ESPN Magazine Profiles Homophobia and Recruiting

Props to ESPN The Magazine, for publishing an excellent profile on role of homophobia in recruiting for women's college basketball. Here's the first paragraph, which describes an example of the problem:

On every top recruit's college visit, there comes the moment of the final pitch, when the head-spinning hoopla finally gives way to the business of basketball, when the high school girl steps away from the rah-rah of all the games and the ego-stroking of all the VIP intros to sit down with the head coach. During one teen's big moment, a heart-to-heart with Iowa State's Bill Fennelly, the decorated coach of 23 years sang an insistent refrain. "He kept drilling that 'this would be a family,'" says the player, who asked not to be named. "'You should come here,' he said, 'because we're family-oriented.'"

The article goes on to unpack the references to family and reveal them for the veiled homophobia they contain. Though it presents quotes from defenders of the term -- like Fennelly himself, who defends his right to sell what he thinks his program has to offer, and UConn's Geno Auriemma -- the input from coaches, players, and scholars presents a far more persuasive case that recruits and their families interpret the family rhetoric to be "cloaking" something else. Specifically, it is a suggestion that here, unlike other programs, you don't have to worry about lesbians coaches and teammates. Backing this up, the Magazine presents the results of its own survey of current and recent players, 55% of whom said that sexual orientation was an "underlying topic of conversation" in recruiting talks.

The article also makes a persuasive case for why this is bad for the game. Unlike other forms of negative recruiting, like suggestions that an opponent coach is violating rules, or planning to leave the program -- the lesbian variety is unique to the women's game, and is operating as what Professor Heather Barber calls "subtle weapon against programs led by unmarried female coaches." It is a major factor in the disproportionately low number of head coaching jobs held by women. Homophobia not only deters some women from going into coaching in the first place, the threat of a lesbian stigma also keeps women isolated and prevents them from forging mentor relationships and networks that are necessary for advancement in the coaching profession. It is even rumored to be the reason why the biggest powerhouse teams in the game, Tennessee (coached by an unmarried woman, Pat Summit) and Connecticut (coached by a married man, the aforementioned Auriemma) don't play a head-t0-head game anymore (though the article did not present any evidence to substantiate the rumor, only that the rumor exists). More importantly, it is oppressive to student athletes, like Emily Nkosi (nee Niemann) who played for Baylor until she couldn't stand the closet any more. She left Waco because in her words, "my internalized homophobia made me believe that if people found out I was gay, they would kill me."

Ending on a hopeful note, the article echoes coaches and others calling for better education and enforcement of recruiting violations, and a campaign to raise the ethical bar from within the coaching profession. More optimistically, it suggests that the changing cultural attitudes about lesbians will eventually catch up to athletics and render the lesbian stigma meaningless there too. Veiled homophobic references will backfire when they are addressed to recruits who are looking for team atmosphere that is open and affirming of their or their teammates' lesbian orientation.

DU decision backlash

There have been a lot of articles and editorials and articles that editorialize in the wake of DU's decision to end its men's running program.
I thought this one was especially good, from a female alum and current track coach. She raises the point I neglected to make in my initial post which is if DU is adding women's golf in the fall why it it so worried about achieving proportionality now. Ms. Ambrogi appears to be right. By adding women's golf it would seem that DU is complying (temporarily anyway) with prong two by expanding opportunities. Not sure what their previous history has been, but the addition of golf would seem to do for now...unless DU has plans to cut a women's team some time soon. In that case they would have to have their proportionality ducks (or hens in this case) in a row.
This is just a very curious case, and I have a feeling we are not hearing the whole truth(s).

A change of seasons

OK the title is a misleading and mostly my own projections as I get ready to go outside and shovel/plow for the third time this week.
What has really happened is that the Schuylkill League in Pennsylvania has decided to switch the days of play of the boys' and girls' basketball teams. (So change within the season.) The boys have usually played a Tuesday/Friday schedule and the girls Monday/Thursday. But after seeing a Title IX complaint filed in the nearby Tri-Valley League, Schuylkill decided to be proactive. And thus the schedule change. Hopefully there is not too much consternation over the switch. No mention of what the plans are for future scheduling: keeping the midseason switch or altnerating years, or something else entirely.

Delaware to drop two sports

The University of Delaware announced this week that they will be dropping men's cross country and men's indoor track from its list of varsity sports in order to comply with Title IX. The two sports will have club status after this year.
The option to add more women's sports was not possible because of budgetary reasons, according to officials. Women's golf, however, will be added in the fall, as planned. (We wrote about that when UD cut men's indoor track.) With the reduction, DU will carry 21 teams, the most in its conference.
According to this editorial, DU cited Title IX 12 times in its announcement of the cuts. The past cuts (linked in the second paragraph) were blamed exclusively on Title IX, but this time DU is also citing economics. But editorialist Jeff Pearlman, an alum and whom we have also written about in the past, isn't buying that or fiscal responsibility given the low costs of maintaining the program and the plethora of football players on that team's 103-person roster.
With these cuts there is no longer any varsity running program for men at DU.

Addendum: Here is another article on the cutting of the teams that discusses the impact on the student-athletes and includes interviews with team members. Some of the runners are none too happy with Title IX. Others are not pleased that the administration has asked them not to talk to the media without prior discussions with the appropriate officials.

Coach Sues University of Minnesota to Challenge Anti-gay Discrimination

Last week, former University of Minnesota women's golf coach Katie Brenny reportedly filed suit against the university and officials, arguing that she was forced to resign by anti-gay hostility in the athletic department. Brenny charges that the university violates the state of Minnesota's Human Rights Law, which unlike Title IX, covers discrimination on the basis of sex and sexual orientation. Brenny alleges that though she was hired as associate head coach of the women's golf team, she was never permitted to carry out coaching duties, as she reassigned to administrative duties soon after arriving at the University, while the someone else took over the team. The University denies that it discriminated against Brenny, while Brenny argues that she is entitled to compensation for lost wages and the expense of finding another job, as well as humiliation, embarrassment, and distress.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

OCR Investigates Anti-Gay Abuse that Lead to Suicide

The Office for Civil Rights will reportedly investigate claims that the Tehachapi Unified School District in California failed to protect a student from anti-gay bullying and harassment that resulted in the student's suicide in September. This appears to be the first investigation of its kind, coming on the heels of OCR's guidance letter to schools that delineates schools' responsibilities under Title IX to address sexual orientation discrimination that overlaps with sex discrimination, like where the student is targeted for failing to conform with stereotypes about sex and gender. The student whose suicide has prompted this investigation was thirteen-year-old Seth Walsh, who hanged himself from a tree in his backyard after fellow students at Jacobsen Middle School harassed him because he was openly gay, and because if his mannerisms and appearance. The investigation will determine whether school officials responded appropriately to bullying that they knew or should have known was going on.

CU football player arrested for sexual assault

Kudos to University of Colorado for not trying to bury this incident, but rather speaking out about the charges against Michael Sipili who was arrested for sexual assault this week.
Sipili is being referred to as a "former football player" because his eligibility expired with the end of the fall season. But he is still enrolled as a student and my guess is that he is still involved in football team activities--at the very least on a social level. In other words, this is semantics. All it means is that he won't be suspended from the football team because, technically, he is no longer a member.
But CU has expressed its disappointment in Sipili, whom they let back on the team after a previous violent incident (he punched someone). Administrators were quick to point out the many steps they have taken to combat a culture of sexual harassment and assault that existed on the campus. These steps, of course, were required as part of the settlement from the 2001 sexual assault of two female student-athletes at a football recruiting party. (Other posts about this case can be found under the University of Colorado tag.) And CU seems to have taken the issue of climate change seriously. I speak as an outsider, of course, and realizing that it would not have been wise for officials at a school where sexual assault by student-athletes has been a problem to NOT say something when there has been another incident (though the circumstances, as noted in the above-linked article are quite different).
I don't have any particularly profound assessment. I think a school can have the best intentions and make concerted efforts to combat hostile climates, but these students have had 18 years of living in and participating in climates/situations with varying levels of hostility and prejudice. It's not easy work to dismantle these things. Some of us try to do it every day in classrooms--and other venues. A one-credit mandatory course is simply not going to create radical shifts in thinking in everyone. This is not to say it should be eliminated, but that we should be realistic about the results. I am pretty happy with the mini epiphanies I get to see among my own students. And I just hold out hope that others will have those moments long after they leave my classroom. It's too bad Mr. Sipili didn't have one before his alleged actions. But whether CU is supposed to shoulder some of the blame for this is not clear at this point.

