment in Truck Driving Program

Truck driving is a male-dominated occupation. One source I read says that women are only about 5% of truck drivers nationwide. Like any gender disparity, I expect this one has its defenders; those who say that women are just less interested in doing that type of work, or naturally unqualified for some reason. But as illustrated by the facts of a recent case, women seeking to integrate male professions face discrimination and harassment, suggesting an alternative explanation for women's underrepresentation in this profession.

In 2007, Selenia Wilborn was the only woman in her class in the Tractor-Trailer Truck Driving Program operated by a community college consortium in Alabama. Even though Wilborn was deemed a qualified for the program by the administrator in charge of admissions, her instructor initially refused to accept her to the program due to his belief that women should "be at home making babies." Eventually when two other students dropped out, Wilborn was added in order to the fill the class. But the instructor targeted Wilborn from day one, making sexual jokes in her presence and finding opportunities to touch her. Another instructor participated in the harassment as well, including by allowing a pornographic film to be shown in class. Wilborn reported the harassment to program administrators after the first time it happened; the next day in class, the instructor told the students that if they had problems with the class, they needed to be keep them in the class. Wilborn continued to report her instructors' harassing conduct to the administration, but to no avail. Later, an instructor failed Wilborn on her road test, faulting her for stalling the truck after he grabbed the gear shift out of her hand. He called her "dumbass" and reiterated his position that women should have babies instead of drive trucks. Rather than retake the test, Wilborn quit the program. It was clear to her at that point that the instructors were doing everything they could to keep her from getting her license.

Wilborn sued the community college that administers the program, alleging that the harassment she faced violated Title IX and other laws (including Title VII, on the theory that the truck driving program acted as an employment agency due to its role in placing students in truck driving jobs). A federal court recently decided that the Title IX claims based on sexual harassment survived the college's motion for summary judgment. The court agreed that a jury could find that Wilborn had directed her complaints to the appropriate administrator, who while lacking supervisory authority over Wilborn's instructors, was nevertheless the administrator authorized to receive students' grievances. The fact that this administrator took no action in response to Wilborn's complaints clearly satisfies the deliberate indifference standard.

However, even though the court allowed Wilborn's sexual harassment claim to proceed, it did grant the defendant's motion for summary judgment on her Title IX claims for direct discrimination and retaliation. The court reasoned that both claims were precluded by Wilborn's decision to quit the program, rather then get kicked out. I disagree with the court here. I think that Wilborn sufficiently alleged that she was essentially forced out -- a constructive discharge, to borrow from employment law. Setting aside the harassment, which is covered by her other claim, Wilborn seems to argue that the road test was not administered fairly due to her sex. That should have been enough to predicate a claim for sex discrimination or retaliation for reporting harassment by the instructors.

Fortunately, Title IX may provide Wilborn some relief in the form of a damages award or settlement on her sexual harassment claim. If that happens, this truck driving program and other vocational programs will have stronger motivation to institute and enforce policies to curtail discrimination and harassment. Meanwhile, however, the case offers an explanation for why there are so few female truck drivers.

Decision: Wilborn v. Southern Union State Community College, 2010 WL 1294131(M.D.Ala. Mar 30, 2010.

More on Pittsburgh audit

The people at the Women's Law Center (they brought attention to the potential gender equity problems in Pittsburgh in the first place) were kind enough to send us a link to their blog post on the Pittsburgh Title IX audit. The information I found initially was fairly vague. But their post has numbers that reveal the extent of the gender disparity.
In order to bring all nine schools into compliance with Prong 1, a total of 784 opportunities for girls would have to be added. Whether the district will choose to head towards proportionality or opt for prong three compliance is not known. An action plan is forthcoming that will address the many, many issues in Pittsburgh.
WLC's post reminds us the compliance is not just about the number of opportunities to play but about uniforms (which girls' teams are short on), scheduling of practice and game times (also an issue), access to medical support/athletic trainers (there is ONE athletic trainer for three schools--a problem for every student-athlete), and the number and quality of coaches (again--also an issue affecting girls' teams disproportionately).
I am sure we will be hearing more about Pittsburgh as they work to remedy these problems.

