A former track and cross-country coach at Central Connecticut State University has filed a lawsuit claiming that the university decided not to renew her contract in retaliation for her efforts to secure equal treatment for her team. The plaintiff was hired by the university in 2006 on a one-year contract, which was renewed annually until it was terminated in 2010. According to her complaint, she successfully coached the women's track and cross-country team during that time, improving the team's record and engaging in successful recruiting efforts. Yet despite being promised equal treatment compared to the men's track team, her team allegedly received a much lower budget than the men's team, less access to facilities, and had problems securing transportation to away meets. The plaintiff also noted inequitable support from a "shared" assistant coach who spent his time helping the men's team and not the women's.
The plaintiff claims that when she raised these concerns to a university official with oversight responsibility over athletics, her complaints were mocked and not taken seriously. Rather than investigate her complaints, the compliance officer investigated the coach herself, while one athletic department official allegedly pressured an athlete to file complaints against her. She was also threatened with "disciplinary action" if she did not "ignore everything that was happening" and continue to press her complaints. Meanwhile, the plaintiff also noted ways in which she was afforded less respect than the male coaches, such as being left off the athletic department website (when newly-hired male coaches were added immediately) and misreporting the men's head coach's title as "Head Coach for Track" (instead of "Head Coach for Men's Track"). The plaintiff claims she was also singled out for budget reductions and the cancellation of one of her athlete's scholarships. She attributes to this hostility to the fact that the athletic department had supported the assistant track coach for her position and was disappointed that the university president had required them to hire a woman instead.
In 2010, an athletic department evaluation committee recommended the plaintiff for another contract renewal, noting the athletic and academic success of her team. But the athletic director did not renew her contract and instead combined the men's and women's track teams back together, as they had been before Webb was hired. The assistant coach who had sought the plaintiff's job was hired as the head coach of the unified team, notwithstanding the plaintiff's longer experience in coaching and coaching in Division I, as well as other superior coaching credentials.
On these facts, the plaintiff's complaint satisfies the elements to establish a prima facie case for retaliation under Title IX. She alleges that she complained about gender equity, and that she experienced adverse employment consequences including being terminated from her position. She also alleges facts that support the inference that those two things are causally connected, including that she was threatened with "discipline" if she did not drop her complaints. The university will likely defend this lawsuit by proffering "legitimate" reasons for terminating the plaintiff, perhaps by arguing that she did not meet performance expectations. She will then have to prove that the university's proffered reason is actually a pretext for retaliation. For example, if the university claims she was fired because her team was not competitive, the plaintiff could demonstrate this is a pretext by proving the allegations in her complaint that the university did not terminate the coaches of other men's teams that were not as successful as hers.
The plaintiff's complaint also includes counts of direct discrimination under Title IX, as well as comparable claims under state law. She seeks compensatory and other damages exceeding $2 million dollars, a number that is not out of bounds after verdicts and settlements in similar retaliation cases against Fresno State and Florida Gulf Coast University.
Thursday, November 17, 2011
Wednesday, November 16, 2011
Recommendations for cuts in at Maryland
The recommendations for how many and which teams will be cut from UMD's athletic department came faster than we expected. And it seems like President Wallace Loh will make his decision, based on the committee's recommendations, sooner than he had planned as well. (He initially said he would decide by the end of the year.)
So, as expected, men's and women's swimming and diving is on the list. Six other teams join them: the entire men's track program (a total of three programs), women's water polo, and acrobatics and tumbling.
The last was particularly interesting. Maryland was the first institution to elevate its cheerleading team to varsity status, calling it competitive cheer. This seemed to be the watershed moment for competitive cheer, which now goes by several names depending on which governing body a team aligns itself with. I would imagine this is kind of a blow for competitive cheer. We predicted that competitive cheer would be embraced by many schools because administrators view it as a somewhat cheaper way to add opportunities for women. Does this move by Maryland signal that administrators are also going to see the sport as easy to drop when things get tight?
As the WaPo article notes, these decisions are not final. Loh must make them official. I imagine he will not draw things out and do it soon.
So, as expected, men's and women's swimming and diving is on the list. Six other teams join them: the entire men's track program (a total of three programs), women's water polo, and acrobatics and tumbling.
The last was particularly interesting. Maryland was the first institution to elevate its cheerleading team to varsity status, calling it competitive cheer. This seemed to be the watershed moment for competitive cheer, which now goes by several names depending on which governing body a team aligns itself with. I would imagine this is kind of a blow for competitive cheer. We predicted that competitive cheer would be embraced by many schools because administrators view it as a somewhat cheaper way to add opportunities for women. Does this move by Maryland signal that administrators are also going to see the sport as easy to drop when things get tight?
As the WaPo article notes, these decisions are not final. Loh must make them official. I imagine he will not draw things out and do it soon.
Tuesday, November 15, 2011
Title IX and Penn State
In a two-part column at Justia.com (see here and here), Hofstra law professor Joanna Grossman and Pittsburgh law professor Debbie Brake examine whether Penn State is liable under Title IX for the sexual abuse committed by former Assistant Coach Jerry Sandusky, who used Penn State facilities to anally rape boys he associated with under the auspices of charity that Sandusky founded.
In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."
For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.
Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.
The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.
While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.
In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."
For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.
Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.
The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.
While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.
Monday, November 14, 2011
Remaining Idaho Complaint Closed with Voluntary Resolution Agreement
I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.
Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.
Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."
If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.
So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.
Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.
Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."
If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.
So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.
Pittsburgh School District Ends Single-Sex Classes
The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.
The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”
The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”
Friday, November 11, 2011
Women's Sports Foundation Reports on Participation Trends in High School Athletics
The Women's Sports Foundation has published a new report called “Progress Without Equity: The Provision of High School Athletic Opportunity in the United States, by Gender 1993-94 through 2005-06.” Using data from the Civil Rights Data Collection and the National Center for Education Statistics, the report authors, Professor Don Sabo from D'Youville College and Phil Veliz from SUNY Buffalo, examine gender differences in athletic opportunity in a sample of 24,370 public high schools across three school years, 1993-94, 1999-2000, and 2005-06. The authors measured the number of athletic participation opportunities, the number of teams, and the number of sports in the sample school districts during these years, and then controlled for a variety of factors about those schools including geographic region, level of resources, and whether urban, suburban or rural. As described in the report's abstract, its key findings include:
To me, this report provides an answer to those who would curtail Title IX's enforcement at the high school level. By proving that girls' opportunities are still lagging and progress towards equality waning, this report should encourage regulators and lawmakers to strengthen Title IX's application to high school athletics such as by taking seriously those seeking OCR enforcement against continued disparities, and by passing legislation that would standardize participation data and make it available and easier to find for those seeking to file a complaint or a lawsuit.
- While high schools gradually increased their allocations of athletic participation opportunities between 1993-94 and 2005-06, progress toward closing the gender gap slowed after 2000.
- Boys received a larger proportion of athletic participation opportunities than girls did for each school year in all communities (i.e., urban, suburban, town, and rural). The lowest percentages of athletic participation opportunities occurred in urban schools, whereas the highest percentages were issued in rural schools.
