Sexual Assault Complaint Wave Continues: Dartmouth To Be Next

An article in yesterday's edition of the student newspaper at Dartmouth College suggests that Dartmouth may be the next to be targeted by a complaint to the Office for Civil Rights over its polices and practices for addressing campus sexual assault.  Student activists who filed recent complaints against Swarthmore and UNC are quoted as expecting Dartmouth students and alumni to follow suit in the near future. It is no surprise that Dartmouth students would have connected with the growing network of students promoting sexual assault awareness and compliance with Title IX and Clery, in light of their controversial protest over the college's sexual assault problem during a recent prospective students' weekend.

I too was interviewed for this article, and shared my observations on the apparent momentum of sexual assault-related compliance efforts, as evidenced by the recent spate of sexual assault complaints, along with the recent resolution of an earlier complaint against the University of Montana. I expressed my hope that we may be at or near the tipping point for individual, institution-focused compliance efforts to effectively deter all colleges and universities from continuing to engage in the kinds of practices that allow campus sexual assault to thrive. For example, Inside Higher Education published yesterday about Otterbein University's recent decision to voluntarily curtail its practice of asking victims and witnesses in sexual assault proceedings to sign a statement many perceived as a nondisclosure agreement, which is in conflict with the university's obligation to report accurate crime statistics and conceal sexual assault.  Said the reporter, "The situation illustrates the importance of having clear, well-publicized procedures for sexual assault investigations, experts said, but also is yet another example of how ... it’s students and not administrators who are initiating policy changes these days."

FGCU earns all-sports trophy

Women's athletics at Florida Gulf Coast University has experienced quite a few problems in recent years. Problems with discrimination and equity that resulted in multiple lawsuits and settlements that we followed extensively on this blog.
We are choosing to look at FGCU's recent winning of the Atlantic Sun Conferences women's all-sports trophy as indicative of (perhaps) a positive change in the athletic department climate. Good things come when you practice equity!

Beloit school district proceeding with single-sex classrooms

In March we noted that the ACLU was contesting the School District of Beloit's (WI) use of single-sex classrooms in several of its schools. But the school board and superintendent have decided to maintain these classrooms used at two of the district's middle schools and have expressed confidence in their reasoning and ability to do so. The board plans to show the ACLU that there is a compelling interest to keeping the classrooms, which are used for several subjects. The district will produce data about the success of the classrooms. The superintendent said parents are being given a choice, however, about whether their children will participate in these single-sex classrooms.

Resolution Agreement Binds Montana to Better Address Sexual Assault

The Department of Justice and the Department of Education's Office for Civil Rights recently concluded their joint investigation of the University of Montana, which had commenced last May in response to claims that the University failed to adequately address reported incidents of sexual assault on campus.  In the investigation findings, the government agencies noted that the University had already undertaken many efforts to change policies, practices, and culture around sexual assault -- including, for example, the mandatory online training we'd blogged about last summer.  But, they determined, these efforts did not constitute "sufficient effective action to fully eliminate a sexually hostile environment, prevent its recurrence, and address its effects."  One problem was the University's confusing maze of sexual harassment and sexual assault policies -- 8 of them! -- which did not clearly coordinate with or cross reference to each other, and which use inconsistent definitions and reporting procedures.  The policies failed to adequately cover the broad array of conduct that could constitute sexual harassment not rising to the level of sexual assault, nor did they adequately cover off-campus conduct.

Another problem was that the University did not distribute to students information on how to file a grievance, and it was hard to find relevant information on the university's website (some of which is filed under "human resources," implying that it does not pertain to students). The lack of clear requirements regarding grievances has created much confusion among students about whom it was necessary to report to in order to trigger a university investigation and disciplinary process. 

Additionally, the government found that the university's disciplinary process was inadequate for ensuring victims' rights under Title IX.  For one reason, it is lengthy -- providing perpetrators up to five opportunities to appeal before receiving disciplinary action.  This violates the law's requirement to resolve sexual assault claims promptly.  Also, the disciplinary process required the ongoing participation of the victim, when under Title IX, a university's obligation to investigate and respond to sexual assault is not contingent on the victim's involvement.  The government also found incidents in which the University failed to take interim measures to keep victims safe, such as changing the student's academic schedule or living situation.  The preponderance of evidence standard, which is supposed to govern disciplinary procedures involving sexual assault, is not consistently stated throughout the university's policy.  The disciplinary procedures also give more rights, such as the right to question witnesses and the right to appeal, to the accused, when Title IX clearly requires that the victim and accused have equal rights in the disciplinary process.

To resolve these shortcomings, the University has entered into a resolution agreement, which the government is calling a "blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," that requires the University to correct the problems identified in its policies and procedures for addressing campus sexual assault and harassment, including by creating better, more easily accessed resources for students.  The university must also regularly assess the campus climate regarding sexual assault, and provide mandatory training to students to ensure that they recognize sexual assault and harassment when it occurs, and that they know how to report it.  The agreement also requires the University to better train its Title IX Coordinator as well as other campus personnel who deal with sexual assault. 

The University's campus police force has also entered a resolution agreement to address its shortcomings in response to reports of sexual assault. The Department of Justice's investigation of the Missoula Police Department and Missoula County Attorney's Office, for its similar alleged deficiencies remains ongoing.

The timing of this resolution corresponds to an uptick in complaints, by students, against universities for failing to adequately address campus sexual assault.  With increasing public awareness and attention to the issue, it was smart of the government to offer these comprehensive findings as a "blueprint" for others to follow, since the findings against Montana are by no means unique. 

What's happening with sexual assault complaints

At Occidental College in California, administrators are moving quickly to remedy the campus climate that inspired students to openly protest the way the college handles sexual assault cases. The president announced that a search was on for a Title IX coordinator ( a position that should already exist, by the way). The school will also be implementing recommendations from two experts the college hired in the wake of the complaints. Over 100 members of the faculty issued an open letter vowing to work to change the campus climate.

On the other side of the country, Dartmouth College continues to deal with the repercussions of the very visible protest a group of current students held during prospective students weekend. The college cancelled  classes for a day the week following the protest in order to address some of the issues raised. Programming, including speeches and open forums, was held ago for a day in order to hold forums and workshops about the issues protesters raised. But the effectiveness of this somewhat last-minute move has been questioned. Additionally, the initial protesters and others unrelated to the protest at all are receiving threats--some of which are based on sexual orientation and race--in various online forums. In short, the issue of respectful dialogue remains.

Directly south of Hanover in Amherst, students continue to press the administration at Amherst College to institute--and be transparent about--sexual assault policies. In late April, as part of Sexual Assault Awareness Month, students held an on-campus protest objecting to the leniency the college has historically engaged in when it dealt with perpetrators of sexual assault and their lack of input into new policies. Though the Title IX committee has two spots for student representatives, only one is currently filled. Students are also upset that a draft of the new policies has not been released.

CUNY Settles Pregnancy Discrimination Complaint

The pregnancy discrimination complaint against Manhattan Community College (part of the CUNY system) has reportedly settled.  The complaint, as we blogged about in January, was filed with the Department of Education by the National Women's Law Center on behalf of student Stephanie Stewart. It alleged that the college violated Title IX when it refused to allow Stewart any accommodation to make up for classes or assignments missed due to her pregnancy, and then penalized her, by revoking her scholarship, when she withdrew from the class. While the failure to allow make-ups may or may not be discriminatory (depending on whether students are allowed makeup for other medical reasons), the revocation of her scholarship as a consequence of withdrawal appears to me to violate the Title IX regulation that requires schools to permit students to take leaves of absence for medically-necessary reasons related to pregnancy and childbirth with no change of status when they return. 

Under the terms of the settlement, Stewart's scholarship has been reinstated. She will also receive $3000 in damages. 

Carolina Coastal cuts track

Carolina Coastal University announced this week that it was discontinuing its men's track and cross-country program after next year.The Board of Trustees has determined budget cuts are necessary across the university and rumors had been stirring that the athletic department might have to cut a team.
The press release stated the following about why the choice was made to cut the the men's track program:
The Coastal Carolina Administration and the Board of Trustees authorized this step in order to reach the optimal combination of sport offerings that would provide quality opportunities to CCU student-athletes while remaining in compliance with Title IX and exercising fiscal responsibility.

