New fields at Gavilan College

Gavilan College, a community college in California with 6,100 athletes, recently settled its Title IX complaint by agreeing to remedy the inequitable facilities at the college. The complaint, brought in 2005 by an unnamed party, was under investigation for 2 years by OCR. The result: new scoreboard for the softball field, a new fence, and eventually a new location farther away from the women's soccer field which itself is being reseeded, better maintained, and has a new irrigation system.

Michigan Case About More than Seasons

The local press in Michigan reminds us that Communities for Equity was about more than just moving girls basketball to winter. The 6th Circuit decision rendered final by the Supreme Court's recent denial of cert confirmed the applicability of both Title IX' and the Equal Protection Clause to the Michigan High School Athletic Association. This mean MHSAA must provide "competition-worthy venues for both genders" including equal sites for basketball and softball -- equal media coverage too.

Ball State Could Add Sports After Survey

When I saw this headline I thought we were going to have our Model Survey test case. But it appears that Ball State plans to survey student interest in sports to figure out which women's sports to add, rather than as conclusive evidence of prong three compliance.

Interestingly, though, Ball State's proportionality is pretty good. I calculate just a 2 point difference in the percentage of female students (51%) and the percentage of female athletes (49%).

Slippery Rock Settlement

Slippery Rock University has settled a lawsuit brought by female athletes challenging the university's decision to cut its women's swimming and women's water polo, among other teams, as part of an overall plan to reduce athletic department expenditures.

In July, a federal district court judge granted the athletes' request for a preliminary injunction against cutting the two teams. The reasoned that SRU's cuts did not result in substantial proportionality, the first alternative compliance prong, and that SRU neither satisfy the second prong, history and continuing practice of program expansion for women's varsity teams. Thus, it was left with prong three--accommodating the interests and abilities of female athletes--as its only option. Cutting two viable women's teams clearly violated this prong, and on this ground awarded a preliminary injunction to the plaintiffs.

This week, a magistrate judge approved a settlement of the case. Plaintiffs' counsel at the Women's Law Project provide this summary of its terms, among them: SRU has agreed to invest $300,000 in its women’s athletic program by making improvements to sports facilities and to equalize access to uniforms, travel, equipment, publicity, trainers. It also agreed to "retain women’s swimming and water polo as varsity teams for one full academic year after SRU has achieved compliance with the proportionality requirement of Title IX within two percentage points." And it agreed to increase funding for women's athletics every year it is not within two percentage points of proportionality.

For the July order see: Choike v. Slippery Rock University, 2006 WL 2060576 (W.D. Pa. July 21, 2006).

UPDATE: The magistrate's order is available at 2007 WL 184778 (W.D. Pa. Jan. 22, 2007) and the federal district court judge's final approval of the settlement is at 2007 WL 2317323 (W.D. Pa. Aug. 8, 2007).

En Banc Court Sends Dorrance Case to Trial

The University of North Carolina's dynastic women's soccer team has won 19 national titles in 26 years. It is practically the feeder team to the US national team and the(now defunct) WUSA, having produced some of the most recognizable names in women's soccer, including Mia Hamm and Kristine Lilly. Since the program's inception in 1979, head coach Anson Dorrance has been at the helm.

Melissa Jennings played for Dorrance as a backup goalkeeper from 1996 to 1998. She subsequently brought suit against both Dorrance and UNC, alleging that Dorrance committed, and UNC was indifferent to, sexual harassment in violation of Title IX. According to her complaint, Dorrance repeatedly questioned players, including Jennings, about their sex lives and often implied that his players were promiscuous. He regularly commented on players' bodies in a sexual way, he referred to one player by a male name because he believed her to be a lesbian, and he even confessed to his players that he had sexual fantasies about them. Once, at a one-on-one meeting in a hotel room, Dorrance asked Jennings, "who are you fucking?"

Uncomfortable in the highly sexualized atmosphere, Jennings complained about Dorrance to university officials while she was still a freshman player on the team. The complaint got as far as a university lawyer, who told her to "work it out" with Dorrance. After she was cut from the team as a sophomore, she complained about Dorrance again. This time, the Athletic Director issued a "brief, mild" letter of reprimand to Dorrance and letter of apology to Jennings's father. It was at this point that Jennings brought her case in federal court. She did not feel comfortable enough at UNC to continue her education there, and spent her senior year as a visiting student at another institution.