- Schools with greater economic resources provided more athletic participation opportunities for their students—both girls and boys—than their less fiscally sound counterparts.
- Girls were provided proportionately fewer athletic participation opportunities than boys during each school year and in all geographic regions (i.e., Northeast, Midwest, South and West.
Wednesday, November 09, 2011
Maryland athletics cutting teams
University of Maryland has some tough decisions to make. The department, which is required to be self-sustaining (no money from the general fund; it does receive student fees) is not. Facing major deficits, it now faces the task of cutting teams--many teams--up to 10 according to this WaPo article.
It looks like men's and women's swimming and diving are almost certain to be cut. The university president has formed a commission and asked for a study which will include recommendations for teams to be cut. But the swim teams have caught wind of the news already; so has Bob Groseth, the executive director of the College Swimming Coaches' Association. Some coaches and administrators within the swimming community have been none too happy with Title IX, blaming the law on the elimination of men's swim teams.
But Groseth, whatever he thinks about Title IX, makes this observation about swimming in DI:
As you see with all this conference [realignment], there is a growing number of athletic directors who are using athletic departments as a bottom-line business model — not as part of an overall education model.
He notes that swimming has grown at the DII and DIII levels, though.
And it's true. UMD is in a big-time conference (ACC) playing big-time sports and they now seem to have no choice but to make similar decisions as other big-time programs--cutting the so-called minor sports.
It's going to be a tough year for UMD athletics--at least morale-wise--as rumors swirl and campaigns begin to save sports.
It looks like men's and women's swimming and diving are almost certain to be cut. The university president has formed a commission and asked for a study which will include recommendations for teams to be cut. But the swim teams have caught wind of the news already; so has Bob Groseth, the executive director of the College Swimming Coaches' Association. Some coaches and administrators within the swimming community have been none too happy with Title IX, blaming the law on the elimination of men's swim teams.
But Groseth, whatever he thinks about Title IX, makes this observation about swimming in DI:
As you see with all this conference [realignment], there is a growing number of athletic directors who are using athletic departments as a bottom-line business model — not as part of an overall education model.
He notes that swimming has grown at the DII and DIII levels, though.
And it's true. UMD is in a big-time conference (ACC) playing big-time sports and they now seem to have no choice but to make similar decisions as other big-time programs--cutting the so-called minor sports.
It's going to be a tough year for UMD athletics--at least morale-wise--as rumors swirl and campaigns begin to save sports.
New study on sexual harassment of youth
We all knew that grade 7 through 12 are not always pleasant times for kids.
We know about bullying and its severe effects.
But a new study by the American Association of University Women has revealed some pretty bleak statistics around the sexual harassment of both teenage boys and girls. Over 50 percent of girls surveyed reported experiencing sexual harassment and about 40 percent of boys self-reported harassment.
The survey of just under 2,000 students asked students only to report sexual harassment (defined as unwelcome jokes or comments, inappropriate touching, and sexual intimidation) within the last year (2010-11 academic year). It included harassment that happens in person and via other mediums (texts, social media, etc.).
The effects of such harassment are both physical and mental with many reporting headaches and stomach pain.
The AAUW undertook the study to bring attention to the issue of sexual harassment, which members do not want forgotten in the midst of the discussions about bullying.
The authors, or at least the NYT's portrayal of the authors, seem to make a stricter distinction between sexual harassment and bullying than I might. Sexual harassment is a form of bullying and so much bullying involves sexual harassment.
For example, the study found that 18 percent of both girls and boys report harassment based on perceived sexual orientation. This is also bullying. This is why, in some bullying cases, Title IX violations are cited.
And, of course, all sexual harassment in schools is subject to Title IX. Though we here at the blog believe that Title IX is quite underused in sexual harassment cases. It seems that the AAUW feels similarly, though T9 only got a brief mention in the article.
We know about bullying and its severe effects.
But a new study by the American Association of University Women has revealed some pretty bleak statistics around the sexual harassment of both teenage boys and girls. Over 50 percent of girls surveyed reported experiencing sexual harassment and about 40 percent of boys self-reported harassment.
The survey of just under 2,000 students asked students only to report sexual harassment (defined as unwelcome jokes or comments, inappropriate touching, and sexual intimidation) within the last year (2010-11 academic year). It included harassment that happens in person and via other mediums (texts, social media, etc.).
The effects of such harassment are both physical and mental with many reporting headaches and stomach pain.
The AAUW undertook the study to bring attention to the issue of sexual harassment, which members do not want forgotten in the midst of the discussions about bullying.
The authors, or at least the NYT's portrayal of the authors, seem to make a stricter distinction between sexual harassment and bullying than I might. Sexual harassment is a form of bullying and so much bullying involves sexual harassment.
For example, the study found that 18 percent of both girls and boys report harassment based on perceived sexual orientation. This is also bullying. This is why, in some bullying cases, Title IX violations are cited.
And, of course, all sexual harassment in schools is subject to Title IX. Though we here at the blog believe that Title IX is quite underused in sexual harassment cases. It seems that the AAUW feels similarly, though T9 only got a brief mention in the article.
Tuesday, November 08, 2011
Interesting start to stipends
Who was going to pull the trigger first, we wondered, when we heard about the NCAA's approval of living stipends for DI student-athletes.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.
Monday, November 07, 2011
OCR Drops All Idaho Complaints But One
The Office for Civil Rights will reportedly drop the complaints against 77 of the 78 Idaho school districts cited in the mass-complaint filed over the summer. Only the Meridian School District, the largest in the state, remains subject to OCR investigation for claims that it violated Title IX by failing to provide an equitable number of athletic opportunities for boys and girls.
There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.
Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.
As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.
There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.
Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.
As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.
Friday, November 04, 2011
NCAA releases participation numbers
The numbers of student-athletes participating in NCAA championship sports has increased again this year. As has been the case for over a decade, there are more women's teams than men's teams. And has been the case since--well, since the inception of the NCAA--there are more male student-athletes than female: 252,946 men to 191,131 women.
Though some men's intercollegiate sports teams have been cut--wrestling has suffered the most losses--there has been a net gain of 510 men's teams since 1988. And women's opportunities have grown tremendously in that time as well with a net gain of 2,703 teams.
We were glad to see more opportunities, though somewhat surprised given the constant news we see about cash-strapped athletic departments.
Though some men's intercollegiate sports teams have been cut--wrestling has suffered the most losses--there has been a net gain of 510 men's teams since 1988. And women's opportunities have grown tremendously in that time as well with a net gain of 2,703 teams.
We were glad to see more opportunities, though somewhat surprised given the constant news we see about cash-strapped athletic departments.