Students raising visibility around sexual assault

Disturbed by a recent spate of sexual assault and homophobic and racist incidents on their campus, a group of Dartmouth students staged a protest during Prospective Students Weekend. A video of the protest can be found here at Jezebel along with a commentary about the effectiveness of such a disturbance. I am not going to comment on whether it was "rude" or effective in making incoming students aware of the climate on Dartmouth's campus or if just deterred students who might be victims from coming at all.
I will say that visibility and voice are crucial components to raising awareness of campus climate. With so many schools misreporting data about sexual assault, how can anyone--including the students--be expected to stay silent? Some called the protest at Dartmouth rude. But deliberate indifference and misreporting are illegal. I do not know what students had done prior to this protest to raise these issues with the administration. But if something illegal and dangerous is happening on their campus--whether it is one incident or a series of them--and these are not being openly addressed by administrators, then students have every right to protest--loudly even. There has to be transparency.
When sexual assault and discrimination occur administrators should not be telling students (and I am not suggesting this is happening at Dartmouth rather that it happens frequently) that things will be handled. There needs to be a balance between privacy and transparency. Dealing with individual cases in accordance with privacy laws is fine. But the measures that will be taken to deal with a hostile campus climate need to be developed cooperatively and openly. And every student needs to be made aware of campus policies regarding sexual assault and incidents of discrimination.
I was browsing the Amherst College website today and found a page titled Sexual Respect and Title IX. It was under the "About Amherst College" tab on the front page of the school's website. Students can easily find information about reporting sexual assault and seeking counseling. It also notes the steps Amherst has taken to deal with an arguably hostile climate for female students. It also shows prospective students and their parents that Amherst College does have sexual assaults on its campus. I think that is a pretty bold move. They are not hiding that fact. (Arguably after all the negative press last year, it would be hard to do so.)
So many schools are hiding the extent of sexual assault that occurs on their campuses, though.
In another effort to increase visibility of these issues, a group of students and recent alums are trying to fund the Know You IX Campaign which will be aimed at informing every college student about her rights under Title IX. More about what the group will do and how to donate can be found at the above link.

Settlement Ends Ongoing Title IX Litigation Against Quinnipiac

A settlement announced today will, pending court approval, end the litigation against Quinnipiac University that's been ongoing since 2006, when the university announced plans to terminate its women's volleyball team.  Under the terms of the settlement, Quinnipiac will not to terminate women's volleyball for the three-year term of the agreement.   It further agrees that if it terminates any other women's team during that time, it will replace that team with an NCAA-championship sport.  This provision of the agreement reflects the influence of decisions of the federal district court (see here and here) which had refused to count towards Title IX proportionality two sports -- competitive cheer and rugby -- that had not yet attained NCAA championship status.  Quinnipiac also agrees that it will not create additional men's teams without also simultaneously adding women's teams while the agreement is in effect. 

Additionally, Quinnipiac agreed to numerous provisions to enhance its outdoor track team, ensuring that despite overlapping participation by members of the cross-country team, the sport is truly a separate and distinct sport rather than merely a glorified off-season for distance runners.  Quinnipiac will secure access to an off-campus facility for the purpose of training and hosting an outdoor track meet, it will devote scholarship dollars to track athletes who do not specialize in distance, and will seek to expand the number of events in which Quinnipiac track and field athletes compete.  Quinnipiac will also add resources to women's rugby by improving their playing facilities, opportunities for NCAA-level competition and increasing scholarship dollars devoted to that sport.

In general, the agreement ensures that Quinnipiac's women's sports teams will award at least 50% of the scholarships authorized by the NCAA, and that some women's teams -- field hockey and one other designated a "tier one" team -- will receive the full number of scholarships authorized by the NCAA.  Women's volleyball will receive two additional scholarships over the next two years.   And Quinnipiac will devote $5 million to facilities for its women's teams, as well as additional hundreds of thousands of dollars for other upgrades to their uniforms, equipment, supplies, and the compensation of women's coaches.

Earlier today, the Women's Sports Foundation posted a summary of the settlement terms, along with a list of the all of the positive Title IX precedent to emerge from this litigation. Summing it up rather well, the Foundation also expressed gratitude for the volleyball plaintiffs and their coach, lawyers and experts for enduring many years of litigation to eventually "obtain broad relief for all Quinnipiac University athletes" and establishing "a powerful precedent for all future female athletes."

Plans for New Athletic Complex Disputed in North Reading, Massachusetts

The Boston Globe reports today about a Title IX dispute brewing in North Reading, Massachusetts, over the construction of a new athletic complex for the high school and middle school.  The complex had initially been designed to provide a new field for both baseball and softball, but was recently modified by the committee supervising the project to provide two fields to baseball, one primary field and a second, smaller practice field.  Many in town are contesting this development, since the softball team currently plays at a field off campus, at a local elementary school, in conditions that are inferior to the existing baseball field already located at the high school. In particular, the softball field lacks a dugout, bathrooms, and locker rooms. That disparity could have been corrected with the construction of two new fields of comparable quality. For that reason, softball advocates are working to convince the school board to return to the initial proposal, and have threatened to file a complaint with the Department of Education's Office for Civil Rights if the plan for two baseball fields remains in place. 

I think the softball advocates are right to see this as a Title IX issue.  As I told the reporter for this story, “It’s not equitable for the girls to have to pay for their own transportation off campus or to not have fields of comparable quality,” she said. “And it’s even more egregious that at a moment when the school is adding new facilities, it’s not seeking to correct that inequity but is perhaps going to exacerbate it.”  Hopefully, the school district will decide on its own to return to the gender equitable plan. If not, I think the softball advocates will easily prevail by leveraging Title IX.  

Madison Area Technical College Agrees to Enhance Women's Athletics

Madison Area Technical College in Wisconsin has agreed to add opportunities and resources for women's sports, as part of a voluntary resolution agreement with the Department of Education's Office for Civil Rights to ensure compliance with Title IX. We noted last December that the school was under investigation by OCR after receiving a complaint about inequities in MATC athletics. The college, with a 53 male student body, presently offers 62 athletic opportunities (and a near identical percentage) for men in a total of four sports, with the support of 16 coaches.  Female students, who make up 47% of the student body, have 37 opportunities in three sports, with 3 coaches.  No female students receive athletic scholarships, while members of the men's baseball team do.

To remedy these imbalances, the college has committed to adding women's soccer, a step it had already announced while the OCR investigation was underway.  The college is planning to hire a coach later this year and field a team in 2014.  In addition, it will elevate its softball team to Division II of the National Junior College Athletic Association, so that it may provide scholarships to its members.  OCR will monitor MATC's compliance with this agreement for the next three years.

Study Correlates Sex-Segergated Classes and Gender Stereotyping

Earlier this year, the journal Educational Studies published research finding that the more boys and girls were segregated for their junior high classes, the more they engaged in gender stereotyping the following semester, as measured by students' responses to a questionnaire with the questions "who [boys or girls] is better at math?" and "who is better at language arts?"

Here is the article's abstract:

Concern has been raised that segregation of girls and boys into separate classes leads to increased gender stereotyping. We tested this in a sample of 365 seventh-grade students attending a junior high school that offers both gender-segregated (GS) and co-educational classes. It was found that for both boys and girls, the more GS classes they took in the fall, the more gender stereotyped they were in their responding in the spring (controlling for initial levels of gender stereotyping). We concluded that GS likely heightens the salience of gender in the classroom thereby reinforcing and increasing gender stereotypes. As such, we argue that GS is a misguided approach to addressing any educational difficulties girls and boys might be having.

Citation: Richard A. Fabes et al.,  Gender-Segregated Schooling and Gender Stereotypes, Educational Studies (2013).

More Sexual Assault Complaints Filed

On the heels of yesterday's report that 12 students at Swarthmore collaborated on a complaint challenging the inefficiencies of the university's response to sexual assaults on campus, today brings news of an even larger effort to expose similar problems at Occidental College in Los Angeles.  The Department of Education received a complaint against Occidental containing accounts by 37 students and alumni of the college's mishandling reports of sexual assault, including by seeking to deter victims from reporting, dragging out the disciplinary process, and allowing guilty offenders to remain in school.  Several of the students involved in the complaint made public statements yesterday, coming forward about their own experiences in an effort to raise awareness about what is starting to look like a national epidemic of suppression of campus sexual assault.  

