Strike IX profiles the 1999 Providence College Baseball Team

When author Paul Lonardo contacted me about his new book Strike IX, I worried I might be in for another misplaced Title-IX-is-the-enemy screed from an advocate for men's sports. But after reading a copy of the book, which Paul kindly sent me, I learned that Strike IX is the story of the athletes on the 1999 Providence College men's baseball team who went on to have the season of their lives after the college announced its decision to cut the program. Strike IX is a compelling underdog story about athletes playing for pride, playing for the love of the game when there's no tomorrow, when the "only thing left to do is to go out and win the whole $*!@ thing!" Under these circumstances, the 1999 Providence College baseball team produced the best season record in the program's history and a Big East conference championship. It was, in sum, a good sports story.

The only problem I had was the title. Calling the book Strike IX creates the impression that Title IX was to blame for the college's decision to eliminate the team. And the chapter in the book that discusses the relationship between Title IX and PC's program reduction could have done more to clarify the statute's role. I have two specific critiques. First, while the author appropriately notes that PC made its decision to terminate baseball in the wake of the Title IX litigation involving Brown University, he leaves the impression that the decision created PC's obligation to comply with Title IX. Rather, the regulatory standard that Brown so gloriously unsuccessfully challenged in the early 1990s had been on the books since 1979. Unexamined in Strike IX was what Providence College's compliance approach had been since then. With twenty years to play with, did the institution seek to equalize men's and women's athletic opportunities gradually, so as to avoid a drastic approach like cutting teams? Or did PC behave cavalierly, like many colleges did, and exacerbate inequities by continuing to grow men's sports without first bringing women's sports up to level? It's true that Title IX limits school's choices about which teams to cut when that school fails to provide proportionate opportunities to begin with. But PC's decisionmaking prior to 1999 is what created that disproportionality, and some of that should have been in the book.

My second critique is that the author accepted too quickly PC's rhetoric about why it thought it had to satisfy the proportionality standard (and thus, to do so by cutting a men's team) rather than to claim compliance with prong three. Prong three recognizes that even disproportionate athletic offerings (like PC's at the time) can still comply with Title IX, as long as there is no demonstrable unmet interest among members of the underrepresented sex (i.e., women). Generally, an institution does not have a problem with prong three unless they (1) decide to cut a viable women's team (which PC did not do) or (2) reject a proposal from a women's club team to elevate to varsity status. Thus, if PC had been receiving and rejecting requests to elevate women's teams to varsity status, its claims that it "had to" comply with proportionality might ring true. But if not, it's more likely that the university was using Title IX to scapegoat its decision to engage in program reduction that it had made for others. Title IX prohibits schools like PC from making existing disproportionality worse through program reduction, which is why PC couldn't cut a women's team once it decided to cut teams, but it does not require a school to engage in program reduction to begin with. In PC's case, then, the decision to cut baseball was likely less related to Title IX than the college would have us think. That's the reality I would have liked to read about in Strike IX. Unfortunately, that doesn't lend itself to a clever book title.

UC Berkeley Cuts Five Teams

As Kris noted recently, the University of California, Berkeley athletic department has been considering eliminating sports as a cost-reduction measure. So it is sadly no surprise that the Chancellor has announced that baseball, men's and women's gymnastics, women's lacrosse, and men's rugby will be no longer be varsity sports. Men's rugby will occupy a new "varsity club" status.

I have a couple of questions about whether this decision complies with Title IX. First, what is varsity club status? It seems like the rugby team will continue to receive some university support -- more than the club teams receive but not as much as varsity teams receive. Title IX does not preclude Cal from making up new status labels for its sports, but those labels must be equitably applied. If a women's sport asks for "varsity club" status, I cannot see the grounds on which Cal would deny them.

Second, I have concerns that the resulting distribution of athletic opportunities complies with Title IX. Before the cuts, Cal could have claimed compliance with prong two or prong three, but eliminating women's teams forecloses that option. This leaves prong one: substantial proportionality. As Kris noted in her earlier post, Cal's women received about 41% of the total athletic opportunities (385/948), despite constituting about 53% of the student body. After the cuts, they still receive about 41% (385-45/948-102*). There is no way a 12 percentage points qualifies as substantial proportionality, so my question is, on what basis is Cal making that claim?

* This denominator figure is adjusted by the loss of both gymnastics teams, baseball, and lacrosse. I did not subtract the 60 terminated opportunities in rugby from the denominator because Cal's EADA report did not include men's rugby when calculating the total number of athletic opportunities.

School Lunch Subsidies Render Catholic Schools Subject to Title IX

Congress, whose powers are limited to those enumerated in the Constitution, passed Title IX under its power to spend for the general welfare. Consequently, the statute's ban on sex discrimination only applies to those schools that receive federal funding. Sometimes this restriction is mischaracterized one that limits the laws school to public schools. But a recent federal court decision reminds us that private, parochial schools can be federal funding recipients. In that case, schools operated by the Diocese of Greensburg (Pennsylvania) were deemed subject to Title IX by virtue of accepting federal subsidies under the National School Lunch Program. (Though the court did not need to address the question, it also considered the schools federally-funded by virtue of their participation in the E-rate program, which entitles the school to discounts on qualified purchases of classroom technology.)

As the decision in this case points out, courts have uniformly recognized that schools receiving school lunch program subsidies are subject to Title IX. But what made this recent case trickier was that the Diocese of Greensburg operates several schools, only one of which participated in the school lunch program. The plaintiff alleged that the Diocese was liable for Title IX violations that occurred at one of other schools -- one did not participate in the school lunch program. But the court reasoned that Title IX would still apply. Since the Diocese did not organize or operate its schools as separate legal entities, the Diocese itself is the educational institution subject to Title IX by virtue of receiving federal funds for one of its programs. It is the same theory that renders one university department (such as athletics) subject to Title IX based on the federal funding received by another program or department.

This seems like a reasonable interpretation of the Civil Rights Restoration Act, which amended Title IX to impose institution-wide liability. What remains to be seen is whether this interpretation will extend Title IX's application to parochial schools beyond this particular case. That will turn on whether dioceses with several schools typically organize them separately, and if not, whether they could easily reorganize them as separate entities in order to limit liability.

Decision: Russo v. Diocese of Greensburg, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010)

Ball State agrees to changes

Issues of gender inequity in Ball State University's Athletic Department have been actively discussed for almost five years now but the university, in an effort to end OCR's ongoing investigation of the department, has come out and said it will bring the equity to the department in 10 program areas, according to a Chronicle of Higher Education article this week. They have also agreed to investigate the departures of several coaches of women's teams. This is something we haven't really seen before. I don't know if we can truly consider this a voluntary move even if it was Ball State's idea. The cynic in me thinks it was a little CYA-ish; especially when I see that the athletic director has claimed publicly that there was no retaliatory coaching changes made during the past five years and that Ball State will not admit it was not in compliance with Title IX. Just about a year ago we reported that the firing of tennis coach Kathy Bull, who had served in the position for 22 years, was a little suspect. This all serves to fuel my healthy suspicion around internal investigations. But no doubt this case was a factor in Ball State's decision to put forward an image of transparency.

Can Colleges Improve Gender Balance in Engineering?

I work at a college where male undergraduates are in the majority because they are in the majority of one of the college's biggest majors, engineering. I have participated in discussions about how to improve the gender balance, and it bothers me that the best suggestion is to add more female-dominated majors, like education and allied health. In my mind, this "solution" just buries an important social problem for the sake of improving a college-wide statistic. As I recently blogged, systemic biases, stereotypes, entrenched cultural expectations, as well as outright discrimination in such matters as compensation and the structuring of job requirements operate to segregate men and women into highly polarized fields of study. Though colleges are not necessarily to blame for these forces, it is wrong, I think, to affirm that polarity by inviting it as a solution to the problem of overall gender imbalance. But at the same time, I recognize that it is difficult for colleges to address the problem of gender disparities within majors. By the time students reach college, many already have some sense of what they want to study, and if they're not already interested in STEM subjects, college is not usually the place where that happens.

So I read with interest this article about efforts Notre Dame is making to improve the gender balance among its engineering undergraduates. Specifically, it has implemented a dual-degree program with a nearby St. Mary's, a private women's college. St. Mary's students majoring in math or science may also take pre-engineering classes at Notre Dame. After graduating from St. Mary's in whatever they majored at there, they may enroll at Notre Dame for a fifth year, and complete a second degree in engineering in that time. Seven students have made that choice. These women improved the gender balance in Notre Dame's engineering college not just by being there, but by making it easier to recruit female first-year students who see value in a more gender-integrated program. This has contributed to Notre Dame's increase in the percentage of female first-year students in engineering -- from 22 to 30% over the last eight years. Other efforts are also credited. For instance, Notre Dame carefully assigns first-year female engineering students to pre-selected dorms where they live in proximity with each other and upperclass mentors.