Wednesday, November 02, 2011
Feminists Address Feminists on the Other Side of the Single-Sex Education Debate
Rebecca Bigler and Lise Eliot are right when they point out that "feminists tend to be of two minds about single-sex schooling." In my experience, such discussions between these groups of feminists -- whether personal or playing out in the New York Times -- reflect an uneasy awareness of this divide, with both sides often choosing to address the common "enemy" in programs that take single-sex education too far, rather than address the conflicting positions between them. Of all the discourse over single-sex education that has spewed forth these last few months, Bigler and Eliot's piece in Slate notable for actually taking issue with the feminist variety of single-sex education -- the pro-woman Smith and Wellesley type. This respectful, measured, and evidence-based column makes the case that sex-segregated classrooms promote sex stereotypes that are the basis for bias and privilege. It delivers a persuasive argument that feminists would do more to promote gender equality by working together to end sex-segregated schools and enhancing co-education. It's worth a read.
Badminton Proves Popular Addition in Deer Valley, Arizona
Girls' badminton, the newest sport offered by the Deer Valley Unified School District in Phoenix, Arizona, easily filled up at the district's five high schools, providing new athletes with a sport and demonstrating once again the "if you build it, they will come" relationship between Title IX, opportunity, and interest.
Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.
With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.
Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.
With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.
Tuesday, November 01, 2011
NCAA Division I Votes to Increase Athletes Financial Aid
Last week, the NCAA Division I Board of Directors voted to allow conferences to increase athletic scholarships by $2,000 so that athletes can have spending money. With this plan, the NCAA acknowledges that student-athletes have little time to work due to the professional-like demands on their time. To many, athletes' uncompensated labor seems like exploitation, especially when universities reap revenue, and a small handful, actual profit, from that labor. While I am sympathetic to the argument about exploited labor, I'm disappointed that the remedy isn't instead to reduce the professional-like demands on student-athletes time. That, of course, would require putting an end to the commercialization of college sports and returning it to its truly amateur status. This new policy seems to suggest that ship has sailed.
But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.
Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).
But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.
But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.
Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).
But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.
Washington High School Receives Complaint About Fields
A group of parents have reportedly complained to the administration of Castle Rock High School, in Washington, about the unequal treatment received by the girls soccer team, which plays on a field without lights while the football team plays in a comfortable, lighted stadium that it does not share with other teams. As a result, girls' games are sometimes called early due to darkness, which reduces their playing time in a way that football players never experience -- sometimes J.V. games have been shorted to as little is 32 minutes, instead of the usual 80. (The boys' soccer team does not use the stadium either, but their season is in the spring so they don't have the darkness problem.) Adding insult to injury, they claim, is the fact that while their games are called for darkness, the football stadium is sitting unused, because their game schedule does not conflict with high school football practice and game times.
To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.
Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.
Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.
To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.
Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.
Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.
Monday, October 24, 2011
Women's College in Virginia Has Policy to Expel Transgender Students
Hollins University, a private, women's college in Virginia, is in the news this week for its policy to expel transgender students who "self-identify" as male and have taken one of the following steps towards transitioning to the male sex: "1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male, or 3) changes her name legally with the intent of identifying herself as a man." This is an unfortunate policy because it denies compassion and withholds tolerance to students who may need them most. Instead, it places transgender students in difficult position of having to choose to either uproot themselves from their education and community, or else suppress and deny their deeply-felt identify.
Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).
The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."
As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 U.S.C. 1681(a)(1) ("in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.
I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.
Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).
The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."
As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 U.S.C. 1681(a)(1) ("in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.
I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.
Tuesday, October 18, 2011
"Room for Debate" over Single Sex Education
Single-sex education remains in the public discourse, in the wake of the much-discussed article in Science that calls into question the presumed benefit of single-sex classrooms, and the news of Vermilion Parish's decision to curtail through 2016 single-sex classes at its middle school in settlement of its litigation with the ACLU. The New York Times "Room for Debate" series addresses single-sex education today by including columns from all angles on the debate -- from those most critical of single-sex education as a misguided placebo for the performance gap in public education, like Galen Sherwin (ACLU attorney),Verna Williams (University of Cincinnati law professor) and Richard Fabes (child development professor at Arizona State), to the more moderate positions like Rosemary Salomone (St. John's law professor) who supports more limited use of single sex education, to the stronger proponents of single-sex education like Jane Dammen McAuliffe (President of Bryn Mawr), Leonard Sax (author) and Christine Hoff Summers (author).
Sunday, October 16, 2011
Florida High School Reinstates Coach After Retaliation
In June, school officials at Jensen Beach High School in Martin County, Florida, terminated girls' lacrosse coach Michele Ruth, who had advocated for her team's access to the district's best athletic facility, the stadium built for the football team, but which is otherwise used during the spring lacrosse season. This week it was reported that the school district agreed to a settlement with Ruth to keep her from filing a lawsuit. As part of the settlement, Ruth is reinstated to her coaching position, and the girls lacrosse team will have their home games in the stadium. The settlement agreement (available here) also provides that the district will reimburse Ruth's attorneys, including Linda Correia and the law firm Public Justice.
Reportedly, the district had claimed that it terminated Ruth for coaching without shoes, in violation of a school policy necessitated by the dangerous condition of the field used for lacrosse, due to the presence of "glass and nails and snakes." Two problems with this explanation probably influenced the district's decision to settle rather than face a jury: first, the coach's shoes only became an issue after she raised the Title IX implications of the athletic director's decision to exclude the lacrosse team from the stadium, and thus appear to be pretextual. Second, the unsafe conditions of the field, which the district would have to emphasize as part of its defense, not only underscore Ruth's request to play in the stadium, but raise separate questions of liability, including under Title IX.
One local columnist is calling Ruth a role model to her students for having the "courage and conviction to stand her ground."
Reportedly, the district had claimed that it terminated Ruth for coaching without shoes, in violation of a school policy necessitated by the dangerous condition of the field used for lacrosse, due to the presence of "glass and nails and snakes." Two problems with this explanation probably influenced the district's decision to settle rather than face a jury: first, the coach's shoes only became an issue after she raised the Title IX implications of the athletic director's decision to exclude the lacrosse team from the stadium, and thus appear to be pretextual. Second, the unsafe conditions of the field, which the district would have to emphasize as part of its defense, not only underscore Ruth's request to play in the stadium, but raise separate questions of liability, including under Title IX.
One local columnist is calling Ruth a role model to her students for having the "courage and conviction to stand her ground."
Friday, October 14, 2011
Former Coach Settles Claim for Retaliation Over Scheduling Complaint
By personal correspondence from a source close to the case, I've learned that former girls' basketball coach Amber Parker has settled her lawsuit against the Franklin County (Indiana) Community School District, in which she claimed she was retaliated against for filing a lawsuit against the Indiana High School Athletic Association to challenge the inequitable scheduling of girls' basketball games. The district will pay Parker $28,500 to drop the retaliation suit that alleges the district failed to renew her teaching and coaching contracts to punish Parker for her advocacy for equity in scheduling. My correspondent suggests that Parker was seeking comparatively modest compensatory damages, which suggests that the district was willing to pay a premium to keep the case from a jury.
Parker's lawsuit against the IHSAA, which has been handed off to another plaintiff in light of Parker's relocation to another state, is not affected by the settlement. Recall that a district court determined that the IHSAA did not violate Title IX by scheduling girls basketball games for fewer Friday night games, and that decision is on appeal to the Seventh Circuit Court of Appeals.