In related news, a former high school student in Michigan, represented by the National Women's Law Center, filed a lawsuit in federal court yesterday, alleging that the Forest Hills School district in Michigan violated Title IX by responding indifferently to her allegation of sexual assault against a male student athlete in 2010. The lawsuit alleges that school officials sought to deter the victim's parents from reporting the assault to the police (which they did anyway), failed to investigate her claim, delayed changing the alleged attacker's schedule to remove him from the victim's schedules, and failed to protect her from harassment by other students who supported the alleged attacker.  During this time, a second female student complained of an assault by the same male student.  Yet, according to the complaint, the school district failed to investigate that report as well.   Police eventually charged the student with two counts of criminal sexual assault, and the student pled guilty to reduced charges.  Yet the school district's only response was to temporarily suspend him from the basketball team.  The lawsuit seeks damages to compensate the plaintiff for emotional distress, as well as injunctive relief that would require the school district to improve its prevention and response to sexual assault. 

Swarthmore Students File Complaint Over Sexual Assault Reporting

Twelve undergraduate students at Swarthmore College filed a complaint with the Department of Education, alleging that the college inadequately addressed known reports of sexual assault, including by failing to report them as required by law.

The Daily Swarthmore lists the specific allegations as follows:

1. Discouraging students from reporting crime to local law enforcement and from going through formal judiciary proceedings
2. Persistently underreporting incidents of sexual battery, sexual assault, and rape in the Annual Clery Security Report
3. Persistently underreporting incidents of sexual battery, sexual assault, and rape in the daily crime log
4. Failing to issue timely reports of incidents of sexual battery, sexual assault, and rape
5. Failing to publicly report potential sanctions for sexual battery, sexual assault, and rape
6. Intimidating, discriminating, and retaliating against sexual assault and rape survivors and their advocates

Several of these allegations -- 1, 5, and 6, at least -- are violations of Title IX, while the others -- 2, 3, and 4 -- are violations of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act.  The Department of Education has jurisdiction over both statutes.

If this complaint reminds you of the allegations against UNC, there's a reason for that.  The Swarthmore complainants reportedly consulted with Andrea Pino and Annie Clark, the students who filed the complaint that is pending against their university on similar charges. (The complaint is still pending, though UNC is reported this week to have begun to address some the charges by hiring a Title IX Coordinator.)  In fact, as also reported in the New York Times, undergraduates at UNC, Amherst, Yale, and other colleges have been collaborating about strategies to expose and address campus sexual assault.  By taking concerted action against and within their respective universities, these students are exposing a national epidemic that has been ignored for too long. 

Maryland Legislature Appropriates $2.3 M for Softball Stadium at Towson

In the wake of the Maryland governor's decision to appropriate $300,000 to save the Towson University  baseball team from elimination, it's reported that the state's legislature will provide $2.3 million in state funds for the purpose of constructing a new facility for the university's softball team.  This capital improvement addresses the university president's concern that keeping baseball would put the university at risk of liability under Title IX, though she notes that the university still need to address the disparity in the number of athletic opportunities available to Towson's female students. 

OCR Investigations Underway In...

...Framingham, Massachusetts, where students have been complaining and protesting that high school officials took it easy on a male student-athlete accused of sexual assault, even after his second offense.  The students note that the school's drug and alcohol policy carries stronger sanctions than the five-day suspension he eventually received.  The accused student was allowed to continue to play football despite both reports of assault, and still sees both victims at school every day.  The Department of Education's Office for Civil Rights received a complaint that the school district's response violates Title IX, and has begun an investigation into whether the school district had in place, and followed, appropriate procedures for handling allegations of assault, and whether it had designated the required Title IX Coordinator position to someone on staff. 

...Longview, Texas, where a former high school girls soccer coach has filed a complaint with OCR containing allegations of inferior treatment for his and other girls' team, compared to boys' teams who have access to better facilities and equipment and more coaches. The complainant, a high school teacher named Eric Yoder, earlier complained to the school district's Title IX coordinator and then the school board, and filed a complaint with OCR after both earlier complaints were rebuffed.  The high school's athletics director, for one, has accused Yoder of being interested only in his salary, though it's clear that the scope of Yoder's complaint is much broader.  OCR officials arrived in Longview last week, and reportedly talked to over 250 student-athletes as part of its investigation. 
   

Lawsuit Challenges Softball Fields in Batavia, NY

Batavia City School District in western New York is under fire for the alleged unequal treatment of its girls softball team.  A public interest law firm called Empire Justice Center filed a class action lawsuit against the district, maintaining that its inferior treatment of the girls softball team is a violation of Title IX.  The boys' baseball team at Batavia plays at Dwyer Stadium, a facility that is owned by the city for the primary purpose of hosting the city's minor league team, the Batavia Muckdogs, which has grandstand seats, lighting, a ticket booth, an outfield fence, an electronic scoreboard, press box, covered dugouts, concession stand and bullpens.  The city makes the stadium available for local high school games for a generous $175/game. 

While acknowledging that the girls' softball field lacks all of the amenities of Dwyer Stadium, the school district argues that the city provides those benefits, rather than the school.  They also point out that the softball facilities are comparable to those of the team's competitors.  Yet, as I told a local news station in Batavia, neither of these arguments constitute a legal defense to a Title IX violation.  Title IX requires a school to provide equal treatment to boys and girls athletic programs, whether that treatment is high quality or low, the law is only concerned that is equal.  And the Department of Education has also made clear that if the district accepts from sources outside the school a benefit for the team of one sex, it still has to provide comparable treatment to a team of the other sex. 

The lawsuit should put pressure on the school district to concrete plans for upgrading the softball field.  Batavia residents reportedly voted down an effort in March 2011 to commit public funds to improvements to the field

Boston University drops wrestling as varsity sport

After the of 2013-14 season, Boston University will no longer support a varsity wrestling team. Wrestling has been a varsity sport at the university for just under 50 years. Officials within the athletics department said that the decision was made for several reasons including BU's imminent conference move to the Patriot League which does not have wrestling and the team's mediocre performance in the past decade+. To remedy the latter, a lot more money would have to be put into the program including into facilities, something the department says is not feasible. They immediately ruled out the possibility of fundraising as a possibility to save the team. It seems the decision has been made.
The good news is that the articles I have read have not invoked Title IX as a "the law made me do it" excuse. And BU eliminated football in the late 1990s so we know they aren't shuffling the money over to that program.
But that hasn't stopped critics from participating in the Title IX blame game. A quick look at Twitter:
Some named Justin S tweeted "Wrestling programs get cut so girls can take lots of cute uniform pics in the lockerroom before games" with the TitleIX hashtag. This was right after he tweeted that "football and wrestling have literally destroyed my body." Hmm...
Jason Bryant, a sportswriter in Minnesota, tweeted that that was another case of Title IX forcing a school to cut a sport and that it was the addition of men's lacrosse that forced the school to cut wrestling--because it couldn't keep both.
Well it certainly has a numbers problem. Men comprise, as of the 2012 EADA reporting, just a smidge under 40 percent of the undergraduate population. The same data show that there is a 7.7 percent disparity between the percentage of female undergraduates and the percentage of female student-athletes. That is equivalent to 52 opportunities. So they have to keep the number of male student-athletes in check or add a woman's sport--or increase the number of men in their undergraduate population. Adding men's lacrosse made the school vulnerable. If a woman's club team, for example, came forward and asked for elevation to varsity status the school might have trouble denying them that opportunity given that their numbers are off and that the last women's team they added was in 2005.
If BU had all the money in the world, maybe wrestling would have been retained and two more women's sports added. But maybe they are simply trying to maintain a highly successful athletics program in which all their sports are regionally popular and given what they need to succeed.

Article Examines Standing Issue in Title IX Case

In the current issue of Sports Lawyers Journal, student author Colton Puckett criticizes the federal court's standing analysis in American Sports Council v. Department of Education, the case in which ASC sought to have courts declare the three-part test inapplicable to high school athletics.  The federal court dismissed the case on the grounds that ASC did not suffer a concrete injury that would be redressed by a ruling against the Department of Education, i.e., that ASC did not satisfy the jurisdictional prerequisite known as standing.  (We blogged about that decision when it was announced last March.)  The author concludes:

To be clear, this Note is not commenting on the merits of the ASC's complaint. Whether one believes that Title IX is the savior of public athletic programs, the embodiment of all that is wrong with government regulation, or anything in between is irrelevant to the question at hand. The question is whether the ASC has a right to have its case heard in court. Whether one agrees with the ASC or not, it seems clear that its shotgun-style approach to standing should have garnered at least one hit. If this was indeed a case where the standing inquiry acted as a means to dismiss on the merits, the court should have let the ASC be heard, and let the merits of the case stand, or fall, on their own.