See for yourself

After I posted yesterday's piece about the fieldhouse lawsuit in Kentucky, more news stories came across my desk(top).
This one includes a little tour of the fieldhouse as well as interviews with school board attorney Anne Coorssen, and Dick Richards, one of the parents who filed the lawsuit. Richards, apparently, has been attempting to convince administrators and the school board that the field house is a gender equity issue since plans to build it were made public.
Coorssen seems displeased that this one issue is being made, well, an issue. She believes that taking issue over one building is just too narrow to constitute a Title IX lawsuit--especially when looking at the facilities that exist within the school building including locker rooms for every team. Other lawsuits--especially the ones over softball fields--have shown this is not an issue for the courts. Facilities is one actionable aspect of Title IX compliance and thus can certainly be made an issue of. Also she seems to think the lawsuit is unwarranted given that what North Oldham High School provides its student-athletes is a lot better than what other schools do. Perhaps true (though the investigation into the National Women's Law Center complaint will reveal more on the veracity of that claim), but proper defenses to Title IX lawsuits cannot include interschool comparisons.
I'm curious to see where this one goes and what facts and practices and intentions are going to be made most salient. Apparently not only the Kentucky High School Athletic Association, as I mentioned yesterday, weighed in on this issue, but OCR did as well.

Interesting PS of sorts. The video shows a banner for the girls' track and field team, which is allowed to use the fieldhouse from December through the end of the school year. It says Lady Mustangs. Reminded me of that study (can't remember the author--sorry!) showing that colleges and universities which continue to use feminized nicknames to differentiate their women's teams are not as Title IX compliant. Obviously cannot directly apply that to high schools, but it's something to think about.

Field house prompts lawsuit in Kentucky

In the fall, Oldham County Schools in Kentucky was one of the twelve school districts cited in complaints brought by the National Women's Law Center against districts they found particularly problematic in terms of Title IX compliance.
Now, in a lawsuit brought by two parents, Oldham is being asked to account for its new (built in 2008) $1 million field house that appears to be almost exclusively used for the football team. The new field house has only boys' locker rooms and includes amenities such as a media room, laundry room, and training rooms.
It seems particularly egregious that a new facility seemingly was constructed with so little attention paid at the outset to equitable use. The Kentucky High School Athletic Association even expressed some concern. But in the fall of 2009 it said the advantage the new facility conferred upon boys' athletics was mitigated when the girls' track team was allowed to use it in the spring. This is not enough say the plaintiffs.
Theschool district intends to fight the lawsuit, claiming it is not in violation of Title IX. The district's lawyer has said, as way of defense presumably, that no girls' team is complaining. Given what happens to girls (and others) who complain about gender inequities that is not 1) surprising or 2) a defense--legal or otherwise.

Court Dismisses Retaliation Case Against University of Hawaii

Last month, a federal court in Hawaii dismissed the Title IX lawsuit filed by former women's basketball coach Jim Bolla against the University of Hawaii. As we noted when we first blogged about this case in 2009, Bolla claimed that the athletic director terminated his contract in retaliation for the coach's demands for gender equity, while the university claimed that the decision was lawfully motivated by Bolla's abusive conduct towards his players.

But a judge granted the university's motion for summary judgment after determining that Bolla did not establish a prima facie case for retaliation under Title IX, which requires the plaintiff to demonstrate that he suffered some adverse employment action (here, termination) after engaging in protected activity, and that there is evidence to support that his termination was motivated by retaliation rather than a lawful, nondiscriminatory reason.

On the one hand, the court agreed that Bolla's claims to have discussed gender equity concerns with the athletic director (a claim that the university disputes as a matter of fact) sufficiently allege that he engaged in conduct that should be protected from retaliation. The court's reasoning on this point was significant, because it pointedly refused to import from First Amendment law the requirement that an employee be speaking in their personal capacity, rather than in their official capacity, for protection from retaliation to apply. Such an interpretation, which some courts have endorsed (erroneously, in my opinion) leaves coaches without protection from retaliation for just about anything they might say about Title IX as it applies to their team or their job, a position that the judge wisely recognized was inconsistent with the Supreme Court's holding in Jackson v. Birmingham Board of Education (ruling that Title IX prohibits retaliation against a coach who seeks to assert Title IX on behalf of his players).

On the other hand, the court acknowledged that the university articulated a "legitimate, nondiscriminatory reason" for terminating Bolla -- namely, the fact that he had kicked a player, which Bolla did not dispute other than to recharacterize it as "gently" tapping her "buttocks" with his foot. Moreover, Bolla failed to put forth sufficient evidence to demonstrate that the university's stated reason for firing him was actually pretext for an actual motive of silencing his advocacy for gender equity. Bolla attempted to demonstrate this pretext by arguing that it represented a departure from the University's typical way of dealing with coaches' misconduct; specifically, he pointed out that the football coach was not terminated after he publicly made an offensive remark in using the word "faggoty" to describe the pre-game ritual of an opposing team (an incident my co-blogger wrote about here). But the court did not consider the football coach's situation to be comparable enough to Bolla's to have warranted a similar response. The football coach did not physically assault any player; nor, said the court, was there evidence that any members of his own team took offense at his remark. Since Bolla did not provide any evidence that the football coach's comment -- though offensive and certainly painted UH in a negative light -- rose to the level of verbal abuse (let alone, physical abuse, for which Bolla was fired), the university's decision to treat the coaches differently was not evidence that it was actually hiding its true motive of retaliation against him.


Decision: Bolla v. University of Hawaii, 2010 WL 5388008 (D. Hi. Dec. 16, 2010).

FGCU Trial On the Horizon

The Naples Daily News reports that the wrongful termination lawsuit filed by Florida Gulf Coast University's former provost Bonnie Yegidis will soon go to trial. Yegidis has claimed that FGCU President Wilson Bradshaw forced her to resign her in retaliation for urging a thorough investigation of female coaches' Title IX concerns. Pretrial motions are scheduled for later this month, which will be followed by juror-selection and a two- to three-day trial.

At one time, four lawsuits had been filed against FGCU arising out of the university's response to coaches' allegations of sex discrimination in athletics. But the university settled with former coaches Jaye Flood ($2.96 million) and Holly Vaughn ($435,000), as well as former university counsel Wendy Morris ($800,000). Yegidis's lawsuit is the only one that is still heading towards trial. In light of the earlier settlements, it will be interesting to see what a jury decides on the questions of the university's liability and damages.

Koller on the Title IX "Interest Paradox"

Professor Dionne Koller from the University of Baltimore School of Law has recently published an article, "Not Just One of the Boys: A Post-Feminist Critique of Title IX's Vision for Gender Equity in Sports" in the current issue of the Connecticut Law Review. In it, she examines why women and girls are relatively less interested than their male counterparts in pursuing and remaining involved in athletics. Rejecting both the explanation that women are inherently less interested in sports, as well as the theory that the absence of opportunity alone diminishes interest, Koller posits that disparity stems from Title IX itself. By requiring that schools provide opportunities for female athletes with an "interest and ability" to compete in varsity sports, the law operates to only provide opportunities for those interested in "assimilating" to a particular, male-driven brand of sport. She argues that, in this way, the law creates an “interest paradox” -- on the one hand, creating opportunities believed to be the foundation for building interest (the "if you build it they will come" theory) while on the other hand, "extinguishing the interest of those girls and women who would engage in sport, but are not willing to assimilate into the current model." To be competitive, athletes have to adopt the values of the existing model of sport: specialize early, risk injury from overtraining, prioritize winning over academics and other values, and strive for commercial success. While many women are interested in this model of sport, a different sports paradigm might have generate a better balanced interest among male and female participants. To this end, Koller proposes a more inclusive policy that requires education-based athletics to adhere to values and priorities like encouraging participation and fitness, inclusion, and increase of participation opportunities and choices for younger students. At the very least, Koller urges us to acknowledge the interest paradox, "so that discussions of gender equity in sport can move from polarizing, and ultimately unproductive debates about whether women are, or are not, inherently interested in athletics, to a more nuanced discussion of exactly what models of athletics a greater population of women might be interested in. Thus, it is only when women have an equal opportunity to participate in creating and defining the social construct that is athletics will we have realized gender equity in sport."