Even colleges that don't have an affiliated all-women's college in the picture can make similar changes that might help improve gender balance in engineering. First, targeting women for inclusion sends the right message that the university believes they can become engineers if they want to. Second, the careful dorm assignments help create a community of support. Third, and most importantly, recognizing that it might take longer for women to warm up to the idea of becoming engineers compensates for the fact that women in engineering have fewer role models, might have received less support for that choice in their earlier education, and might need some time to deprogram from the cultural messages like "math is hard" Barbie. The extra year/joint degree options could make it easier for any student to try out engineering and see if it's a fit. Tuition assistance and scholarships for that extra fifth year could make the dual degree in engineering even more appealing. These options should be directed at undecided students, as well as students who have already chosen some other major, like, say the female-dominated programs in allied health. Imagine someone pitching to them the value of a second degree in, say, biomedical engineering, and then offering the academic, social, and financial support to make that happen.

There is one thing, though, that colleges should not copy from Notre Dame. Two university officials quoted in the article referred to female engineering students as "girls." No one referred to their counterparts as "boys," and it would have stood out if they had. I agree that to overcome cultural biases and stereotypes, colleges and universities need to pay special attention to female students in STEM fields. But that is not a license to infantilize those students or think of them as less capable or mature than their male counterparts. Hopefully those quotes are an isolated occurrence. Otherwise, the message it sends will undercut the positive steps toward dismantling the gender imbalance in engineering.

Penn State elevates hockey

Both the men's and women's club ice hockey teams at Penn State will be elevated to varsity status. The announcement, which will likely contain the time table for the move, will come later this morning.
The teams are the beneficiaries of very generous Penn State alum Terrence Pegula who is giving $90 million to the university in order to make things happen, including the construction of an arena.
No official word on which conference the men's team will play in. (Big Ten doesn't have a hockey league though some are speculating that this addition will push them to add one and perhaps expand men's ice hockey in the midwest.) And not even a mention that the women will also need to join a league. (Ahem, ESPN.)

Women Earned More Doctoral Degrees

According to a recent report by the National Council on Graduate Schools, women received more doctoral degrees than men for the first time ever. In 2008-09, women earned 50.4% of doctoral degrees awarded in all disciplines, compared to 44% eight years prior. This is good news, as it shows that the parity reached first in undergraduate degrees and then masters degrees, has finally trickled up to the doctoral degrees. Some credit for this must go to Title IX, which prohibited gender caps and quotas that limited women's admissions in higher education, and helped prepare these future Ph.D.s by strengthening their educational opportunities in early education as well.

But despite this good news, it is too early to declare that discrimination in education is dead and buried. First, there is still a wage disparity. NPR coverage of the NCGS study noted that male professors with PhDs earn $87,200 on average -- $16,600 more than their female counterparts. Moreover, even though there is overall parity in doctoral degrees awarded, there are extreme disparities within disciplines. Men earned the vast majority of doctoral degrees in engineering, math and hard science, while women dominated fields like education, health sciences, and public administration. The belief that such polarization can be explained by innately different brains is rapidly losing scientific credibility, which requires us to examine those fields for the presence of bias, double-standards, or a structure that somehow tends to favor or support graduate students personal lives and obligations that are often gendered (i.e., pregnancy and childcare). Other possibilities: are men are deterred from helping professions by stigma or low earning potential? Are they able to climb the ladder in those fields without a ph.D.? While cheering the overall degree parity in doctoral degrees, the fact that many fields remain highly gendered should still be cause for concern.

Is Cal cutting?

Maybe, according to a San Francisco Chronicle article based largely on a report produced by the Chancellor's Committee on Intercollegiate Athletics at Berkeley. Cal athletics has been incurring a $10 million deficit (i.e. they spend $10 million more than they make) and that deficit has been covered by the Chancellor's discretionary fund. But given the dire economic straits the state of California has found itself in, such a deficit just isn't acceptable. One of the suggestions for dealing with it? Cutting 5-7 sports. Cal carries 27 varsity sports (second in the PAC-10, to Stanford; and second in all US public institutions). Still 5-7 sports all at once is fairly shocking. Football, men's and women's basketball, and women's volleyball are all sports required for membership in the Pac-10 so they are safe. According to the report, the decision on which sports will be eliminated is going to be based on both competitive and academic success.
And, of course, Title IX will be considered as well, as the article notes towards the end.
My initial, quick glance at the EADA data told me that Cal does not use proportionality to demonstrate compliance with accommodation of interests and abilities. That I could discern this from such a quick glance is not good. I don't know if Cal is adhering to prong two or three at this point, but when/if they cut sports, proportionality will be their only option.
Here is the way things break down right now (the EADA data is from the 2008-09 academic year): women comprise 53 percent of the undergraduate study body; they receive 385 of the 948 total opportunities in athletics. That is just under 41 percent.
I don't envy Cal administrators the task in front of them.

Professor George on "Opportunity, Choice, and Discrimination Theory Under Title IX"

In the current issue of the Yale Journal of Law and Feminism, Professor B. Glenn George from the University of North Carolina School of Law proposes that/how Title IX proponents should reshift their focus from proportionality compliance to more holistic reform. Her article, "Forfeit: Opportunity, Choice and Discrimination Theory Under Title IX" takes as a starting point that proportionality test for measuring equity in the distribution of athletic opportunity, has been ineffective and even counterproductive in generating true equality, as evidenced by the "leveling off"of women's participation in college sports. Though she does not call outright for regulatory reform that would eliminate the proportionality interpretation, I read her to be suggesting a policy and advocacy agenda that moves away from proportionality as a goal.

For one thing, she points out that the proportionality standard does nothing to prevent colleges from adopting the "JMU model" of compliance, and leveling down women's and men's athletics to the bare minimum that Title IX and NCAA requirements allow. Such response does nothing to support the ostensible goal of promoting and enhancing opportunities in women's sports.

For another, creating opportunities at the college level, without more, won't necessarily increase participation. Female college students report lower interest in athletic participation than their male counterparts, and Professor George warns against writing this data off as the product of lack of opportunity that can be solved by pursuing a proportionality objective. Female college students' lack of interest in athletics must be examined for related context, which may include their higher rates of involvement in community and extracurricular activities, more time devoted to academic pursuits, lower financial security upon entering college and greater likelihood of seeking a part time job, and lower likelihood to self-identify as "competitive."

Finally, pursuing proportionality in college sports draws the focus away from other things that might be just as valuable, or even more so, to the project of dismantling inequality. For example, a goal of attaining proportionality doesn't encourage anyone to promote younger girls' athletic participation in popular and established sports. (Colleges aren't going to add a second women's basketball team, for example, just because interest in that sport has doubled.) Proportionality also draws resources and focus to the most elite level of sport, away from other contexts, like club and intramural sports, which are more accessible to a wider range of abilities, and capable of generating new interest in athletics.

Professor George offers a couple of ideas of how, instead of pursuing proportionality, we should seek to restructure sports more generally in ways that promote equality. For example, rather than eradicate the statistical disparity in athletic participation, we could try to neutralize the disparity in privilege that results from the disparity in athletic participation, for example, by taking athletic scholarships off the table. For another, we could change the nature of participation in ways that allowed athletes to simultaneously hold a job if they needed one, to devote time to their school work or community service or otherwise have a more well-rounded life. In addition to other benefits, such reform would change the definition of "athletics" to fit women's interests, rather than the other way around.

In sum, I found Professor George's article to be compelling. Though I believe it is necessary to retain the proportionality standard in order to protect women's athletic opportunities, it is good to be reminded of its shortcomings and the tradeoffs that such a standard requires. There's no easy way to balance the pros and the cons of incorporating proportionality into our measure of equality, but for starters, this Article makes clear that we can't let Title IX and the goal of women's sports advocates be reduced to just that.

Citation: B. Glenn George, Forfeit: Opportunity, Choice, and Discrimination Theory Under Title IX, 22 Yale J. of Law & Feminism 1 (2010).

Another book for consideration

It must be book recommendation week here at the Title IX Blog. I think these are supposed to come at the beginning of the summer and not the beginning of fall when many of us are a little bit buried with back-to-school stuff and all those things we didn't get accomplished over the summer.
But this book is definitely at the top of my must-read list (note to Norton: I would be happy to review it here if I can get a copy!!). Delusions of Gender: How our Minds, Society and Neurosexism Create Difference by Dr. Cordelia Fine is her recently published manuscript about the construction of gender differences. Fine, a cognitive neuroscientist, takes aim at the many scientific studies that have continued to attribute gender differences to innate characteristics. Why do we--as in the Title IX Blog, not the general populace which should care a lot--care about this work?
Well for one, according to the review in the New York Times, it's a very well-written and accessible work. And secondly, Fine discusses the research done by doctoral student Jennifer Connellan that has been used to justify sex-segregated classrooms. And finally, I think it's time to add neurosexism into the gender equity lexicon.