Colton Puckett, American Sports Council v. Department of Education: Forty Years of Title IX and Still Standing (Or Not), 20 Sports Lawyers J. 261 (2013).

Maryland Governor Restores Towson Baseball

Maryland Governor Martin O'Malley has allocated $300,000 to Towson University for the next two years, in order to reinstate the baseball team cut that had been eliminated last month by the university president and athletic director.  Towson claimed that cutting baseball, along with men's soccer, was necessary to rein in athletic department finances and achieve Title IX compliance, although the universities Board of Visitors had earlier questioned the accuracy of the Title IX rationale. Towson will reportedly use the additional state money to support baseball as well as explore adding an additional women's team.  Based on public reports about equity in athletic opportunity, Towson provides 52% of athletic opportunities to women, though women constitute 61% of the undergraduate student body.

It is unclear to me whether the Governor's gift has truly saved the team or simply provided a two-year reprieve for its varsity status. The university president noted that even with the additional money, the university will have to raise student fees by $8 and fundraise an additional $100,000 per year in order to keep baseball.  What happens after that?  This report states that the team must become "self-sufficient" by 2015, but if self-sufficient means that the team pays for itself with little university support, I think there's another label for that -- a club team.

Title IX Is No Excuse to Reject Transgender Applicants to Women's Colleges

Smith College, a women's college in Northampton, Massachusetts, has made news in recent weeks (see, e.g., here, here, and here) for its widely publicized decision to refuse to consider the application of a transgender applicant.  According to the rejection letter, which the prospective student posted online, the College cited the fact that her federal financial aid (FAFSA) paperwork indicated her sex as male.  Throughout the rest of the application, however, the applicant identified as female, which reflects her gender identity. The applicant even reports having spoken with admissions "extensively" about her application, suggesting that Smith was not genuinely confused about the applicant's sex, but rather, that they were searching for a technical reason to refuse her application.  On the other hand, we don't know if Smith would have reconsidered if the applicant submitted a revised FAFSA.  So I'm not willing to suggest at this point that the College's FAFSA rationale was actually pretext for exclusion based on the applicant's transgender status.

I am, however, concerned about the role Title IX has played in public debate generally about single-sex colleges and transgender students.  Here in Northampton, our local paper ran a story this week in which the President of Mount Holyoke College, a women's college in neighboring Amherst, said that admitting someone who is not legally female would remove women's colleges from the Title IX exception for single sex colleges:  “We’re constrained by the law,” Pasquerella said. “If someone is not legally female, we can’t admit them and keep our federal funding.”

This is not correct, for two reason.  First, Title IX does not contain an exception for single-sex colleges.  Rather, the reason why Smith and Mount Holyoke are allowed to exclude men from admissions is because the statute by its terms does not apply to private college's undergraduate admissions.  See 20 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").   What this means is that, while Title IX does not require Smith to consider the application of someone Smith does not consider female, nor is the statute violated if Smith should do exactly that.  I think that the reason for the confusion on this point is that the statute also contains an exception for "public institution of undergraduate higher education which is an institution that traditionally and continually from its establishment has had a policy of admitting only students of one sex." 20 U.S.C. 1681(a)(5).  Back when there were public single-sex colleges, those institutions had to be careful to be consistent in the exclusion of the opposite sex, otherwise they risked falling outside the exception.  But this exception only applies to public institutions that are single-sex, not private schools like Smith and Mount Holyoke. Title IX does not need to provide an exception for private single-sex schools because, as I said before, all of private undergraduate admissions are outside the scope of the statute.  I think that the private single-sex schools see that language about "traditionally and continually" admitting only students of one sex, and misperceive its application as to them. 

Another reason why it's wrong to suggest that Title IX prevents Smith or Mount Holyoke from considering transgender students from admissions is that the statute does not incorporate a legal definition of sex.  Therefore, even if the statute did require Smith to "traditionally and continually" admit women, the law does not prevent Smith from considering transgender women to be women.  In fact, the law in other, analogous contexts, may be bending toward a definition of sex that would require such inclusion. Last year, for example, the federal agency that investigates employment discrimination adopted the broadest possible definition of "sex" for purpose of applying the law's prohibition of discrimination on the basis thereof.  This ruling signals increasing acceptance for the view that sex is not simply a matter of what is says on your birth certificate, your drivers license...or, seemingly, your FAFSA. 

I've argued elsewhere that women's colleges should be inclusive of transgender students -- both those who have transitioned from male to female prior to applying, as well as those who transition from female to male after matriculating.  Because Title IX does not apply to private undergraduate admissions, I can't argue that they must do so under the law. But neither is Title IX an obstacle to admitting transgender students. Whether mistaken or pretextual, the view that the law forbids single-sex schools from admitting transgender students is wrong. Title IX should not be part of the discussion.  

ACLU Challenges Single-Sex Classes in Wisconsin

The Wisconsin chapter of the ACLU has filed a complaint with the U.S. Department of Education, challenging single-sex classes at one middle school and two elementary schools. Riverview Middle School in Barron separated fifth-grade girls and boys in language arts and math classes in the past and plans to do so again next year.  The two elementary schools, both in Beloit, have been offering single sex classes in multiple subjects.  The ACLU alleges that all three single-sex programs violate Title IX because the schools lack the adequate justification required by law -- instead relying on discredited science and sex stereotypes.

Earlier this year, the ACLU convinced a high school in La Crosse, Wisconsin, to voluntarily suspend its girls' English and math classes, that were also justified solely by pseudoscientific generalizations about the ways girls learn.   

The Wisconsin ACLU's efforts are consistent with the ACLU's nationwide campaign to "teach kids not stereotypes" -- an effort that has generated similar challenges to single sex programs around the country.   

Sexual Harassment Roundup

Here is a roundup of sexual harassment decisions handed down this winter:

A federal district court in New York dismissed Title IX claims against the New York City Department of Education stemming from a single incident of peer harassment in which a male student pressed his body against a female student and touched her breasts.  The court determined that school officials had no notice of the offending student posed a risk of sexual assault, and that the school's response -- suspending him for one year -- was reasonable and not deliberate indifference.  Carabello v. New York City Dep't of Educ. 2013 WL 828470 (Mar. 6, 2013).

Similarly, a district court in Washington dismissed Title IX claims against a district in a case involving a male teacher's inappropriate touching (giving backrubs) and comments on appearance of an eighth grade female student.  The court reasoned that the school's response did not amount to deliberate indifference, where the response consisted of staff training, and retraining of the offending teacher, as well as offers to reassign the teacher which the student's parents rejected, choosing to withdraw the student instead.  The plaintiffs can, however, proceed individually against the teacher for violations of the student's constitutional rights to be free of sexual harassment. S.T. v. Yakima Sch. Dist. No. 7, 2013 WL 807197 (E.D. Wash. Mar. 5, 2013).

A female student-athlete who was sexually assaulted by a male student in her dormitory could not recover from her university under Title IX, since school officials did not have notice that the offending student posed a risk of sexual assault and that the student was subjected to further sexual harassment or violence after reporting the offense.  Moore v. Murray State University,  2013 WL 960320 (W.D. Ky. Mar. 12, 2013).

A student harassed by her peers on the basis of religion could not recover under Title IX.   Shively v. Green Local School District, 2013 WL 774643 (N.D. Ohio Feb. 28, 2013).

A student harassed by peers could not bring bring Title IX claims against individual school officials, nor could she sue them individually under 42 U.S.C. 1983's right of action for violations of Title IX.  Doe v. Town of Stoughton, 2013 WL 227568 (D. Mass. Jan. 22, 2013).

A male middle school student routinely bullied from sixth through eighth grades could proceed with Title IX claims against the school district, having alleged sufficient facts to demonstrate that the harassment was because of sex because he was subject to unwelcome sexual advances and sexually lewd comments, and that the school officials did not intercede to protect the harassment they knew was going on. P.W. v. Fairport Cent. Sch. Dist., 2013 WL 690525 (W.D.N.Y. Feb. 25, 2013). 