Citation: 43 Conn. L. Rev. 401 (2010).

Wilkes County Settles Title IX Complaint

Wilkes County, North Carolina, will improve the lighting and grading of its girls' softball fields by August 2012, and will create policies to improve girls' teams' access to the gym by Jan. 2011, according to the terms of a recent settlement agreement with the Department of Education. The settlement resolves a Title IX complaint filed a parent against the county school district in 2009, which triggered an investigation by the Department of Ed's Office for Civil Rights. According to the press, the parent who filed the complaint said of the settlement, "I know it states the school system is not admitting fault for not fixing things; however, these issues would not be an issue if they'd been taking care of business as they should be."

Delaware State Settles With Equestrians

A federal judge in Delaware approved a settlement between Delaware State and the members of the equestrian team affected by the university's decision to eliminate the program, who had sued and challenged the decision as a violation of Title IX. The settlement requires the university to keep the program until it offers proportionate opportunities to each sex not counting equestrian opportunities. The university will also play the plaintiffs' legal fees and court courts, about $500,000.

As I told Inside Higher Ed, the outcome of this settlement is a victory for the plaintiffs. The university had clearly violated Title IX by cutting an existing program from the sex with fewer opportunities to begin with. Delaware State's population is 61% female, yet women receive only 43% of athletic opportunities. But I refused to paint this outcome as entirely positive. While it's great that the legal process protected the athletes from a discriminatory outcome, but it's sad that schools are still screwing up some basic Title IX requirements.

Stossel on Title IX

When I was just a wee one, long before I knew anything about political philosophy, I would see John Stossel on television and know that he was just wrong about so many things.
You can decide for yourself tonight when FOX News airs his program Politicians' Top Ten Promises Gone Wrong. (It airs again on Sunday in case you miss it.) Number 8 is Title IX. In an interview about the upcoming show, Stossel talks about his list. The previous link is to the Media Matters blog post specifically about Stossel's take on Title IX.
We'll all have to check out the show to see the full extent of his report.

Girls' Hockey in NY State

We at the Title IX Blog are big fans of women's ice hockey. And so we never turn down an opportunity to praise the growth of the sport.
After much planning, negotiations, and struggles girls' varsity hockey is heading to western New York. And apparently it was a long time coming--five years. Some are incredulous that it took this long. There will be seven teams in the Western New York Girls Hockey Federation. It is not clear, though, that they are all being sponsored by schools. Three of the seven are being "privately funded." Given the presence of the sport in the rest of the state plus the success of the "local" university team at Niagara, many see the formation of the federation as a very good thing.
As a recent NPR piece on Morning Edition noted, ice hockey is one of the fastest growing women's sports in the country.

Column Questions Title IX's Absence from Cheerleader's First Amendment Case

There's a good column at WomensE-News.org on the Fifth Circuit's September decision dismissing a student's claims that the school district violated her First Amendment rights when officials ordered her to cheer for another student-athlete whom she had accused of raping her several months before. While the facts of this case certainly do call First Amendment issues into question, i.e., does the cheerleader have a right to refuse to cheer in symbolic protest of a particular athlete and his conduct, and was school officials' response retaliation against her for reporting a popular student-athlete for rape? (for analysis of those issues, see here), columnist Wendy Murphy rightly points out that Title IX should have been at the foreground of this case. The student's lawyer apparently did not allege, and thus the courts did not consider, whether school officials' response to her allegations of rape constituted deliberate indifference that should have rendered the district liable under Title IX. But Murphy believes this would have been an easy argument to win. Apparently, school officials were under the false impression that they were not obligated to get involved with the case as it proceeded in criminal court, even though courts have said that such deference to law enforcement constitutes deliberate indifference. Rather than take any steps to investigate or address the matter on its own, the school let the accused student continue to play sports until his criminal conviction. As for the accuser, she was not offered any protection or even sympathy, as evidenced by the instance in which she attempted to refuse to cheer at a game for the accused student by name, but was ordered by the superintendent and the principal to cheer or go home (she chose the latter). This too violates clear Title IX precedent in the area of peer harassment, as courts have said that it is inappropriate to separate the victim from the perpetrator rather than the other way around.

So why was Title IX, the obvious source of relief and liability in this case, ignored by the lawyers, the courts, and the media until now? Murphy blames our society's reductionist tendency to view Title IX as a law only about athletic opportunity and I think that certainly comes into play. But let's imagine that early efforts to exempt sports from Title IX had passed. Would the law be popular instead as an anti-harassment law? I'm not so sure. I think it might just not be popular at all. Culturally speaking, we have a tendency to downplay sexual violence and to disregard it as a form of sex discrimination. We'd be wringing our hands about the lack of awareness about Title IX's application to sexual violence whether or not the law also applied to sports.

Sadly, this case represents a missed opportunity, both to offer some relief to the plaintiff and to raise awareness about sexual violence and sex discrimination in schools. Sadder still, the cases that do invoke Title IX in the context of sexual harassment and sexual violence -- the vast majority of judicial decisions rendered under Title IX today, as a survey of this blog would quickly reveal -- are not sending the message to potential plaintiffs, to school districts, or lawyers on either side about the role of law in this area. (It does not help matters that to learn about sex discrimination in law school, you'd have to take a class with "Women" or "Gender" in the title, and the people who take those classes are not necessarily the ones who need to be enlightened.) For these reasons, I'm particularly glad Wendy Murphy posted about this case. One column in the blogosphere (now two) won't change the culture of ignorance, but if we all keep talking about school's responsibilities to protect students from sexual harassment and sexual violence, eventually the message will get through.

UC Davis Officials Do Not Have Immunity from Wrestlers' Suit

Mansourian v. Regents is the case against University of California at Davis in which former female wrestlers challenge the university's decision in 2000 that women would no longer be eligible to participate in varsity wrestling team. The plaintiff's Title IX claims against the university have been litigated in the district and appellate court, and are proceeding toward trial. (For more background, see prior posts here, here, and here.) The plaintiff also filed claims against several university officials under 42 U.S.C. 1983 (the statute that provides a cause of action for constitutional violations) claiming that the officials violated their rights under the Equal Protection Clause. These claims were initially dismissed as preempted by the Title IX claim, but reinstated after the Supreme Court decided in Fitzgerald v. Barnstable School District that Title IX and 1983 claims could proceed simultaneously.

So the university officials --the former chancellor, the former associate vice chancellor, the then- and current athletic director, and a former associate athletic director -- tried a different argument to get those claims thrown out of court -- qualified immunity. Under this doctrine, individuals cannot be personally liable for unconstitutional conduct if the law did not clearly forbid the conduct at the time. Recently, however, the district court denied this motion and refused to let the officials out of the case, after determining that the law requiring equal opportunity in athletics was settled at the time, leaving the officials no defense that they didn't know what they were doing violated plaintiff's rights.

The only thing left for plaintiffs to do is to prove their factual allegations at trial, which is scheduled for April.

Title IX Is an Education Statute

In Menlo Park, California, an eight-year-old girl wants to play basketball in the city league with her friends, who are boys. But the city runs separate leagues for boys and girls, and refuses to make an exception for this "4-foot-6 tomboy." So her parents hired a lawyer, who threatened to sue the city under Title IX. The city's lawyer wrote back, arguing that Title IX does not require them to let her play in the boys league because of the law's limited application to contact sports.