Parker's lawsuit against the IHSAA, which has been handed off to another plaintiff in light of Parker's relocation to another state, is not affected by the settlement. Recall that a district court determined that the IHSAA did not violate Title IX by scheduling girls basketball games for fewer Friday night games, and that decision is on appeal to the Seventh Circuit Court of Appeals.
Wednesday, October 12, 2011
School District to Renovate Softball Fields
The Kennett Consolidated School District in Chester County, Pennsylvania, will improve its girls' softball field, having voted this week to retain a contractor to design and conduct the renovation, at an estimated cost of $30,000. Reportedly, the boys' baseball fields have better playing surfaces, dugouts, and a scoreboard, and the school board wants to bring the girls' fields to the same level in order to comply with Title IX.
Wednesday, October 05, 2011
No Investigations into Oregon Complaints
The Department of Education has announced that it will not conduct investigations into the complaints filed against 60 school districts in June.
No reasons for this decision appear in any news report available at this time. My understanding, however, is that OCR dropped the complaints because they did not contain evidence to support allegations that the districts were violating all three prongs of the three-part test, as is required for a Title IX violation to occur. Specifically, OCR required more evidence to support allegations that the districts were in violation of the third prong, which measures whether school districts have satisfied all unmet interest of the underrepresented sex. Generally, the complaint based allegations of unmet interest on the fact that districts offered fewer girls' sports than are sanctioned by the Oregon State Activities Association.
Under normal circumstances, I think that basing a prong three allegation on evidence that schools don't offer girls' sports that are popular in the state, as evidenced by their recognition by the state athletic association, is a viable one. Remember, the complainant isn't required to prove that a violation exists -- that's OCR's job -- just give the agency a reasonable basis for conducting an investigation. Moreover, the Oregon complainant isn't the first to rely on state athletic association's list of sanctioned sports to support allegations of prong three violations; the National Women's Law Center did so when it filed 12 complaints against schools across the country earlier this year, and those complaints have not been dismissed. Perhaps when faced with the prospect of a single regional office having to investigate 100 schools at once, OCR is requiring more of complainants than it ordinary would?
No reasons for this decision appear in any news report available at this time. My understanding, however, is that OCR dropped the complaints because they did not contain evidence to support allegations that the districts were violating all three prongs of the three-part test, as is required for a Title IX violation to occur. Specifically, OCR required more evidence to support allegations that the districts were in violation of the third prong, which measures whether school districts have satisfied all unmet interest of the underrepresented sex. Generally, the complaint based allegations of unmet interest on the fact that districts offered fewer girls' sports than are sanctioned by the Oregon State Activities Association.
Under normal circumstances, I think that basing a prong three allegation on evidence that schools don't offer girls' sports that are popular in the state, as evidenced by their recognition by the state athletic association, is a viable one. Remember, the complainant isn't required to prove that a violation exists -- that's OCR's job -- just give the agency a reasonable basis for conducting an investigation. Moreover, the Oregon complainant isn't the first to rely on state athletic association's list of sanctioned sports to support allegations of prong three violations; the National Women's Law Center did so when it filed 12 complaints against schools across the country earlier this year, and those complaints have not been dismissed. Perhaps when faced with the prospect of a single regional office having to investigate 100 schools at once, OCR is requiring more of complainants than it ordinary would?
Saturday, September 24, 2011
Study Suggests Single-Sex Education Does More Harm than Good
Even as Kris pointed out that single-sex education is on the rise, a review article in the journal Science that was reported widely on yesterday (see, e.g., here, here, and here) casts doubt on claims that separating students by sex makes them better learners. But evidence does suggest that the practice promotes gender stereotyping and sexism. For instance, the review cites a recent comparative study of two preschool classrooms, which found that the classroom where the teacher used gender-specific language to address the children quickly produced greater tendency among the students, when compared to a classroom where no gender-specific language was used, to exclude children of the opposite sex and to rely on gender stereotypes. The study also references a Department of Education report found little overall difference in academic outcomes between children in single-sex schools versus those in coed schools. Factors other than sex, such as economic factors and parent involvement, are more likely to influence academic success.
The study's authors, who include psychologists, education specialists, and a neuroscientist who studies gender, have created a American Council for Coeducation Schooling, and are using their findings as the basis of a political movement to urge the Department of Education to rescind the regulations that allow for single-sex education, which were promulgated after the 2002 No Child Left Behind law authorize single-sex education in elementary and secondary schools as an exception to Title IX's general prohibition on sex discrimination. As we have pointed out on this blog in the past, many school districts (see, e.g.) appear to be implementing single-sex education in a broad, coercive, and groundless manner that is not authorized by the regulations.
Given the Secretary of Education's record support of single-sex classrooms such as those in his home city of Chicago, it will be interesting to see whether he is open-minded to reform and keeps in mind President Obama's professed commitment to evidence-based policymaking.
The study's authors, who include psychologists, education specialists, and a neuroscientist who studies gender, have created a American Council for Coeducation Schooling, and are using their findings as the basis of a political movement to urge the Department of Education to rescind the regulations that allow for single-sex education, which were promulgated after the 2002 No Child Left Behind law authorize single-sex education in elementary and secondary schools as an exception to Title IX's general prohibition on sex discrimination. As we have pointed out on this blog in the past, many school districts (see, e.g.) appear to be implementing single-sex education in a broad, coercive, and groundless manner that is not authorized by the regulations.
Given the Secretary of Education's record support of single-sex classrooms such as those in his home city of Chicago, it will be interesting to see whether he is open-minded to reform and keeps in mind President Obama's professed commitment to evidence-based policymaking.
Friday, September 23, 2011
Single-sex classes growing at MN middle school
Must be the new school year, because we seem to be reading more and more stories about public schools experimenting with single-sex classrooms.
In Minnesota, Battle Creek Middle School experiments with single-sex classrooms began over five years ago with the number of single-sex options growing to the point where, this year, most of students' classroom time is segregated by gender. Previous incarnations of single-sex classrooms had students segregated for half the day and mixed the other half; but teachers reported an increase in disciplinary issues and lack of attention due to the desire of the students to socialize and have "party time" when they were reintegrated.
This situation--as well as the one in Indianapolis that I wrote about the other day is curious--is there much less socializing among just girls or just boys? Why is it only "party time" when boys and girls are present?
The article is fairly responsible in its coverage noting that no research to date has confirmed the value of single-sex education. It also notes the problem of perpetuating stereotypes, but then, unfortunately, includes line like this based on information from sources:
Teachers said they notice gender differences and tweak lessons accordingly. For example, boys tend to be more competitive and crave physical activity, they said, while girls are more organized.
Makes one worry about what teachers have learned about the research and what exactly they are doing with these so-called well-organized girls and competitive and physically active boys.
Also, no information on whether there are mixed gender options. Lack of such options could be a problem.
In Minnesota, Battle Creek Middle School experiments with single-sex classrooms began over five years ago with the number of single-sex options growing to the point where, this year, most of students' classroom time is segregated by gender. Previous incarnations of single-sex classrooms had students segregated for half the day and mixed the other half; but teachers reported an increase in disciplinary issues and lack of attention due to the desire of the students to socialize and have "party time" when they were reintegrated.