Complaint Alleged Against Clark College

A Title IX complaint was filed against Clark College in Vancouver, WA, alleging that "campus softball facilities, equipment and supplies, and publicity are not being offered to women equal and comparable to the superior accommodations provided male baseball programs at its Clark College campus."  The complaint provides a long list of ways in which the softball team receives inferior treatment, including the dugout, equipment storage, backstops, toilets, spectator seating, scoreboards, drinking water, foul poles, field maintenance, drainage, fences, concessions, and publicity.  The Department of Education will now determine whether to investigate and how to resolve the matter. 

Clark College has had Title IX problems before.  In 2010, it paid half a million dollars to a former women's basketball coach after he prevailed in his case that he was fired in retaliation for advocating gender equity for his team.

Appellate Court Reinstate Female Referee's Sex Discrimination Case

Tamika Covington is a high school basketball referee in New Jersey and Pennsylvania.  For several years, she has been litigating for the right to officiate boys' games as well as girls' games.  She has sued the International Association of Approved Basketball Officials ("IAABO"), over its policy of assigning female officials to officiate at girls' regular season high school basketball games, as well as the New Jersey State Interscholastic Athletic Association (“NJSIAA”). Among other defendants, Covington also sued the Hamilton Township School District, one of the school districts in which she officiates.

Yesterday, the U.S. Court of Appeals for the Third Circuit ruled in Covington's favor that she could continue to litigate against these defendants, overruling an earlier decision of a lower court that had dismissed Covington's case.  The favorable ruling, however, was limited to Covington's claims under Title VII, the federal law prohibiting discrimination in employment, and did not extend to her Title IX claim.  At issue for purposes of the Title VII claims was whether Covington had an employment relationship with these defendants, and the court of appeals agreed that she did. Hamilton School District has influence over the officials' work assignments, it chooses the time, date, and location of the games, and pays the official, making it an employer for purposes of the regular season.  For similar reasons, the NJSIAA is considered an employer for purposes of the post season.  And the IAABO is potentially liable under Title VII because even though it does not directly employee officials, it operates like an employment agency, facilitating officials' work assignments. Now that the appellate court has concluded that these defendants are governed by Title VII, Covington will be able to argue that policy restricting her assignments to boys' games violates the law -- an argument on which she seems likely to prevail. 


While this decision is overall favorable for Covington, there is one aspect in which it bothers me.  The appellate court ruled in a footnote that Covington could not simultaneously bring a Title IX claim against the Hamilton School District because she did not allege "an official policy of discrimination at Hamilton and does not allege that an individual with authority to address the discrimination had actual knowledge of the discrimination."  But the court does not acknowledge that Gebser v. Lago Vista Independent School District, the case cited as authority of these requirements, was a sexual harassment case, and sexual harassment is treated differently than direct discrimination when it comes to imputing liability on the school district.  It makes sense to require notice in harassment cases because harassment would otherwise be concealed.  But plaintiffs should not have to allege notice in cases involving open and obvious, direct discrimination.  This point has been argued (successfully) in cases involving disparities in men's and women's athletics programs, and the notice requirement is equally irrelevant in hiring/employment cases like this one.

Since Covington can proceed alternatively under Title VII, this footnote isn't going to really get in her way.  But there it sits, a potential source of confusion in future cases, and that's too bad. 

Decision: Covington v. International Association of Approved Basketball Officials, 2013 WL 979067 (3d Cir. Mar. 14, 2013).

Towson goes through with athletic team cuts

Last fall Towson University announced plans to cut men's soccer and baseball. This past week they followed through with these plans after a process that--from all reports--was mired in confusion and perhaps deception.
Athletic Director Mike Waddell drew criticism in the fall when he said the cuts were due to Title IX: the university needed to achieve parity in the athletic opportunities it provides students. At that time, Erin (among others) questioned this rationale when it came out that Waddell didn't do the numbers right. That, in fact, Towson had already achieved proportionality.
But this week the university president made a formal announcement to the student-athletes involved--a process that also has drawn intense criticism from players, coaches, parents, and community members. And though the reality of the athletic department's financial situation has been brought to light alongside the lack of a Title IX problem (at least in providing opportunities), the president's statement include an immediate mention of Title IX:
For the past several months our campus has been dealing with a proposed recommendation from our athletics leadership to reconfigure the intercollegiate athletics program to address three issues facing the university: long-term financial stability and affordability; compliance with Federal Title IX requirements; and the ability to be competitive in NCAA Division I athletics.

It is possible the her statement about Title IX--sandwiched in the middle of the other less nebulous reasons--is true. She could be speaking of providing equitable treatment to its women's teams, which also is connected to financial issues. But the number-shifting the cuts have caused are not Title IX related. The university is actually reinstating its men's tennis team.
And many of those involved in this situation know that Title IX was not the motivator behind this decision. Several parents of Towson baseball players, including one who works for the Department of Education, noted that all the information about the department's financials and Title IX data is available to the public and does not support the Title IX claim but rather reflects some fiscal mismanagement or shifting of priorities.
We shall see what the next big project out of Towson athletics is; it should be an indicator of how it intends to remain "competitive in NCAA Division I athletics."

NCAA Releases Comprehensive Best Practices for Inclusion of LGBTQ Athletes and Staff

As someone who studies discrimination in athletics from a legal perspective, I am often confronted by the limits of law to solve the problem.  Title IX is forty years old, and examples of sex discrimination persist.  States, cities, and institutions have law and policy protecting against discrimination on the basis of sexual orientation and gender identity, but many athletes and coaches still experience pressure to stay in the closet. The explanation is frustrating in its complexity -- the problem is not law, but culture.  All the law and policy on the books can't change the climate of a workplace, classroom, locker room, or other contexts in which a climate of hostility or fear suppresses individuals' abilities to freely be themselves.  How, then, can you change the culture? 

Enter Champions of Respect, the 82-page report (available here) released by the NCAA last week.  Here is a guidebook for changing the culture.  Authors Pat Griffin and Hudson Taylor have provided a thorough and comprehensive set of best practices to support inclusion, fairness, and respect for LGBTQ athletes and staff.  What makes this report particularly remarkable is its ability to move past broad aspirational statements about the importance of inclusion and respect, into the highly specific, day-to-day practices that actually cultivate a climate in which everyone feels safe, supported and respected.  For example, the report has advice for addressing intra-team dating, conveying neutrality in media and recruiting materials, responding when a student-athlete comes out, and dealing with questions from parents of recruits. The report talks about how coaches and administrators should frame and bring up discussions about team and department policies and expectations around such things as using inclusive language. It suggests, and explains how, an athletic department can assess its own climate and address its findings, and well as partner with and avail itself of other campus organizations and resources that support LGBTQ students. It provides advice to coaches considering whether or not to come out to their department and to their teams. The report provides useful and effective strategies for simultaneously supporting LGBTQ individuals as well as those with religious viewpoints that are not personally supportive of homosexuality.  It addresses and advises sensitivity around issues at the intersection of LGBTQ identity and race and class. In this report, the "T" in LGBT is not just along for the ride, as the authors provide specific recommendations relating from everything to avoiding assumptions about individuals' gender conformity, to developing policies of transgender inclusion, to using appropriate and respectful language when referring to the player by name and pronoun.  Of particular interest to me, the report even contains a section on legal resources, including a description of how Title IX has been used to challenge discrimination and harassment against LGBTQ students, and a list of various state and local laws that provide additional leverage to the cause of creating inclusive climates.

In sum, this resource, with its clear solutions for addressing a complex problem, and bearing the imprimatur of the NCAA, has real potential to create actual and meaningful change for athletes, teams, departments, institutions, conferences, and the culture of sport more generally. I am excited for this possibility.

Cross-posted at LGBT Issues in Sport Blog.

Court Denies Quinnipiac's Motion to Lift Injunction

Over two years ago, a federal district court in Connecticut concluded that Quinnipiac University's decision to cut its women's volleyball team violated Title IX by leaving too few opportunities for women in its student body.  As a remedy, the court issued an injunction requiring Quinnipiac to retain the team until it could show that it could cut the team in a manner that complied with Title IX.  Yesterday, that same court ruled that Quinnipiac had not yet demonstrated such compliance, and denied the university's motion to lift the injunction.