I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.

To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.

Interest, equity, funding, facilities--what's the connection?

Being interested in both how the media covers issues of sport and equity and the cultural construction of gender, this article out of Florida had my interest piqued this morning.
On the heels of the NWLC's filing of 12 Title IX complaints last month, it seems local newspapers, at least Highlands Today out of Tampa, are taking an interest in how their local schools are doing in terms of equity in sports.
Thorough, but with a couple inaccuracies, this article touched on the issues of funding, boosters (good to see money equally distributed!), facilities, coaching, and participation levels.
The big problem many administrators and coaches want solved is the question of why more girls do not participate. Administrators recount their largely unsuccessful efforts at recruitment and say that the desire is just not there. Also the fact that Florida counts cheerleading as a sport apparently is pulling potential athletes away from other sports, say some.
I do not necessarily believe this to be untrue--the part about desire; I'd rather not take up the issue of high school cheerleading in Florida right now. But I also do not see this as an innate female characteristic.
Reading other parts of the same article I see that, for example, at one high school the softball facility is (admits the athletic director) not nearly as nice as the baseball facility. The explanation given is that baseball has been around a lot longer and draws a greater crowd. Also while volleyball is noted by one source as being popular, at the end of the article, the reporter writes that Title IX is to blame for putting smaller sports--like volleyball, he says--in danger of being cut.
So if you're a girl here's what you see: in addition to the fact that more people support boys' sports, that apparently you go to your boyfriend's events, but he won't come to yours (according to one AD), you hear from school administrators that the reason a facility that you might play in is not as nice is because of "tradition"; and that even a popular sport that does draw a crowd is in danger of being cut because it's considered minor.
And then if you read this article you see that some believe the reason for the disparity in participation is because boys and girls have different role models:
"Boys might emulate Tim Tebow; girls might choose Miss Florida"
And then you realize just how limited the choices are.

Thanks for our new gym, Title IX!

I came across this article about the debut of a new gym at Lake Shore High School in Michigan. The new gym was added, according to the article, "because a Title IX legislation ruling that stated boys and girls seasons must be at the same time."
This made me pause. I didn't remember anything about Lake Shore High School.
But I went on to read about the great new gym that includes a commons area for concessions, where the game inside the gym can be simulcast, an NBA-sized court (which will make the school a prime site for post-season and tournament play), and a more secure entrance to the school. Sounds like some great improvements.
And no one has to practice at 10pm.
Then I remembered which "Title IX legislation ruling" the article was referring to: the very contentious--and very expensive--lawsuit against the Michigan State High School Athletic Association. So many people just refused to give any ground about--among other things--ensuring that girls played their sports in the traditional seasons. Costs, logistics, tradition, etc., etc.
Lake Shore High School clearly was one of the schools affected by the mandate to move girls sports to their traditional seasons. And now they have a new facility.
So in case no one else says it: Thank you, Title IX, for the sparkly new gym in Michigan with its indoor track, student store, and concession stand. We wouldn't have done it without you!

JMU case not quite stagnant

Equity in Athletics presented its case to the Fourth Circuit Court of Appeals earlier this week. EIA is attempting to overturn the decision (made in 2006 and carried out in 2007) by James Madison University to cut 10 intercollegiate sports. EIA is trying to get its lawsuit against JMU restored. EIA's attempt to force JMU to reinstate the teams has already failed at the district and appellate court level and the US Supreme Court refused to hear the case. JMU's lawyer is confident that the case, according to one writer, "will remain stagnant."

Resolution Reached in Title IX Sexual Assault Cases

The Department of Education announced that it has reached "voluntary resolution agreements" with two universities that it had been investigating on charges that they failed to protect students from sexual assault in violation of Title IX. According to the Center for Public Integrity, an organization of investigative journalism that has in the past reported on the government's lax enforcement of Title IX in this area, today's agreements obligate Eastern Michigan University and Notre Dame College in Ohio to a list of remedial measures aimed to protect students.

Eastern Michigan University had apparently attempted to cover up the rape and murder of one of its students, Laura Dickinson, when they falsely reported that her death had involved no foul play. The Department of Education investigated the university on charges that it violated federal crime-reporting act (the Clery Act) that also covers sexual assault, and assessed a $350,000 fine. Additionally, however, the agency's investigation extended into possible violations of Title IX stemming from weak or nonexistent policies and practices aimed to protect students from sexual harassment and assault. This investigation produces a resolution agreement under which the university is obligated to undertake a variety of measures from adopted and publicizing nondiscrimination policies that expressly include sexual harassment and assault, as well as grievance procedures to address claims of sex discrimination involving students, faculty, staff, and third parties. The university must also appoint and train a Title IX Coordinator to coordinate the university's efforts at compliance. The agreement includes more creative, proactive requirements as well, including that the university:

• establish a committee of students to ensure that students understand their rights and the university's responsibilities under Title IX, and to recommend strategies to address and prevent instances of sexual harassment and assault;
• review campus police records for the last school year, and for any instances of sexual assault that were treated solely as criminal matters, assess whether violations of Title IX occurred, whether remedies were effective, and to take any necessary additional steps to ensure that the matter is effectively addressed
• address sexual harassment and assault at freshman orientation
• and establish an on-call victims assistance program

Notre Dame College, where officials had also been charged with trying to cover up sexual assault, is bound to a similar resolution agreement.

Assistant Secretary Russlyn Ali says that by including measures "far more robust" than what OCR has sought in the past, these agreements change the paradigm for how all colleges and universities will address campus sexual assaults.

Drivers Ed Harassment Case Survives Motion to Dismiss

A federal court in Pennsylvania recently held that a student's claims stemming from sexual abuse by a drivers ed instructor could survive the school district's motion to dismiss. Specifically, the court agreed that the plaintiff alleged all of the elements for Title IX liability (as well as some of her other claims, including the 14th Amendment). Because the alleged conduct involved a forced sex act, it is necessary severe and pervasive, the first requirement for liability. Also, the school allegedly had adequate notice of the instructor's propensity to commit abuse, based on two prior incidents of harassment (one in which he asked a student to show him her nipple piercing, and another in which he asked a teacher to show him her tattoo), which were reported, and his general reputation. Finally, the school district's response constitutes deliberate indifference, as the instructor was not disciplined for the prior incidents of harassment, and was allowed to take students on one-on-one driving lessons, in contravention of district policy. Thus, the plaintiff may continue to pursue her Title IX claim against the district.

The plaintiff also successfully alleged Title IX retaliation claim against the school district, in that she claimed that school officials did not protect her from the harassment by teachers and peers that she faced after reporting the instructor's misconduct. The plaintiff alleges that she was so uncomfortable at school due to the hostile environment created by teachers' and students' vocal support for the instructor -- one teacher even posted a letter, in the plaintiff's presence, soliciting donations to the instructor's defense fund -- that she withdrew from school and continued her education from home. Recognizing that the school district has an obligation to respond to retaliatory harassment, the court held that the school could be found liable for retaliation if these facts prove true.

E.N. v. Susquehanna Township School District, 2010 WL 483700 (M.D. Pa. Nov. 23, 2010).

NWLC webinar

The National Women's Law Center, much in the news lately because of the filings of 12 Title IX complaints against various school districts nationwide, will be offering a free webinar about Title IX compliance tomorrow. Senior Counsel at NWLC Neena Chaudhry will be giving the webinar which begins at 1pm (eastern) and will focus on understanding and complying with the law.
The event, titled Rally for Girls' Sports: A Guide to Title IX for Parents, Coaches, and School Officials, does require pre-registration. If you are interested, you may do so here.
This event is part of NWLC's larger Rally for Girls' Sports campaign.

