South Carolina State University fired its head basketball coach last week. Jamal Brown was fired, according to university reps because he "violated the university's obligations under Title IX."
Because this is a personnel matter, and because the violations could result in litigation the university will not release any more details. This means we are left to speculate. Erin thinks the only thing the vague official comments could mean is that Brown was involved in some kind of harassment situation.
This was Brown's first season at SC State and it was losing one with a 13-17 record. But apparently there were even bigger problems.
4/2 UPDATE: This article actually sheds a little more light on the situation with Brown and SC State. He has been investigated for a relationship with a team trainer who has said the relationship was a professional one. So reading between the lines it seems that the school has dismissed him because perhaps he was less than cooperative during the investigation. Or at least that is the official reason.
Saturday, March 31, 2007
Friday, March 30, 2007
NYT on Cheerleading Injuries
As we've noted in the past, one argument we frequently hear for "counting" cheerleading as a sport is safety. Treating cheerleaders like athletes would give them access to athletic department resources for injury prevention, protection, and treatment, like trainers, physicians, and trained coaches. Additionally, if cheerleading was a sport, a conference or govering body could more effectively regulate dangerous activity.
In light of these arguments, I was interested in this recent article in the New York Times that describes cheerleading's high risk of injury. Cheerleading has a high injury rate per participate relative to other sports:
The article does not address whether bringing cheerleading programs under the aegis of athletic departments would make cheerleading safer. It does point out that some states have imposed safety regulations on cheerleading directly, though enforcement of such laws could be stronger.
That said, this article doesn't help settle whether cheerleading should be a sport. But you can't read the data and the stories of individual injuries and deaths and escape the conclusion that sport or not, cheerleading should be as safe as one.
In light of these arguments, I was interested in this recent article in the New York Times that describes cheerleading's high risk of injury. Cheerleading has a high injury rate per participate relative to other sports:
Of 104 catastrophic injuries sustained by female high school and college athletes from 1982 to 2005 — head and spinal trauma that occasionally led to death — more than half resulted from cheerleading, according to the National Center for Catastrophic Sports Injury Research. All sports combined did not surpass cheerleading.The article also provides statistics on the increase in cheerleading injuries over times, data that support a conclusion that cheerleading stunts are becoming increasingly more risky.
The article does not address whether bringing cheerleading programs under the aegis of athletic departments would make cheerleading safer. It does point out that some states have imposed safety regulations on cheerleading directly, though enforcement of such laws could be stronger.
That said, this article doesn't help settle whether cheerleading should be a sport. But you can't read the data and the stories of individual injuries and deaths and escape the conclusion that sport or not, cheerleading should be as safe as one.
Wednesday, March 28, 2007
See You in Cleveland!
Kris and I are off to the Title IX Conference in Cleveland. I'm sure we'll have lots to blog about when we get back!
Legislative Updates in California, Iowa
California's legislature is considering legislation that would protect GLBT students from bullying, similar to legislation that passed in Iowa earlier this year. According to Equality California, the group that is spearheading the lobby effort:
Nearly 8 percent of California students report being harassed because of their actual or perceived sexual orientation, according to the 2004 Safe Place to Learn report issued by the California Safe Schools Coalition and the 4-H Center for Youth Development at UC-Davis. In addition, more than 91 percent of all youth report hearing students make negative comments based on sexual orientationMeanwhile, Iowa legislators seem to have decided that protecting gay students was such a good idea that they might as well protect all gay Iowan from discrimination. The state senate recently voted to add sexual orientation to the statewide nondiscrimination bill that covers employment and public accommodations.
Tuesday, March 27, 2007
New Jersey HS Football Perks May Violate Title IX
OCR is investigating a complaint against Phillipsburg (NJ) High School that its preferential treatment of football violates Title IX. The Express-Times reports:
According to the complaint, football players were given free game-day breakfasts, post game parties in the school, shirts, rings and jackets.
The complainant alleges football players were provided SAT tutoring and allowed to practice during the school day. The complainant also claims the football, boys basketball and wrestling teams hire a paid videographer for all games while the girls basketball team only has home games taped.
Another local paper, the Morning Star, adds that one school board member who supports the charges discovered on his own "several inequities including that the varsity baseball coach earns more than the varsity softball coach, and there is a baseball program but no softball program at the middle school." Now it's not per se unlawful to pay a boy's team coach more than a girl's team coach, or to field baseball but not softball. But if the rest of the allegations against Phillipsburg hold true, the greater the likelihood that that these isssues are part of inequality at the program level. If OCR does find that the school has treated the boys athletic program better than the girls athletic programl, then it will likely leverage the threat of lost federal funding to compel the school to come into compliance.