Quinnipiac had asked the court to evaluate its compliance in light of several changes to its athletics program since the 2010 case.  The university added a women's golf team and a women's rugby team.  It also continued to support its fledgling acrobatics and tumbling ("acro") team, which the court had earlier determined should not be counted, since the sport was too new to provide athletic opportunities comparable to those afforded by other varsity sports. Finally, Quinnipiac instituted a policy prohibiting coaches from requiring student athletes to join additional teams.  This change addressed the court's finding that indoor and outdoor track opportunities should not count separately for certain cross-country athletes who were forced to practice with those teams as "simply an alternative form of off season training" but who did not compete with those teams due to injury or red-shirt status. 

The court easily concluded that the opportunities Quinnipiac added in women's golf, an NCAA recognized sport, should court towards its proportionality qualification.  However, it determined that acro and rugby, which both lack NCAA recognition at this point, should not count:

True, recognition by the NCAA is not, in itself, a requirement of Title IX. But where, as here, a school chooses to sponsor an athletics program at the highest level of competition (NCAA Division I), and offers all of its male athletes the opportunity to participate in NCAA-championship sports, the lack of NCAA recognition for a single women’s sport within that program raises a significant gender equity issue if the school hopes to count that unrecognized sport toward compliance with Title IX. So long as Quinnipiac chooses to hold itself out as a Division I institution, providing a full slate of NCAA-recognized sports for men, equity demands that it do the same for women.

Acro, the court pointed out, hasn't even made it onto the NCAA's list of emerging sports for women, the usual pathway toward becoming a championship sport.  And the court seemed skeptical of this recognition occurring in the near future, in light of the competing proposal from USA Cheer for a different version of competitive cheer called STUNT.  Only a handful of universities sponsor acro teams, which limits the opportunities for competition and denies participants the opportunity for a progressive play-off, which is a hallmark characteristic of varsity programs.

Rugby, on the other hand, is recognized as an emerging sport for women by the NCAA.  That status usually means that the sport will have an NCAA championship if a sufficient number of schools add teams within a ten year period. Rugby became an emerging sport in 2002, and has been added by only five universities (including Quinnipiac) within that time.  The court's concern, therefore, is that rugby's status on the emerging sports list is on borrowed time.  Quinnipiac's rugby team has limited opportunities for varsity-level competition, and as a result played most of its competitive schedule against other club-level teams.  It also had no opportunity for post-season competition.

Based on the court's decision not to count acro and rugby (as well as its decision not to count three injured cross-country runners who quit the indoor track team part-way through the season, but prior to any competition), the court removed 67 athletic opportunities from Quinnipiac's proffered tally, bringing the total number of athletic opportunities for women down to 254. There are 168 athletic opportunities for men, so the opportunities for women amount to 60.2%. By comparison, Quinnipiac's student body is 62.4% female, so Quinnipiac's disparity is 2.2%.  As tiny as this is expressed as a percent, 2.2 percent corresponds to an additional 25 athletic opportunities that would have to be added in order to hit 62.4. Since that is more than enough to sustain a new varsity team, Quinnipiac's proportionality is not just not close enough -- and would be even farther off if, without the injunction, Quinnipiac went ahead with plans to reduce women's opportunities by an additional 14 -- the number of participants in women's volleyball.

For these reasons, the court denied Quinnipiac's motion to lift the injunction.  Acknowledging the university's progress, the court nevertheless expressed some skepticism of the university's choices:  "Rather than simply recommit to women’s volleyball or bring other NCAA-championship sports to campus, the University doubled down on its plan to eliminate volleyball, and staked its compliance with Title IX on an as-yet unrecognized sport as well as an emerging sport in imminent danger of losing that recognition."  In sum, "by relying today on sports that do not yet provide genuine varsity participation opportunities, Quinnipiac has taken a prong-two approach to solving a prong-one problem."

Resolution in Butte?

The issue of inequitable facilities has been resolved according the Butte (Montana) school district and the Office of Civil Rights. The district has a provided OCR a report that states facilities are now equitable or close to it with efforts in progress or on the schedule to ensure that equity is forthcoming. But community members, including the original complainant, are contesting some of the "facts" of the report. It seems the district might have exaggerated just how close to finished it was with renovations to the softball field. Also the changing room at the softballs is in disrepair and lacks electricity and running water. Bleachers are allegedly not up to code and there is no storage facility--as was promised.
Sid deBarthy, one of the former softball coaches who filed the complaint, said he has contacted OCR about these discrepancies. He is also concerned that the committee created to ensure ongoing Title IX compliance is a little too insular, comprised entirely of school or district officials.

Thursday is the Deadline for Public Comment on the Department of Education's EADA Data Collection Practices

The Department of Education is collecting input from the public about its efforts pursuant to the Equity in Athletics Disclosure Act to collect information from colleges and universities regarding gender equity in athletic programs.  Here is a link to the electronic docket, where you can read more about the Department's existing efforts, as instructions (so easy!) on how to submit your own comments on line.  Or, you can visit the National Women's Law Center website, where you can submit comments using suggested sample text.  But either way, act soon. The deadline for comments is Thursday.

I submitted my comments today.  Here is what I wrote:

As a law professor who researches and writes (and blogs) about Title IX, I strongly encourage the Department of Education to continue aggressive efforts to gather and report data related to the athletic opportunities and resources available male and female students at federally-funded colleges and university.  These efforts are crucial to maintaining public awareness about Title IX compliance and to the public's efforts to initiate both government and private enforcement.   

To this end, any efforts that the Department of Education can make to enhance the transparency on questions of institutional compliance would be most helpful.  A few suggestions are as follows:

• Develop an auditing process to ensure that all reported opportunities are "genuine and not illusory" -- that institutions are not misreporting male practice players, cutting or adding students after the EADA reporting deadlines, or rostering students in name only. 

• Require institutions to allocate all expenditures which are currently listed as unallocated. This can be done by prorating the expenditure to each team in a manner proportionate to the number of opportunities associated with each team.

• Require that institutions report capital expenditures and assign them to the team (or teams) associated with the capital expense.  E.g., the debt on a stadium devoted to football should appear as an expense for that team. The debt on a multi-use facility should be allocated among the teams that use the facility. The exclusion of capital expenditures hides the true cost of athletic opportunities, as well as any gender inequality related to those costs. 

• Require that institutions report generated revenue, to the exclusion of revenue that may be allocated from the institution.  The inclusion of the institutional subsidy as "revenue" gives the false impression that athletic programs profit, or break even, when they do not.  

Appellate Court Reinstates Retaliation Case Against Hofstra

This week, the Second Circuit Court of Appeals reinstated Lauren Summa's retaliation case against Hofstra University.  Initially filed in 2008, Summa's lawsuit arose out of sexual harassment she experienced as part of her job as the graduate student manager of the football team. She alleged that not only did coaching staff fail to adequately respond to her complaints of certain incidents that created a hostile environment for her, she was also replaced as the student manager the following season, as well as denied a graduate student position  elsewhere on campus, in retaliation for having complained about football players' harassing behavior.  A federal district court dismissed both her harassment and retaliation claims after concluding that she had failed to provide sufficient evidence to support either claim. The Court of Appeals' decision this week agreed with the district court that the university's response to the harassing incident was sufficient.  But the court reversed the prior dismissal of Summa's retaliation claim, allowing that claim to move forward toward trial.

Title VII, which applies coextensively with Title IX in this case because Summa was a student-employee, requires retaliation plaintiffs to prove, in the first instance, that they engaged in protected activity, that they experienced adverse employment action, and that the latter happened because of the former. The appellate court determined that Summa had the requisite "good faith belief" that her complaints to campus safety and to the University' Equality Office about the football players' behavior constituted a complaint about a legally actionable harassment.  Retaliation plaintiffs are protected even when it turns out that what they complained about is not actually a violation of law.  The fact that the university responded to Summa's complaints, such as by investigating an incident that took place on the bus, and by requiring the athletics staff to undergo harassment training, also reflects on the reasonableness of her belief that something unlawful had occurred.

The appellate court also found sufficient evidence on which a jury could find that Summa was not rehired in the spring because of her complaints. The district court had rejected the possibility of a connection, citing a lack of proof that the staff member directly responsible for discontinuing Summa's employment actually knew that she had complained about harassment.  But given that Summa's position was supposed to continue in the spring, someone must have told that staff member to hire a new manager instead of letting Summa continue.  It would be reasonable for a jury to infer that this order came from the head football coach, who of course knew about Summa's complaints.  Summa's termination also happened close enough in time to suggest it was connected to her having complained, despite the passage of four months between them. Since Summa complained at the end of the fall season and was terminated at the beginning of the spring season, the adverse action took place at the earliest opportunity for retaliation to occur.  Moreover, the court agreed that Summa's exclusion from subsequent employment in other departments of the university happened sufficiently close in time to be related to the subsequent steps she took, such as filing this lawsuit, to continue to press her case. 