In 2004, a federal district court dismissed Jennings's claims on summary judgment. Jennings appealed and lost again when a divided three-judge panel of the 4th Circuit affirmed the district court. But in a rather rare move, the 4th Circuit decided to meet en banc -- all ten judges together -- to reconsider the panel's decision. Earlier this week, the en banc 4th Circuit reversed the panel decision and remanded the case to the district court for a trial.

The court held that Jennings's version of facts, if proven true at trial, would support a legal conclusion that Dorrance and UNC (and also the lawyer who told her to "work it out") would be liable under Title IX for sexual harassment. Dorrance's "degrading and humiliating conduct" was "sufficiently severe and pervasive to create a sexually hostile environment." In reaching this conclusion, the court was careful to distinguish the "informal, sometimes jocular, college sports team atmosphere" that fosters the kind of closeness and casualness that might result in a male coach using a sexual slang in front of female players. "Title IX is not a civility code...meant to punish [a] coach for off-color language that is not aimed to degrade or intimidate. What happened n this case, if Jennings's version of the facts is believed, is that Dorrance took advantage of the informal team setting to cross the line and engage in real sexual harassment that created a hostile or abusive environment."

The decision is: Jennings v. University of North Carolina, 2007 WL 1040592 (4th Cir. Apr. 9, 2007) (en banc).
News accounts are here (Greensboro News-Record), here (Daily Tarheel) and here (ESPN).

Making the connection (almost)

Writers at The Baltimore Sun try to make the connection between Imus's comments and Title IX. Unfortunately they don't even mention Title IX until halfway through the article. They frame the issue in the following way: even though Title IX has lead to great opportunities for women in athletics, female athletes still face considerable challenges that the law cannot overcome. The main challenges, they report, are the lack of media attention and the perception that good female athletes are masculine.
All this is true but I think the writers have missed a true connection between the incident and Title IX: that the stereotypes and cultural biases (which Imus put on full display this past week)that have made it difficult for current athletes also affect the implementation of Title IX. The article cites a source who notes that opportunities are not equitable even 35 years later. It's undeniable that our cultural constructions of gender and race and sexuality have limited just how effective Title IX can be.

Imus' comments on the Rutgers basketball team

I'll admit to being somewhat reluctant to address radio personality Don Imus' racist and sexist commentary related to the Rutgers women's basketball team and their performance in the Final Four. In disparaging the Rutgers team because of their race and sex, Imus continued an unfortunate tradition among some radio and television personalities of denigrating women athletes and combining that denigration with racial hostility as well. My initial reaction to Imus' comments was, "This again? Haven't we been hearing this kind of stuff for too long?" It's emblematic of the gender and racial stereotyping that is all too common in society generally, but in this case, it's particularly disheartening because Imus was picking on young women who were accomplishing a great deal as student-athletes.

Unfortunately this type of commentary is all too common. It's not just limited to women athletes, but targets all women, and particularly women of color, who are apparently not worthy of a measure of dignity from Imus.

I can only hope that Imus' comments and the outrage that they provoked don't take away from the accomplishments of the players and of their coach, C. Vivian Stringer, and the fabulous showing of the Rutgers team this season.

Education Sector Blog Criticizes Title IX Backlash

Education Sector is an independent, nonprofit think tank that analyzes education policy. The organization's blog, The Quick and the Ed, posted recently to criticize the Title IX backlash from organizations like CSC, IWF, and Equity in Athletics. Their point is familiar to readers of this blog but they put it so nicely, so here's an excerpt:

But scapegoating Title IX and letting the universities off the hook is inaccurate and certainly isn't going to help male or female "student athletes". The real problem? Faced with hard decisions about how to invest equitably in men's and women's athletics, institutions are simply not willing to touch the glory sports: football and men's basketball. ...No one's trying to cut men in favor of women (male collegiate athletes still outnumber female athletes)- they're cutting what doesn't matter to them in exchange for what does.