A Title IX Must-Read: Getting In the Game

Hot off the press! Getting In the Game is a new book by Title IX expert Professor Debbie Brake from the University of Pittsburgh School of Law. In the book, Brake examines how Title IX has affected and continues to affect many facets of college and scholastic athletics for men and women. Chapter by chapter, Brake identifies and analyzes the hard and interesting questions that Title IX raises, including the appropriateness of separate teams in the first place, whether and when girls should be able to try out for boys' teams, how to measure equal opportunities (the three-part test), what counts as athletic opportunities (including the cheerleading issue), the effect of Title IX on men's sports, the effect of Title IX on women of color (for more, see here), what constitutes equal treatment, the tension between equal treatment and acknowledging sex-differences (the pregnancy issue), and general aspects of the law, such as protection against sexual harassment and employment discrimination, that apply to athletics as well.

Brake is not shy about her own opinions about where the law gets it right and in what ways it can improve. For example, Brake acknowledges the critique of Title IX that by allowing separate teams for men and women, the law has harmed women's sports by segregated women into sports that receive the least support, least prestige, and reinforce stereotypes about women's athletic inferiority. But, she argues persuasively that separate teams are needed to preserve opportunities for women -- to give them the chance to, essentially, get in the game. Relatedly, however, she critiques some of the limitations on co-ed participation, including the existing regulation that lets schools prevent girls from trying out for boys' teams in contact sports, as well as the limitation on co-ed participation in sports where both a girls team and a boys team is offered. Brake proposes that girls should be allowed to try out for boys teams in both contact and non-contact sports, and even if there is a girls team that exists in that sport, but where that team is not truly equal, due to different levels of support for teams, level of play, or status. This proposal addresses some of the anti-separatist concerns without abruptly curtailing the protection of women's opportunities that results from having a default of separate teams.

Throughout the book, Brake balances detail and context on the one hand with readability on the other. The result is a book that should appeal to a broad audience including legal experts, athletic administrators, student-athletics, parents, and fans.

For other endorsements, see here.

Sexual Harassment Litigation Roundup

It's time for another roundup of recent decision in Title IX sexual harassment cases:

A federal judge in Ohio refused to grant summary judgment to the Southwestern City School District so that a jury can resolve disputed facts about whether district officials knew and took proper action to protect a student from being sexually assaulted by another student who had assaulted her on the school bus earlier that year. The jury will also get to decide whether the plaintiff was suspended in retaliation for speaking out against the ongoing harassment. Evans v. Bd. of Educ, Southwestern Sch. Dist., 2010 WL 2889100 (S. D. Ohio July 20, 2010).

Another judge in the same district dismissed claims against the school district that, like the prior case, also involved sexual assault on the school bus. The court found that district officials responded appropriately when they learned that a 17-year-old high school student forced a 12-year-old seventh grader to perform oral sex on the bus, by suspended both students and assigning the perpetrator to another bus. Nor could the district be liable for the taunting and teasing the victim received at school after the incident, which the court said did not rise to the "severe and pervasive" standard required by law. However, the court ruled that the plaintiff could proceed with her claim that the school district's decision to suspend the plaintiff in response to another matter was actually retaliation for her complaints about the sexual harassment. Marcum ex rel. C.V. v. Board of Educ. of Bloom-Carroll Local School Dist., 2010 WL 2927235 (S.D.Ohio Jul 23, 2010).

Last, a federal judge in California granted a motion by individual teachers to dismiss claims that they knew about and failed to report sexually harassment that another teacher was perpetrating on a student. The court dismissed the claims against these teachers that were based on Title IX because the statute only supports institutional, not individual liability (The plaintiff's Title IX claim against the school district was not included in this motion to dismiss, and thus was not addressed this decision.) However, with respect to two of the teachers, the court found that the plaintiff could proceed with her claims that their failure to respond to the perpetrating teacher's sexual harassment violated the Equal Protection Clause, which does allow for individual liability. Similarly, the court acknowledged that the perpetrating teacher could have violated the plaintiff's Equal Protection rights as well, and gave her the chance to amend her complaint to include an allegation that the teacher's harassing treatment singled the plaintiff out because of her sex. Dyess ex rel. Dyess v. Tehachapi Unified School Dist., 2010 WL 3154013 and 2010 WL 3154083 (E.D.Cal. Aug 06, 2010).

Which came first? The rock or the hard place?

The Great Lakes Intercollegiate Athletic Conference has decided to reverse the order of their basketball doubleheaders this coming season. Doubleheaders within the conference have traditionally featured a women's game followed by a men's game. But after an anonymous complaint filed with OCR and the subsequent investigation, the conference has decided to reverse the order. The order of women first, men second, the complaint indicated, gave the impression that women's games were mere warm-up acts for the main attraction.
The GLIAC is not, however, the first conference to make such a change in its scheduling. Other conferences rotate annually or some switch in midseason. Whether such scheduling is legal has not been determined because it was a complaint that was filed--not a lawsuit.
Regardless, the situation raises some issues. Lest my critics think I am all "this is super duper awesome" when any action is taken in the name of gender equity in sports, I do worry.
Let me state first that I think women's games should be the main event an equal amount of the time if main event status/time has to be shared between men's teams and women's teams. While going to women's hockey games at the University of New Hampshire on Sunday afternoons was a pleasant distraction from all that reading I should have been doing in college, it would have been nice to have the team get the primetime Friday or Saturday slot more often.
But do I worry about what the effects will be if half the audience leaves after the men's game? I do. But then again I worry about the effects when female athletes see fans trickling in at the very end of their games clearly there to watch the men.
While I do believe that the promotion of women's sports is a major problem, we're not in Iowa* in terms of basketball (greater popularity among girls' basketball than boys') and the "if you build it they will come" mantra that was born there.** Building is good. Building it is great. But there is no magical realism moment where cars are lining up, headlights blazing in the night to get to women's basketball games. What I hope is that there will be no moments of red tail lights lined up heading away from arenas as the women start their games.
This article from the NCAA that discusses the other conferences who have already changed their schedules to give women's teams more primetime opportunities does not say what the effect has been on audience numbers. I do think that putting women's sports in the spotlight will change attitudes about female athletes--but not overnight; not even in one season I would suspect. I hope that conferences, administrators, fans, and even (especially?) detractors allow us some time. Because a lot more change has to happen, and it extends far beyond start times.

* anymore but I liked it when I was there and do go back to visit.
** okay it was technically born in Hollywood, but it was delivered in Iowa.

Judge Dismisses Retaliation Case Against Montana State

A federal district court judge in Montana has dismissed former women's basketball coach Robin Potera-Haskins's case against Montana State University-Bozeman, in which she alleged she was terminated in retaliation for complaining about gender inequities within the department. After a bench trial, the judge issued of findings of fact consistent with the university's allegations that Potera-Haskins was fired instead for being hard -- specifically, manipulative and verbally abusive -- on the players. According to the opinion (which I have read but cannot link to), the judge did not believe, as Potera-Haskins claimed, that she had been forced by the Athletic Director to grant a scholarship to his daughter, but rather, that she had done so in order to curry the AD's favor. He did not believe that MSU terminated Potera-Haskins for pressing Title IX issues.

The judge acknowledged that Potera-Haskins's testimony refuted his findings, but found generally as a matter of fact that she was not a credible witness (the judge made no mention of the credibility of other witnesses who testified on Potera-Haskins's behalf, or how/whether he weighed their testimony). Trial judges make credibility findings all the time, and they are usually granted deference by appellate courts, because they do not hear witness testimony first hand. But trial judges usually explain the basis for their credibility findings, and such an explanation was, rather astonishingly, missing from this opinion. Nowhere does the judge explain why the testimony of former players and athletic department officials was more credible than Potera-Haskins's own. As a result, the credibility finding, which was the linchpin to the judge's decision to accept MSU's version of the facts over Potera-Haskins's, seems to me rather vulnerable on appeal.

Moreover, the judge's decision to deny a jury trial in the first place is also highly questionable. Recall that that the decision to hold a bench trial instead flowed from the judge's determination that no economic damages were at stake in the case -- highly unusual for an employment discrimination case.

So even though the first round in this fight goes to Montana State, I think the plaintiff -- who I understand intends to appeal -- has a good chance of convincing the Ninth Circuit that the decision should be vacated and remanded with instructions for a jury trial.

