Degrees of separation: Title IX and Lorena Ochoa

Lorena Ochoa is hot, hot, hot right now just having won her fourth LPGA title in as many attempts.

But is she is product of Title IX? ESPN commentator Cindy Brunson believes so, or at least lead us to believe so when she compared Ochoa's post-Title IX accomplishments to Mickey Wright's record-setting four straight record that Ochoa tied this past weekend.

This anti liberal media* commentator finds the invocation of Title IX ridiculous in this situation because Title IX is about collegiate sports, he writes, and because Ochoa, like Wright, left college to turn professional after only two years of intercollegiate golf.

Hello, strange bedfellow.

Well I am not exactly on board with his argument. One could make a feasible argument that Ochoa benefited from the support, financial and otherwise, offered to women's golf even in just her two years of playing. Additionally he clearly does not consider how even a narrowly tailored piece of legislation can have a larger cultural impact. Might Lorena Ochoa be just as good an athlete if Title IX had never come about? Certainly. But would the coverage (even as limited as it is these days) of her successes been there without a culture--created, in part, by Title IX--that is gaining a certain amount of respect and interest in women's sport? Maybe not.

But I do have some issues with Title IX being invoked every time a female athlete does something great or record-setting. (I haven't seen any Title IX invocations post Danika Patrick's win this past weekend, thankfully.)

One, Title IX is a fairly nuanced piece of legislation--its legislative and judicial history is anyway. Such invocations erase that history and the present struggles.

Two, success in sports is more than just gender. What kind of class background does Ochoa come from? How has her race factored into her career? We love to talk about Tiger Woods's race and ethnicity but somehow when we talk about Ochoa all that gets mentioned in her gender.

These were not the arguments, of course, proffered by the conservative commentator.





*When ESPN became a bastion of "liberal media" I am not quite sure.

Danica Patrick Wins Indy Japan 300

Danica Patrick, a race car driver in a field overwhelmingly dominated by men, won the Indy Japan 300 on Sunday, becoming the first woman to ever win an Indy car race. The NY Times reports that Patrick had been a popular figure on the racing scene since she placed fourth at the Indy 500 in 2005, but that this victory had put to rest doubts that she could actually win a major race. After her victory, she commented, “this reaches outside racing. This is about finding something you love to do, and following through with it.”

Of course, Patrick is not the only woman involved in car racing. Less than 24 hours after Patrick's win, driver Simona De Silvestro, the only woman in a 23-car field, earned her first win in the Champ Car developmental series.

Another female racer, Sarah Fisher, commented on Patrick's success at the Indy Japan 300: “Today marks the celebration for all of us who have chipped away at the barriers that many women have faced in fields that are dominated by men.”

Another Lawsuit Filed Against FGCU

Florida Gulf Coast University is getting used to federal court. Yesterday it was named in yet another sex discrimination lawsuit, this one brought by former general counsel Wendy Morris, who was terminated last July.

Morris's complaint alleges that she was retaliated against by the former interim president, Richard Pegnetter for urging the University to take seriously the charges of sex discrimination raised by emerita Athletic Director Merrily Dean Baker. Rather than include Morris in the University's official response to the letter -- a response that included calling Baker's claims "unsubstantiated" before conducting any internal investigation into the veracity of her claims -- Pegnetter ensured that Morris could not even obtain a copy of the letter. After urging Pegnetter to retain an independent expert to conduct a Title IX investigation and to allow her office to assist efforts to find and correct Title IX problems, Pegnetter responded by announcing Morris's suspension in a mass email (Morris found out about the suspension from someone who forwarded the email to her). Morris then informed the Trustees of her suspicions that Pegnetter was attempting to cover up Title IX problems, including his decision to suspend her. This was a violation of a gag order that Pegnetter imposed on Morris earlier that year, in response and retaliation for her advice to the Athletics Department that it could not lawfully fire volleyball coach Jaye Flood based on the present contents of her file. (We've blogged about Morris's warnings to Assistant AD Kathy Peterson in prior posts about Flood's separate lawsuit.)

Morris was terminated soon after communicating with the Trustees.

In addition to back pay, she is seeking to ensure that the University forgo any federal funding conditioned on Title IX compliance, as well as a court order that the University comply with Title IX.