Harvard Conference

The Harvard Journal of Law and Gender is hosting a conference called "Changing Cultural Norms? Title IX and Legal Activism" this Friday afternoon, April 13, from 2 pm to 5:30. Here's a description from the journal's website:

In the 35 years since Title IX was passed, it has been used in a variety of situations to increase gender equity in educational environments. We will examine how effective Title IX has been as a legal reform effort to change social and gender norms and what we can learn from these lessons as we look to future feminist legislative agendas. The conference is divided into two panels, the first focusing on Title IX’s uses in combating sexual harassment and sexual assault at schools, and the second focusing on Title IX’s effects on athletics programs and gender equity in sports. The conference is free and open to all, no registration required.

The esteemed panelists are listed here.

(Via Sports Law Blog. Thanks for the shout-out, Michael!)

JMU = Defendant

Following up on earlier post here to note that, indeed, Equity in Athletics has added James Madison University as a defendant in its lawsuit challenging the school's decision to cut ten sports teams. EIA had given JMU an ultimatum: postpone the cuts or defend a lawsuit. I think JMU was wise to choose the latter, as it does not seem likely that EIA's lawsuit will restore the cut teams and a postponement would raise false hopes and keep the student athletes in limbo.

Arguments on the Wage Gap

One statistic that we've all heard is that women earn approximately 77 cents on the dollar compared to what men in comparable jobs earn. In a Washington Post opinions piece earlier this week, Carrie Lukas writes that much of the wage gap is due to the fact that men choose jobs that are harder, involve more travel, are "dirtier" and involve more personal sacrifice. As opposed to women self-selecting into jobs that allow for more time with family or are more "personally fulfilling." This different set of choices as to jobs explains, according to Lukas, almost all of the 23% difference in wages.

Lukas is not reinventing the wheel with this argument, but it bears some discussion as to whether (a) it's actually true that women and men who hold the exact same job get paid, trained, promoted, supported and retained in the same ways, and (b) whether the process of job selection is one based purely on the idea of personal fulfillment, or whether job selection is heavily influenced by disparate treatment (like the factors in (a)), and by stereotypes of what type of work women are interested in. My view is that stereotyping and disparate treatment play a significant role in the wage gap, and that the wage gap serves as another illustration of why Title IX and other equity measures are still necessary to combat stereotypes and offer the same options to men and women to pursue careers that are personally, and professionally, fulfilling.

HHS Official Resigns Over "Fatherhood" Initiative

Remember that "responsible fatherhood" initiative we blogged about recently? NOW and Legal Momentum filed a complaint with HHS that the program violated Title IX because it funded job training programs for men and not women.

An interesting development in that case: The HHS official in charge of "responsible fatherhood," Wade Horn, has resigned. The HHS complaint had accused Horn of cronyism, for funneling $5 million into a fatherhood program previously run by Horn.

Ohio University Named in OCR Complaint

According to the Athens News, someone has filed a complaint with OCR alleging that Ohio University's decision to cut men's swimming and diving earlier this year violates Title IX. You may recall from our earlier posts on this issue that Ohio U cut four sports in January, including men's indoor and outdoor track and women's lacrosse along with the men's swimming and diving team.

I seriously doubt that OCR will launch a formal investigation into this claim. It is well-settled that while the agency deems cutting men's sports a disfavored practice, it does not violate Title IX to do so unless men were the underrepresented sex to start with -- which was not the case at Ohio. Moreover, the university claimed that money was the reason for the cuts. This rings true, since the university cut more participation opportunities than was required to achieve proportionality, and because the university did not try to satisfy the prong three, which it likely could have done without adding or cutting anything if it had administered OCR's model survey.

Since the decision to cut teams was about money, there's not much OCR can do. OCR has no jurisdiction to tell any school how much money they have to spend on sports. All OCR can do is ensure that the opportunities the school decides to offer are distributed fairly to male and female athletes.

Title IX Implied Right of Action Extends to Suits Against OCR

Hockey dads in Minnesota complained to the Department of Education's Office for Civil Rights that the Minnesota state interscholastic athletic association discriminated against female hockey players by holding the girls' state tournament in a facility inferior to the boys'. When OCR ignored their complaints, their daughters sued OCR. The hockey players complained that by not ordering the athletic association to equalize the tournament facilities, the agency allowed federal funds--those awarded to the athletic association's member schools--to be used to discriminate on the basis of sex, in violation of Title IX.