Monday, March 26, 2007
"Responsible Fatherhood" Initiative Draws Complaint
Legal Momentum and NOW have filed administrative complaints with the U.S. Department of Health and Human Services to challenge the agency's award of $80 million in grants under the 2006 "Responsible Fatherhood" program authorized by Congress last year. The organizations complain that the agency's decision to award the money only to programs that benefit men violates Title IX.
Many of the benefited programs provide job training and education (and thus covered under Title IX). For example, one recipient in Connecticut, The Fortune Society, received $250,000 a year for a “Promoting Responsible Fatherhood Project” that will serve “primarily African American and Latino fathers” and which “will provide a minimum of 120 criminal justice involved fathers and husbands” services that will include among others “job readiness training,” “financial planning seminars."
Legal Momentum and NOW do not dispute the importance of such job training opportunities in underserved communities, but argue that women's programs should be equally served by the federal grants -- especially considering that women earn less than men and are more likely to be disadvantaged by single parenthood.
Many of the benefited programs provide job training and education (and thus covered under Title IX). For example, one recipient in Connecticut, The Fortune Society, received $250,000 a year for a “Promoting Responsible Fatherhood Project” that will serve “primarily African American and Latino fathers” and which “will provide a minimum of 120 criminal justice involved fathers and husbands” services that will include among others “job readiness training,” “financial planning seminars."
Legal Momentum and NOW do not dispute the importance of such job training opportunities in underserved communities, but argue that women's programs should be equally served by the federal grants -- especially considering that women earn less than men and are more likely to be disadvantaged by single parenthood.
A conversation at Berkeley
Interesting "conversation" in the editorial pages of the UC Berkeley paper, The Daily Californian. Over a week ago, Olympic swimmer and long-time Title IX advocate, Donna de Varona, wrote this opinion about the state of Berkeley athletics. She cites the university's history of providing equitable opportunities for women but also the recent backsliding she has seen due to a variety of factors. (I won't rehash the details which she does a good job providing.)
A week later, this piece by the vice chancellor of admissions, Nathan Bostrom, appeared in response to de Varona's. Unfortunately Bostrom does not really take on any of the issues de Varona raised. He believes it was "ironic" that de Varona's piece was published the same week female athletes won six national titles (in track/field and swimming). He cites the numerous titles won by women's teams at Berkeley. He gives Berkeley's standing in the Pac-10 in terms of number of female athletes and women's teams. He talks about growth and championships and conference titles. This is all well and good--in fact it looks quite impressive. But it does not address de Varona's concerns but gender equity, because you cannot talk about equity and only gives facts and figures about the women's program. It is all relative. It does not matter how many female athletes Berkeley has in comparison to the rest of the Pac-10. It matters how proportional their female athletes are to their undergrad population. Within conference school sizes differ so saying you have one of the highest numbers of athletes does not mean all that much.
Bostrom uses the tactics of someone in admissions: he praises the program; he shows why Berkeley women's athletics are good.
De Varona takes the stand of a women's sports advocate who understands how to measure gender equity.
A week later, this piece by the vice chancellor of admissions, Nathan Bostrom, appeared in response to de Varona's. Unfortunately Bostrom does not really take on any of the issues de Varona raised. He believes it was "ironic" that de Varona's piece was published the same week female athletes won six national titles (in track/field and swimming). He cites the numerous titles won by women's teams at Berkeley. He gives Berkeley's standing in the Pac-10 in terms of number of female athletes and women's teams. He talks about growth and championships and conference titles. This is all well and good--in fact it looks quite impressive. But it does not address de Varona's concerns but gender equity, because you cannot talk about equity and only gives facts and figures about the women's program. It is all relative. It does not matter how many female athletes Berkeley has in comparison to the rest of the Pac-10. It matters how proportional their female athletes are to their undergrad population. Within conference school sizes differ so saying you have one of the highest numbers of athletes does not mean all that much.
Bostrom uses the tactics of someone in admissions: he praises the program; he shows why Berkeley women's athletics are good.
De Varona takes the stand of a women's sports advocate who understands how to measure gender equity.