Qunnipiac Adds Rugby and Golf

The AP is reporting that Quinnipiac University filed its court-mandated Title IX compliance plan in federal court, in which it announced its decision to keep women's volleyball through 2011-12, s well as to add golf and rugby in order to balance women's athletic opportunities with men's. Quinnipiac will also retain its competitive cheer team -- renamed "stunts and tumbling" -- even though these opportunities do not (yet) count towards the university's Title IX compliance under the district court's recent ruling.

Qunnipiac's choice to add rugby is an interesting one. The NCAA designated rugby an "emerging sport" in 2002, as part of its initiative to support colleges' efforts to add athletic opportunities for women. The emerging sport designation means that sport will obtain national championship if 40 schools (across all three divisions) add the sport by 2012. In the meanwhile, opportunities added in that sport count toward NCAA requirements, as well as enjoy the presumption of counting as a varsity opportunity for Title IX purposes. Emerging sport status has successfully launched women's championships in sports like ice hockey and rowing, but rugby may not be following the same path. Though there is a widespread interest in rugby among female students, there is less interest from within the sport, which has a strong tradition of independence, to submit to institutional control. As a result, rugby has made slow progress towards the "4o by 2012" benchmark. By my count, Quinnipiac is only the sixth school overall, and the second in Division I, to add rugby as a varsity sport. If rugby loses its emerging sport status in 2012, Quinnipiac could potentially have two women's teams (stunts & tumbling and rugby) that do not count for Title IX purposes. We can only guess what effect this would have on the university's overall compliance strategy.

Settlement in anorexia~bullying case

I have to say I was a little bit surprised by the news that a settlement had been reached in the bullying case in which a mother alleged that her daughter had been bullied into an eating disorder.
We blogged about this case almost exactly a year ago. A young teenager in Pittsburgh, Pennsylvania had been bullied for nearly two years with the majority of the comments related to her weight. She developed an eating disorder severe enough to require in-patient treatment.
As we noted then and as this article that reports on the settlement notes, the bullying/eating disorder connection is a little tenuous, which is why some think it was good that this case did not see the inside of a court room. While no one is denying the severity of this girl's condition, the issue at hand was the bullying which school administrators were aware of but did not take seriously enough to intervene, according to reports.
I have to believe that the increase in media attention on bullying in the wake of the Phoebe Prince case had some kind of effect on this settlement. I've noted my queasiness over the coverage of the Prince case, but if it is raising awareness and making schools take some responsibility for past, present, and future incidents then I am glad for that, at least.

P.S. The settlement was for $55,000 and according to this blog, the amount does not make the plaintiffs very happy; in fact they said the settlement represents a win for the Pittsburgh School District. They feel it is about getting rid of the case rather than making change and acknowledging the problems that occurred.

Some Reflections on the Media's Coverage of the Quinnipiac Decision

I've been reluctant to post links to the media coverage and commentary regarding the Quinnipiac ruling. This is because most of it that I've read sounds as if the author didn't even read the judge's opinion, but rather, used a generalized version of its conclusion as a starting point for his or her own view about whether cheerleading is a sport in some larger sense. Common themes included, "This judge must just think cheerleading is still about pom poms and good looks -- doesn't he know that it's different now?" "Let him try a partner stunt and then tell me it's not a sport!" "Doesn't this judge know how physically demanding cheerleading is?" "But there are injuries! Cheerleaders work hard! It must be a sport!"

Of course, anyone who read the opinion knows that physical athleticism, sports injuries, and hard work were not issues that were in dispute in this case. The judge didn't overlook those factor, he agreed that cheer athletes work hard at physically demanding, dangerous stunts. Additionally, however, the judge appropriately went on to evaluate the quality of the competitive cheer athletes' experience in comparison to that of other athletes' at QU, and finding them non-comparable for Title IX purposes. No other varsity team had to play against club and high school teams as their primary competition. No other varsity team lacked a championship that evaluated athletes on different criteria from what they had been using all season. The judge was not answering the "bargument" question "is cheerleading a sport?" He was evaluating one program, and determining its lack of similarity to other sports that that institution includes in its Title IX equation. It's not as sexy when you say it that way, so no wonder the media turned it into something else.

But this morning two articles about the decision came across my screen that I thought were worth sharing. First, here is an article titled "Victory In Defeat" from the Ohio State All-Girls Cheerleading website. This commentary is proof that some from the cheerleading community read the decision for what is was: not a dis on contemporary cheer, but a "blueprint ... that identifies the shortcomings of the current collegiate model and nearly walks the NCSTA [National Competitive Stunts and Tumbling Association, the governing body of competitive cheer] by hand towards the necessary policy implementations and other solutions needed to bring the sport into compliance with T9."

Second, Nancy Hogshead-Makar of the Women's Sports Foundation published this op-ed on ESPN.com, which takes issue with another media trend of using the Quinnipiac decision to denigrate Title IX and the role of courts in enforcing it. Responding particularly to Gregg Easterbrook's column on the same publication (in which he, among other things, cried that "playing volleyball is not a civil right," Hogshead-Makar responded by putting the right to equal athletic opportunity in schools into proper context:

[T]he results of a large body of research continues to confirm with certainty that a sports experience leads to higher educational attainment and success in the workplace, life-time lower rates of obesity, breast cancer, osteoporosis, heart disease and depression. (See the Women's Sports Foundation's report, Her Life Depends On It II). Sports for both boys and girls are an investment in our collective future that we're all paying for with tax dollars, as student loans are the lifeblood of most schools. Title IX need not justify itself. Its results over the past 30 years, allowing a new generation of women to develop and showcase their abilities through education, should calm the critics. Instead of these repeated attempts at fault-finding with a 38-year-old law, let's work together to fulfill the promise of Title IX for both men and women, and increase the number of sports opportunities for all of our youth.

Glad there was some media commentary about the Quinnipiac ruling worth sharing on the Title IX Blog this morning.

Some Say Delaware State Equestrian Is Safer After Cheerleading Ruling

This article in Delaware Online suggests that the recent Quinnipiac ruling about the Title IX status of competitive cheer will make it harder for Delaware State to prove that its decision to terminate equestrian did not violate the law.

Actually, I don't think the ruling will have much legal effect at all. Unlike at Quinnipiac, Delaware State's proposed opportunities in cheerleading do not even come close to closing the proportionality gap. Its argument that adding cheer demonstrated prong 2 compliance was never a viable argument, in my opinion. No court has interpreted "history and continuing practice of expanding opportunities for the underrepresented sex" to be satisfied by a school that cuts a viable women's team.

But either way, some are now predicting that Delaware State is now more likely to cancel its plans to end its equestrian program.

Interestingly, the article provided a little insight into why Delaware State, an HBCU, has an equestrian team in the first place:

Many see the equestrian legal troubles as an unfortunate legacy of former president Allen Sessoms' administration. In 2005, a faculty steering committee, chaired by Hoff, recommended field as a better way to expand sports for females, but Sessoms later sold the group on equestrian.

The sport has proven to be more expensive than expected, costing close to $600,000 per year.

"Of greatest concern to DSU is the fact that so little of this money goes to student welfare," DSU lawyers said in court documents. "On the contrary, most of the expenses are for the housing and care of the horses."

Daniel, the Title IX consultant, said he would have advised against a school like DSU starting equestrian. Charlie Wilson, president of DSU's faculty senate, said he and other faculty found the creation of the team "curious" and regarded it as a "pet thing" of Sessoms' administration.

Globe Profiles Stevenson's Study on Title IX's Beneficial Effect

We blogged about this last December, but today's Boston Globe has a profile of Professor Betsey Stevenson's research on causal effects of athletic participation on girls' educational and professional attainment.

An excerpt:

[N]ow, for the first time, new research has begun to document a measurable benefit to girls playing sports, sweeping away any fuzzy, feel-good reasons why girls athletics matter and showing that sports can truly change the lives of the young women who get the opportunity to win, lose, and just play. A study released earlier this year, examining the impact of Title IX, the federal law that opened the door for greater sports opportunities for girls, offers hard evidence that playing sports leads to greater educational and employment opportunities. Most notably, it found that up to 40 percent of the overall rise in employment of young women in recent decades can be attributed to the increased opportunity to play ball.

The findings are significant for one key reason: They take the conversation about sports out of the realm of abstraction and into the world of clear benefit. It has long been speculated that sports can teach young people qualities of character, or life lessons, that they might not learn otherwise, but now there is evidence that the games can be transformative — not only to the participants, but also to the workforce and even the country at large.