First-Class Locker Rooms Remedy Title IX Violations at N.C. High Schools

Last year we blogged about Title IX violations at the high schools in New Hanover County, North Carolina -- in particular, the inequitable locker room facilities that had girls' teams doubling up and changing in the weight room, and the county's ongoing efforts to honor a 2008 compliance agreement with OCR. But today there's good news for the girls at Hoggard and Laney high schools, as the county purports to have completed all of the necessary renovations to comply with Title IX. Of the new, spacious girls' locker room with varnished wood lockers (a "carbon copy" of the existing boys' locker room), Hoggard girls' basketball coach Ray Beatty said,

Everyone that's been in there has been overwhelmed, especially the girls that have been with me for a while[.] It's more like a college atmosphere now than in the past. My girls probably just felt like second-class citizens because the boys had such nice facilities, but now they feel like first-class citizens.

To me, this quote epitomizes the intent and effect of Title IX, indeed, civil rights laws in general, and provides the most compelling counterargument to those who say the law is unnecessary and unimportant. No group should be stigmatized by second-class treatment. Discrimination in athletics, whether it be in the number of participation opportunities for each sex, or the quality of their playing fields and locker rooms, sends a clear message to students about whose athletic experience society appreciates, expects, and respects. It's obvious that they should be equal. It's not obvious why it takes government intervention to make schools realize that too, but until it is, Title IX is both necessary and important.

Title IX Violations to be Remedied in Arrowhead, Wisconsin

A recent investigation into Title IX violations at Arrowhead High School in Wisconsin lead OCR to conclude, for the second time in recent years, that the school was not providing equal opportunity to female athletes. The school has agreed to fund alpine skiing and lacrosse, though the superintendent characterizes this a a voluntary, proactive decision and is seeking to challenge OCR's determination that the high school is in violation of Title IX.

In 2008, Arrowhead settled a complaint about unequal treatment by agreeing to make improvements to softball and field hockey facilities.

UPDATE: a reader kindly emailed me a copy of OCR's letter of findings, so I am able to add some additional details to the press account I summarized this morning.

• Arrowhead High School had a four-percentage-point disparity between the percent of athletic opportunities for girls (43%) and the percent of girls in the student body (47%). OCR characterized this as a substantial disparity not in compliance with prong one's substantial proportionality test because it amounted to 124 participation opportunities, well over the amount necessary to field a team in one or several sports.

• Next, OCR found that though the disparity had decreased since 2006 (it was as high as 5.3%) this does not satisfy prong two's requirement for continuous expansion of opportunities for the underrepresented sex because it was due to a decrease in the percentage of female students rather than the addition of new athletic opportunities. Moreover, prong two compliance was foreclosed by the fact that Arrowhead has only added one new sport for girls in the last 20 years, and had turned down a request to fund the existing self-funded lacrosse team.
  

• OCR also found that the existence of two, self-funded club teams demonstrates unmet interest and ability in additional varsity sports for girls, thus precluding Arrowhead from prong three compliance. The girls' Alpine ski team has existed since 2006 and has grown from 10 girls to as many as 21. Last year, the skiers competed successfully against fifteen other teams in five invitational meets. A girls' lacrosse team also provides opportunities for as many as 69 girls divided onto four squads. Though lacrosse is not sanctioned by the WIAA (neither is alpine skiing), the lacrosse team is a member of the Milwaukee Area Youth Lacrosse Association and competes against the other 6 other girls' lacrosse teams in that league, as well as other schools in the Madison area and from Illinois -- all within 70 miles of the school. Therefore, there is unmet interest and ability in sports for which there is sufficient competition in the school's normal geographic region of competition.
  

• The school district had informed OCR through correspondence spanning the last several months that it would fully fund lacrosse this school year, that it would partially fund (50%) the alpine ski team next school year, and fully fund the ski team in the following (2012-13) school year. OCR has closed the complaint "based upon these commitments," but has required the district to verify its compliance with those commitments going forward, and to that end imposed several reporting requirements spanning the next several years.
  

Court Applies Title IX Standards to Harassment of Student With HIV

A recent decision from an Indiana federal district court applied Title IX's standard for institutional liability for peer harassment to a cause involving students' harassment of a fellow student who is HIV positive. Parents of P.R., a middle school student, sued the school claiming that its failure to address the harassment violated the Americans With Disabilities Act and the Rehabilitation Act. Consistent with other courts, the court borrowed the "deliberate indifference" requirement from case law interpreting Title IX, reasoning that the
Title IX's standards for imposing institutional liability for peer harassment should apply to ADA/Rehabilitation Act suits as well, owing to the similarities between the statutes. Where Title IX operates to ensure that no person is excluded from or discriminated against because of sex by federally-funded schools, the ADA and Rehabilitation Act ensure that person is excluded from or discriminated against because of disability in public programs.

After borrowing Title IX's peer harassment standard, the court proceeded to apply the standard to the allegations in the case. Ultimately, it concluded that the school could not be liable because it responded appropriately to each of the three alleged instances of harassment when they occurred. School officials met with offending individuals, and in one case, a student's parents. When the offender was a school employee (a coach who asked, seemingly innocently but with acknowledged insensitivity, whether P.R. had AIDS), the offender was admonished and apologized. None of the offenders re-offended, suggesting that the school's response was appropriate.

While ultimately this school district was held not to be liable for peer harassment of a student with HIV, the decision should help put schools on notice that they must be as diligent protecting student from harassment based on disability as they are required to be about harassment based on sex.

Decision is: P.R. ex rel. Rawl v. Metropolitan Sch. Dist. of Washington Township, 2010 WL 4457417 (S.D. Ind. Nov. 1., 2010).

Massachusetts State Colleges Fall Short of Title IX

A recent article in Commonwealth Magazine suggests that state colleges and universities in Massachusetts are falling short of Title IX's requirements for equity in athletics.

Here are some of the article's specific findings:

• Women's teams at Massachusetts state colleges and universities on the whole received only 38% of the $29.2 million collectively allocated to men's and women's athletics. There is no requirement that schools spend the same amount of money on men's and women's sports, but a disparity this large calls into questions whether teams are receiving equal treatment in access to support and resources as required by law.

• UMass-Amherst spends nearly twice as much per capita on male athletes as it does on female athletes.

• It spent just 30% of the $618,000 devoted to recruiting on recruiting for women's teams.
  

• State colleges and universities on the whole pay head coach of a men's team is 26 percent more than what a head coach of a women's team makes; assistant coaches on the men's teams on average make 37 percent more than those on women's teams -- a disparity largely driven by the salaries of UMass men's basketball coach Derek Kellogg, ($215,000) and football coach Kevin Morris ($200,000). In contrast, the former women's basketball coach at UMass who coached for eight seasons topped out at $145,000.

• UMass-Amherst handed out $5.9 million in full and partial athletic scholarships to 382 students. Men received 56 percent of the scholarship money and women 44 percent -- a disparity that would be even worse if it controlled for the higher number of female athletes who have larger awards because they are out-of-state. This is a likely violation of Title IX's requirements that scholarships be awarded in proportion to participation rates of each sex.
  

• At Westfield State University, women represent 52 percent of the school's enrollment and only 46 percent of the school's athletes, and at Bridgewater State University, women make up 60 percent of the student body but only 42 percent of the school's athletes. Bridgewater officials interviewed in the article claim compliance with the other two prongs that are alternatives to proportionality.
  

• Participation data submitted by UMass shows athletic opportunities for women identical to the percentage of women in the student body (both are 49%), but this figure includes 10 male practice players on the women's basketball team, and more female than male track athletes who are "triple counted" as members of winter, spring track and cross-country teams.
  

An interesting article indeed. Perhaps it will inspire some legal action?

[thanks, Elliot!]

National Women's Law Center Files 12 Complaints Challenging Sex Discrimination in HS Athletics

The National Women's Law Center announced today that it has filed administrative complaints against twelve school districts across the country to challenge sex discrimination in high school athletics. These districts are, according to NWLC President Marcia Greenberger, "the tip of the iceberg" in terms of the problem of sex discrimination in sports. Nationally, high school girls receive only 41% of athletic opportunities despite constituting half of the student population, which translates in absolute terms to a disparity of 1.3 million opportunities. NWLC's efforts will surely raise awareness about the problem as well as send a message that noncompliance has consequences.