Appeals Court Affirms Dimissal of Cyber Harassment Case

Here is a brief update on a cyber-harassment case we first blogged about last June. The plaintiff was a ninth grader when she received three harassing emails that were sent from another student's school email account. The student who owned the email account in question denied sending them, and the school could not prove that he had. The plaintiff sued, arguing that the school's inability to identify and discipline the sender amounted to deliberate indifference. But the district court dismissed, and recently, the Second Circuit Court of Appeals affirmed that dismissal. Both courts reasoned that three emails did not satisfy the element of "severe and pervasive" harassment that is necessary for liability to attach.

Decision: R.S. v. Bd. of Educ. of the Hasting-on-Hudson Union Free Sch. Dist., 2010 WL 1407359 (2d Cir. Apr. 9, 2010)

Pittsburgh audit complete

In early December of 2008 we wrote about the forthcoming Title IX audit of nine Pittsburgh area high schools. The findings of that audit, which was spurred by the Women's Law Center's initial research into gender equity in the public schools, were released last week at a school committee meeting.
Peg Pennepacker was the leading consultant on the project and she spoke about some of the findings, the most notable of which, the committee believes, is the lack of self-esteem among Pittsburgh students because of the lack of good athletics programs and opportunities. In addition to the lack of support of interscholastic athletics in Pittsburgh, the opportunities for girls in the schools is "far below" the national average in part because schools have not been proactive in expanding the opportunities for girls.
Recommendations from Pennepacker include:

• the development of a strategic plan of action, which would include a timetable, to expand opportunities for girls.
• oversight of booster clubs.
• the appointment of a Title IX compliance officer.

The week of reinstatements? UNF follows DSU

Mere weeks ago, the University of North Florida announced it would be cutting its women's swimming and diving program in order to focus on its core group of sports, a focus that included distribution of monies and providing competitive opportunities for its student-athletes.
But it appears school administrators have changed their minds. Apparently they realized that cutting the team would have an effect on gender equity in the athletics department.
I am having a couple of "nanny, nanny poo-poo" (childish, I know) moments with this news. First because it took me less than five minutes to figure out that cutting the team would likely affect the department's proportionately. And I had to go to a website to find the relevant data. I assume UNF has it, along with a calculator, at the ready. It makes me wonder whether schools are just going to cut women's sports and wait to see if they get caught.
And second, Swimming World magazine (online) reported on the reinstatement. Some in the swimming community, including this particular publication, have been a little harsh on Title IX and blamed the legislation for loss of swimming and diving programs. Let's note that Title IX has saved the UNF program.

Bullying in the national spotlight

I live in western Massachusetts and yesterday, in the process of doing errands, I drove by the juvenille court in South Hadley; a building I had never noticed before. Except yesterday there was a cadre of news trucks and lines of cameras and reporters all trained on court doors. And had I not seen the same thing at Hampshire County Court in Northampton the day before, it would have taken me a long time and probably a google search or two to remember that the teenagers allegedly responsible for the bullying of South Hadley High School student Phoebe Prince--the bullying that apparently lead to her suicide--were being arraigned.
It's not that I am not aware of the incident, but that the subsequent actions have been shrouded in secrecy from who did the bullying, who was suspended or expelled and if any school officials are being held responsible. On the last count, no charges have been made yet, which is why Title IX has not been mentioned--that I have seen--in any of the coverage. While numerous allegations have been made that teachers and administrators must have known, no investigation yet has confirmed or denied such allegations. I believe, though, such investigations and "conclusions" are forthcoming.
The whole thing makes me a little bit sad. Not just because a young woman took her own life, though that is indeed tragic. I am sad that this is likely to turn into a battle of responsibility between communities, parents, and school administrators. But bullying, severe bullying of the kind that leads to students missing school, transferring, and even hurting and killing themselves is not new.
I know this not because I have children, not because I am a K-12 teacher or administrator, but because I do this blog. And we report on just some of these cases--the ones in which legal action is taken. But none of these cases of children being bullied because they do not conform to gender norms--i.e. they are, or are accused of being gay--have garnered the kind of attention the Prince case has even though those cases have resulted recently in monetary settlements or jury awards.
I am NOT suggesting that the Prince case is not as serious as these others. After all, reports are that the bullying was very much gender based. Not because people thought she was gay or too masculine, but that they thought she was "loose."*
I am suggesting that had a nationwide discussion of bullying occurred before this case--like when 9-year old Montana Lance of Texas killed himself, or in April 2009 when boys in both Georgia and Massachusetts killed themselves--might have spurred a slightly more proactive stance against bullying all over the country, including South Hadley. All of these cases involved bullying based on perceived non-conformity to gender and sexuality norms.
In order to hold schools accountable for the harassment of students, lawyers need to prove there was "deliberate indifference" on the part of school administrators; that they knew harassment was occurring and did not take the appropriate steps to remedy it.
Guess what? Bullying is occurring everywhere and it is often, if not always, gender based. With the attention this most recent tragedy has received, I think every teacher and administrator should be on notice. At this moment failure to institute anti-bullying programs and immediately address potential bullying is indeed deliberate indifference.