Indiana case switches hands

A mother of a female basketball player at Franklin County High School in Indiana has filed a Title IX lawsuit on behalf of her daughter alleging a disparity in the scheduling of boys' and girls' basketball games.
If this case sounds strangely familiar--well, it is.
Tammy Hurley filed the suit, the same one filed by Amber Parker, on Monday because it appears that Parker and her family are moving to Massachusetts thus making their case moot. So Hurley has stepped in to ensure that the issues are addressed. Hurley's case is currently assigned to a different judge, but her lawyer is working on getting it moved to Judge William Lawrence who currently is handling Parker's case.

Quinnipiac Volleyball Players Win Title IX Decision

Today Judge Stefan Underhill granted Quinnipiac University volleyball players an injunction that will allow the team to exist through the 2010-11 season. In reaching this decision, the judge determined that Quinnipiac's decision to terminate the volleyball team violated Title IX because it resulted in inequitable number of athletic opportunities for women. Quinnipiac argued in its defense that it satisfied the proportionality test (offering the same percentage of athletic opportunities to women as matches their representation in the student body) even after cutting volleyball, in part because of Quinnipiac's addition of 30 additional athletic opportunities in the sport of competitive cheer, brought the school into proportionality.

But today, Judge Underhill agreed with the plaintiffs that these opportunities should not have been counted, since competitive cheer is sufficiently different from other varsity athletic opportunities at Quinnipiac. The biggest difference is that the competitive cheer team does not have a schedule that "reflects varsity abilities" -- as demonstrated by comparison to other Quinnipiac teams. No other varsity team at Quinnipiac competes predominantly against other school's club teams and non-scholastic teams, as the competitive cheer team does. No other varsity team competed under different sets of rules, depending on the opponent. All other varsity teams had to qualify for a championship via a progressive playoff, while the national championship in which Quinnipiac cheer competed (NCA Nationals) was open to all squads -- including sideline squads whose only competition for the year was Nationals. No other varsity team was evaluated, in part, by a nonathletic factor such as the 45 second "spirit" segment at Nationals, in which teams are judged by crowd reaction and use of props.

The judge's ruling does not foreclose that changes in cheer over time could lead to a different result in the future. However, the court's reasoning does call into question any school that is currently relying on competitive cheer to demonstrate compliance with Title IX. That is, the court's reasoning applies as well to other varsity cheerleading schools (Maryland, Oregon, Baylor, and a couple of others) as it does to Quinnipiac, should those schools' reject a women's club team's petition for varsity status, or, like Quinnipiac, decide to cut a viable women's team.

After adjusting Quinnipiac's proportionality calculation to exclude 30 opportunities in competitive cheer, as well as 11 opportunities in women's track (who the judge said should not have been counted because they were injured, and/or red-shirted), the judge calculated a 3.62 percentage difference between the percentage of athletic opportunities for women (58.25) and the percentage of women in the student body (61.87). The judge then determined that this difference was not "substantial proportionality" necessary for compliance with prong 1. This aspect of the decision is highly significant, as it is, to my knowledge, the lowest percentage that has been deemed outside the realm of substantial proportionality, and it dispels the myth-rumor that anything within 5 percentage points is OK. The judge reasoned that 3.62 percentage points actually amounts to 38 female athletes -- more than the size of any of Quinnipiac's existing women's teams. In that context, 3.62 is not substantial proportionality.

Overall, the 95-page decision was a win for the volleyball team (who gets to play another year) and a win for Title IX, because it protects against the possible manipulation of gender equity statistics by labeling as sport existing women's noncompetitive activities. The judge also expressed skepticism about Quinnipiac's triple counting of women's opportunities in cross country and and indoor and outdoor track, given the track team's status as a "mere adjunct" of cross country (though ultimately found insufficient evidence to discount Quinnipiac's figures any further on these grounds). But this aspect of the decision, like the decision overall, puts schools on notice that athletic opportunities for women must be actual and not illusory.

UNF adds women's golf

Remember when University of North Florida announced it was cutting its women's swimming and diving team? And then it fairly quickly reinstated the team? Yeah, I had to look it up, too.
Well it looks like UNF is going even further and adding women's golf to its list of intercollegiate sports. The team will begin competition in 2012.
No mention at all of the previous flirtation with cuts. The addition of golf makes sense when considering conference affiliation. Every other Sun Conference school fields a women's golf team.
The addition of this team brings UNF's total teams to 18. Again, no word on whether this addition is a precursor to cuts in the future. When UNF made its original announcement conference affiliation was one of the reasons for the cut.

Clark College Ex-Coach Awarded $545,000 in Retaliation Case

Another coach has won damages in a Title IX retaliation case. Trev Kiser, formerly the women's basketball coach at Clark College in Vancouver, Washington, was awarded a $545,000 verdict (plus attorneys fees) in a case that claimed he was wrongfully terminated in retaliation for complaining about inequitable treatment of the women's basketball team.

In 2008, we blogged about the appellate court decision that reinstated his case after determining that Kiser had presented enough evidence of the athletic director's retaliatory motive to cast doubt on the college's argument that Kiser had been fired for mismanaging funds. (Apparently, there was little dispute that the AD actually threatened to fire him if he didn't stop making Title IX complaints.)

The award included $180,000 for back pay, $150,000 in lost future earnings, and $215,000 for emotional distress.

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Petition for data collection in high schools

As we have noted previously, there is a bill currently in the US House of Representatives that calls for the collection of data about gender equity in athletics in high schools--similar to that collected by the Department of Education. If you would like to urge Congress to pass the High School Athletics Accountability Act, you can go here and sign the petition. Your email address is required but will not be displayed. You can also choose not to have your name displayed.

Sure it'd be nice to keep all the sports...

In a recent hearing in California, a state senator strongly questioned the folks at UC Davis over their recent decision to cut four intercollegiate athletic teams. Senator Dean Florez, who serves on the senate's Select Committee on Gender Discrimination and Title IX Implementation (out of curiously, do other states have such a committee?), feared that the cuts were not bringing Davis any closer to proportionality. Davis, prior to these cuts, faced a lawsuit brought by several female students who played club sports. They argued that Davis was not providing enough opportunities in athletics for female students. The settlement in that case binds Davis to achieving proportionality within +/- 1.5 percentage points within ten years.*
This could be part of Senator's Florez's concern. And I am glad that state legislators are paying attention to achieving equity (though not surprised given how much money Title IX lawsuits have cost the state of California in the past few years). But if I was a state senator in California (and hadn't already resigned in utter frustration), I wouldn't be giving UC Davis a hard time over cuts that they--given the current economic reality--had to make. The athletic department had to cut over $2 million from its budget. You cannot do that by simply reducing athlete per diems or limiting travel budgets.
It's a very...nuanced situation. Because according to the math Erin and I just did based on EADA data, Davis is indeed moving closer to proportionality. Taking into account the opportunities lost from these recent cuts, the percentage of women's opportunities is at 52. The undergraduate population is 56 percent women. The 4 percent difference represents 14 opportunities--if we were shooting for exact proportionality (we didn't calculate the 1.5). This is better than the 22 opportunity disparity that existed prior to the cuts.
But what exactly was Senator Florez getting at? That no cuts should have been made? That seems like an impossible situation at this point. Given that programs, faculty, administrative support at California schools are being and have been cut it would seem kind of...well wrong...to exempt athletics. The Title IX Blog has many friends and colleagues in California who are taking furloughs left and right. And though they are sport-minded people, it's not fair to ask some to sacrifice a lot and exempt others.
So then is Senator Florez saying that Davis should have cut only men's sports? Maybe. It is still possible for the crew team to bring a lawsuit against the school because they have not complied, at this point, with any of the three prongs. Would Davis itself be in a "safe harbor" (a term usually used by anti-IXers to discuss proportionality, in a negative way) because they have ten years to reach 1.5 percent proportionality? I don't know. It would be interesting to see how a court interpreted the previous settlement in light of the current situation. I am skeptical that such a move will occur given that Davis is so close to proportionality even with the cuts--something I assume they carefully calculated themselves--and that they are indeed bound by an existing settlement to make progress. It is unfortunate--as it always is--that "progress" has come in the form of cutting teams.



*Note that I was wrong--yes, I was wrong!--in an earlier post dated April 17 about UC Davis having to maintain 5 percent proportionality as a result of a lawsuit from the 1980s. Only institutions in the California State System (i.e. Cal State Riverside, Cal State Fresno) are bound by that ruling.

Inside Higher Ed takes notice

Erin's recent publication in the Duke Journal of Gender Law and Policy got the attention of the editors at Inside Higher Ed. They published a synopsis of her article on the Title IX whistleblower cases, the impact of the high success rate of the cases brought by coaches and administrators who take issue with the ways in which athletic departments are (or are not) enacting gender equity, and even talked to Eric Pearson, chairperson of the College Sports Council, a group with whom we "Title IX lemmings" (a term used to describe me recently--NOT by Pearson) usually butt heads. But Pearson is all for protection against discrimination and notes the difficulty coaches have speaking out against their respective administrations.
If you want the highlights, check out the column. If you want the whole thing and don't have access to the DJGLP, email Erin about getting a copy of her article.
Good work, Erin!