Sunday, March 25, 2007
Former College Soccer Coach Brings Retaliation Suit
The Fargo-Moorhead Forum reports on an ongoing lawsuit between Minnesota State University Moorhead and its former women's soccer coach, Eric Swanbeck. Swanbeck sued in state court over a year ago under Title IX and a state whistleblower protection statute, alleging that the university refused to renew in contract in retaliation for bringing a Title IX complaint on behalf of his team in 2003. According to the article, we will find out in the coming weeks whether the court will dismiss the charges or schedule a trial for summer 2007.
A lot of facts seem to be at issue, raising the possibility of a trial. Some former players lodged complaints against Swanbeck in 2002 and 2003, which Swanbeck explains as resistance to his "high standards [of behavior] on and off the field." MSUM will try to show that it decided not to renew Swanbeck for these or related reasons, which is their right, instead of in retaliation for his Title IX complaint, which is unlawful.
FWIW, Swanbeck's complaint to OCR forced Minnesota State Moorhead to agree to make repairs and renovations to various women's sports facilities.
A lot of facts seem to be at issue, raising the possibility of a trial. Some former players lodged complaints against Swanbeck in 2002 and 2003, which Swanbeck explains as resistance to his "high standards [of behavior] on and off the field." MSUM will try to show that it decided not to renew Swanbeck for these or related reasons, which is their right, instead of in retaliation for his Title IX complaint, which is unlawful.
FWIW, Swanbeck's complaint to OCR forced Minnesota State Moorhead to agree to make repairs and renovations to various women's sports facilities.
Friday, March 23, 2007
Reflections on JMU Lawsuit
On Monday, Equity in Athletics sued the Department of Education in federal court to challenge Title IX and the three-part test applied to athletics. Equity in Athletics is motivated to challenge Title IX by JMU's recent decision to cut 10 (men's and women's) teams. Here are some early reflections on the lawsuit:
The argument: EIA argues that the problem with Title IX is that the three-part test has been applied with the force of law instead of mere policy. The complaint chronicles the procedural history of the three-part test, including that, in 1979, regulators characterized the three-part as nonbinding, interpretive guidance document rather than mandatory regulation precisely to avoid certain procedural requirements that apply to Title IX regulations (like a presidential signature). EIA then suggests that if the 1979 three part test was invalid, a "relative interest" standard would apply by operation of the Title IX regulations that had earlier been promulgated in 1975. "Relative interest" means that if men are more interested in sports than women, they should have a greater share of opportunity (or, a lesser share of any cuts). The problem with such a standard, I believe, is that interest tends to follow opportunity. As proof, consider how women's interest in sports has increased exponentially since Title IX was passed -- because the statute required schools to add opportunity. A "relative interest" standard would only insulate the inequities of the status quo. Fortunately, the federal courts have tended to reject universities' attempts to construe prong three as a relative interest test. However, none have considered the question in precisely this way--i.e., that relative interest standard applies by virtue of the 1975 regulations rather than the three-part test.
The defendant: I earlier reported -- in error, I regret -- that EIA was suing JMU. I'm obviously wrong about that, but wouldn't a suit against JMU make more sense? For one thing, the Department of Education had nothing to do with JMU's decision to cut 10 teams. They were not investigating the school or considering any enforcement action against it. JMU voluntarily chose to cut 10 teams. And it voluntarily chose to make such cuts as would put it in compliance with the proportionality prong, instead of one of the other alternative prongs. This is surely represents "choice," given that JMU had the option of administering a survey to establish compliance with prong three without cutting or adding any sports. Thus, winning a lawsuit against the DOE would not restore the 10 teams cut at JMU. All JMU would have to say is that it cut 10 sports because it couldn't afford to keep so many teams. Nor does it violate the law to cut more men's teams than women's, given that women had relatively fewer opportunities to start with. In other words, there is no reason to believe that even if the three-part test was invalidated, JMU could and would still do exactly the same thing.
EIA seems to accept this, and acknowledges in its complaint that JMU might in fact be an indispensable defendant. Leaving them out of the complaint -- for now -- seems to be a strategy to get JMU to agree to defer the cuts until the litigation has concluded: "If EIA cannot expeditiously convince JMU to defer its cuts pending the completion of this litigation against the federal defendants, EIA will amend this Complaint to include JMU and its Board of Visitors, ensuring this Court’s ability to provide complete relief."
The plaintiff: According to the complaint, Equity in Athletics is a broad coalition of athletes, future athletes, fans, alumni, coaches, and others with connections to intercollegiate athletics at federal funded schools in Virginia. By including athletes and future athletes, EIA seems likely to avoid the standing problems that the National Association of Wrestling Coaches had. One interest that is not mentioned in the complaint is the financial interest of EIA's principle donor, Brute Wrestling, "the world’s largest supplier of wrestling gear." Unless additional facts emerge that show Brute Wrestling is more than a donor but controlling the litigation, it is unlikely that the federal court would find its interest relevant to the case.