* this was the best term I could come up with--far better than the other ones I have heard in reference to Prince.

DSU changes its mind

Right before a scheduled hearing before a district court judge in Delaware, Delaware State University announced it would keep its equestrian team for another year. This rendered, of course, the hearing, which was an attempt by the plaintiffs to get an injunction against the cut while the lawsuit was pending, unnecessary.
The decision was apparently made known to the judge in the case on Tuesday. But the extension is only for one year, according to university officials, who say the equestrian team will not continue any longer than that. Also, the initial lawsuit filed by a DSU equestrian recruit has reportedly been settled.
The university still contends that it is Title IX compliant--even if it dropped equestrian. But lawyers for the team (in a lawsuit separate from that of the recruit) still plan on pursuing their case against the university for lack of compliance

New CEO for WSF

The Women's Sports Foundation has named Kathryn Olson its new CEO.
Olson is a former exec at Shutterfly and Leapfrog Enterprises. She lives in San Francisco and will be opening an office there though WSF headquarters remain in NY.
Olson was already a member of the WSF Board of Trustees serving as the Vice-President of Governance.

Civil Rights Commission Endorses Model Survey

In a disappointing but not exactly surprising move, the U.S. Commission on Civil Rights has issued a report that endorsing the practice of colleges and universities to measure compliance with prong three by relying on the Model Survey method that the Department of Education created in 2005. Prong 3 measures whether schools fully and effectively accommodate the interests and abilities of the underrepresented sex; it is a less stringent standard than the alternative prongs of (1) statistical proportionality or (2) history and continuing practice of expanding opportunities for the underrepresented sex. The Model Survey allows schools to survey students of the underrepresented sex at a college or university to see whether there is unmet interest in athletic opportunities that students would have the skill and talent to undertake. Unless the survey shows unmet interest and ability in numbers sufficiently large to field a team, the existing athletic opportunities are deemed to comply with Title IX, even if women are severely underrepresented.

Critics--myself among them--argued that the Model Survey approach perpetuates existing disparities in athletic opportunities. For one thing, the Model Survey requires only women (or whichever is the underrepresented sex, but it's nearly always women) to prove their interest by enrolling first at a school that doesn't even offer the opportunity they are interested and able to undertake. Men do not have that burden, and are advantage by the likely reality that coaches and athletic administrators are actively recruiting interested and talented male athletes to the student body. Moreover interest and ability are constructed, in part, by the opportunities that are made available. When there are no opportunities, interest and ability remain stagnant. The Model Survey creates a vicious cycle, then, because the absence of interest and ability means the absence of opportunity.

It's not clear whether the U.S. Commission on Civil Rights endorsement of the Model Survey approach. The Commission is an unusual agency in that it does not have enforcement power, only the power to make recommendations and reports. For another, it is regarded as a body that is motivated by political considerations more so than independent, objective expertise. No surprisingly, the five commissioners (of 8) who endorsed the Model Survey recommendation (one of whom was technically an absention) were all appointed by President Bush. Another reason that the Commission's report is of questionable influence is that the Model Survey has a strong opponent in the NCAA, which has urged its member institutions not to rely on he Model Survey, for the reasons noted above. Like the Commission, the NCAA does not have enforcement authority with respect to Title IX. But it arguably has more name recognition and persuasive authority than this rather obscure commission.