This situation--as well as the one in Indianapolis that I wrote about the other day is curious--is there much less socializing among just girls or just boys? Why is it only "party time" when boys and girls are present?
The article is fairly responsible in its coverage noting that no research to date has confirmed the value of single-sex education. It also notes the problem of perpetuating stereotypes, but then, unfortunately, includes line like this based on information from sources:
Teachers said they notice gender differences and tweak lessons accordingly. For example, boys tend to be more competitive and crave physical activity, they said, while girls are more organized.
Makes one worry about what teachers have learned about the research and what exactly they are doing with these so-called well-organized girls and competitive and physically active boys.
Also, no information on whether there are mixed gender options. Lack of such options could be a problem.
Thursday, September 22, 2011
Boosters pay extra for coaches
The football boosters at Mercer Island High School in Washington want to offer the football coach a little extra money for his off-season duties. Realizing last spring though that they could not do so without violating Title IX, they got together with the parents' club of the gymnastics team to offer a similar deal to the gymnastics coach. The amount of the extra pay will be different; a discrepancy explained by the difference in the size of the respective programs. A seemingly good explanation.
Kudos to the people at MIHS for recognizing the potential booster-induced disparity.
It could be, as one administrator noted, a slippery slope given that most coaches do work in the so-called off-season.
Also a possible issue (not mentioned in the article) is that the outside salary will benefit more boys than girls because the football team is bigger. Also it looks like the gymnastic coach's off-season duties include helping the cheerleaders--which seems like a separate job--especially since he is not allowed to work with his own team members in the off-season, per the state association's rules. (Not sure exactly how the football coach is getting around this. One of the boosters said that there is no "select season" in football, which I'm pretty sure is wrong. Why would every other sport have a season and not football?)
The issue of booster clubs in high schools, and what they are and are not allowed to do, is gaining visibility. And schools are likely to have to continue to juggle the desires of boosters to support the most popular sports and the equitable distribution of amenities, facilities, equipment, and perks. The case at MIHS, though, seems far less contentious than others we have read about.
Kudos to the people at MIHS for recognizing the potential booster-induced disparity.
It could be, as one administrator noted, a slippery slope given that most coaches do work in the so-called off-season.
Also a possible issue (not mentioned in the article) is that the outside salary will benefit more boys than girls because the football team is bigger. Also it looks like the gymnastic coach's off-season duties include helping the cheerleaders--which seems like a separate job--especially since he is not allowed to work with his own team members in the off-season, per the state association's rules. (Not sure exactly how the football coach is getting around this. One of the boosters said that there is no "select season" in football, which I'm pretty sure is wrong. Why would every other sport have a season and not football?)
The issue of booster clubs in high schools, and what they are and are not allowed to do, is gaining visibility. And schools are likely to have to continue to juggle the desires of boosters to support the most popular sports and the equitable distribution of amenities, facilities, equipment, and perks. The case at MIHS, though, seems far less contentious than others we have read about.
Wednesday, September 21, 2011
Article Critiques Massachusetts's Anti-Bullying Statute
New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.
According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.
She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."
Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).
According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.
She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."
Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).
Tuesday, September 20, 2011
National Women's Law Center Hosts Title IX Webinar
The National Women's Law Center is hosting a free webinar called Rally for Girls' Sports: A Guide to Title IX for Parents, Coaches, and School Officials. NWLC attorney and Title IX expert Neena Chaudhry will "teach the basics, such as how schools can comply with Title IX and tips for recognizing Title IX violations in sports programs. All parents, coaches, school officials, and students who want to level the playing field are welcome."
Sign up here and participate online, Thursday, September 22 at 3:00 pm.
Sign up here and participate online, Thursday, September 22 at 3:00 pm.
Monday, September 19, 2011
Women's Baseball League Reenacted in Wisconsin
Not a Title IX story per se, but someone just sent me an article in the Milwaukee Journal-Sentinel about historical reenactments of the All-American Girls' Baseball League that is too cool not to post. Yesterday, a group called the World War II Girls Baseball Living History League staged a game between the Kenosha Comets and Rockford Peaches in authentic uniforms and using the rules and equipment of the day. What a cool project -- makes me wish I lived in Illinois or Wisconsin!
Friday, September 16, 2011
Sexual Harassment Round-up
Here is a round-up of recent judicial decisions in Title IX sexual harassment cases. These summaries were prepared at my direction and supervision by Western New England law student Shiona Heru.
- The First Circuit Court of Appeals addressed important questions regarding the actual notice requirement of a Title IX claim when they affirmed a lower court’s decision to dismiss a hostile environment harassment claim filed by the mother of a six-year-old special education student against Puerto Rico for alleged sexual abuse by a bus driver. According to the record, the mother reported the abuse to a special education teacher who in turn referred the mother to a social worker. The mother claimed that the social worker “did not do anything” and that she tried to meet with the principal several times before removing her son from school and filing a lawsuit. The appellate court dismissed the mother’s claim because she failed to allege that the principal had actual knowledge of the sexual abuse and had the authority to enforce corrective measures against the alleged harasser on behalf of the school department.. The court rejected that the principal had “, constructive knowledge” sufficient to satisfy the notice requirement by virtue of the mother’s unsuccessful attempts to contact the principal. The court emphasized that a plaintiff cannot establish institutional liability through allegations that a school employee did not inform someone with the proper authority to take corrective action. Perhaps more importantly, the plaintiff has to prove that the funding recipient not only has control over the service provided and the environment in which the harassment occurs, but also that the appropriate person has actual knowledge of the harassment. In this case, the plaintiff is free to pursue her local law claims in Puerto Rico. Santiago v. Puerto Rico, 2011 WL 3689000 (1st Cir. Jul. 27, 2011).
- A high school student’s Title IX claim against a school district in Pennsylvania survived a motion for summary judgment when the lower court determined found that a jury could find that a teacher conditioned the plaintiff’s ability to pass a driving test on her submission to his unwelcome sexual harassment advances. (We had earlier blogged about the case surviving a motion to dismiss.) The court also determined that there was sufficient evidence to warrant the conclusion that an appropriate school official had notice of prior violations by the teacher and the school district responded with deliberate indifference by pressuring the student to change her story, failing to prevent the teacher from contacting the student, assigning his wife as the student’s substitute teacher and publicly displaying support for the teacher’s innocence. Additionally, some of the 14th Amendment claims survived a prior motion to dismiss and were retained under Section 1983 which was enacted to provide a private remedy for violation of federal law. Even though a state is not subject to suit under section 1983, a state officer can be sued in his official capacity. This means that although punitive damages cannot be awarded against a municipality, the municipality can be held jointly and severally liable and ultimately be held liable through section 1983. E.N. v. Susquehanna Tp. School Dist., 2011 WL 3608544 (M.D. Penn., July 05, 2011).