Diablo Valley College to Reinstate Teams

Diablo Valley College (Pleasant Hill, California) will reinstate the men's and women's cross country, track and tennis teams cut four months ago, in settlement of a threatened investigation and review by the Office of Civil Rights. The two-year college, which has 52% male enrollment that receives s 61% of athletic participation opportunities, cut an equal number of men's and women's teams, in order to "try to remove discussion of gender equality," according to an official of the Conta Costa Community College District, which operates DVC. After the coaches of the terminated teams filed a complaint with OCR, the government announced plans to investigate, which lead to DVC's decision to reinstate the teams.

I am kind of amazed that college administrators assumed that cutting an equal number of men's and women's teams would neutralize any Title IX concerns. They clearly did not look at the law, the regulations, or any court decision in a case involving cuts, or else they would know that is a violation of Title IX to cut a viable team of underrepresented sex. I guess that whole post from the other day about Title IX "illiteracy" applies to administrators as well.

I am also amazed that DVC decided not to rehire the coaches who filed the complaint with OCR to coach their reinstated teams. One told Inside Higher Ed that he thinks this decision is clearly retaliation, and is pursuing remedies through his union. On the surface it sure does look that way. We'll be watching to see if the coaches file suit.

Coaches' Title IX Literacy Called Into Question

Coaches are sorely lacking foundational knowledge about Title IX, according to new, unpublished research profiled in this article in Athletic Business. The study's authors, Ellen Staurowsky of Ithaca College and Erianne Weight of Bowling Green, found that most coaches have received no formal Title IX training and instead rely largely on the media for their knowledge of the law. As a result, they are steeped in misperceptions or uncertainty about the law, which they view as the responsibility of administrators instead. Staurowsky gives two reasons why coaches as well should be literate in the basics of Title IX:

Number one, because they are advocates for their programs. If they don't have a strong understanding about Title IX, then they don't have the traction to be able to effect change within their administration or to even call their administration out when it is lethargic on Title IX issues. Number two, the enforcement scheme relies on every constituency to be aware of how Title IX works, from government officials to school administrators to coaches to athletes to parents. Back in the 1970s, female athletes were learning about Title IX from their coaches. That link has disappeared. So enforcement can't just come from the top down. It can't just come as a matter of presidential decree. It's got to come from the bottom up.

I've met many coaches who know Title IX inside and out, and I'll bet that the coaches I know who read this blog were either not among the 1100 coaches included in the study or are in the minority of those knowledgeable about the law. Because of these Title IX-savvy coaches, I know that Staurowsky is right about the power and potential of their advocacy when it comes to enforcement and teaching athletes about equality and advocacy. For example, the volleyball players in attendance at the Quinnipiac trial were following the lead of their coach, Robin Sparks, who by sitting at the plaintiff's table, conveyed to them the importance of standing up for equality. I also think about the Fresno State softball player I met a few years ago, who credited coach Margie Wright for role modeling the strength and bravery it takes to speak out against discrimination.

Because we need more examples like these, I hope that Staurowsky and Weight's study motivates more coaches to get educated about Title IX, and to pass it on.

And if it helps, we here at Title IX Blog have power points, will travel!

Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics

My own article by that title was recently published in the current issue of the Duke Journal of Gender Law and Policy (.pdf). In it, I examine the retaliation cases at Fresno State, FGCU, Berkeley, Montana State, Feather River College and others. I argue that:

The current spate of retaliation cases is... a relevant source of information about an important social problem [that of obstacles to women's leadership in college athletics]. Moreover, the fact that plaintiffs in Title IX retaliation cases against college athletic departments are enjoying new levels of success provides an opportunity to speculate optimistically about the power of law to effect positive change in the culture of college athletics. Following the Supreme Court’s recent validation of a private right of action to challenge retaliation in Jackson, coaches and athletic administrators have never before had more legal remedies with which to tackle sex discrimination in college athletics. Together with the recent high-profile multi-million dollar jury verdicts and settlements, these legal remedies create a strong incentive for athletic departments seeking to avoid liability to monitor for and address institutional practices that drive and deter women from coaching.

Citation: Erin E. Buzuvis, Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics, 17 Duke J. Gender Law & Pol'y 1 (2010).

Indiana scheduling case on the docket

The case being brought by Amber Parker on behalf of her daughter against the Indiana High School Athletic Association and Franklin High School (where Parker is also the girls' basketball coach) is headed to summary judgment.
At issue in the case is the longstanding complaint that the boys' basketball team gets more opportunities to play their games during primetime (Friday nights). This has been an issue for over ten years (as we noted in the past).
I couldn't find an actual date on which the case will be heard but the judge's decision will come within a few months.

Cuts to Men's Teams and the Shark Attack Phenomenon

This article about the Quinnipiac trial contained the following quote from the coach of the former men's track team, which was cut along with volleyball:

The unfortunate reality of Title IX in this day and age is that university’s choose to eliminate men’s programs rather than add women’s programs. From the late 70’s to the mid 90’s, Title IX created tremendous opportunities for women and I am very thankful for that. Ever since the mid 90’s, however, far more men’s programs have been eliminated in the name of Title IX than have been created for women.

Both sides of this claim, that Title IX promotes cuts to men, rather than gains for women, are belied by the most recent government study of college athletic participation trends, which was published in 2007 and relies on data through the 2004-2005 school year. According to this report, both men's and women's sports have seen net gain in the number of teams since the 1990s. Specifically, the number of men's teams in the entire NCAA membership rose from 6710 to 7845 between the 1991-92 school year and the 2004-2005 school year. The number of men's teams also increased from 5820 to 6010 in a 750-school sample of schools that were NCAA members throughout that time period (to account for any changes that might be due to schools joining or dropping out of the NCAA). And the number of women's teams also rose during this time (5941 to 8550), which also undermines the idea that Title IX only promotes cuts to men, rather than gains for women.

Of course, Title IX doesn't say anything about number of teams, just number of participation opportunities. Those are on the rise for men (179,834 to 217,123) as well as women (93,959 to 153,347).

What accounts for quotes like this one, which are repeated all-too-frequently? I think it's the shark-attack phenomenon. Schools' decisions add men's teams (like people swimming safely in shark-free waters) do not attract the same kind of media attention, so when there is a story about cutting teams, it creates the impression that it is a much more dominant trend than it actually is.

Perspectives in QU/cheerleading

Nothing major to report. I haven't seen any coverage of the closing arguments yet but if something of note occurs, we'll post about it.
In reading some of the coverage that stemmed largely from Jeff Webb's testimony Tuesday about the legitimacy of cheerleading as a varsity sport, I came across a post from The Washington Post. In addition to incorporating the phrase "bring it on" the author also quotes Dr. Mary Jo Kane. director of the Tucker Center who put it nicely:
"How would people react if the school cut a men's sport like baseball or lacrosse and used those funds for a male cheerleading squad?"
I'm not usually one for the direct comparisons, but I think Dr. Kane's question makes people question certain paradigms that are in need of questioning.

Amici In High Places

I learned at the Quinnipiac trial this week that the Department of Justice has filed an amicus brief in support of the plaintiff's argument that cutting volleyball would render the school out of compliance with Title IX. In the brief, the government echoes the district court's analysis of the motion for preliminary injunction: that "extra" players added to women's teams to suggest the appearance of equity should not be counted toward Qunnipiac's purported demonstration of proportionality, since the law seeks to ensure equitable distribution of "genuine" participation opportunities, not illusory ones.

The government also argues that opportunities added in competitive cheer should not count as genuine participation opportunities. The brief points out that the Department of Education requires that before a school can report cheer opportunities toward Title IX compliance, it must receive an opinion letter from its Office for Civil Right certifying that those cheer opportunities are bona fide athletic opportunities (rather than sideline cheerleading). No schools have received one of these letters. Moreover, the brief continues, Quinnipiac's competitive cheer team does not satisfy two of the criteria OCR uses to measure whether opportunities in cheer constitute athletic opportunities under Title IX, namely, a progressive-style competition and a governing body. (Defined season, athletic department funding and support, competition as the primary purpose, and skill-based selection are some of the other elements of OCR's test.) In sum, competitive cheer opportunities as the currently exist are not sufficiently similar to the other athletic opportunities offered by Quinnipiac to be included in the inquiry of whether those athletic opportunities are equitably distributed.