Delaware State Invokes Prong 2, Cheerleading in Defense

Delaware State University is reportedly defending its decision to cut the women's equestrian team by claiming it nevertheless complies with prong two: the compliance test that requires a university to show a history and continuing practice of expanding women's athletics. The problem with DSU's prong two argument is that all courts that have considered whether cuts to women's teams violate Title IX have recognized that cutting a viable women's team necessarily violates prong two: reducing opportunities

This is the tradeoff for the flexibility prong two provides in the first place: schools don't have to achieve proportionality (prong 1) or full accommodation of interests (prong 3) overnight; they will not violate the law if they are working towards those goals by program expansion. But this flexibility is not boundless: it does not allow a university to stall (hence, "continuing" practice) and it does not allow a university to backslide by cutting a viable women's program. Rather, as the First Circuit said in Cohen v. Brown, it requires a university to "march uninterruptedly in the direction of equal athletic opportunity." More recently, the district court in Connecticut articulated an identical interpretation of prong two when it held that Quinnipiac University necessarily did not show a history and continuing practice of program expansion after it cut its viable women's volleyball team: "That is because, by eliminating a women’s team while there is sufficient interest to field one, the University will have failed to demonstrate that it is committed to expanding opportunities for the underrepresented gender – women."

Coincidentally, it looks like the court's prong two interpretation is not the only reason to compare DSU's case to Quinnipiac's. DSU's second defense of its decision to cut equestrian is the announcement of plans to add a competitive cheer team. However, this does not change a court's likely outcome on the prong 2 question. As long as one sex (here, women) are underrepresented in athletics, prong 2 compliance means the University has to keep its viable programs AND add new ones. Cutting-and-adding does not count.

A second issue is whether adding cheer put the university in compliance with prong 1. If so the prong 2 argument is not necessary. But putting aside the obvious argument that DSU should not be able to count cheer opportunities that don't yet exist, there is no way DSU will satisfy prong 1 by adding cheer. The disparity between the percentage of women students and women's athletic opportunities is so severe that by my calculation, DSU would have to add 156 cheer athletes-- more than doubling the current number of women's athletic opportunities -- to comply with prong 1. Surely this is not what DSU is planning. If it is, it's got other problems, as courts have started to crack down on universities that manipulate prong 1 calculation by padding the rosters of women's teams.

In sum, I continue to predict that this case will resolve quickly and in favor of the present and recruited equestrians who have filed suit against DSU.

Texas textbooks and Title IX

The recent changes to social studies curriculum in Texas will result in textbooks that talk about the "unintended consequences" of Title IX (and the Great Society, and affirmative action). The issue, of course, is that changes in Texas are likely to mean changes to textbooks used all over the country because of the large number of textbooks the state purchases. Textbook publishers have to go before the Texas Board of Education, which approved 100 amendments (including the above) to the social studies curriculum, to show them drafts of their textbooks.
I am sure there are many happy anti-IXers since the news about the Texas conservatives efforts at reeducation broke a couple of weeks ago.
The possible good news is that in this digital age, there is the possibility of textbook companies customizing textbooks. But this would require, at the least, diligence on the part of school committees and state education boards in examining the materials. No word on whether these customized texts would cost more.

Breaking news: Settlement in NY bullying case

In January, the federal justice department intervened in a Title IX case in Mohawk, NY involving a male teenager who has been bullied for allegedly acting too effeminate. The justice department agreed that Title IX offered protection against discrimination based on gender expression.
And according to an NPR blog, the case has settled with the Mohawk school district agreeing to pay the plaintiff, referred to only as Jacob, $50,000, as well as cover all legal fees and the cost of therapy and provide anti-discrimination training to employees (teachers and administrators were either indifferent, complicit, or part of the bullying). This settlement deal is similar to the one we reported on not too long ago.
Thus the settlement is not surprising, though at the time we reported on the potential terms it appeared negotiations had stalled somewhat.
I would like to think that the large jury award to a bullying victim in Michigan earlier this month was influential.

School Principal May Be Individually Liable for Teacher's Abuse

A recent Seventh Circuit decision addressed an elementary school principal's potential liability for a music teacher's sexual abuse of students. The students sued the school, the principal and the teacher on several theories of liability, including Title IX, constitutional violations, and state law claims. While the Title IX claims against the school and the state law claims against the teacher are set for trial, the principal moved to dismiss the claims that she had violated the plaintiffs' constitutional rights to equal protection and due process, arguing that she was protected from liability under the doctrine of qualified immunity.

Qualified immunity shields government officials (including public school officials) from individual liability. However, it does not apply when the official is charged with violating the plaintiffs' clearly established constitutional rights. If the substance of the plaintiff's legal argument presents a close call under constitutional law, the official is protected and the lawsuit is dismissed. But if the plaintiff's legal argument is clear winner under constitutional law, then the official is not protected, and the lawsuit may proceed so that the plaintiff can try to prove the facts of her case.