OCR moved to dismiss the hockey players' claim, arguing that the private right of action under Title IX, acknowledged by the Supreme Court in Cannon v. University of Chicago, only gives individuals a right to sue educational institutions, not a right to sue OCR.

In Cannon, the Court noted that a private lawsuit directly against the the discriminating funding recipients is a less disruptive means of obtaining relief than than a private suit against the agency to compel the agency to enforcement. OCR argued that this statement is evidence that the Court did not intend to extend the the private right of action to include suits against OCR.

But the federal district court judge in Minnesota disagreed and denied the motion to dismiss. He reasoned that the Cannon Court's apparent concern about suits to compel OCR to terminate the federal funding of a school (or association of schools) that violates Title IX does not apply to suits in which the agency itself is accused of violating Title IX.

While I am all in favor of construing rights of action broadly, I'm not sure I find this reasoning persuasive. How is it less disruptive to the agency to be sued directly for a Title IX violation than to be sued to compel enforcement of someone else's Title IX violation? This seems especially unlikely, given the presumption (rebuttable though it may be) that an agency's decision not to take enforcement action is not reviewable by the courts?

The decision is: Cobb v. U.S. Dep't of Educ. Office for Civil Rights, 2007 WL 951688 (D. Minn. Mar. 28, 2007).

Thanks, Al Morganti

Morganti is a sports reporter from New Jersey who gets it.
...when is enough money enough money? It seems no matter how much money a college football program generates, most of the money goes right back into -- you got it -- college football. Otherwise, how can you explain all of these schools with great football programs making the tough decision to cut some other sports. You can blame it all on Title IX if you like, but you can also make a far better intellectual argument that Title IX is the single most important sports story of the past and future generation, because it really did bring about some equality.
The article is not really about Title IX--outside this mention--but about making football better by eliminating the bowl game system and going to a tournament similar to that in basketball.
I don't know if that would really save money or make things better for athletic departments as a whole, because I am not Andrew Zimbalist, but it certainly would demystify the football post-season process.

Waiting for JMU's Response to EIA's Ultimatum

Will JMU postpone the cuts, or will Equity in Athletics add them as a defendant? EIA gave them until Monday (yesterday) to decide, but there's been no word yet.

EIA seems to acknowledged that the remedy they are seeking will not redress their alleged injury, in a comment reported by InsideHigherEd.com:

“What we believe and what people I believe smarter than me believe is that institutions have taken this vehicle called Title IX and have taken liberties and interpretations of it to craft reasons to terminate programs,” Licata said in a Friday interview, acknowledging that even if the group wins the suit, JMU would still be at liberty to offer — and not offer — sports at will. “JMU has said, ‘Hey, we don’t want to do this; we have to do it.’ So if we take that reason out of it, if we’re successful with this, then we’ll find out what their true intentions are.”

In light of comments like this one, I'm rethinking my earlier assessment of EIA's standing to sue the Department of Ed. This seems like a classic lack of redressability, a la Allen v. Wright or Warth v. Seldin. In both of those cases, the Court held that even though the plaintiffs alleged a cognizable injury, they lacked standing because that injury stemmed from a third party, and thus was not necessarily redressable by the relief the court could order from the government defendants. Extending that principle here, it would seem that the loss of opportunity to compete in sports is a cognizable injury, but by EIA's own admission, it stems from a JMU, not the government. Thus, since throwing out the three-prong test (the relief EIA requests) is not necessarily going to redress that injury, EIA should not have standing.

Chronicle Reports on Title IX Conference

By way of addendum to Kris's roundup of coverage of the Title IX Conference in Cleveland, here's a link to an article in yesterday's Chronicle of Higher Education (account/password requried).

The article reports conferencees' opinions on a number of current events related to Title IX, including the U.S. Commission on Civil Rights upcoming hearing on the interest survey policy, the JMU lawsuit, and the CSC's recent report* on the decline in participation opportunities in men's sports.

On the last issue, the both Judith Sweet, a former AD and senior official at the NCAA , and professor/AD emerita Dr. Christine Grant (the reporter erroneously calls her Ms. Grant)** object to the CSC's report for underreporting the increase in opportunties in certain men's sports, which have outpaced declines in other men's sports.