The argument: EIA argues that the problem with Title IX is that the three-part test has been applied with the force of law instead of mere policy. The complaint chronicles the procedural history of the three-part test, including that, in 1979, regulators characterized the three-part as nonbinding, interpretive guidance document rather than mandatory regulation precisely to avoid certain procedural requirements that apply to Title IX regulations (like a presidential signature). EIA then suggests that if the 1979 three part test was invalid, a "relative interest" standard would apply by operation of the Title IX regulations that had earlier been promulgated in 1975. "Relative interest" means that if men are more interested in sports than women, they should have a greater share of opportunity (or, a lesser share of any cuts). The problem with such a standard, I believe, is that interest tends to follow opportunity. As proof, consider how women's interest in sports has increased exponentially since Title IX was passed -- because the statute required schools to add opportunity. A "relative interest" standard would only insulate the inequities of the status quo. Fortunately, the federal courts have tended to reject universities' attempts to construe prong three as a relative interest test. However, none have considered the question in precisely this way--i.e., that relative interest standard applies by virtue of the 1975 regulations rather than the three-part test.
The defendant: I earlier reported -- in error, I regret -- that EIA was suing JMU. I'm obviously wrong about that, but wouldn't a suit against JMU make more sense? For one thing, the Department of Education had nothing to do with JMU's decision to cut 10 teams. They were not investigating the school or considering any enforcement action against it. JMU voluntarily chose to cut 10 teams. And it voluntarily chose to make such cuts as would put it in compliance with the proportionality prong, instead of one of the other alternative prongs. This is surely represents "choice," given that JMU had the option of administering a survey to establish compliance with prong three without cutting or adding any sports. Thus, winning a lawsuit against the DOE would not restore the 10 teams cut at JMU. All JMU would have to say is that it cut 10 sports because it couldn't afford to keep so many teams. Nor does it violate the law to cut more men's teams than women's, given that women had relatively fewer opportunities to start with. In other words, there is no reason to believe that even if the three-part test was invalidated, JMU could and would still do exactly the same thing.
EIA seems to accept this, and acknowledges in its complaint that JMU might in fact be an indispensable defendant. Leaving them out of the complaint -- for now -- seems to be a strategy to get JMU to agree to defer the cuts until the litigation has concluded: "If EIA cannot expeditiously convince JMU to defer its cuts pending the completion of this litigation against the federal defendants, EIA will amend this Complaint to include JMU and its Board of Visitors, ensuring this Court’s ability to provide complete relief."
The plaintiff: According to the complaint, Equity in Athletics is a broad coalition of athletes, future athletes, fans, alumni, coaches, and others with connections to intercollegiate athletics at federal funded schools in Virginia. By including athletes and future athletes, EIA seems likely to avoid the standing problems that the National Association of Wrestling Coaches had. One interest that is not mentioned in the complaint is the financial interest of EIA's principle donor, Brute Wrestling, "the world’s largest supplier of wrestling gear." Unless additional facts emerge that show Brute Wrestling is more than a donor but controlling the litigation, it is unlikely that the federal court would find its interest relevant to the case.
Thursday, March 22, 2007
Portland Resigns
Rene Portland has resigned her position as head coach of Penn State's women's basketball team.
In answer to my first question,
On the other hand, a reporter at Scout.com cites "a source close to the situation [who] said Portland was given an ultimatum by the university last Friday -- step down or be dismissed."
In answer to my first question,
"This did not have anything to do with the lawsuit to our knowledge,'' Karen Doering, attorney for Harris at the National Center for Lesbian Rights, said regarding Portland's resignation.AD Tim Curley affirmed that Portland was not forced to resign, and that he wasn't surprised by her decision.
On the other hand, a reporter at Scout.com cites "a source close to the situation [who] said Portland was given an ultimatum by the university last Friday -- step down or be dismissed."
Law.com Addresses Communites for Equity
Earlier this year, the Michigan High School Athletic Association petitioned for Supreme Court review of the Sixth Circuit's decision in MHSAA v. Communities for Equity, that its decision to schedule girls sports "out of season" violates the Equal Protection clause and Title IX.
We still don't know for sure whether the Supreme Court will grant cert and hear the case -- for the second time -- but the authors of the "Conference Call" column at Law.com consider it a "likely candidate" for Supreme Court review.