In this case, the Seventh Circuit acknowledged that sexual abuse may violate a student's rights under the Constitution's Equal Protection clause. Moreover, it was "clearly established" at the time of the events giving rise to this case that a supervisor could be liable for condoning, covering up, or turning a blind eye to the abusive conduct of a supervisee. The court agreed with the principal that recent Supreme Court decision, Iqbal v. Ashcroft, requires plaintiffs to allow allege the supervisor's discriminatory intent in such cases. However, In addition, a supervisor charged with violating the Equal Protection Clause for such conduct or indifference must to do with the intent to discriminate. But the court thought that a jury could infer from evidence that the principal helped cover up the teacher's molestation that the principal also had a purpose of discriminating against the girls based on their sex. The court therefore refused to dismiss the equal protection claims against the principal.

The court also held that qualified immunity would not shield the principal from the plaintiff's due process claims. Under the due process clause, citizens have a protected liberty interest in their right to bodily integrity -- a right that is impaired when one is physically molested by a state-employed teacher. The court considered it "clearly established" law at the time of the events in this case that a principal whose own conduct creates or exacerbates the risk that a student will be molested violates the due process clause. As noted, the plaintiffs allege that the principal actively covered up abuse, exacerbating the risk to the students. Therefore, this claim was also outside the scope of the principal's qualified immunity defense, and the principal's liability will also be decided at trial.

Decision is: T.E. v. Grindle, 2010 WL 938047 (7th Cir. Mar. 17, 2010).

NYT Examines Violence In Women's College Sports

In recent months, college sport has seen several high profile instances of violence by female athletes, from New Mexico soccer player Elizabeth Lambert pulling an opponent down by her ponytail to Baylor's Brittany Griner currently serving a two-game suspension for punching another basketball player. In Sunday's New York Times, reporter Jere Longman looks at these instances and others, and asks "what is going on?" Has violence increased with the rising stakes and pressure in women's sports, as women emulate the behavior of men to be taken seriously as athletes? Or is it just our perception that has changed -- manipulated both by the growth of the media and the 24/7 news cycle, and by the fact that instances of violence in women's sports are reported against a backdrop of minuscule coverage of women's sports generally?

Longman turned to several sports experts to help answer that question, including none other than my co-blogger Kris, who suggested that the media's fixation on violence in women's sport could be related to backlash against Title IX. The perception of violence in women' sport lends support to who criticize Title IX and seek its repeal when it (like ACL tears) is framed as a problem caused or triggered by the law. This framing ignores the prevalence of violent acts in college men's sports, and as Kris says in the article, misses the opportunity to examine the problem as a non-gender-specific one. Violence shouldn't be tolerated in college sports, men's or women's. The solution to the problem of violence in women's sport isn't to stop advocating for women's equality in sport, but to change the college sports culture that pressures student-athletes to commit acts of violence or that valorizes it rather than condemning it as, in Kris's words, "third grade behavior."

Nice job, Kris -- way to represent the Title IX Blog!

University of North Florida cuts swimming and diving

The University of North Florida in Jacksonville, citing financial constraints, conference affiliation, and facilities, announced earlier this week that it will cut its women's swimming and diving team. There was no mention of any plans to add a different women's sport. Right now UNF meets the proportionality prong but cutting the swim team puts it in dangerous territory. Based on numbers from the 2008-2009 season cutting women's swimming places the percentage of opportunities afforded to women at just below 50 percent. Female students comprise (again as of 2008-09) 57 percent of the undergraduate population.
If UNF does not have plans to add a women's team, and the current numbers are similar to last year's, members of the swim team may have a case that the university is not providing equitable opportunities for female student-athletes.

One way or another?

A panel on gender equity and intercollegiate sports held at Vanderbilt University Law School yesterday brought out a Title IX founder, a realist, and a wrestling coach.
According to the AP coverage, the panel discussion focused on "whether the law requiring gender equity in college sports needs to be reformed or is simply being misinterpreted."
I choose C) None of the above. I am not sure why this paradigm is being perpetuated. [Note also that the AP writer is narrow in her description of the law which applies to all aspects of all educational institutions.]
Birch Bayh, former senator from Indiana, and the man who helped write the legislation and get it passed, still believed in the power and potential of Title IX and pointed out to the wrestling coach who cried reverse discrimination, that the greatest loss of wrestling programs occurred in the 1980s when the law was not being enforced and that the sport has seen recent growth in the intercollegiate ranks.
But it was Vanderbilt's Vice Chancellor David Williams who spoke the words no one wants to hear: the problem is football. A woman in the crowd suggested cutting down the number of scholarships football receives to 50. But Williams, noting the big business that is football (and men's basketball), said it would be very hard for any one school to make that decision in the current climate of TV deals and sponsorship packages.
It is clear that something needs to change, but it's much bigger than Title IX.