We Support Fair Pay

Today, our friends at National Women's Law Center are asking bloggers to help raise awareness about the Lilly Ledbetter Fair Pay Act, which is currently pending in the Senate and is possibly up for a vote in the near future.

As the AAUW recently reported, women still only earn 69 to 80 cents on the dollar for comparable work as men. On our blog, we've written about salary disparities affecting female coaches, teachers, professors, and others employed in the education sector.

The Lilly Ledbetter Fair Pay Act (formerly the Fair Pay Restoration Act) would help ensure that the courts remain open to plaintiffs with pay discrimination claims. Last year, the Supreme Court ruled in a case called Ledbetter v. Goodyear Tire that pay discrimination plaintiffs must file suit within 18o days of the employer's initial decision upon the discriminatory salary in question. But because it understandably takes plaintiffs a couple of pay cycles -- often more than 180 days -- to realize their pay is unfair relative to that of men in similar positions, it may be too late to pursue a legal remedy once they do. The Fair Pay Restoration Act would restore what many lower courts had believed to be the law prior to the Ledbetter decision -- that each discriminatory paycheck creates a new 180 day window for the plaintiff to bring her claim. As such, it would eliminate the rigid and unnecessary obstacle to plaintiffs' claims that currently gives incentives to employers to conceal discriminatory pay policies for the statutory period and quickly immunizes them from suit.

Please urge your Senators to support the Fair Pay Restoration Act. All you have to do visit the NWLC's website -- it's quick, it's easy, and it's important.

Horseplay or Sexual Harassment?

Under Title IX, schools must take reasonable steps to students from sexual harassment by other students. When applying this standard, courts are sometimes called upon to distinguish sexual harassment from other form of bullying, teasing, roughhousing, or horseplay that aren't motivated by the sex or gender characteristics of the victim. A federal district court in Illinois recently had to make this call with respect to a practice called "sac stabbing" (getting hit in the testicles) which was inflicted on the plaintiff, a 12-year-old boy, by his teammates and peers, on an ongoing basis and with the apparent knowledge of the coach and other authority figures. The abuse exacerbated an existing medical condition, causing the plaintiff to require surgery. Even that didn't stop the abuse -- post-surgical incidents of sac stabbing popped the plaintiff's stitches.

In denying the school's motion to dismiss, the court concluded that sac stabbing in this case was sexual harassment actionable under Title IX because the facts supported a conclusion that the school's failure to protect the plaintiff from ongoing abuse was rooted in gender stereotypes. According to the complaint, the school allowed the abuse to continue based on the stereotypical perception that he was "not man enough" and that the school “essentially told [plaintiff] to toughen up and stop acting like a little girl,” to “stick up for himself.”

This decision underscores that there are a variety of ways peer harassment may contains the requisite sexual component to fall under Title IX's protection. Some focus on the abuser's motivation -- such as harassment or bullying motivated by sexual desire, the gender nonconformity of the victim, or the victim's sex directly -- while other's focus on the school's response. Regardless whether the underlying harassment is sexual harassment or asexual horseplay, a school must extend boys the same protection against harassment as it does girls; it cannot use stereotyped notions of masculinity to justify indifference to an ongoing problem.

Decision is: Doe v. Brimfield Grade School, 2008 WL 1722225 (C.D. Ill. Apr. 10, 2008)

URI makes cuts

As anticipated, the University of Rhode Island has been forced to cut teams to compensate for a large university-wide budget deficit. In addition to women's gymnastics which had already been told this would its last season, the university's athletic department has said it will also be eliminating women's field hockey, men's tennis, and men's swimming and diving. Also women's lacrosse will not be elevated to varsity status as had been promised when gymnastics was cut earlier in the year. Title IX expert Janet Judge helped the university as it made its final decision regarding which programs would be cut. Before the cuts URI maintained substantial proportionality. And even with the elimination of gymnastics they were not going to be too far away from that, especially given the plan to elevate lacrosse. I didn't crunch any numbers myself but I assume that Judge did and that these cuts have been made in such a way as to maintain proportionality.