Hofstra argued that Summa was not rehired in the spring for reasons other than retaliation -- namely, that she had failed to indicate her intention to continue in the job.  But the court found this claim belied by documentary evidence, such as emails between Summa and athletics staff discussing the stipend she would receive for the spring season. And as for Hofstra's claim that Summa did not receive employment elsewhere in the university due to lack of qualifications, the court cited evidence suggesting was singled out for an additional hiring interview that was designed to turn up evidence undermining of her qualifications.

For these reasons, the court reinstated Summa's retaliation claim against Hofstra, and she can  now proceed to trial.  However, I'd be surprised if the parties decided not to reach a settlement instead. Not only are settlements typical in these sorts of cases, my guess is that that the wages Summa would have received had her student-employment continued, her likely measure of damages, are not so high as to justify the high cost of trial.   

Decision: Summa v. Hofstra University,  2013 WL 627710 (2d Cir. Feb. 20, 2012).

"Transcending Gender Lines: Title IX and Transgender Rights"

Yesterday I had the opportunity to participate in a symposium at the University of Wisconsin about Title IX's application to transgender rights, sponsored by the law school's Journal of Law, Gender and Society.  Devi Rao from the National Women's Law Center kicked things off by discussing how Title IX courts have interpreted sex discrimination to include discrimination on the basis of gender nonconformity, clarifying the law's protection against harassment to include transgender and other gender-nonconforming students.  I followed by talking about legal precedent from the employment context, that if applied to cases involving students, could broaden Title IX's protections for transgender students to cases outside of the harassment context, where gender nonconformity theory may be less useful.  Rounding out the morning, we heard from Professor Jillian Weiss from Ramapo College, who emphasized the limits of Title IX in securing transgender rights, and advocated for judicial recognition of a constitutional right to gender autonomy as a way to supplement efforts to secure their legal protection. 

In the afternoon, Harper Jean Tobin from the National Center for Transgender Equality argued that Title IX should be interpreted to allow students access to single-sex facilities like bathrooms and restrooms based on their gender identity. Afterwards, Ilona Turner of the Transgender Law Center and Scott Thomspon from the law firm Cleary Gottlieb made a similar argument in favor of transgender students' participation on athletic teams. 

In addition to these presentations, we all enjoyed engaging discussion facilitated by able moderators.  It was a great day of insight and inquiry in Madison. I'm looking forward to the publication of these conference proceedings in an upcoming issue of the Journal.   

Cuesta College OK says OCR

Well the three-year OCR investigation into opportunities at Cuesta College in California has ended with a finding of no fault on the part of the college. But it is not clear why.
The complaint was filed in 2010 after the women's tennis team was cut due to budget reasons.
Unclear is why an investigation only into one program area--opportunities--took three years. Also, not sure why it was not revealed how Cuesta is meeting its Title IX obligations. It seems as though Cuesta is using prong one and benefiting from the fact that it has more male undergraduates than female ones. Unless this breakdown is a new phenomenon, I have to wonder why the complaint was filed and/or investigated in the first place. If I can run the numbers in less than five minutes...
Was there something else here? Suspicions of roster inflation, perhaps? If so, it does not seem that we will be privy to that information.

High School Coach's Retaliation Case Moves Forward

Last week, a federal district court ruled in favor of Connie Morris, a high school coach in Bessemer, Alabama, in her retaliation and employment discrimination case against the Bessemer School District.  The court agreed that Morris had presented sufficient evidence in support of her retaliation claim and thus survived the district's motion for summary judgment. 

In the spring of 2010, the school district decided not to renew Morris as head coach of the girls' basketball team.  Morris claimed that this decision, as well as subsequent decisions not to hire her for other coaching positions or to rehire her for basketball, were in retaliation for her numerous internal complaints about disparities in resources for girls' teams, as well as external complaints filed with the U.S. EEOC.  Typically in retaliation cases, it is challenging for plaintiffs to present evidence that shows the causal relationship between the plaintiff's complaints about discrimination and the adverse employment actions that followed.  In this case, though, the court agreed that Morris's case was sufficient in this regard in part because the adverse actions were sufficiently close in time to Morris's complaints. In other employment contexts, a time lapse of more than three months, as was the case for Morris, is not sufficient to establish a causal relationship between the plaintiff's complaint and the adverse action.  But in the school context, the act of hiring/rehiring happens on a prescibed schedule.  What is important is that the school board took action to not hire/rehire Morris at its next opportunity following her series of complaints, even though there was a lapse of three months between her last written complaint and some of the adverse actions against her.

The Board argued that it chose not to rehire/hire Morris for reasons other than retaliation. In particular, the school principal had cited a desire to move the program in a "new direction" and for leadership that could lead the team to a state championship.  However, Morris presented enough evidence to challenge the Board's "new direction" explanation as a pretext, or cover up, for retaliation.  For one thing, the person that was hired to take over the program had no prior experience coaching at the high school or college level, and was as a result considerably less qualified than Morris to lead the team to a championship.  Morris also relied on the testimony of an assistant principal who verified that the part of the principal's motivation for changing the coaching staff was Morris's complaints.

For these reasons, the court denied the school district's motion for summary judgment -- a move that clears the way for Morris's case to go to trial, though a summary judgment victory usually gives the plaintiff leverage to pursue a favorable settlement instead.

Morris v. Bessemer Bd. of Educ., 2013 WL 549896 (N.D.Ala., Feb. 13, 2013).

VCU Adds Lacrosse

Virginia Commonwealth University will add a women's lacrosse team, in an effort to shore up its compliance with Title IX, according to this article in the Baltimore Sun.  The team will compete in the Atlantic 10 conference starting in the 2014-15 season. 

Overall, I agree that this move gives VCU strong arguments for compliance under both prong one and prong three.

VCU's athletics data disclosure forms show that its student body is 56% female, and that the university affords 50% of its athletic opportunities to women.  Women's lacrosse will add up to 30 new opportunities, bringing the percentage of female athletic opportunities to 54.7%.  This is very close to proportionality, and would likely satisfy any court or agency evaluating VCU's compliance under prong one because the number of additional female athletic opportunities the institution would have to add to bring women's proportional to 56% is very small -- 8-9, by my math.  According to OCR, as long as this number is smaller than needed to form an additional team, the institution satisfies the substantially proportionality test.  The only possible argument against VCU's compliance with prong one is that golf, which VCU offers to men but not women, is a small roster team, and theoretically could be added to achieve exact proportionality. VCU's men's golf team has, coincidentally, 8 members. 

Additionally, however, VCU's adding of women's lacrosse bolsters its compliance under prong three, an alternative means of demonstrating compliance by showing no unmet interest among the underrepresented sex.  By adding a sport that is popular in VCU's region and is already played in VCU's conference, it appears to be addressing what would be otherwise be a strong argument for unmet interest.

The one compliance prong VCU would probably not be a good candidate for is prong two, which requires a history and continuing practice of adding opportunity for the underrepresented sex.  I could not find out when VCU last added a women's team, but it must have been at least ten years ago, since EADA reports going back that far do not show any additions during that time.  "Continuing practice" requires more regularity than that -- roughly every 3 years depending on the circumstances.  My guess, however, is that VCU is not concerned about prong two, since it has strong arguments for compliance under both prongs one and three. 

Op-Ed Addresses Income, Sex Inequalities in Schools and Public Parks

A great op-ed on Title IX appeared on Law.com this week to commemorate the 27th annual National Girls and Women in Sports Day.  The author, Kim Turner, a fellow at the Fair Play for Girls in Sports Project, makes the case that despite Title IX, inequalities exist for girls, especially low income girls of color.

Even today, it is far too common that a pristine football field with a high-tech scoreboard is reserved for male athletes, while female athletes are relegated to a run-down field shared with other teams. This persistent gap in gender equality is exacerbated in poor areas. We would never tolerate allocating fewer textbooks to girls than boys in any circumstance. Mounting budgetary pressure on schools is no excuse for giving girls fewer opportunities than boys, inside or outside the classroom. Under Title IX, a lack of parity in athletic facilities, equipment and scheduling can be reported, addressed and litigated if necessary. Yet few girls, parents, coaches and supporters know their rights or how to demand equality.