We've written about the 6th Circuit decision (see here and here), which Conference Call describes as presenting the following two questions:
We still don't know for sure whether the Supreme Court will grant cert and hear the case -- for the second time -- but the authors of the "Conference Call" column at Law.com consider it a "likely candidate" for Supreme Court review.
We've written about the 6th Circuit decision (see here and here), which Conference Call describes as presenting the following two questions:
Whether differences in single-sex programs are constitutional unless the plaintiff can prove either discriminatory animus or that the programs are substantially unequal overall; andWe'll know soon--possibly by April 2--whether the Supreme Court will take the case or let the 6th Circuit decision stand.
whether Title IX of the 1972 Education Amendments is the exclusive remedy for gender discrimination by federal fund recipients in their athletic programs.
Title IX doesn't apply to high schools?
This is one of my "will sports writers please learn what Title IX is" posts.
The latest misinterpretation of Title IX is fairly egregious and comes from Andover, MA where Eagle Tribune sports writer Dave Dyer has written an article about the possibility of adding varsity wrestling at Andover High School. According to the article there is a very strong club program at both the middle and high school; and the Merrimack Valley Conference, of which Andover is a member, is a known wrestling powerhouse.
A few things need to be worked out. First, the costs. There seems to already be a strong parent booster association in place but the school would still likely have to cover some of the costs of adding the program.
And then there is Title IX.
The Andover principal said a girls' sport would have to be added if wrestling went to varsity status.
Dyer, though, has his doubts about this claim:
...and Title IX is more a guideline at the high school level rather than the strict mandate it is for colleges. There are plenty of schools in the region that have at least one or two more boys sports than girls sports.
A guideline? No, actually it's a federal statute that mandates equity in athletics in educational institutions receiving federal monies. Now I know Andover is a pretty wealthy community, but I am pretty sure they receive federal dollars.
Issues regarding access to sport opportunities have certainly been focused on colleges and universities but that does not mean high schools can take or leave Title IX. There is no national governing body like the NCAA in high school sports. And as problematic as the NCAA has been, it does require institutions to report on issues of gender equity. To date most investigations of Title IX violations at high schools are instigated by concerned parents and community members who believe something is amiss and file a complaint with OCR.
More attention is being paid to high school athletic departments, though, and if Senator Snowe's proposal to make high school athletic departments report their distribution of opportunities and monies similar to the way universities must, more attention is forthcoming.
Clearly there is a need for more attention because although Dyer's assertion that there are more boys' teams than girls' teams at many high schools (as a way to justify adding wrestling without adding a girls' sport) reveals that he misunderstands that equity is not based on number of teams but number of spots/opportunities, his observation probably means that high school girls in Massachusetts are being denied equitable opportunities.
Dyer also notes that girls can become members of the wrestling team as they have at other area schools. This could indeed happen (though Title IX would not mandate access to wrestling because it is a contact sport) and is certainly welcome from my point of view, but unless there are equal numbers of girls and boys then distribution of opportunities is still an issue. [This is all assuming that Andover is already in compliance with Title IX.]
We shall have to wait and see what transpires.
The latest misinterpretation of Title IX is fairly egregious and comes from Andover, MA where Eagle Tribune sports writer Dave Dyer has written an article about the possibility of adding varsity wrestling at Andover High School. According to the article there is a very strong club program at both the middle and high school; and the Merrimack Valley Conference, of which Andover is a member, is a known wrestling powerhouse.
A few things need to be worked out. First, the costs. There seems to already be a strong parent booster association in place but the school would still likely have to cover some of the costs of adding the program.
And then there is Title IX.
The Andover principal said a girls' sport would have to be added if wrestling went to varsity status.
Dyer, though, has his doubts about this claim:
...and Title IX is more a guideline at the high school level rather than the strict mandate it is for colleges. There are plenty of schools in the region that have at least one or two more boys sports than girls sports.
A guideline? No, actually it's a federal statute that mandates equity in athletics in educational institutions receiving federal monies. Now I know Andover is a pretty wealthy community, but I am pretty sure they receive federal dollars.
Issues regarding access to sport opportunities have certainly been focused on colleges and universities but that does not mean high schools can take or leave Title IX. There is no national governing body like the NCAA in high school sports. And as problematic as the NCAA has been, it does require institutions to report on issues of gender equity. To date most investigations of Title IX violations at high schools are instigated by concerned parents and community members who believe something is amiss and file a complaint with OCR.
More attention is being paid to high school athletic departments, though, and if Senator Snowe's proposal to make high school athletic departments report their distribution of opportunities and monies similar to the way universities must, more attention is forthcoming.