ASU case under radar

Not too long ago we came across this post at the Huffington Post about a Title IX case at Arizona State University that we had never heard of despite its not-so-pleasant similarities to the case at University of Colorado. Ariela Migdal, in a piece about sexual assault and the campus climate, briefly mentions a case brought by a now former ASU student against the university but provides no details. The link to the ACLU, which has filed an amicus brief in the case, says more.
The woman was raped in her dorm room by a football player that the university had expelled because he was a "serial sexual harasser." But they re-admitted him and let him back in the dorms shortly after with no system in place to monitor his actions.
And that is all we have been able to find out about this case which began in 2003.
How ASU has saved itself from all the negative publicity other schools in similar situations have been subjected (or subjected themselves!) to is a mystery.
If we find out more about this one, we'll be sure to report on it.

Pittsburgh Teachers Win $1.2 Million in Pay Discrimination Case

Last week a federal jury awarded $1.2 million to 12 female teachers who had sued their employer, the Elizabeth Forward School District, for discriminating against them on the basis of sex and age. The jury agreed that the plaintiffs were hired at the lowest pay grade even though they had experience from other school districts, resulting in a salary discrepancy between the plaintiffs and other comparably experienced teachers who were younger and/or male.

This was not a Title IX case; instead they chose to pursuing relief under the other federal statutes that address discrimination in the particular context of employment, including the Equal Pay Act, Title VII, and the Age Discrimination in Employment Act. They also sued under Pennsylvania's general antidiscrimination law. Last year, the District lost its effort to dismiss plaintiffs' case on summary judgment. It had argued that younger and/or male teachers were offered hiring starting salaries because they "filled a particular need," but the court noted that the District couldn't back up this generalized explanation with any specific examples of hiring decisions in which "need" was used to justify a higher salary. That district court decision paved the way for jury trial, which resulted in the $1.2 million verdict.

There's no word yet on whether the district will appeal. But it has not had much success doing so in the past. A jury awarded a $204,000 verdict in a similar case in 2005, and the district's appeal was unsuccessful. The district ended up paying about $666,000 to the plaintiffs once attorneys fees and costs were added in.

Case is: Defurio v. Elizabeth Forward School Dist., No. 05-1227 (W.D. Pa.).
Summary judgment decision is at 2007 WL 2752176 (Sept. 19, 2007).

Confusion in Bucks County

The Superintendent of the Central Bucks County School District doesn't quite understand what exactly OCR is seeking in its investigation of the district's athletic departments*.
An anonymous complaint was filed and OCR is collecting information. A representative will be meeting with the superintendent next week in an effort to resolve the complaint which centers on publicity, equipment, and scheduling.
The superintendent, who only recently found out there was a complaint filed thinking instead that the district was undergoing a routine audit process, does not seem to have a great awareness of Title IX which is disappointing given he is a high-level administrator. His confusion over the process is understandable but this statement indicates that he does not even know what Title IX is all about:
“I got the sense that a lot of it had to do with gender equity, because a lot of the questions they asked us were related to how many girls sports, how many boys sports.”
It's also unfortunate that a superintendent does not know what is happening in his own district. Asked for the publicity material he said: "They wanted all our publicity of programs. We don’t even control (game day) programs. Our parent/booster clubs do all that. They asked me how much is spent on publicity, and I said zero. … This has been very strange.”
I find it a little strange as well but for very different reasons.

*Note that this article contains a large mistake about the three-prong test at the very end. The author--who has written extensively about the Title IX issues in Pennsylvania--writes that the third prong contains 11 components.

FGCU Softball Coach Quickly Reinstated

We posted earlier this week about Florida Gulf Coast University's decision on Monday to suspend softball coach Dave Deiros after his player, Roz Tyre, complained that he grabbed her and yelled at her in a threatening manner.

On Wednesday, it was announced that Deiros had been reinstated, despite the Athletic Director's acknowledgment that "placing your hand on a student-athlete’s chest protector is not acceptable behavior."

While Deiros may be back on the job, there's reason to believe that we haven't heard the last of this incident.

First, as News-Press editorialist Deron Snyder points out, FGCU is currently defending a discrimination lawsuit brought by fired volleyball coach Jaye Flood. When Flood was accused of inappropriate contact with student -- tugging her shirt in a game -- she was investigated for five months. The fact that Deiros, a man, was quickly reinstated under similar circumstances, helps Flood make her case that the department was retaliating against her for challenging sex discrimination within the department. Snyder puts it better: "Flood’s sexual harassment case looked like a lay-up beforehand; now it looks like a two-hand slam dunk."