White female athletes, black male athletes and Title IX

University of Georgia professor Dr. Billy Hawkins has a new book out about the black athletes and intercollegiate sports. It appears, from this press release, that a majority of the book. The New Plantation, focuses on the young men in revenue-producing sports, primarily football and basketball. He compares the intercollegiate system and the role of black male athletes in it to the plantation system in the US pre-Civil War.
Hawkins does touch on black female athletes and Title IX in his book, making a very important observation about how Title IX has not produced more opportunities for black women in the way it has for white women. This is not a new observation, but the way he frames it is:
"Since Title IX has provided very limited opportunity for black females, but additional opportunities for white women to compete and black male athletes make up the greater percentage of the revenue-generating sports that contribute to athletic departments' revenue, and thus their ability to support these additional sports, a recurring historical relationship between the white female and the black male has been resurrected."
I take some issue with the way Hawkins phrases this given that I do not view the new opportunities for women as "additional sports": add-ons or extras. Also, note that many of these revenue-generating sports are not generating enough to even support themselves, let alone other sports. But the relationship remains an interesting one. Opportunities added to achieve or work towards equity are often done because of the large roster size of football, one of the sports Hawkins focuses. And, as Hawkins and others have pointed out, the majority of these added opportunities go to white women.

Judge Holds Hawaii HS Softball Field Violates Title IX

Yesterday a federal district court judge in Hawaii ruled in favor of the girls' softball team at Baldwin High School, in Maui County, who had sued the county and the state board of education over the condition of the softball field. According to the press, the judge held that the "obvious disparity" in quality between the boys' baseball field, of "near semi-professional" quality, and the girls' softball field, which is not regulation size, a mile from campus, and dangerously strewn with rocks and stones, violated Title IX, and ordered the state and county to make improvements to the field where the softball team used to play before being relocated to the county-owned field.

While I applaud the decision for recognizing and ordering remediation for the disparate playing conditions, I don't understand why the judge has held the county partially responsible for ensuring equality between the fields. Hawaii has a statewide school district rather than local districts, so that explains why the state board of education is the educational institution on the hook for violations of Title IX. But it seems (from this article) that the board has made arrangements for softball to play on a county field rather than provide a field on school grounds. The board is surely liable for opting to use a county-owned softball field whose quality does not measure up to the baseball field, but this arrangement does not turn the county into an educational institution with an obligation to comply with Title IX. I'm guessing we haven't heard the last chapter in this case; most local governments are strapped for cash these days, so I think the county is likely to appeal.

Indiana scheduling case moving forward

The case brought by former basketball coach Amber Parker, on behalf of her daughters, against the Indiana High School Athletic Association and Franklin County schools is moving forward. A federal district court decided the case would proceed to trial. But the defendants are still waiting on a motion they filed that argues the case violates the 11th amendment. [I'm pretty sure that's not going to work out for them, but I am not the legal expert.]

Last we had heard about the case, Parker was looking for a lawyer. She appears to have found one and is set to make the IHSAA take responsibility for their history of discriminatory scheduling.

The US men will not win the World Cup...

...and it's all Title IX's fault. Well it is if you believe this guy who blames Title IX for the demise of men's soccer programs at the intercollegiate level thus depleting the pool of national team members.
He does cite other issues such as the lack of popularity in the United States where more than a handful of other sports have considerable national attention. And just because people--American people--get excited about soccer during the World Cup--does not mean we need to blame gender equity for the lack of attention in the intervening years. After all we get mildly excited about esoteric winter sports like luge and curling every four years, too.
And it should be noted that the lack of national popularity is part of the reason that colleges do, when they feel they must make cuts, scratch soccer from its list of men's varsity sports. Or it's the reason why it never exists in the first place. I do agree that the popularity of youth soccer would seem to suggest that it should be more prevalent in college. But again, if it's not there already and student-athletes are set on playing sports in college, they will switch sports or specialize in something other than soccer. I believe it's been said before here, but if football teams would just give up 20-25 roster spots (which would bring their roster down to just under 100 players), schools could field a men's soccer team.
The columnist argues that the women's national team "swaggers" into international events and frequently finds itself on the podium. But let's note that even though Title IX likely contributed to this success on the international stage, it is not as if the women's team has the national popularity of the men's game. Female soccer players struggle to make a living playing their sport after college. They can go overseas, but there are far more opportunities for men in Europe. In the US, one professional league, the WUSA, folded even though it was created on the heels of US World Cup excitement. And the current league, the WPL, is staying small and already has seen one team fold as it begins its second year.
So the US men may not perform as well internationally, but they still get more national attention and opportunities as professional players.
That's a gender equity issue that does not get discussed.