Clearly there is a need for more attention because although Dyer's assertion that there are more boys' teams than girls' teams at many high schools (as a way to justify adding wrestling without adding a girls' sport) reveals that he misunderstands that equity is not based on number of teams but number of spots/opportunities, his observation probably means that high school girls in Massachusetts are being denied equitable opportunities.
Dyer also notes that girls can become members of the wrestling team as they have at other area schools. This could indeed happen (though Title IX would not mandate access to wrestling because it is a contact sport) and is certainly welcome from my point of view, but unless there are equal numbers of girls and boys then distribution of opportunities is still an issue. [This is all assuming that Andover is already in compliance with Title IX.]
We shall have to wait and see what transpires.
Wednesday, March 21, 2007
New Scholarship Suggests Title IX Policy Look to Canada
A new article in the UC Davis Journal of Juvenile Law & Policy suggests that Title IX policy in the context of student harassment should use Canada's approach to protecting human rights as a model for reform. From the abstract:
The article is: Brianne I. Weiss, Title IX Versus Canadian Human Rights Legislation: How the United States Should Learn from Canada's Human Rights Act in the Context of Sexual Harassment in Schools, 11 UC Davis J. Juvenile L. & Pol'y 55 (2007).
This article critically examines the success of Title IX in eradicating sexual harassment in educational settings following the Supreme Court decisions in Gebser v. Lago and Monroe v. Davis. Regrettably, the high bar for recovery established by these cases, in addition to poor administrative enforcement of Title IX, have eroded the legislation's ability to maintain discrimination-free schools. After examining how the Canadian human rights model operates in the context of sexual harassment in educational settings, the United States should refer to the Canadian model to improve its own system. Specifically, the United States should streamline and simplify its administrative enforcement of Title IX and articulate clearer legal standards for injunctive relief as opposed to recovery of compensatory damages.One notable difference between the U.S. and Canada is that in Canada, sexual harassment and other charges of human rights violations are considered in special administrative tribunals rather than the judicial system. The author suggests that these "human rights tribunals, though impartial, are in a particularly good position to properly adjudicate discrimination complaints because their sole jurisdiction and experience is in human rights law."
The article is: Brianne I. Weiss, Title IX Versus Canadian Human Rights Legislation: How the United States Should Learn from Canada's Human Rights Act in the Context of Sexual Harassment in Schools, 11 UC Davis J. Juvenile L. & Pol'y 55 (2007).
Tuesday, March 20, 2007
Is Girls' Weightlifting the Solution to Title IX Compliance Problems?
Yes, says Jackie Metcalf, who coaches female high school weightlifters in Florida. In a recent article in the New York Times, Metcalf expressed surprise that her state is the only one to sanction girls' weightlifting as an official sport, “because it’s a great way to get girls involved for gender equity. You don’t have to be a skilled athlete to do this.”
In addition to being inclusive of those less coordinated, weightlifting offers athletic opportunity to girls of different sizes and body types, and unlike the country club sports popular in wealthier areas of the state, weightlifting is accessible to participants of various economic means. And, girls' weightlifting flies in the face of stereotypes about girls and strength. The athletes interviewed in this story report they now they feel at home in the weight room and wear T-shirts with slogans like "Silly Boys, Weights are for Girls."
Girls' weightlifting is still not as readily accepted elsewhere as it apparently is in Florida. Recall this story about a girl temporarily banned from weightlifting class because the principal feared for her safety in the weight room with other boys. We suggested that this rationale was sadly ironic; denying her the opportunity to participate in weightlifting only ensured that she would continue to be physically vulnerable to the very thing the principal feared -- the sexual aggression of boys.
In this context, the idea that Title IX might motivate schools to open the weight room door to girls is very appealing to me. What could be better than busting up stereotypes, achieving equity in the distribution of athletic opportunities, and giving girls of all types and backgrounds access to physical strength and power, all in one?
In addition to being inclusive of those less coordinated, weightlifting offers athletic opportunity to girls of different sizes and body types, and unlike the country club sports popular in wealthier areas of the state, weightlifting is accessible to participants of various economic means. And, girls' weightlifting flies in the face of stereotypes about girls and strength. The athletes interviewed in this story report they now they feel at home in the weight room and wear T-shirts with slogans like "Silly Boys, Weights are for Girls."