Second, under Title IX, universities may be liable for sexual harassment by a coach, but only if it has notice that there's a problem. Thanks to Tyre, FGCU can consider itself on notice. If Deiros ever touches Tyre or any other player again (and since there seems to be no end in sight to FGCU's sex discrimination woes, lets say this is more likely than not), FGCU is going to have a difficulty defending a Title IX suit.

New CEO for WSF

The Women's Sports Foundation has named a new CEO. Karen Durkin who has been with the NHL most recently and the LPGA prior to that will take over the position from Donna Lopiano who resigned last summer.

Correcting the misinformation

It seems to be my purpose in life, or at least on this blog, to find all the bits of misinformation perpetuated by sport writers about Title IX, become quite irate and then correct them on this blog and often in a letter to the writer and/or editor.
Sometimes they seem very little especially when the intent clearly is not malicious (though there are plenty of those cases too). But the misinformation is presented so matter-of-factly that it is clear the writers have no idea that they are just plain wrong and that they are adding to the considerable backlash.
A few weeks ago [I lost the link, sorry] a writer in Indiana expressed sympathy for boys' volleyball which gets little recognition because it is not a sport sanctioned by the Indiana High School Athletics Association. He encouraged IHSAA to add the sport but noted that the obstacle has been Title IX which mandates state athletic associations sanction the same number of boys' and girls' sports. Well not quite. Title IX's mandate for equity doesn't directly affect athletic associations--it affects the schools that belong. IHSAA has likely not sanctioned boys' volleyball because its member schools probably already have compliance problems in the area of equitable opportunities.
And then today I read a feature on a wrestler from University of New Hampshire who won a national title at the National Collegiate Wrestling Association championships. Good for him. Not so good was the writer who failed to correct the UNH coach who said that the level of competition is pretty intense at these championships because they are comprised of club teams that are former DI programs cut by Title IX. It was said in passing and was incorporated into the story in the same manner. And it is completely false as we have discussed here too many times already. It's budget and interest. And we know this is true at UNH. By the time Ebuz and I got to UNH wrestling was already a club sport, but we did go through a round of cuts that were all about the budget. UNH has since undergone another set of cuts that are again due to budget shortfalls and budget priorities that the administration will not alter. They aren't crying that Title IX forced their hand in the same way JMU has but maybe they should inform their wrestling coach about why wrestling was really cut.

ACLU Wants Greene County Segregation Plan

The ACLU is invoking a state open records law to request a copy of the plan to segregate schools by sex that Greene County, Georgia, abandoned last month. Because the county indicated that it would go forward with this or a similar plan in the future, the organization is concerned that the county is relying on stereotypes and "questionable 'brain science' theories that suggest that boys and girls should be treated radically differently." The ACLU points out that there is no scientific consensus that single-sex education is beneficial to students, something recognized even by the Department of Education, whose regulatory change in 2006 paved the way for single-sex public education.

I'm glad that the ACLU is requesting the plan. If, as they suspect, it contains a demonstrably false or questionable scientific premise (or no premise at all), it will raise awareness about the absence of critical thinking around this issue.

More trouble at FGCU

Yesterday, Florida Gulf Coast University reportedly suspended Dave Deiros, head softball coach, after a player charged him with assaulting her at Saturday's practice. The player, catcher Roz Tyre, filed a complaint with the campus police claiming that Deiros twice grabbed her chest protector and shook her. Tyre did not talk to the press, but according to her complaint, a verbal dispute began when she asked for permission to sit out a throwing drill due to injury:

I proceeded to go over and talk to him, where he approached me and grabbed me with both hands in a tight grip by my chest protector, in line with the sides of my breasts....I told him to let go of me now, and pushed his shoulders in my defense....He came back and grabbed me in the same manner a second time. I again told him to let go of me and to get his hands off me....I no longer felt it was a situation of coach to athlete, but man to woman.