Cuts forthcoming at Davis

Due to a major budget shortfall this year, the UC Davis athletic department has been asked to cut $1.79 million from the department budget next year. The school has given the department control over how to cut its budget, but it's a nearly foregone conclusion that some sports will have to be cut. Davis, a DI institution, fields 27 varsity sports right now. While it will be an unfortunate situation for the cut teams and the affected student-athletes, Davis's 27-team department is far larger than its peer institutions in the Big West, which average just over 18 teams. Being forced to pare down athletic offerings because the bad economy, which has hit California schools particularly hard, is never a good situation. But even the athletic director is calling the potential cuts "right-sizing" and not downsizing. Cuts now will hopefully lead to a stronger, more fiscally responsible, department down the road.

Second Lawsuit Filed Against Delaware State

Fifteen members of the recently-terminated Delaware State equestrian team have filed suit in federal court, challenging the school's decision to cut their team as a violation of Title IX. The Women's Law Project and Flaster Greenburg, a Philadelphia-based law firm. The attorneys expect a hearing on their motion for preliminary injunction sometime next month.

DSU already faces a similar lawsuit, filed by an incoming student who had signed a letter of intent to join the team.

As I have mentioned before, this should be an easy victory for the equestrians. DSU does not satisfy the proportionality prong, so it cannot cut a viable women's team without violating the other two alternatives for compliance, which require either program expansion or satisfying the interests and abilities of the underrepresented sex.

Ohio School District Decides Location for Softball Field

Here is a brief update from Chillicothe, Ohio, where the school district has been struggling for months to resolve disparities in its facilities for softball and baseball. Last fall, the ACLU notified the school district via letter that the lack of a permanent softball facility was discrimination in likely violation of Title IX. In response, the district spent several months considering a variety of possible solutions, and recently announced its decision to construct a permanent softball facility on the site of one of its elementary schools in time for the 2011 season.

Now the district will have to figure out how to fund the project, which will likely cost in the hundreds of thousands of dollars. The article mentions that the softball team itself is fundraising and working to line up volunteers, which is commendable. From an equity standpoint, though, those efforts also raise the question of whether other teams must raise funds for the construction or operating costs of their facilities.

The location of the softball field -- 2 miles away from the high school, according to my research on Google maps -- also raises some equity questions. For reasons not explained by the article, the district did not consider a permanent softball field on the high school campus, where the baseball field is located. (The article only says that the board considered, but rejected, plans to put a temporary softball field there.) I wonder if the district is planning to provide transportation to the field. Assuming other teams do not have playing and practice facilities that are located off campus, it could be inequitable to the softball players if they are the only team to have to make their own arrangements to get to their practice and playing facility.

Point Loma Nazarene University Cuts Four Teams

Point Loma Nazarene University in San Diego announced last week that this year would be the last for four of its sports teams: men's golf, men's track, men's cross country, and women's softball. PLNU reportedly explained the cuts as necessary to achieve compliance with Title IX.

This explanation seems to make softball the scapegoat for the cuts. For 29 years, the university had an arrangement with the city to use city land at Sunset Cliffs Natural Park for the team's former softball field. But the city voted in 2005 to return the land to its natural state as part of its master plan, causing the university to put its softball team off campus this year. No men's teams must play off campus, so an anonymous complaint filed with the Office for Civil Rights apparently alleged that this disparity constituted unequal treatment in violation of Title IX.

The complaint is believed to have triggered the university's decision to cut teams, as evidenced by students who believed that the complaint "backfired" on the women's softball team. "We’d rather play in unfair circumstances than have the team completely done away with," said one student quoted in the article linked above.