- A district court in Pennsylvania dismissed a high school student’s claim that North Allegheny School District officials permitted student-on-student harassment and failed to remedy a sexually hostile environment where the plaintiff was raped by a classmate in the school parking lot during school hours. Taking a narrow view of the requirement that school officials have actual notice of harassment – a view that conflicts with other courts’, see, e.g., Williams v. University of Georgia (institutional liability could be premised on university’s failure to respond to actual notice of football player’s sexual assault at a prior institution)-- the district court determined that notice of two prior incidents of sexual assaults filed by other high school students against the harasser did not constitute actual notice of sexual harassment of the plaintiff. Once school officials were aware of the assault, they took immediate action, thus insulating themselves from institutional liability for peer harassment under Title IX. Additionally, though the court dismissed the plaintiff’s claims for failing to sufficiently allege notice and deliberate indifference, it did emphasize that the harasser’s the repeated requests throughout their high school education that the plaintiff perform sexual acts upon him could qualify as sexual harassment. The fact that the plaintiff had consented to sex acts with the harasser in the past does not necessary preclude a jury from finding that the solicitation of those acts is “unwelcome.” Doe ex rel. Doe v. North Allegheny School Dist., 2011 WL 3667279 (W.D. Penn., Aug. 22, 2011).
Thursday, September 15, 2011
Indianapolis high school imposes strict segregation
Since the case in Vermillion Parish (LA) was settled last year (disallowing single-sex classrooms), there has been a spot open for the public school that could execute the strictest form of sex-segregation.
Looks like Arlington Community High School in Indianapolis has taken that spot. And most people are happy about it. But that could also be an impression created by the story I read which took a generally positive tone. It also failed to note that this so-called nationwide research that shows single-sex education is better is somewhat specious.
But there certainly are students and administrators and teachers who like that there seems to be more participation and engagement in the classroom and less drama in the hallways. Yes--everything is segregated: hallways, buses, the cafeteria. The move to such strict segregation came after the principal felt that, given the extreme underperformance of his school, he had nothing to lose by implementing the segregation. Spending less time disciplining students in and out of the classroom certainly would seem to free up some time and space for more learning. But is this the best way to do this? What are the consequences? And are we really assuming that all boys and all girls are going to get along thus freeing the school from conflict? And, of course, the underlying racial stereotypes (the majority of ACHS pupils are students of color) are problematic.
A short news piece from Ms. magazine about the school and the new policy does mention this aspect; which is good because few media outlets do when discussing any of the single-sex education cases.
Another interesting aspect: the school's lack of success actually means it will be one of four high schools in Indianapolis that the state will take over from the school district next year. That may put an end to the segregation--or not. Assuming no one(s) challenge it before then.
Looks like Arlington Community High School in Indianapolis has taken that spot. And most people are happy about it. But that could also be an impression created by the story I read which took a generally positive tone. It also failed to note that this so-called nationwide research that shows single-sex education is better is somewhat specious.
But there certainly are students and administrators and teachers who like that there seems to be more participation and engagement in the classroom and less drama in the hallways. Yes--everything is segregated: hallways, buses, the cafeteria. The move to such strict segregation came after the principal felt that, given the extreme underperformance of his school, he had nothing to lose by implementing the segregation. Spending less time disciplining students in and out of the classroom certainly would seem to free up some time and space for more learning. But is this the best way to do this? What are the consequences? And are we really assuming that all boys and all girls are going to get along thus freeing the school from conflict? And, of course, the underlying racial stereotypes (the majority of ACHS pupils are students of color) are problematic.
A short news piece from Ms. magazine about the school and the new policy does mention this aspect; which is good because few media outlets do when discussing any of the single-sex education cases.
Another interesting aspect: the school's lack of success actually means it will be one of four high schools in Indianapolis that the state will take over from the school district next year. That may put an end to the segregation--or not. Assuming no one(s) challenge it before then.
Tuesday, September 13, 2011
NCAA Adopts Policy for Including Transgender Athletes
The NCAA has approved a policy to govern athletics participation by transgender athletes who have transitioned to another sex. The new rule, which takes immediate effect, allows a transgender athlete who has transitioned from male to female to participate in women's sports after one year of hormone treatment that includes female hormones (estrogen) and agents that suppress the effects of male hormones in the body (testosterone blockers). The rule also clarifies that athletes who transition from female to male by taking testosterone are not eligible for women's sports, but may receive a therapeutic use exception* and be eligible for men's sports. A transgender athlete who transitions socially but not physically is still eligible for the sport that matches their birth sex. For example, Kye Allums plays women's basketball for George Washington, even though he goes by "he" as has not undergone any physical transition that involves testosterone.
The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.
*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.
The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.
*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.
Monday, September 12, 2011
Resolution Agreement Reached at Adrian College
An anonymous reader mailed me a copy of a Resolution Agreement between the Department of Education Office for Civil Rights, and Adrian College in Michigan. In 2008, we blogged about ongoing investigation into a complaint against the college stemming from among other things the college's failure to include a women's locker room in its newly constructed "Multi-Purpose Stadium." (see here and here). Apparently, the inequities between men and women's sports at Adrian College were significant, as the college has agreed to remedies in every area covered by Title IX's athletic regulations. Specifically, the college has agree to:
- Evaluate its intercollegiate athletics program "to identify one or ore women's sport team to add in the 2012-2013 academic year."
- Develop a written replacement schedule for equipment and supplies, including uniforms, which will ensure equity by gender.
- Increase the number of competitive events for softball and women's tennis.
- Ensure that women's softball is not the only team stuck with 6 am indoor practices, but that that burden is shared by men's teams as well.
- Ensure that the head coach for men's and women's track splits his time equally between the teams, and to hire an assistant coach for women's track.
- Improve hiring practices to attract more qualified coaches to the women's program, including by increasing compensation and other conditions of employment to make the job more attractive to qualified applicants.
- Construct a new locker room for women in the Multi-Purpose Stadium.
- Renovate existing women's locker rooms in other facilities.
- Renovate the women's softball facility to allow for night play, concessions, changing areas, and spectator viewing.
- Assign the same number of "equivalently qualified" medical and training staff to men's and women's games.
- Provide equivalent publicity ("e.g., media coverage, statistics maintenance, attendance at games, and other services") to men's and women's teams.
- Provide recruitment funds to men's and women's teams "in proportion to each gender's participation rate in the athletics program" and, as needed, to the women's program at a greater rate in order to make up for the "significant" underrepresentation of women in the athletics program.
- Adhere to various reporting and monitoring requirements with respect to these promises.
Thursday, September 08, 2011
Franklin Pierce adds sports
Knowing the state of the economy, the fiscal state of higher education, and--having attended school in New Hampshire--the fiscal issues faced by NH schools, we were a little surprised to read that Franklin Pierce University has announced it is adding several sports.
No word on how these sports will be financed but it appears that the university has every intention of adding women's ice hockey (it already has a men's ice hockey team), men's and women's track and field, sprint football. It will also reinstate men's cross country (previously cut in 2003 for unstated reasons).
Interesting. Especially interesting is sprint football--which I had never heard of. Turns out it's the same as regular intercollegiate football. But all players have to weigh less than 172 pounds.
Reading further though it appears that the differences go beyond body weight. There is no pre-season. There will be no athletic scholarships. And the roster will be kept at 65 players. Also, FPU will not be investing right away in a stadium. Administrators are making arrangements with local schools over use of their facilities. In its inaugural season--scheduled for 2012--they will play a reduced schedule.