Girls' weightlifting is still not as readily accepted elsewhere as it apparently is in Florida. Recall this story about a girl temporarily banned from weightlifting class because the principal feared for her safety in the weight room with other boys. We suggested that this rationale was sadly ironic; denying her the opportunity to participate in weightlifting only ensured that she would continue to be physically vulnerable to the very thing the principal feared -- the sexual aggression of boys.
In this context, the idea that Title IX might motivate schools to open the weight room door to girls is very appealing to me. What could be better than busting up stereotypes, achieving equity in the distribution of athletic opportunities, and giving girls of all types and backgrounds access to physical strength and power, all in one?
Monday, March 19, 2007
New Article on Women Coaches and Title IX
Professor Deborah Rhode and Christopher Walker have been researching the impact of Title IX on women coaches (surveying 450 male and female coaches about their experiences and expectations in coaching). The results of their research are forthcoming in the Stanford Journal of Civil Rights and Civil Liberties. A working draft of the paper is available here. Rhode and Walker have concluded that although Title IX has contributed significantly to the opportunities for female athletes, the situation of women coaches is more conflicted due to a variety of factors. This is a really interesting read -- the authors are looking forward to reader comments and suggestions as well, so we encourage you to post a comment on the blog.
"A different approach"
This article about the athletic department at Minnesota State Mankato illustrates that Title IX compliance doesn't always mean cutting sports.
In fact administrators at Mankato, who thought about cutting some men's minor sports to compensate for the growing roster sizes, figured that it could possibly cost them more to cut these sports in the long run as compared to the short-term savings.
Says Athletic Director Kevin Buisman:
"Ultimately, it was determined it would do more harm than good. We felt like we would alienate alumni, and when we looked at the cost savings versus the damage that would be done with our donors, we decided to take a different approach."
So the university added bowling and increased the rosters in other women's sports. The university gave them $500,000 to implement the changes.
And if you continue to read the article you will see that both the men's and women's programs at this DII school are doing very well since the decision.
In fact administrators at Mankato, who thought about cutting some men's minor sports to compensate for the growing roster sizes, figured that it could possibly cost them more to cut these sports in the long run as compared to the short-term savings.
Says Athletic Director Kevin Buisman:
"Ultimately, it was determined it would do more harm than good. We felt like we would alienate alumni, and when we looked at the cost savings versus the damage that would be done with our donors, we decided to take a different approach."
So the university added bowling and increased the rosters in other women's sports. The university gave them $500,000 to implement the changes.
And if you continue to read the article you will see that both the men's and women's programs at this DII school are doing very well since the decision.
Saturday, March 17, 2007
Sixth Circuit Affirms Jury Verdict Against Professor's Retaliation Claim
Dr. Elizabeth Nelson sued her employer, a federally funded Tennessee college called Christian Brothers University, after she was denied tenure in 2003. In her complaint she alleged that CBU's decision was in retaliation for her criticism of CBU's sexual assault policy and advocacy for female student who had charged a male classmate with sexual assault.
CBU moved for summary judgment, but the district court held that Nelson's allegations would, if proven, satisfied the legal standard for actionable retaliation under Title IX. It then became up to the jury to decide whether the facts Nelson alleged were true.
To this end, the parties presented their cases to a jury. After hearing all the evidence, the jury received the following instruction:
As for the weight of the evidence, the court held that there was sufficient evidence before the jury to support its decision that the CBU's decision not to promote Nelson was not about her objections to the sexual assault policy. Rather, the jury could have plausibly found that the tenure committee members "were not upset that Dr. Nelson challenged the sexual assault policies at the school, but were dismayed by the way that she chose to challenge them." In particular, the court explained,
The case is: Nelson v. Christian Brothers University, 2007 WL 764025 (6th Cir. Mar. 14, 2007).
CBU moved for summary judgment, but the district court held that Nelson's allegations would, if proven, satisfied the legal standard for actionable retaliation under Title IX. It then became up to the jury to decide whether the facts Nelson alleged were true.
To this end, the parties presented their cases to a jury. After hearing all the evidence, the jury received the following instruction:
Under the law to be applied in this case, an employer, such as defendant ... has the right to promote or not promote an employee, such as plaintiff ... for a good reason, a bad reason, or no reason at all, as long as the decision not to promote is not motivated by the employee's protected Title IX activity. If you find that the defendant's decision to not promote the plaintiff in this case was not motivated by the plaintiff's alleged protected Title IX activity, then you must render a verdict for the defendant, even though you might feel that the defendant's actions were unreasonable, arbitrary, or unfair. You are not to focus on the soundness of the defendant's business judgment or to second guess its business decisions.The jury returned a verdict in favor of CBU. Nelson then appealed to the 6th Circuit Court of Appeals, challenging the jury instruction and arguing that the verdict should be overturned as contrary to the weight of evidence. Last week, the 6th Circuit rejected both arguments (as well as a third argument pertaining to a separate breach of contract claim) and affirmed the verdict against Nelson. It held that the jury instruction sufficiently instructed the jury to take into consideration Nelson's right not penalized for advocating against conduct by the school that might violate Title IX. It focused on the language emphasized above, and concluded that it clearly explained the retaliation exception to an otherwise employment-at-will standard.