Turner also goes on to describe inequalities in public parks and recreation programs, which, while outside the scope of Title IX, are prohibited in her home state of California under AB 2404, which Turner describes as a "little-known" law.  She then makes the case for stronger enforcement of both laws.

The Fair Play for Girls in Sports Project is part of the Legal Aid Society-Employment Law Center (LAS-ELC)-- the California-focused public-interest law organization that litigated such Title IX cases as Ollier v. Sweetwater Union H.S. District and Cruz v. Alhambra School District.  The Project's website includes information and resources, including a hotline for questions about equity for girls in sports.

Court dismisses case challenging harassment, retaliation, and homophobia in the college athletics environment

A recent judicial opinion sheds light on the interrelationship of sexual harassment, retaliation and homophobia in the college sports environment, as well as the limits of law to address each.  The plaintiff in this case is a former student-athlete named Idana DeCecco. She sued the University of South Carolina over a set of incidents involving the head soccer coach, Shelley Smith and the assistant soccer coach, Jamie Smith, who are married to each other.  DeCecco's case stems from an incident in 2008, in which assistant coach Jamie Smith arranged a "private talk" with DeCecco in an empty locker room behind closed doors.  DeCecco claims that, at one point during the talk, Jamie Smith touched her knee, at which point she "freaked out" and immediately sought to leave the room.  Upon opening the door, however, she was confronted by an angry and accusing Shelley Smith.  DeCecco alleges that from that point on, Shelley Smith retaliated her by limiting her playing time and reducing her scholarship.  Including in that retaliation, DeCecco claims, is an inquiry Shelley Smith made into whether DeCecco was dating another player on the team.  Eventually, DeCecco transferred to another school to get away from what she called a "toxic environment" at USC.

DeCecco filed a lawsuit against the university, relying on Title IX and other law to seek damages stemming from Jamie Smith's sexual harassment and Shelley Smith's retaliation against her, but last month, the federal district court in South Carolina dismissed her case in full.  First, the court reasoned that USC did not know that Jamie Smith posed a risk of sexual hostility to student-athletes, even though other players had complained about his having made inappropriate comments, including about players' appearance.  The court also reasoned that USC lacked notice of the locker room incident itself, given that DeCecco failed to report it as sexual harassment to anyone with supervisory authority over him. 

DeCecco's failure to report the locker room incident as one of sexual harassment also prevented her from being able to pursue a retaliation claim as well.  To challenge retaliation under Title IX, the plaintiff must engage in protected activity, such as blowing the whistle on sex discrimination or harassment, and suffer some materially adverse consequence because of it.  If Shelley Smith indeed retaliated against DeCecco, the court reasoned, it was not because DeCecco had protested or reported Jamie Smith's behavior, it was due to Shelley Smith's ostensible jealousy over what she apparently perceived to have occurred in the locker room -- a motivation that does not qualify as either retaliation or sex discrimination under Title IX.

As for Shelley Smith's inquiry into DeCecco's dating status, the court interpreted this as a benign application of the team's neutral policy prohibiting relationships among teammates, and concluded that it therefore did not constitute sex discrimination against DeCecco.

In all, the court's reasoning reflects a high burden on student-athletes to protect themselves from harassment and retaliation by coaches.  In order to be on notice of Jamie Smith's capacity to sexually harass DeCecco, other players would have had to complain much more specifically about what his "inappropriate" comments entailed, as the university was not faulted for failing to have followed up for these details.  In order for Shelley Smith's reaction to the locker room incident to count as retaliation, DeCecco would have had to actively complain to her about Jamie Smith's conduct, even though the retaliation was motivated by her perception of what had occurred. Meanwhile, things that the coaches can use as leverage over players, playing time, scholarships, and, I'd argue, enforcement of the intra-team dating policy, are unexamined as weapons that create and sustain a power imbalance that keep athletes like DeCecco from speaking up about coaches' bad behavior.  Even if the court is right that the dating policy is neutral because it pertains to teammate relationships, not same-sex relationships, if the policy is being deployed in such a way to scare or suppress a player from complaining about harassment or retaliation, it's discriminatory.  

Regardless of its legal liability, USC failed to ensure the safety and well-being of one of its student athletes. In that sense, the case should serve as a reminder to college and universities to carefully monitor the climate within athletics, not only for evidence of harassment, retaliation, and homophobia, but to ensure that players are encouraged and supported to report discrimination when it occurs.

The decision is: DeCecco v. University of South Carolina, 2013 WL 168221 (D.S.C.  Jan. 16, 2013).
Cross-posted at LGBT Issues in Sport Blog. 

Law Review Article Examines Boy's Refusual to Wrestle Girl

Professor Deborah Brake has a new article forthcoming in the Nevada Law Journal, available for download here, called Wrestling with Gender: Constructing Masculinity by Refusing to Wrestle Women.  In it, Professor Brake examines the cultural significance of a recent case in which a boy refused to wrestle against a girl on moral or religious grounds, and the role of Title IX is such circumstances to protect girls' rights to the competitive opportunity at stake.

Here is the article abstract:

In February of 2011, an Iowa high school boy captured national attention when he refused to wrestle a girl at the state championship meet. The media shaped the story into a tale that honored the boy for sacrificing personal gain out of a moral imperative to “never hurt a girl.” Unpacking this incident reveals several “fault lines” in U.S. culture that often derail gender equality projects: (1) religion/morality is interposed as an oppositional and equally weighty social value that neutralizes an equality claim; (2) the agency of persons supporting traditional gender norms is assumed, while the agency of persons contesting them is questioned; (3) opting out or “leveling down” is employed to reinforce status hierarchies while maintaining a semblance of formal equality (neither boy nor girl wrestles); and (4) de-contextualized strands of feminist theory are appropriated and co-opted in service of the existing gender order. This paper asks, what happens when sex equality law is interjected into this narrative? After examining the anatomy of the backlash to the threat to the gender order posed by the entry of girls into wrestling, this paper constructs an argument that Title IX obligates schools and athletic associations to take measures designed to deter gender-based forfeitures that deprive girls of athletic opportunity. It then explores a tougher question: does the introduction of a sex equality claim disrupt the conventional understandings of gender that emerged from this narrative? I ultimately contend that law has a potentially useful role to play in subverting the gender order, but that to do so it must engage the crucial dynamic at the heart of forfeiture incident: the construction of masculinity, both for the boy who forfeited and for the sport of wrestling itself. Feminist legal strategies must contend with how masculinity is constructed and valued for the boys and men who play sports in order to further advance the cause of girls’ and women’s equality in sports.

Amherst College issues sexual assault report

Amherst College issued its report last week on the institution's policies about sexual assault and its practices and procedures for dealing with reported assaults. As you might recall, the college gained national attention last fall when a former student wrote an editorial in the school's paper about the lack of support she received after being assaulted on campus. AC had already begun the process of policy review at that time, which was a good thing given the attention the college received--but handled well.
The school held a meeting (closed to press) last night to discuss the findings and the future. It seems like there is a tactic to use peer pressure: training people who are onlookers to assault and harassment to intervene as well as stopping things before they start (i.e., before the offensive t-shirt designed by the fraternity actually makes its way onto the backs of brothers).  One focus will be on first-year students, according to Margaret Hunt, chairwoman of the committee.
"First year students are the ones that are most at risk for sexual assault. So we're very interested in trying to figure out ways to integrate first year students better, in a more healthy way into the campus community."
This statement is somewhat worrisome. Does she mean at-risk for committing assault and so there needs to be education about the kind of assault-free climate AC wants to create thus discouraging first-year students from committing assault? Or does she mean first-year students are more at risk for being victims of assault? If the latter...well it's problematic. Because what is being implied is that first-year female students put themselves at risk for sexual assault and so they need to be educated about what situations are safe. This kind of tactic puts the onus on the potential victim. Don't drink this, don't be in this space with this person, don't wear this, don't be alone here, or here, or here. That is less about climate change and more about maintaining a system in which some people feel privileged enough to engage in sexual harassment, aggression, or assault, and the rest of us have to figure out how to avoid those people. There is a lot of discussion everywhere--not just at AC--about changing the climate. But if we can't change our way of talking about sexual assault so that the solutions are not about changing the behaviors of potential victims, there will not be climate change.
I have not seen the statistics to which Hunt was referring, so I do not know which interpretation supports those stats. I suspect it is the latter, though I wish it was former.