*I'd link, but their website does not appear to be working.

**On further review, it appears to be the Chronicle's policy to forgo the use of the title "Dr." altogether. The paper instead refers to doctorate-holding professors of both sexes as Ms. and Mr. accordingly. I retract and regret my suggestion that this was an error or a dis.

Breaking News: Cert. Denied in Communities for Equity

The Supreme Court announced today that it would not review the 6th Circuit's decision that held Michigan High School Athletic Association in violation of Title IX and the Equal Protection Clause for scheduling a number of girls' sports out of season. According to the Detroit Free Press,

That means that in the next school year, six sports — including girls basketball and volleyball — will switch seasons. Those switches will affect about 70,000 athletes. Michigan high schools must now juggle practice times and scheduling, specifically during basketball season, which starts in December. Schools with limited facilities will feel the crunch the most.

Just to put that last point into perspective: Michigan's separate seasons for girls and boys basketball is unique. Schools in every other state manage to find a way to run girls' and boys' basketball together in the winter. Some might even argue that it's more efficient to have them in the same season, because schools can consolidate travel costs by scheduling double-headers. And it's also worth noting that up to now in Michigan, girls volleyball was a winter sport, so many schools are probably used to having a boys and girls team use the same gym in the winter.

It's also important to keep in mind that the case was not about logistics -- it was about discrimination. The issue was not whether MHSAA could schedule certain sports out of season for reasons relating to facilities or coaching or any other issue of convenience. The issue was, rather, whether it violated Title IX and Equal Protection that all six of the sports that MHSAA did schedule out of sync with the rest of country were girls' sports. The 6th Circuit said it does, and now we know that that decision will stand.

See earlier posts about Communities for Equity here, here, and here.

Conference in the news

Below is a list of the press I have seen regarding this past weekend's Girls and Women Rock Conference in Cleveland. I have added comments about some of the coverage. Please add links/stories you have found and any thoughts you may have.

Many of the stories started with something to the effect of "There's a Title IX conference in Cleveland this weekend" and went on to discuss some women's sport issue. This one from USA Today took this approach mentioning the conference and then discussing the recently released results from the College Sports Council that say, when we consider the growth in the number of NCAA schools men's opportunities have decreased while women's have increased. There are good rebuttals of this "research" including this statement from Jocelyn Samuels of the National Women's Law Center: "Looking at the number of teams and how they have changed is legally irrelevant," Samuels says. "What Title IX demands is equality as measured by individual participation. And men continue to have more opportunities than women." The Washington Post article about the CSC study is not as balanced focusing on the numbers the CSC study came up with, statements from CSC members but only one person who rebutted the CSC claims.

Carrie Lukas of the National Review penned this annoying column last week. She called the conference a "femi-palooza." That was my first hint that this was not going to be a positive article.
Evidence of men’s greater interest in watching and playing sports abounds.[...] Such common sense will be heresy, however, at the Cleveland conference. Many members of the organizations sponsoring the conference recoil from any suggestion that innate differences between the sexes contribute to disparate outcomes, whether on a basketball court or in the workplace. “Discrimination” is the only acceptable explanation when men out-participate or out-perform women, while women’s triumphs ironically are ignored.
When did discrimination become a word that needs quotation marks? Lukas goes on to call us "gender-obsessed handwringers," bemoans the lack of equality we allegedly perpetuate, and then tells us Title IX needs reforming before more men's teams become extinct.
There is a link a the article site through which you can email Lukas. Use it as you see fit.

The Plain Dealer has this coverage of the Billie Jean King luncheon.

Also from The Plain Dealer, this article is about the lack of women coaching intercollegiate athletics but mentions work presented at the conference especially the study done by Cindra Kamphoff of UNC-Greensboro.

Prince George's County Softball Update

You'll recall that last August, the National Women's Law Center negotiated with Prince George's County, Maryland, an agreement to improve athletic facilities for girls' softball.

This recent article from a local paper reports on the progress the county has made toward renovating the dozen fields covered by the agreement. The field at Largo High School has been completely refurbished to include several of the missing safety features that prompted the agreement including dugouts, a warning track and an outfield fence. There is, however, more work to be done to improve the remaining fields, which "still reflect years, even decades of neglect."