As for the weight of the evidence, the court held that there was sufficient evidence before the jury to support its decision that the CBU's decision not to promote Nelson was not about her objections to the sexual assault policy. Rather, the jury could have plausibly found that the tenure committee members "were not upset that Dr. Nelson challenged the sexual assault policies at the school, but were dismayed by the way that she chose to challenge them." In particular, the court explained,
The record clearly demonstrates that faculty members were surprised by the lack of professional judgment that Dr. Nelson displayed in putting two current students on parade in a case study, effectively revealing their identities, raising false and unsubstantiated allegations about one student, and not presenting a fully researched position.As the court noted, this case emphasizes the importance of the factfinders role in discrimination cases. Even though a plaintiff may establish a prima facie case against the employer, it is the jury's prerogative to find as a matter of fact that the employer's decision was motivated by permissible considerations rather than unlawful discrimination.
The case is: Nelson v. Christian Brothers University, 2007 WL 764025 (6th Cir. Mar. 14, 2007).
Thursday, March 15, 2007
Federal Suit to be Filed Against JMU
Swimming World Magazine has the scoop:
A group called "Equity in Athletics" is suing* James Madison University to challenge its decision to eliminate 10 teams. According to the article, the lawsuit will challenge the three-prong test as inconsistent with the 1975 regulation that it purports to interpret. The plaintiffs also argue that the three-prong test is not binding because it is an interpretation of a regulation rather than an actual regulation.
*The article says that the suit has already been filed; but I spoke to someone at EIA who says that it will be filed next week.
A group called "Equity in Athletics" is suing* James Madison University to challenge its decision to eliminate 10 teams. According to the article, the lawsuit will challenge the three-prong test as inconsistent with the 1975 regulation that it purports to interpret. The plaintiffs also argue that the three-prong test is not binding because it is an interpretation of a regulation rather than an actual regulation.
*The article says that the suit has already been filed; but I spoke to someone at EIA who says that it will be filed next week.
Law Review Comment Addresses Whistleblowing After Jackson
Seattle School District Not Indifferent to Sexual Abuse
A federal district court in Washington recently dismissed claims that the Seattle School District No. 1 violated a female elementary student's rights under the Constitution and Title IX by not protecting her from the predatory advances of a male teacher.
The school district's liability for either a constitutional or Title IX violation both turn on whether the school district knew or had reason to know, and was deliberately indifferent about, the abuse that was going on. The court's decision affirms that a teacher's inappropriate behavior must be very obvious in order to put the school district on notice:
The case is: B.E.S. v. Seattle Sch. Dist. No. 1, 2007 WL 710095 (W.D. Wash. Mar 06, 2007).
The school district's liability for either a constitutional or Title IX violation both turn on whether the school district knew or had reason to know, and was deliberately indifferent about, the abuse that was going on. The court's decision affirms that a teacher's inappropriate behavior must be very obvious in order to put the school district on notice:
Here, there is nothing to suggest that there was an obvious need for the school to take different action to protect identifiable constitutional rights. Several of the teachers testified that while they witnessed Mr. Hill with his female students sitting on his lap, they did not directly report such behavior to the administration or did not become immediately concerned. . . .Upon learning that a teacher was engaged in "inappropriate touching" and was letting students sit on his lap, the principal and vice-principal responded by talking to to that teacher "about appropriate boundaries." The court deemed this to be a sufficient response to protect the school district from liability.
Mr. Langston stated that he witnessed Mr. Hill inappropriately touching female students on several occasions, but did not think much of it at the time, and finally reported it to Mr. Packer [the principal] during a conversation pertaining to his own inappropriate behavior. These teachers also characterized Mr. Hill's actions as subtle, and all believed the appropriate step was to inform the administration rather than make a CPS report themselves.
The case is: B.E.S. v. Seattle Sch. Dist. No. 1, 2007 WL 710095 (W.D. Wash. Mar 06, 2007).
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