This is not the first time we've seen pro-Title IX positions coming out of DOJ in recent months. The agency also filed in support of the plaintiffs who sued the Florida High School Athletic Association case and also intervened on behalf of the student challenging sexual/sexual orientation-based harassment case against the Mohawk Central School District in New York. Keep it up, DOJ. I'm glad to see that challenging sex discrimination in education is an agency priority.

Title IX Is Good for Stanford

In honor of Title IX's anniversary, here is a great article crediting Title IX for strengthening Stanford University athletics. After the law passed, some in the athletic department were resistant to expanding opportunities for women, but many of them changed their tune and eventually crediting women's programs for helping to improve moral and institutional pride. "Title IX was great asset for us," one former athletic director is quoted as saying. Coming from a school with 36 national championships in women's sports (more than any other school) and 94 championships in men's sports (second only to UCLA) -- that's saying a lot.

[h/t Helen]

Mythbusting in Honor of Title IX's Anniversary

Sadly, it seems that every year, folks use Title IX's anniversary to trot out tired old arguments that it's time to "get beyond" Title IX. Because these people obviously don't read this blog, or they wouldn't be so misinformed, it seems like an act of futility, on par with spitting in the wind, to address these arguments. However, I shall do my best to correct with facts the myths that belie these claims.

Myth: "Title IX activists" started "pushing for" proportionality in the 1990s.

Fact: It was actually football lobby that proposed a proportionality standard to OCR when it was coming up with its regulatory interpretations in the 1970s. They thought it would be an easier than a 50/50 standard for colleges to meet, because at that time male college students outnumbered women. As Donna Lopiano says, now that women are the majority of college students, "the shoe now pinches."

Myth: Title IX's proportionality requirement causes schools to cut men's sports.

Fact: Title IX gives schools three ways to demonstrate requirement with the law's requirement for equity in the distribution of athletic opportunities, one of which is proportionality. Basically, the three prongs work to protect women's sports from being cut when women are the underrepresented sex. Under Title IX, it's not necessarily unlawful for one sex (almost always men) to have more opportunities than another sex. All Title IX says with regard to cutting opportunities is that schools can't cut from the sex that had fewer opportunities to begin with. If there was a proportional distribution of opportunities, then Title IX would have no effect on a school's decision on which teams to cut. It could cut women's swimming and spare men's wrestling. What puts schools in the position of only being able to cut men's teams is the act of favored men with athletic opportunities all along.

Myth: Football funds women's sports (and therefore, we shouldn't care if there are men have more athletic opportunities due to football).

Fact: While this may be true at a small number of institutions, most football programs lose money. And football "profits" would be even smaller if schools had to report the true cost of running a program. I hate the argument that profitable sports are somehow more valid in the non-profit sector of education. If colleges want to decide what sports to keep based on commercial standards like profitability, they better be ready to give up their their tax-exempt status and their federal funding.

Myth: Title IX is 38 years old, and the regulatory interpretation that gave us the three prong test is 31 years old.

Fact: Well, this is technically true. But the purpose for which people tend to cite the age of Title IX is usually to suggest that it's time to repeal the law because it's done its job. And that's clearly myth. There are existing disparities in opportunities, support, and scholarships. In college, men still have more athletic opportunities than women -- in absolute numbers, not just relative to enrollment. Male athletes still receive $133 million more scholarship dollars than female athletes every year. The other thing that gets covered by references to Title IX's age is the fact that colleges and universities fought hard to avoid Title IX compliance for much of the 1970s and 1980s, and for much of the 1980s (the Reagan-Bush era) the government was not enforcing the law. It wasn't until the Supreme Court decided in 1992 that the law allowed private plaintiffs to recover money damages that there litigation posed enough of a threat for schools to take the law seriously. So while Title IX the statute may be 38, in some ways, the law is still a teenager. No wonder it hasn't reached its full potential yet.

Cheerleading on Trial

As Kris mentioned, we were both in the courtroom yesterday for all of Jeff Webb's fascinating testimony about the nature of competitive cheer. Webb is a national expert on college cheerleading, by virtue of his position as CEO of Varsity Brands, which owns and operates all of the major cheer competitions and camps, and his leadership in other governing bodies and associations related to cheerleading. Webb was a witness for the plaintiffs, the members and coach of the Quinnipiac University volleyball team, who are arguing that the university's decision to cut their team violated Title IX because of the resulting imbalance of athletic opportunities. Part of QU's defense is that the newly-added opportunities in competitive cheer help make up for some of that disparity. Which raises the question, is competitive cheer a sport for Title IX purposes?

Webb testified that as it currently exists, cheer is not a sport in the same vein as other, typical college varsity sports. I've heard many times people offer a knee-jerk reaction to competitive cheer by referring to the athleticism apparent in National Cheer Association and Universal Cheer Association competitions, which are often televised on ESPN. But Webb, whose company owns these competitions, pointed out they provide cheer squads one annual opportunity (because you can't enter both) to perform a single, two-minute routine in competition. There are virtually no other competitive venues for competitive cheer. This made me think of the following analogy: imagine that QU formed a volleyball team whose only competition for the entire year was just two minutes long. Should this be considered a sport, comparable to men's hockey, track, and other sports, for purposes of Title IX? I think it would be clear to people that even though the act of playing volleyball in a competitive setting is athletic, to be a "sport" there has to be something more. Specifically, there has to be more of a season.

On this issue, we also heard lots of testimony, some from Webb, and also by the QU Athletic Director Jack McDonald, about the efforts of a handful of colleges and universities to come up with a competitive meet format for cheer, so that squads could compete throughout a season. This testimony largely showed that the sport of competitive cheer, while one of apparent potential, does not currently offer enough competitive opportunities to warrant substituting cheer for volleyball. There are only seven varsity competitive cheer squads in the country. The closest one one geographically to Quinnipiac is at the University of Maryland. This lack of similarly-situated programs makes it difficult to compare competitive cheer to other college sports that have regional conferences and regular competition. Moreover, unlike other sports offered by Quinnipiac, competitive cheer does not have a championship run by the NCAA, nor does competitive cheer bear the NCAA's designation of an official "emerging sport for women" (indicating that schools are adding the sport in sufficient numbers that it will be an NCAA sport after a trial period of several years.) The NCAA has indicated that before it will even consider cheer as an emerging sport, there must be an official determination by the Department of Education's Office for Civil Rights that the sport would count for Title IX purposes. No such determination has been issued, and from McDonald's testimony it was not even clear on whether one had been requested. (FYI, contrary to the New Haven Register's account, "emerging sport" it is the NCAA's designation, not OCR's.)

Sometimes the testimony got confusing because there are many different types of cheerleading, and the lawyers and witnesses always had to carefully explain what type was being referred to in any given context. Varsity competitive cheer programs are those administered by college athletic departments as a sport like any other. They exist only for the purpose of competition and do not perform on the sidelines of other sports. This what Webb was referring to when he said "they do not cheer and they do not lead." (quoted here.) To avoid confusion, Webb said this would ideally be called by another name, one that doesn't use either word. For example, Oregon calls their varsity competitive cheer program "tumble and stunt" and the college administrators who are working to design a competitive program formed the National Competitive Stunt and Tumble Association (NCSTA) earlier this year. Varsity competitive cheer teams are not the same as college-affiliated competitive cheer clubs, which are more numerous than the 7 varsity programs referenced above. Like club sports teams, which are not run by athletic departments, competitive cheer clubs are not properly compared to varsity athletic opportunities for purposes of determining whether the school is equitably distributing athletic opportunities. It's also important to distinguish competitive cheer from traditional sideline cheerleading, which is not a sport because its primary purpose is entertainment and spirit raising.

In sum, I thought the plaintiffs' counsel and their witness, Webb, presented a compelling case that competitive cheer opportunities as they exist right now are too different both in scale and scope from other sports to warrant a fair comparison between opportunities provided to women in cheer and opportunities provided by Quinnipiac's men's sports. This does not foreclose the possibility that competitive cheer could "emerge" into a bona fide sport. But until that happens, a university' decision to substitute it for an existing sport will raise Title IX concerns.

We will of course follow the rest of the trial as it unfolds (no more field trips to Connecticut, I'm afraid, so we'll be reading about it in the Connecticut press) to see how the defendants address this and other issues raised in the plaintiff's case. The trial is scheduled to conclude tomorrow an the judge's decision on the issue will likely take several months.

BTW...

Happy Anniversary Title IX! 38 years and counting.

I find it appropriate that a big Title IX case is currently underway during this anniversary, the outcome of which is likely to have a very large impact on the the law's application.

And I also use this moment to remind people that because the legislation still exists, because equity in education has not been achieved, because we hear every week (at least!) about disparities, that we are not in a post-Title IX era. We are in the Title IX era.