I really can't think of a more responsible plan to add football (regardless of how much the players weigh!).
Again, no word on where the funds for these additions will come from. FPU is a private school, but still...
No word on how these sports will be financed but it appears that the university has every intention of adding women's ice hockey (it already has a men's ice hockey team), men's and women's track and field, sprint football. It will also reinstate men's cross country (previously cut in 2003 for unstated reasons).
Interesting. Especially interesting is sprint football--which I had never heard of. Turns out it's the same as regular intercollegiate football. But all players have to weigh less than 172 pounds.
Reading further though it appears that the differences go beyond body weight. There is no pre-season. There will be no athletic scholarships. And the roster will be kept at 65 players. Also, FPU will not be investing right away in a stadium. Administrators are making arrangements with local schools over use of their facilities. In its inaugural season--scheduled for 2012--they will play a reduced schedule.
I really can't think of a more responsible plan to add football (regardless of how much the players weigh!).
Again, no word on where the funds for these additions will come from. FPU is a private school, but still...
Tuesday, September 06, 2011
Jury Awards $26,500 to Male Student Accused of Rape
Last week, a federal jury in Tennessee returned a jury verdict and award of $26,500 in favor of a male college student who had been accused of rape. The student, using the pseudonym John Doe, sued the University of the South in Sewanee, Tennessee, charging that the university's failure to follow its published procedures in handing of the accusation against him constituted a breach of contract and negligence, violated Title IX, and unlawfully damaged his reputation. The jury concluded that the university was negligent, but reportedly found it to be 53% at fault, compared to Doe's 47%. The damages award constitutes tuition paid for the year that Doe did not finish.
The case began on August 29, 2008, when Doe had sex in his dorm room with a female student. Later that day, the female student reported to college officials that she had been raped. Three weeks later, Doe received notice of the charges from the university and was told to report to a hearing the following day. There, he was found responsible for sexual assault, for failing to recognize that the victim was too impaired from drugs or alcohol to provide consent. The university gave him a choice between two sanctions: a one-semester sanction, with the assault remaining on his record, or withdrawal from school, with the option to reapply later with an expunged record. Doe withdrew, and did not reapply.
Instead, he filed a lawsuit against the university, seeking up to $5 million in damages. In 2009, the judge dismissed Doe's claims that the university's actions against him violated Title IX, concluding that Doe's complaints did not include sufficient allegations to support a finding that the university was motivated by sex bias or negative assumptions about the male sex. Doe v. University of the South, 687 F.Supp.2d 744 (E.D.Tenn.2009). Later, the court dismissed Doe's claims of intentional infliction of emotional distress, but cleared the way for his negligence and breach of contract claims to go to trial.
At the trial, which concluded last week, the jurors heard evidence in support of Doe's charges that the university failed to comply with its own procedures, including providing timely notice of the charges, conducting an appropriate and thorough investigation, cutting off proceedings when there’s insufficient evidence to support the charges, allowing Doe to bring a lawyer to the hearing, and considering all of the relevant evidence, including evidence favorable to Doe (like the accuser's use of prescription medication, which could have affected Doe's perception of her ability to consent). The jury concluded that the university's conduct in this case constituted negligence (though not breach of contract) and returned a modest damages award meant to compensate Doe for actual damages in lost tuition, not for claimed damage to his reputation and future earning potential.
In today's issue of Inside Higher Ed, experts speculate on the effect of this decision, believed to be the first of its kind, on other universities going forward. Everyone seems to agree that this case is a reminder that universities have legal responsibilities to both accusers and accused when handling sexual assault cases, and that ignoring the rights of the accused can result in legal liability. Of course, universities can be liable under Title IX for failing to protect the rights of the accuser. Earlier this year, the Department of Education has clarified and promoted awareness about universities' obligation under Title IX to those who report sexual assault. Universities were reminded of their obligation to publish and follow grievance procedures for sexual assault, to investigate claims even if the police are involved, and to not impose a higher burden of proof on the victim than what the legal system normally requires of plaintiffs in civil cases. Importantly, however, nothing about this recent case in Tennessee suggests that universities are in a double-bind situation and forced to respect either one student's rights or the other's. None of the procedures the university was accused of violating in John Doe's case would have, if followed, put the university at risk of violating the Title IX rights of the accuser. While Title IX requires universities to take accuser's claims seriously, the law anticipates and expects that the university will provide a fair hearing that does not curtail the procedural rights of accused.
The case began on August 29, 2008, when Doe had sex in his dorm room with a female student. Later that day, the female student reported to college officials that she had been raped. Three weeks later, Doe received notice of the charges from the university and was told to report to a hearing the following day. There, he was found responsible for sexual assault, for failing to recognize that the victim was too impaired from drugs or alcohol to provide consent. The university gave him a choice between two sanctions: a one-semester sanction, with the assault remaining on his record, or withdrawal from school, with the option to reapply later with an expunged record. Doe withdrew, and did not reapply.
Instead, he filed a lawsuit against the university, seeking up to $5 million in damages. In 2009, the judge dismissed Doe's claims that the university's actions against him violated Title IX, concluding that Doe's complaints did not include sufficient allegations to support a finding that the university was motivated by sex bias or negative assumptions about the male sex. Doe v. University of the South, 687 F.Supp.2d 744 (E.D.Tenn.2009). Later, the court dismissed Doe's claims of intentional infliction of emotional distress, but cleared the way for his negligence and breach of contract claims to go to trial.
At the trial, which concluded last week, the jurors heard evidence in support of Doe's charges that the university failed to comply with its own procedures, including providing timely notice of the charges, conducting an appropriate and thorough investigation, cutting off proceedings when there’s insufficient evidence to support the charges, allowing Doe to bring a lawyer to the hearing, and considering all of the relevant evidence, including evidence favorable to Doe (like the accuser's use of prescription medication, which could have affected Doe's perception of her ability to consent). The jury concluded that the university's conduct in this case constituted negligence (though not breach of contract) and returned a modest damages award meant to compensate Doe for actual damages in lost tuition, not for claimed damage to his reputation and future earning potential.
In today's issue of Inside Higher Ed, experts speculate on the effect of this decision, believed to be the first of its kind, on other universities going forward. Everyone seems to agree that this case is a reminder that universities have legal responsibilities to both accusers and accused when handling sexual assault cases, and that ignoring the rights of the accused can result in legal liability. Of course, universities can be liable under Title IX for failing to protect the rights of the accuser. Earlier this year, the Department of Education has clarified and promoted awareness about universities' obligation under Title IX to those who report sexual assault. Universities were reminded of their obligation to publish and follow grievance procedures for sexual assault, to investigate claims even if the police are involved, and to not impose a higher burden of proof on the victim than what the legal system normally requires of plaintiffs in civil cases. Importantly, however, nothing about this recent case in Tennessee suggests that universities are in a double-bind situation and forced to respect either one student's rights or the other's. None of the procedures the university was accused of violating in John Doe's case would have, if followed, put the university at risk of violating the Title IX rights of the accuser. While Title IX requires universities to take accuser's claims seriously, the law anticipates and expects that the university will provide a fair hearing that does not curtail the procedural rights of accused.