NWLC singled out one school district in each of the Department of Education's 12 enforcement regions, and selected the targets based on participation data collected by OCR most recently in 2006. All of the target districts have (1) double-digit participation gaps, demonstrating a failure to comply with prong one's proportionality test, (2) a trend in declining opportunities for girls, which shows failure to comply with the continuing expansion test of prong two, and (3) schools that offer fewer sports for girls than sanctioned by state interscholastic association, suggesting a high likelihood of unmet interest in violation of prong three. Those districts are:

Chicago Public Schools (IL)
Clark County School District (NV)
Columbus City Schools (OH)
Deer Valley Unified School District (AZ)
Henry County Schools (GA)
Houston Independent School District (TX)
Irvine Unified School District (CA)
New York City Department of Education (NY)
Oldham County Schools (KY)
Sioux Falls School District (SD)
Wake County Public School System (NC)
Worcester Public Schools (MA)

If after investigation OCR determines that these districts are indeed in violation of Title IX, it will likely require the districts to agree to a compliance plan and subject the districts to continued monitoring to make sure it is sticking to the plan's deadlines for compliance. More unusual, but possible, remedies include a government lawsuit that would impose compliance obligations as part of a court order, and the termination of federal funding, although that has never occurred in Title IX history.

NWLC has posted the complaints on its website, and you can also see a chart comparing the participation rates in the target districts here.

NWLC's initiative is part of its new campaign called Rally for Girls' Sports: She'll Win More Than a Game, to provide advocacy for equity in high and outreach to parents. The initiative includes a hotline: 1.855.HERGAME, students and parents to get advice about inequities in their own districts.

Advice Column Takes on Title IX and Gender Stereotypes

Part of the "Ask Amy" column in today's Washington Post addressed the Title IX implications of a coach requiring a player to conform to gender stereotypes with respect to appearance:

DEAR AMY: I am a girl in my junior year of high school, and the volleyball coach won't let me compete until I shave my underarms and legs (our uniforms are sleeveless tops and shorts).

I don't want to be forced into something that I feel is completely unnecessary. Leg and underarm hair is a completely natural part of becoming a woman.

Is this discrimination? Is there anything I can do (besides shave)?

I really want to play volleyball! -- Hair Today, Gone Tomorrow

DEAR GONE: If your coach also insisted that the male volleyball or basketball players must shave their underarms and legs, then perhaps this wouldn't qualify as discrimination.

I'm going to assume that your coach does not make the male players at your school adhere to the same shaving practices.

I shared your letter with Lenore Lapidus, director of the Women's Rights Project for the American Civil Liberties Union, who responded, "This is clearly gender discrimination, based on stereotypes of how girls and women should look." Lapidus would like to remind your coach that Title IX prohibits discrimination in any institution receiving federal funds.

Title IX is the federal statute that pushed open the door for girls to compete in sports on an equal footing with boys.

Lapidus suggests that you start by talking to the coach. "Try to work it out at school. It seems like something they should come around about because this is fairly clear-cut." If your coach continues to insist on this shaving rule, take your concern to the principal. I hope you will stand up for your right not to be forced to shave any part of your body that you don't wish to shave.

Good advice, Amy!

Boys playing field hockey

Boys playing high school field hockey on historically all-girls' teams has caused the occasional flare-up in the gender equity/Title IX discourse.
I came across this article about a not-quite-a flare-up last month. I probably wouldn't have paid too much attention because it does not seem to be an especially contentious situation, but this story is in my backyard, so...
In South Hadley, MA, two boys--brothers, actually--are playing on the very successful South Hadley High School field hockey team. After initial concern about the boys dominating play, it seems everyone is pretty happy about the situation. The coach sees herself as having 16 players, not 14 girls and 2 boys. She's a little too close to saying "I don't see gender" for my comfort, but if everyone is indeed okay with what is happening--then, good. I am not surprised that a community like South Hadley is accepting, welcoming even, of boys playing with girls. And, according to the article, boys have been playing field hockey in western Massachusetts since the 1980s. And a Massachusetts Superior Court ruled that boys could play on girls' field hockey teams. This year alone several western Massachusetts communities have at least one boy playing field hockey.
I am not opposed to integrated sports--in theory. And in practice, this one seems to be working--for South Hadley.* What their opponents think or say, well...I assume some may not be so happy. [Post season starts this week. South Hadley went 17-0-1 this season and has earned a second seed in the tournament. The article about post-season play made no mention of the boys playing with girls issue.]
The invocation of Title IX by the author, though, confused me. He wrote that Title IX
"grants equal gender opportunity to females and males." And then states:
"it should be emphasized that neither the Menards [the brothers] nor South Hadley broke any rules. Actually, it’s just the opposite: they’re following the rules of Title IX."
I'm not really sure which rules he is referring to here. Title IX does not prohibit integrated sports. It does not provide, however, opportunities for girls to play in boys' contact sports (though other laws have compelled schools to, for example, allow girls on football teams). It does require the historically underrepresented sex be provided equitable opportunities.
And because there is still no requirement that high schools report their athletic department data, in the way colleges and universities do, we don't actually know how many athletic opportunities the girls in South Hadley receive in comparison to the boys.
Again, I like the idea of integrated sports. I think there are many benefits to such a situation. But what if those boys are taking away opportunities from girls when boys already have more opportunities? That situation becomes a little more sticky.


* In another nearby western MA town, people were not so happy that a boy was playing with the girls--in 2001. I hesitate to put up this link to Rick Reilly's column about the situation in Shelbourne Falls because parts of it are a little offensive, but it covers the issue well so...

University of Portland Cuts Golf, Violates Title IX?

University of Portland has announced plans to drop men's and women's golf, and to add women's crew. The article does not provide a reason for the cuts, other than to note that university officials claim the move was "not to cut costs." I'm not at all sure what that means.

While adding women's crew would bring the university closer to compliance under prong 1, its decision to cut women's golf still may violate Title IX. Portland's EADA report says that currently, there are 171 varsity athletic opportunities for female students, or 47% of the 363 opportunities overall. Yet women account for 63% of the student body. Even if we give Portland credit now for the 62 opportunities it plans to add in crew (and OCR does not count hypothetical future opportunities, as we recently noted), the total number of athletic opportunities for women would be 226, or 55% of what will be 410 total athletic opportunities -- still approximately 86 opportunities short of reaching 63%.

Failing to comply with the proportionality prong, Portland must be able to demonstrate compliance with either prong 2 (history and continuous expansion of opportunities for the underrepresented sex) or prong 3 (no unmet interest and abilities), which is difficult to impossible when you cut a women's team. Moreover, as our recent post also suggests, OCR does not look favorably on claims that a university is continuously expanding opportunities for women when it cuts an existing team and replaces it with one that is chosen because it's a good fit for the institution, rather than responsive to existing unmet interest. Thus, a decision to cut on sport and replace it with another that is chosen simply because its large roster offers better chance of Title IX compliance will probably not fly as a prong two defense.

If the female golfers were to challenge this decision, I think they would have a very strong case.

Superintendents Say the Darndest Things...

And we wondered why schools needed a reminder of their obligation to protect students against sexual harassment and sex-based bullying? Here's one superintendent, actually complaining about the recent OCR guidance letter:

"This is an incredible expansion of Title IX," Godfrey-Lee [Michigan] Superintendent David Britten said. "This was something intended for the college level for equality in athletics, expanded into the high school arena and now it’s going to tap right down all the way to pre-school."

Read the statute, Mr. Britten. It actually says nothing about colleges and nothing about athletics. It is a general statute that prohibits all manner of sex discrimination in all educational institutions that receive federal funds. What are they teaching in superintendent school?

Mr. Britten at least went on to say how his district is nevertheless compliant, having recently "revamped its policies" and incorporated efforts to educate freshman about "the topic." So he's apparently just opposed on principle to federal intervention. So how about a poster-child for federal intervention? I nominate Clint McCance, school board member in Arkansas, who lashed out at recent efforts to raise awareness about life-threatening bullying by encouraging all "queers" to commit suicide. With people like this running the education system in our country, no wonder bullying is still met with deliberate indifference.