Deiros's suspension is just the latest chapter in FGCU athletic department's ongoing sex discrimination saga. Last summer, former AD Merrily Dean Baker accused the athletic department of violating Title IX by, among other things, supporting a hostile, intimidating atmosphere for female coaches. Then, last fall, FGCU suspended and then fired then-assistant coach Gina Ramacci after investigating (but failing to corroborate) charges that she had an an inappropriate relationship with a player. Ramacci is challenging her termination as discriminatory on the basis of her perceived sexual orientation. FGCU also suspended, and later terminated former head volleyball coach Jaye Flood, who has been accused of having a relationship with a student, as well as tugging on a player's shirt during a game. But she claims that the investigation and subsequent termination was really retaliation for supporting Dean Baker's report. Another former coach, Holly Vaughn, also received negative performance evaluations after supporting those charges, and since resigned. If there is, as Dean Baker says, a hostile, intimidating environment for coaches in the athletic department, perhaps this provides some context for the hostile, intimidating environment for female athletes as well.

URI considering cuts

The University of Rhode Island decided recently to cut women's gymnastics citing the decrease in the the sport's popularity in the region. At that time it promised to add women's lacrosse in 2009. But recent budget issues (every university department is being required to scale back)have made that addition nearly impossible and it seems like cutting other sports is under serious consideration.
University administrators are considering a variety of options, however, and note that cutting teams is not something they want to do but that eliminating $800,000 of the budget will be difficult without cuts even if they can come up with a plan to increase revenues. They have also said they will be consulting a Title IX expert regarding cuts.
But right now, even after cutting women's gymnastics, URI looks pretty safe. With or without gymnastics they are firmly within 5% proportionality.
Hopefully this will mean that when the decisions as to which teams to cut are made we won't be hearing a lot of "because of Title IX, URI has cut men's....." We shall see.

Retaliation Case Against Clark College May Proceed to Trial

Last week, the Washington state court of appeals reversed a lower court decision that had granted a summary judgment victory to Clark College (Vancouver, WA) in its litigation with former women's basketball coach, Trev Kiser. In 2002, Clark College terminated Kiser's contract. Kiser sued under Title IX and a state law, alleging that he was terminated in retaliation for complaining about the disparities between men's and women's basketball programs that related to the quality of officiating, budget, travel arrangements, and the athletic director's hostility towards the women's team. The College argued that Kiser was fired for mismanaging team funds, including possibly pocketing some of the team's per diem money and indisputably receiving reimbursement for gas he didn't pay for. A trial judge granted the College's motion for summary judgment, and Kiser appealed.

The appellate court reversed the trial court and reinstated Kiser's case. At issue on appeal was the nature and sufficiency of evidence a retaliation plaintiff needs to proffer to avoid losing at summary judgment. For an employer to win an employment discrimination case on summary judgment, it must provide conclusive and uncontroverted evidence of its nondiscriminatory explanation for firing the plaintiff. The appellate court determined that Kiser provided enough evidence to cast doubt on the College's explanation that it fired him for mismanaging funds. In particular, Kiser alleged, and the College did not deny, that the athletic director threatened Kiser with losing his job if he didn't refrain from making Title IX allegations. "This threat presents direct evidence of a nexus between the retaliatory motive and the employment decision sufficient to suggest that the College's stated reasons for termination were pretextual," said the court. This is enough to prevent the College from winning on a summary judgment. A trial is necessary to resolve the disputed questions about Clark's allegedly retaliatory motive.

Decision: Kiser v. Clark College, 2008 WL 788685 (Wash. App. Div., March 25, 2008).

Student Letter Defends Title IX

As Title IX fans, we admire people who challenge the ignorant and sexist rhetoric that is often used to demonize the law and women's equality in athletics. As professors, we love it even more when the people mounting that challenge are students. So we give a Title IX Blog tip o' the hat to Notre Dame sophomore John Witty (who, a google search reveals, hails from Iowa, one of our favorite states) for penning the following letter to his student paper.

When I started reading Greg Yatarola's column, "The tyranny of Title IX," it was April 2nd, 2008, but when I looked up from my paper it was 1950. The world had gone black and white, Notre Dame hadn't admitted women, and apparently, people cared about wrestling.