Sunday, September 04, 2011
Sexual Harassment Roundup
Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!
- The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).
- A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).
- A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).
- A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).
Friday, August 26, 2011
Scheduling remedies in our own back yard
Several friends have informed us about a settled Title IX complaint right in our neighborhood. Amherst Regional High School has agreed to make changes in both game and practice scheduling.
Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:
* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.
Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:
- scheduling an equal number of prime time games;
- scheduling an equal number of nighttime under the lights games;
- implementing a full schedule for girls' soccer, tennis, and volleyball (which had reduced schedules due to budget cuts; the athletic director said she had thought that--over the course of the reductions--cuts had been made equitably among boys' and girls' team; but apparently not);
- and ensuring equal access to desirable practice times in shared facilities.
And in case there is a question of why this matters (though we have spoken about it before, mostly in posts about the scheduling of girls' versus boys' basketball games), Goff makes a good point. When girls' games are scheduled exclusively during the day, fewer parents can attend. This also means, as Goff noted, that these teams get less community support. Parents are their student-athletes' biggest fans and advocates. The visibility of girls' and women's sports can be directly related to when their contests are scheduled, which is why scheduling is one of program areas Title IX covers.
This story continues our theme this week of "it's not just quantity--it's quality." Also of note, Goff is a parent of a former Amherst student-athlete. He noticed the inequities when his daughter played soccer for the school a decade ago. A good reminder that anyone can file a complaint. (But note it can be anonymous.)* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.
Tuesday, August 23, 2011
Investigations into Locker Rooms and Softball Facilities Prompt Improvements
I've been meaning to post about these two stories, from earlier this summer, in which complaints filed with the Department of Education's Office for Civil Rights prompted requirements for improvements to facilities for women's sports.
Earlier this month OCR concluded that Oldham County School District in Kentucky violates Title IX because of inequitable locker room facilities at two county schools, Oldham County High School and South Oldham High School. OCR conducted an investigation of the school district facilities after parents filed a complaint (as well as a lawsuit, as discussed in an earlier post). Oldham County is also being investigated in response to a separate complaint, filed by National Women's Law Center, challenging the disparity in athletic opportunities available to girls and boys.
Elsewhere, an OCR investigation has recently prompted Santa Clara University in California to agree to construct an on-campus softball facility to remedy disparities in facilities available to men's and women's teams.
Both stories are a good reminder that Title IX does not just require equitable number of participation opportunities, but to the overall quality of those opportunities as well.
Earlier this month OCR concluded that Oldham County School District in Kentucky violates Title IX because of inequitable locker room facilities at two county schools, Oldham County High School and South Oldham High School. OCR conducted an investigation of the school district facilities after parents filed a complaint (as well as a lawsuit, as discussed in an earlier post). Oldham County is also being investigated in response to a separate complaint, filed by National Women's Law Center, challenging the disparity in athletic opportunities available to girls and boys.
Elsewhere, an OCR investigation has recently prompted Santa Clara University in California to agree to construct an on-campus softball facility to remedy disparities in facilities available to men's and women's teams.
Both stories are a good reminder that Title IX does not just require equitable number of participation opportunities, but to the overall quality of those opportunities as well.
Sunday, August 21, 2011
I wasn't going to say anything but...
...I can't not.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.
Saturday, August 20, 2011
Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case
Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.
Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.
Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.
Friday, August 19, 2011
Ninth Circuit Affirms Victory for Montana State in Retaliation Case
Despite my prediction, the Ninth Circuit Court of Appeals has affirmed the lower court's decision to dismiss former coach retaliation Robin Potera-Haskins's case against Montana State. Apparently the appellate panel was not as concerned as I was about the trial judge's failure to give reasons for his determination that Potera-Haskins lacked credibility, or why it made sense to assume, in an employment case, that money damages were not at issue and therefore a jury trial was not warranted. But the judges certainly didn't take the time to say why, affirming the lower court's decision in a four-sentence, unpublished opinion.
Tuesday, August 16, 2011
Texas Southern Coach Wins $700,000 in Retaliation Case
A jury in federal court in Texas awarded over $700,000 to Surina Dixon, a former coach at Texas Southern University who had sued the school for retaliation and discrimination in violation of Title IX and other law.
As we noted when the case was first filed, Dixon claimed that she fired her from the head women's basketball coach position to which she had recently been hired after she insisted on parity in the terms of her employment contract, noting specifically that a recently-hired men's basketball coach with less experience than Dixon received a longer contract and higher salary. She had also complained that TSU glossed over gender inequities in its NCAA Gender Equity Self-Study.
As we noted when the case was first filed, Dixon claimed that she fired her from the head women's basketball coach position to which she had recently been hired after she insisted on parity in the terms of her employment contract, noting specifically that a recently-hired men's basketball coach with less experience than Dixon received a longer contract and higher salary. She had also complained that TSU glossed over gender inequities in its NCAA Gender Equity Self-Study.
Thursday, August 04, 2011
District Court Reaches Decision in UC Davis Title IX Case
U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.
What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.
Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.
Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.
Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.
Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.
What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.
Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.
Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.
Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.
Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.
Settlement Ends Litigation Over WVU Tech Softball Facilities
A federal court in West Virginia dismissed a Title IX case against the University of West Virginia Institute of Technology after it agreed to improve facilities for its women's softball team. The lawsuit was filed in 2008 by two softball players after WVU Tech ostensibly reneged on promised improvements. The parties had been trying to settle for a while.
According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."
The court maintains jurisdiction over the consent decree to ensure compliance.
According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."
The court maintains jurisdiction over the consent decree to ensure compliance.
Wednesday, August 03, 2011
If only all equity data were this easy to find
T9B "Tip of the Hat" to web-savvy Kentucky citizen, Dick Richards. Leveraging the state's open records law, Richards got copies of high schools reports to the Kentucky High School Athletic Association, and then reported them online in a very searchable, user-friendly website. Thanks to these efforts, anyone in Kentucky can check on participation and spending data for girls' and boys' sports at any high school. He also developed a grading rubric that takes into account participation rates, added participation, spending per athlete, coaches salaries, and other factors. You can look up any school or district to find out how it rates.
Richards' website also provides answers to bigger picture questions like what is the gender breakdown in athletic participation statewide? (Answer: 56.3% boys, 43.7% girls) And funding? 41% on girls' sports, 59% on boys sports. Also, that the participation and spending gap is larger in the the state's largest school districts.
This tool could be invaluable to Kentucky citizens seeking empirical support to discrimination claims. It could also provide a model for activists in other states!
Richards' website also provides answers to bigger picture questions like what is the gender breakdown in athletic participation statewide? (Answer: 56.3% boys, 43.7% girls) And funding? 41% on girls' sports, 59% on boys sports. Also, that the participation and spending gap is larger in the the state's largest school districts.
This tool could be invaluable to Kentucky citizens seeking empirical support to discrimination claims. It could also provide a model for activists in other states!
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