More likely, however, is that the university's decision was about more than just Title IX compliance questions regarding the softball field. I believe that PLNU could have gotten OCR to resolve the complaint by agreeing to make plans for a permanent softball facility in the future. OCR would have retained jurisdiction and followed up some years down the road to make sure that a facility was coming along. This kind of flexibility is typical of the softball field cases we follow on this blog. Moreover, OCR's public position is that cutting teams is a disfavored solution. I have never seen the agency encourage a university to cut teams as a way to achieve compliance.

Therefore, I don't think that PNLU's decision to cut teams was just about the softball complaint. I think it's more likely that the athletic department had overextended itself financially and needed to pare down athletic offerings to stay within its budget. Because the school's athletic offerings already disproportionately favored men (male students received 50% of the athletic opportunities while constituting 40% of the student body), Title IX necessarily factored into the decision of which teams to cut, as the law says cuts can't fall more heavily on whichever sex has fewer opportunities to start with. But this is not the same thing as saying Title IX caused the cuts in the first place.

We are used to seeing the Title IX blame-game when universities cut teams. But this time it seems particularly egregious as a particular team has become the scapegoat for the demise of four teams including its own. PLNU should take the responsibility for the cuts off of its softball players and offer a real explanation for why can't continue to fund all of its teams in an equitable and adequate manner.

Monetary award for victim of bullying

Last year we reported that a case of harassment previously dismissed by the lower court in Michigan was reinstated by the Sixth Circuit Court of Appeals. And late last week a jury awarded Hudson Area Schools to pay the plaintiffs $800,000.
It's a very good result given the rising incidents of bullying in (and out of) schools. Our original post notes some of the horrific incidents experienced by the plaintiff throughout his school years. (He is now 19.) The report of the jury verdict glosses over some of the nastiness in favor of commenting on the significance of the monetary award. The jury clearly decided that even though the school addressed the individual acts of harassment against the victim (the judicial system helped too--one assailant plead guilty to criminal charges) they did nothing to stop the pattern of harassment against the plaintiff.
We shall have to wait to see how this verdict affects other cases, pending and future. I am especially interested in how potential large jury awards might rouse some educators from their state of indifference.

Student fees funding athletic departments

A while ago we mentioned that San Diego State University raised its student athletic fee by a fairly large percent in order to, among other things, add two women's sports.
This article notes that the raising of student fees, sometimes with student support, sometimes unilaterally, has become a trend as many college athletic departments struggle to balance their budgets.
It lists the schools that have employed the tactic and touches on the somewhat touchy subject of putting the burden of funding athletics on students.

Diving coach lawsuit moves to federal court

We blogged about the lawsuit filed by former Texas A&M diving coach Kevin Wright when he filed for wrongful termination in state court under a whistleblower protection statute in Texas. At that time we wondered whether there would also be a Title IX retaliation claim.
There is now--because Wright has moved his case to federal court. As a brief reminder, Wright, who had served 17 seasons as the diving coach, was terminated last September. He alleges that it was because he complained about Title IX violations.
Wright said that a diver was asked to lie about travel accommodations to an investigator examining gender equity within the department. Said diver heard a female swimmer actually lie in the interview. Wright complained about the inequitable travel arrangements. He also expressed concerns over potential recruiting violations.
The university, should this go to court, is likely to accuse Wright of anger management issues and potential sexual harassment of a fellow coach. The validity of these counter accusations is, of course, unknown.
No word on trial dates or negotiations.

Illinois School District Agrees to Equal Treatment for Girls Sports

We've blogged a few times about the Title IX lawsuit against Canton (Illinois) School District No. 66 (see here, here and here). The school district was charged the school with discriminating against girls' athletic teams in funding and support. The parties have reportedly entered into a settlement agreement that ensures girls' teams have equal access to practice facilities, lockers, and funding.

The plaintiffs had also claimed that the school district discriminated against girls teams by only deploying band and cheerleaders to boys games. The press I've read about the settlement agreement does not address this issue.

Cutting track, adding golf at Seton Hall

Seton Hall has decided to cut men's and women's track and field due to budget shortfalls. This academic year will be the last for the teams--four in total because of the indoor and outdoor seasons. When making the announcement last week, the school also announced that it will be adding women's golf. They need to do so in order to maintain the 14-team minimum required of all Division I schools. It was also mentioned that the addition of women's golf will make the school Title IX compliant.