OCR "Dear Colleague" Letter Addresses Title IX and Bullying

Today the Department of Education's Office for Civil Rights sent letters of guidance to thousands of educational institutions across the country, reminding them of their obligation under Title IX and other civil rights laws to protect students from bullying and harassment.

OCR's letter provided hypothetical examples to illustrate the type of harassment that would warrants protection under Title IX (as well as other examples about race, ethnicity, and disability). One example seemed loosely based on the recent bullying of a Massachusetts teenager that resulted in her suicide:

Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e‐mails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers.

OCR used this example to make several points: one, that harassment based on a student's sexual behavior is covered by Title IX, two, that harassment may take the form of text messages and rumor-spreading, and three, that school officials did not respond properly by requiring the students to work it out. Rather, the school should have investigated the situation and taken preliminary steps to separate the accuser from the harassers.

Another example, involving bullying of LGBT students, also seemed ripped from recent headlines:

Over the course of a school year, a gay high school student was called names (including anti‐gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices). As a result, the student dropped out of the drama club to avoid further harassment. Based on the student’s self‐identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti‐bullying policy. The reprimands of the identified perpetrators stopped the harassment by those individuals. It did not, however, stop others from undertaking similar harassment of the student.

With this hypothetical, OCR clarified that while Title IX does not cover discrimination on the basis of sexual orientation, that does not absolve school districts from their obligation to address sexual orientation-based harassment that "overlaps" with sex-based harassment. Specifically, harassment that targets a student for failing to conform to sex stereotypes, such as the teasing in this hypothetical, is sex discrimination that warrants school officials' response. According to OCR's analysis of this hypothetical, the school officials should have done more than reprimand identified perpetrators. Additional steps include: notifying the victim's teachers and otherwise increasing efforts to monitor the situation to prevent ongoing harassment, making a clear statement that such conduct violates the school's policy on harassment, conducting school-wide education on civil rights and tolerance as they relate to gender issues, and providing counseling or other appropriate resources to affected students.

In the end, OCR's guidance letter does not tell schools officials anything they should not already know. After all, all of these responsibilities derive from existing agency and judicial interpretations of Title IX. But judging by the number of sexual harassment cases we blog about here, the word hasn't been getting out and hasn't been sinking in. So this letter was necessary. And hopefully, it will provide school officials with the impetus and the means to take harassment seriously.

OCR Concludes Investigation of Catawba College

When Catawba College in Salisbury, N.C., cut its women's field hockey team last year, Kris concluded that this decision likely violated Title IX, as it served to exacerbate the College's existing disparities between men's and women's athletic opportunities. OCR, it seems, agrees. According to a Letter of Findings, which was forwarded to me by the complainant, OCR determined that the college violates all three prongs of the test measuring equity in the number of participation opportunities available to each sex. First, proportionality is not satisfied, as cutting field hockey means that women are now underrepresented in athletic opportunities by eighteen percentage points, as the college undergrad population is 46% female, but women receive only 28% of athletic opportunities.

As for the second prong, despite some history of adding women's teams (9 teams between 1964 and 1999), the College does not have a "continuing practice" of adding opportunities for the underrepresented sex, as it lacks any sort of procedure and practice to actively determine women's interest levels and respond with appropriate new opportunities (the AD's approach of passively waiting with an "open door" for any reasonable request for new opportunities was not sufficient). Even its recently-announced plans to add women's lacrosse in the future does not constitute a continuing practice, as lacrosse was chosen because it suited the College, not necessarily because it satisfied student body interest. Moreover, OCR will not find that an institution satisfies prong two when it "merely promises to add additional opportunities in the future."

As for prong three, this analysis is usually simple when a college cuts an existing women's teams, as this always serves to generate "unmet interest and ability" among the underrepresented sex. Here, however, the College based its decision to cut field hockey on the absence of competition in the geographic region. Catawba's was the only Division II field hockey team in the south, and had to travel to Pennsylvania for most of its competition. This is relevant because according to OCR's guidance on prong three, schools do not have to fulfill unmet interest in sport for which there is no reasonable expectation of competition in the geographic region in which the College primarily competes. However, OCR's investigation produced no evidence that the College was otherwise seeking to identify, let alone satisfy female students' interests and abilities. So it could not demonstrate compliance with prong three, and consequently, the regulatory requirement for equity in the distribution of athletic opportunities to each sex.

Additionally, separate from the three-prong test, OCR's investigation revealed that Catawba College violated the requirement that every institution appoint a Title IX Coordinator, someone whose job includes coordinating the institution's Title IX compliance effort and investigating any complaints of noncompliance.

The College has entered into a compliance agreement with OCR that imposes deadlines for resolving these violations. By mid-November, the College must have identified its Title IX coordinator and revised its sex discrimination policy to expressly include Title IX grievances. It must also by that time have taken the first step toward demonstrating compliance with the three prong test by creating an assessment of enrolled female students' interest and ability in intercollegiate athletics, and administer this assessment on a yearly basis. It must also analyze high school participation data and other amateur and community sports in the area from which the College draws students and consider potential interest in other sports sanctioned by the NCAA. From this information, it must produce (by next spring) a plan to satisfy any unmet interest and ability revealed by the assessment.

We'll see what happens, but I predict Catawba College will announce plans to add another women's team.

[thanks, Herb!]

Sexual Harassment Roundup

Schools prevailed in three recent Title IX cases involving sexual harassment:

• A federal court in Pennsylvania refused to enjoin a university disciplinary proceeding allegedly filed in retaliation against a victim of sexual assault for reporting her abuser to authorities. The court recognized that the plaintiff "raises serious concerns about the protections afforded to victims of sexual assault" in that the hearing will require her to confront the person she has accused of sexual assault within one month of the alleged incident and to respond to his charges that her accusations are false. However, the court determined that the hearing itself does not amount to harassment or discrimination against the plaintiff, in part because it will be conducted by a chairperson who can ensure that all questions remain relevant and appropriate, and that the perpetrator of the alleged assault does not have the chance to directly question the victim. Sefanowtcz v. Bucknell Univ., 2010 WL 3938243 (M.D. Pa. Oct. 5, 2010).

• An elementary school's response was sufficient to preclude Title IX liability for a sexual incident between kindergartners, a federal magistrate has ruled. School officials discovered that one boy touched another's genitals while alone together in the bathroom. The principal then discussed the incident with both boys and their parents, and required oversight to ensure that the boys would not use the bathroom at the same time. These efforts did not prevent a second sexually-suggestive incident between the boys in the bathroom, but they nevertheless could not be characterized as "deliberate indifference." There was no evidence other than the first incident that would have suggested that the perpetrating student would continue to harass the victim, so the district's decision to address this issue with a monitoring requirement. Nor does the fact that the boys somehow managed to evade the bathroom monitor charged to keep them separated render the school's response indifferent one. Brooks v. City of Philadelphia, 2010 WL 392835 (E.D. Pa. Oct. 5, 2010).

• The Eight Circuit recently granted a school district's motion for summary judgment on a plaintiff's Title IX and constitutional claims stemming from the sexual misconduct of a basketball coach at Delight High School in Delight, Arkansas. The plaintiff's parents sued the school district and various officials after learning that the coach, Chad Smith, was having a sexual relationship with their daughter, a player on the team. On appeal from a decision denying the motion, the appellate court determined that the facts alleged failed to satisfy Title IX's requirement that school district officials have actual notice of sexual abuse or harassment and responded with deliberate indifference. Specifically, the court rejected that prior claims of inappropriate text messaging by Smith produced such notice. District officials had investigated and addressed these messages, and with regards to the only message with sexually suggestive content, determined that it not been sent by the coach at all. The principal also followed up on a rumor that the plaintiff's daughter was skipping class to spend time with Smith, but found no evidence to corroborate this claim. Moreover, other claims of misconduct by the coach (threatening players and directing them in an act of poor sportsmanship) -- though resulting in the district's decision not to renew his contract -- failed to provide adequate notice that he was sleeping with a player. Doe v. Flaherty, 2010 WL 4068748 (8th Cir. Oct. 19, 2010).
  