QU trial: Lopiano testifies

So the Title IX Blog did indeed take a field trip to Connecticut yesterday to watch some of the Quinnipiac University trial. Erin will be posting about what we saw (because she took notes and I just sat there amazed at some of the things people say and the amount of paper involved in these things--binders and binders full of emails and letters and other evidence).
And while we enjoyed being there live and listening to the testimony of three different witnesses we were a little disappointed to find out that we had missed Donna Lopiano's testimony--especially when we found out she was on the stand for six hours!
The New Haven Register covered the story (and has actually been the only coverage I have seen of Lopiano's testimony thus far*). Lopiano covered a lot of ground including addressing the suspect roster management that some QU coaches/administrators engaged in as well as one of the most interesting aspects of this case: whether cheerleading is a sport--even when the word "competitive" appears in front of the historically sideline, supporting role activity. Lopiano does not believe that cheerleading, in its current manifestation, is a sport:
"The NCAA does not classify competitive cheerleading as an emerging sport. It’s clear the NCAA does not support it. It doesn’t fulfill the criteria set forth by the Office of Civil Rights. I do not believe any school can count it as a sport. It hasn’t evolved enough. In the future it could, but not as it exists today. It’s not a sport. It’s not even close.”
[Jeff Webb's testimony from yesterday elaborates (a lot!) on this assertion.]
She also testified that QU would have to keep both competitive cheer, which will have a roster of 36 as well as the volleyball team in order to remain compliant with prong one (which is the only option for QU right now).
Lopiano is an assertive woman. I've seen her speak. She has a presence about her. And apparently she didn't mince words (she was testifying for the plaintiffs, by the way) and I guess the defense (and I am not sure which lawyer questioned her though I would be interested to know whether it was the defense team's one male lawyer or one of the women) kind of got into it with Lopiano. So much so that Judge Stephan Underhill had to warn both parties about getting into "one-on-one" arguments.
No video allowed inside the courtroom so it's not as if this one is showing up on You Tube any time soon. But I would be really interested in seeing the transcripts of Lopiano's testimony since I can't get a whole lot more from the limited coverage of it.


* But I have already heard/seen about cheerleading expert Jeff Webb's testimony from three different media outlets all before 8am! Again, Erin will be posting about this aspect of the trial.

Quinnipiac trial begins tomorrow

The trial in the Quinnipiac University volleyball case begins tomorrow in federal court in Connecticut. There is nothing new to report since last month's decision to grant class-action status to the case being brought by five volleyball players.
As a reminder, at issue is Quinnipiac's "roster management" practices which seemed--in the past at least--to under report the number of men playing sports and overinflate the number of women doing so--so much so that some of these squad sizes were not in compliance with NCAA regulations.
Also at issue is the addition of competitive cheer as a varsity sport.
We will be doing our best to keep the details of the trial coming. (There might even be a Title IX Blog field trip to Connecticut!)

Softball Added at Weatherford College

A year-and-half ago, OCR launched an "inquiry" into Title IX compliance at Weatherford College in Texas, in response to gross disparity in athletic opportunities for male and female students. The inquiry produced an agreement that obligated the college to add sport if a survey of the female student body revealed sufficient interest. Last week, the college Trustees approved plans to address this disparity by adding a women's softball team, though it does not seem to be a survey that motivated the decision. According to the Athletic Director, Steven Garippa, softball was chosen because "the softball demographic in our area is phenomenal" and other factors such as "the availability and cost of facilities, the competition that is available immediately, the number of participants that can be involved and the interest in our service area" made softball the right choice. There is no mention of whether a survey was or will still be administered pursuant to the agreement. Perhaps the Trustees did not need a survey to reveal what it already knew about unmet interest in women's softball, and hopes that by adding the program now, any future surveys will demonstrate that women's interest is being met.

Title IX, World Cup, human rights, and the quote of the day

The College Sports Council, which advocates for Title IX "reform," has used the start of the men's World Cup to issue a report on the alleged lack of growth of men's soccer at the collegiate level in the United States. This is not a new argument as I have noted previously.
But CSC claims that Title IX has stymied the growth of men's intercollegiate soccer while women's soccer has been allowed to flourish.
One of our favorite Title IX and women's sports advocates, Professor Nancy Hogshead-Makar, expertly dismantles CSC's study and findings (in the above link), so I won't bother to do it here.
Obviously as one of the Title IX bloggers, I care about Title IX, but to tie the law to this event ignores a lot of other gender issues around the men's World Cup so I thought I would take the opportunity to go slightly beyond the usual purview of this blog. . First, the extreme nationalism is problematic and gendered. I know this is a battle of countries, but the extremism is frightening and it is certainly more intense around the men's World Cup than the women's. On a micro level and tying into CSC's concerns, for example, when the US Women's National Team loses there is not a whole lot of talk about trying to add teams and improve the quality and conditions of women's intercollegiate soccer.
Second, let's look at this event in the global context and think about some human rights issues. For example, the labor involved in the making of sports apparel. The issues around sweat shops (which employ, for the most part, women as laborers) making athletic clothing are fairly well-known. But the labor around the making of the actual soccer balls is also of concern. Soccer ball stitching and the conditions for children and adults who do this work has been the focus of international labor and human rights campaigns. The soccer balls in this tournament are not stitched. Stitching of soccer balls does still occur, however. This You Tube video shows the production of the current men's World Cup balls. It seems benign but it is also apparent that most of the workers--though you never see their faces--are women. It all looks clean and modern, but I think given the history of the sports apparel and equipment industry, it's important to remain vigilant on this front.
Another issue of (in)visibility when it comes to women and the men's World Cup is around sex work and the sex trade. There is concern that the large influx of people into South Africa will increase sex trafficking. Steps are, thankfully, being taken by national and international entities to monitor the situation. So not as invisible as the issue has been in the past; but certainly not something you're going to see as a special feature about South African culture.
So please keep these things in mind as the tournament starts. The above link on soccer ball stitching also has a list of actions you can take in response to unfair labor practices in this industry.
But I going to end with something that made me smile this morning: this great response to CSC's claims by NCAA director of gender initiatives, Karen Morrison.
"The CSC continues to bend the data like an errant soccer kick when describing trends in intercollegiate athletics and in particular college soccer. Soccer continues to grow in popularity around the world and on our campuses. It is one of the four fastest-growing men's sports in the NCAA. There is no evidence that the relatively minor differences overall in soccer participation are related to Title IX."

Falsified Data Justified Sex-Segregated Middle School

The ACLU continues to challenge the sex-segregated middle school in Vermilion Parish, Louisiana, having recently filed an appeal of the district court's refusal to issue a preliminary injunction against continuing to separate boys and girls in core curriculum and other classes. (See also our prior post here).

The ACLU's appellate brief is a fascinating read. The brief argues that the district court should have found a high likelihood of success on the merits (a key consideration in preliminary injunction analysis) because the Equal Protection Clause and Title IX require schools to have an "extremely persuasive" justification or "important objective" for treating boys and girls differently in the education context. Yet the only justification for the segregation at Rene Rost Middle School were results from a small-scale study conducted by Principal David Dupuis during the 2008-2009 school year, which we now understand to have been falsified and erroneous. Since touting that the segregated classes in the study produced higher graders and fewer disciplinary problems, Dupuis, who conducted the experiment as part of his doctoral dissertation, has admitted to including grades of students who were not part of the experiment in his findings in order to make the case that segregated had better report cards than co-educated students. It is also clear that he omitted the grades of students who were part of the experiment but who did not earn higher grades in the segregated classes. In fact, when these grades are factored in, Dupuis's experiment shows that grades decreased in segregated classes, despite his claims to the contrary. Dupuis also admitted to errors that belied his findings that disciplinary infractions decreased in sex-segregated classes.

Not only is this outrageous behavior on the part of the principal (I hope Nova Southeastern University, who awarded him an Ed.D., is paying attention to the academic fraud issue!), it clearly does not satisfy the legal requirements for different treatment on the basis of sex. When bogus claims of "findings" are stripped away, the only justifications for segregated classes that seem to remain are the tired old stereotypes and folk-beliefs about the differences between boys and girls.

Community saves sports at Bakersfield

In February we noted that CSU Bakersfield was, due to budget shortfalls, being forced to cut four sports: golf (MW), tennis (W), and wrestling (M).
But community members and donors have rallied in what appears to be two separate campaigns to raise money to keep the sports going for at least another year, maybe even two. The preexisting Roadrunners' Club has raised $500,000 and a new organization simply called Save the Sports has raised $700,000. The combined total gets the university every close to the $1.4 million that is estimated to be needed to keep all four programs supported for two years. But if fundraising stalls or the numbers change, CSU-B president Horace Mitchell reminds us that the state funding is just not available. These sports must remain self-supporting. At least in the near future. But Mitchell is certainly pleased to keep these four sports for a little while longer.