The fact that Yatarola feels that wrestling should be priority No. 1 for the University, which frankly has more important things to worry about, isn't the worst part. Even worse is the fact that he discounted every athlete, coach, staffer, or fan of women's athletics at Notre Dame and beyond. From his sweeping claims that men are physically superior, to his inappropriate and unnecessary drop-in comment about women athletes being "comfort women," Yatarola is the exact kind of person that Title IX responds to.

There are some who agree and some who disagree with Title IX, so let me try to put it into phrasing that Yatarola might understand - Title IX is a disgrace. It's an absolute injustice, for no other reason than it is a relatively small attempt to apologize and make up for the massively one-sided, unfair, and unequal past treatment of women in the collegiate atmosphere. Its embarrassing existence is a painful reminder that our society actually had to write into law something that should have been a given in the first place - women deserve equal and just treatment. Yes there are flaws present in the implementation of Title IX, but since then, our female athletes have been able to pursue professional careers in sports, Muffet McGraw and Randy Waldrum (among others) have built nationally-ranked and recognized programs, and women's athletics has grown exponentially, and this is just at Notre Dame.

It may be just my opinion, but if all we lost for this growth was a dead-weight wrestling program 16 years ago, I'd say we're doing just fine. And Greg, if you're hard up for some tough, hard-nosed, and "hopelessly working-class" competition, tune in Sunday to ESPN to see the coach with the most wins, male or female, in college basketball. Her name is Pat Summit and she's coaching the Tennessee Lady Volunteers. And to think, she wouldn't have 7 national championships and all those wins - if only Notre Dame kept a wrestling program.

While I wholeheartedly applaud Mr. Witty's takedown of the sexism imbued in the prior letter, I do want to make clear my belief that wrestling and Title IX are not and need not be mutually exclusive. In fact, Title IX supporters and wrestlers should be allies. We have a common enemy in the historic and continuing practice on the part of university athletic departments to grow and increase spending for certain, privileged men's sports at the expense of both women's sports and other men's sports.

Checking in with Billie Jean

Cokie Roberts has an interview with Billie Jean King in this weekend's USA Weekend magazine. They talk about the state of women's sports, Hillary Clinton, history and the future. Remember, the Sports Museum of America opens next month in Manhattan. One wing is dedicated to housing the Billie Jean King International Women's Sports Center.

In somewhat related news: softball player Jessica Mendoza has been elected the new president of the Women's Sports Foundation and will take office in 2009--after her participation in the 2008 Summer Games.

The not so implausible joke

April Fool's Day came and went here at the Title IX blog. At least I thought it had until I started reading this article in the University of Buffalo student newspaper about officially changing the women's team nicknames to the Lady Bulls after years of just being the Bulls. I was aghast and I did not recognize the joke right away because, frankly, so little surprises me these days about the efforts some people go to to keep women's sports in an inferior position. And the (concocted) reasoning the "article" attributed to administrators about a separate identity and greater recognition and honor and protection from being deemed too masculine are not at all unusual. They have been proffered for years as a rationale for the Lady nickname.
What finally tipped me off? The "fact" that a fan group had proposed--and the administration accepted--simply calling them the Cows, because, after all, that's what Lady Bulls are.
And now that a wave of relief has washed over me I think it's a pretty funny article and it shows that there are people out there who get just how ridiculous this practice is. Phew.

Discrimination hurts

And the hurt is going to be felt most acutely by the Michigan High School Athletic Association which was recently ordered to pay the legal fees associated with its decade plus-long battle against a group of parents who, among other things, asked that girls' sports be played in their correct seasons. A federal judge has ordered the association to pay $7.4 million in attorney fees, most of which will go to lawyer Kristen Galles who represented what became Communities for Equity.
I do not want to belittle the concerns that the judgment will potentially bankrupt the organization (depending on what kind of payment agreement Galles and MHSAA reach) which will ultimately hurt student-athletes. But readers should not forget that MHSAA had the chance to work out a settlement that would have exempted them from attorney fees. It chose to continue the 12-year battle (which cost them over $10 million) saying that it had enough money to keep fighting. They have caused a significant amount of hurt themselves in perpetuating discrimination.
It will be interesting to see one, what comes of this particular situation, and two whether this judgment has an effect on the thoughts and actions of groups that keep fighting losing battles (a court ruled against MHSAA as early as 2001) to maintain their discriminatory practices.