Title IX and bullying

We have been fairly silent on the recent spate of anti-gay bullying. It is not from indifference--rather we have been very concerned and somewhat at a loss as to what to say. We have commented previously on bullying, both anti-gay bullying and bullying that can be construed as sexual harassment. For some reason, I had thought the publicity around previous cases signaled a greater awareness and might possibly lead to a reduction in these incidents. And perhaps it has. Perhaps we have just experienced an unfortunate, concentrated period of anti-gay violence, and the programs and awareness that have been created will move us out of this violence. But I also know that as much publicity as these cases have received, there are less extreme cases (or outcomes) happening daily in American schools.
I was glad to finally see some commentary on the role of Title IX in preventing bullying. And John Merrow, at the Huffington Post, went directly to the source: Dr. Bernice Sandler.
The following is an excerpt from Merrow's post that includes quotes from Sandler.

The federal law known Title IX (1972) prohibits sexual harassment, and most bullying falls into that category. "Most cyberbullying and other forms of bullying, as well, include sexual references. Girls are called "sluts" and "hos," boys are called "fags' and other sexual names. Sexual rumors and comments are frequent."

Dr. Sandler says Title IX requires schools to act, no matter where the cyberbullying occurs. "This federal law also prohibits these behaviors outside the school, as when personal computers are used, and when the behavior is disruptive to learning, such as affecting a student's ability to partake of the opportunities for learning in school as well as partaking in other school opportunities provided by the school. Schools have an obligation to stop sexual bullying when it occurs and to have a policy that prohibits it."

Indiana Scheduling Case Decided On Summary Judgment

Yesterday, federal district court judge William T. Lawrence of the Southern District of Indiana dismissed claims against the Indiana High School Athletic Association and area high schools that scheduling girls' basketball for fewer Friday and Saturday night games violated Title IX and the Equal Protection Clause. We've been following this case for a while, see prior posts here, here, here, and here.

In evaluating whether the high schools themselves violated Title IX, Judge Lawrence acknowledged that the regulations require equal treatment between boys' and girls' teams, and that the regulations specifically cite "scheduling of games and practice time" as an aspect of this determination. 34 C.F.R. § 106.41(c)(3). The judge also cited OCR's 1979 Policy Interpretation, which provides additional guidance for evaluating equality between athletic opportunities offered to each sex:

a. Whether the policies of an institution are discriminatory in language or effect;
or
b. Whether disparities of a substantial and unjustified nature exist in the benefits,
treatment, services, or opportunities afforded male and female athletes in the
institution’s program as a whole; or
c. Whether disparities in benefits, treatment, services, or opportunities in
individual segments of the program are substantial enough in and of themselves to deny equality of athletic opportunity.

Disparities in treatment, the judge concluded, must be "substantial" to constitute a violation of Title IX. In other cases involving scheduling, the judge acknowledged, courts have concluded that decisions to schedule girls' sports in a nontraditional season violated Title IX because such decisions limited the female athletes' access to role models, skills development, and team-building. But playing more weeknight games does not harm female athletes in these particular ways, so therefore, he reasoned, the high schools' scheduling decisions do not create substantial disparities in violation of Title IX.

Missing from the judge's analysis is an independent evaluation of the effect of a disparity in night-of-the-week scheduling, rather than season-of-the-year. Granted, judicial decisions to date have dealt with the former rather than the latter. But simply to conclude that the plaintiffs didn't suffer the same kind of harm as those in the season-of-the-year case is insufficient reasoning, as it fails to consider whether the harms from having more weeknight games might be substantially harmful in a different way. Greater academic challenges and a diminished opportunity to develop a fan base are two possible harms that come to mind. Another possibility -- which actually does have support in the season-of-the-year scheduling cases, is that scheduling girls' sports more often at a non-preferred time stigmatizes girls' teams with second-class status.

Another concern I have is that the factors cited by the judge from the 1979 Policy Interpretation are alternative, not conjunctive, suggesting that noncompliance might result from failure to comply with either standard independently. It seems to me, then, that the judge should have evaluated under part a. whether the schedule contains "discriminatory language or effect" as well as whether the effect of discrimination was "substantial," an element of b. and c. A schedule that relegates girls games to more weeknight games seemingly constitutes "discriminatory language or effect."

The judge also decided that the IHSAA did not violate the Equal Protection Clause, nor (in a separate decision issued last week) Title IX, reasoning that IHSAA did not determine the schedule of games; it only tells member institutions how many games it can schedule, when the season starts and ends, and limits each team to no more than two weeknight games per week. The judge did not endorse the plaintiff's argument that the IHSAA's failure to require gender equity in scheduling was "deliberate indifference" to discrimination, noting the absence of precedent for such a standard in these kinds of cases.

I am rooting for an appeal.

Decision: Parker v. Indiana High School Athletic Ass'n et al, 1:09-cv-00885-WTL-WGH (S.D. Ind. Oct. 6, 2010) (retrieved from Pacer, not yet available on Westlaw).

Report Urges Equal Opportunity for Transgender Athletes

The National Center for Lesbian Rights and the Women's Sports Foundation recently teamed up to tackle the barriers transgender student athletes face when seeking to participate in sex-segregated sports. A report released this week, authored by NCLR's Helen Carroll and WSF/It Takes A Team emerita Pat Griffin, provides guidance, in the form of policy recommendations and best practices, to high schools and colleges regarding this issue. The report is timely and necessary, as transgender athletes may be effectively excluded by the absence of any such policy, and in other cases, directly excluded by policies that do exist. Under the policy of the Connecticut Interscholastic Athletic Association, for example, transgender athletes may compete with the sex that matches their gender identity only if they comply with the same standard that the International Olympic Committee uses for this purpose -- a very high standard that requires legal sex change, sex reassignment surgery, hormone treatments, and a two year waiting period. At the high school level, very few students are likely to have the time and resources to comply with these requirements within the period of time of high school eligibility, let alone a medical diagnosis that warrants irreversible surgery at such a young age.

In contrast, the report urges all state interscholastic agencies to adopt a policy of inclusion modeled on the one adopted by the Washington Interscholastic Athletic Association two years ago. The WIAA's policy allows students to participate in the sports for whichever sex the student consistently identifies. A liberal participation policy ensures that all students have access to the educational benefits provided through athletics, and reflects the wide variation that already exists within the sexes, particularly among youth.

For college athletics, the report recommends a policy that focuses on a particular medical aspect of a transgender athlete's transition to the opposite sex: hormone treatment. Under the prescribed policy, a transgender athlete transitioning from male to female may compete in women's sports after a one year of taking estrogen and androgen blockers. (Such an athlete may continue to participate in men's sports during that one-year period, and even afterwards if she so chooses.) This policy reflects scientific research suggesting that most relevant sex-based physical differences are materially reduced or eliminated by such treatment. For the opposite reason, an athlete transitioning from female to male may not compete in women's sports after testosterone treatments have begun.

Significantly, neither the recommendation for high school or college athletics borrows from the IOC's surgical requirement, deemed overly-restrictive and, in light of hormone requirement, unnecessary to reduce sex-related physical differences between the sexes. The proposed policies also differ from existing ones by spelling out an athlete's right to appeal any challenge to their participation, ensuring confidentiality, and addressing collateral issues such as locker rooms, uniforms, and hotel room assignments. With regard to the latter issues, the policy takes the position that a transgender athlete ought to be treated like any other athlete of his or her transitioned sex. It smartly goes on to say that teams should support and seek to accommodate any athlete with privacy concerns, not just transgender athletes.

In sum, the proposed policies are appropriately focused on inclusion, and incorporate a well-researched position on the limited degree to which physical differences create competitive advantages, as well how such differences, when they tend to be more relevant, are moderated by hormone therapy. I hope that it gains traction among state athletic associations and college associations like the NCAA, and I am optimistic that this will be the case. Significantly, the report authors got input from athletic administrators in addition to the scientists and legal experts they also consulted.