Wednesday, December 27, 2006

Female HS Student Temporarily Banned from Weightlifting Class Loses Case

In January 2006, her senior year at Anderson County High School in Tennessee, Ambrea Phillips enrolled in the weightlifing and conditioning class regularly offered by her school. After a couple of days, she was notified that she would not be allowed to participate in the class because Principle Bob McCracken feared that in a class of large, strong guys, she might be at risk for sexual assault. To fill the then-unscheduled period, Phillips was assigned to work as an office assistant in the guidance office. Three school days later, however, McCracken let Phillips back into weightlifting class after the state attorney reminded him about Title IX.

Phillips sued the school board for damages for the emotional and physical distress that she suffered as a result of her temporary suspension. But on December 19, following a hearing, a magistrate judge in the federal district court for the Eastern District of Tennessee granted the School Board's motion for summary judgment. 2006 WL 3759893. Essentially, Phillips's case fell short for failing to allege that the defendant school board knew about and was indifferent to McCracken's decision to exclude Phillips from the class, and thus cannot be liable for his actions.

Had the decision to exclude Phillips from weightlifting been the school board's rather than the principal's, however, it would have constituted sex discrimination within the scope of Title IX:
While Dr. McCracken's concerns may have been well-intentioned, there does not appear on the record to be any objectively reasonable basis for his concerns. There is no evidence in the record of prior student-on-student sexual harassment or sexual assaults during the weightlifting and conditioning class, nor is there any evidence of any misconduct or inappropriate activity on the part of this particular teacher. Accordingly, while there may have been a possibility of a sexual assault occurring, it cannot be said that this possibility was any more likely in this class than in any other class where both male and female students are present. Accordingly, the Court finds that the plaintiff's removal from the weightlifting and conditioning class was unwarranted and discriminatory.
If I had been the judge, I would have also emphasized that the appropriate remedy for school harassment is to punish, remove, or supervise the (potential) perpetetrators, not the (potential) victim. And I would have pointed out the patriarchal paradox in McCracken's rationale: The strength disparity that makes men physically capable of assaulting and raping women is ensured when men have access to weighlifting and women are excluded. If McCracken's concern for Phillips as a potential rape victim justified anyone's exclusion from the class, it certain was not Phillips's.

Thursday, December 21, 2006

Florida High School Athletic Association Considers Competitive Cheerleading Championship

According to this article at (Treasure Coast, Florida), the Florida High School Athletic Association is considering adding a competitive championship in cheerleading. If it did so, schools could possibly count its cheerleaders as athletes for the purposes of Title IX, making it easier to attain proportionality compliance.

One cheerleader quoted in the article argues that cheerleading is a sport because it "takes endurance" and that its participants "try hard, practice, and perform." Fortunately, OCR's criteria is a little different -- otherwise, schools could argue that activities like drama club, chorus, and marching band count as sports. Not that those activities are of lesser or greater importance than athletics -- just that they are different enough in nature such that the number of girls participating in them should not factor into the determination of whether the school is providing girls with an equitable number of athletic opportuntities.

Rather, as we've noted before, the questions OCR asks are aimed at drawing a line between sideline cheerleading, which exists to support and promote other sports, and competitive cheerleading, which is independent of, and is treated comparably to, other sports. Specifically, OCR lists the following factors it considers on a case-by-case basis:
  • whether selection for the team is based upon objective factors related primarily to athletic ability;
  • whether the activity is limited to a defined season;
  • whether the team prepares for and engages in competition in the same way as other teams in the athletic program with respect to coaching, recruitment, budget, try-outs and eligibility, and length and number of practice sessions and competitive opportunities;
  • whether the activity is administered by the athletic department; and,
  • whether the primary purpose of the activity is athletic competition and not the support or promotion of other athletes....
  • whether organizations knowledgeable about the activity agree that it should be recognized as an athletic sport;
  • whether the activity is recognized as part of the interscholastic or intercollegiate athletic program by the athletic conference to which the institution belongs and by organized state and national interscholastic or intercollegiate athletic associations;
  • whether state, national, and conference championships exist for the activity;
  • whether a state, national, or conference rule book or manual has been adopted for the activity;
  • whether there is state, national, or conference regulation of competition officials along with standardized criteria upon which the competition may be judged; and,
  • whether participants in the activity/sport are eligible to receive scholarships and athletic awards (e.g., varsity awards).

Wednesday, December 20, 2006

Getting the facts right

This is my somewhat belated follow-up to this post about the UA water polo team and the misrepresentation of Title IX in the media.

In a follow-up to his initial reporting of University of Arizona administrators deciding to add water polo to their list of varsity sports for women, Arizona Star columnist Greg Hansen wrote another column criticizing the decision. This one too was riddled with inaccuracies and something that was supposed to resemble support for Title IX but begins by Hansen noting that the decision to add water polo is an example of "Title IX run amok."
Why? Because high schools in Arizona don't have water polo. But lots of high schools in CA do and CA isn't that far away. Plus Hansen fails to research whether there are water polo club teams in the state. He also fails to acknowledge that adding water polo at UA could actually create more opportunities for high school girls. His earlier article complained that water polo could not be revenue-generating. Know what generates a lot of revenue (and publicity)? The only summer water polo camp in the state which is what UA will establish if they are savvy enough to see the opportunity here.

Hansen does get some things right, though: water polo was added to account for "football-bloated male participation numbers." But then he attempts to make an economic argument:
"No women's sport comes close to football's numbers in participation and, more importantly, in revenue. Indeed, football pays for women's sports on almost every college campus in America, yet, because of Title IX ratios, men's sports are inherently penalized because football is so big."
It takes a smidge of research (which Hansen--or his editors--apparently did not have the time to do) to find out that football programs on most college campuses DO NOT PAY for women's sports. 78% of them cannot even pay for themselves!

And unfortunately the people who commented on the article also took up the "but football pays for everything; without football where would athletic departments be?" type arguments. I don't know, maybe we should ask Boston University who cut their football team years ago. Hasn't seemed to affect their perennially strong men's hockey team or the school's reputation as an excellent educational institution.

It is certainly possible that UA is one of the schools with a football program that actually makes more money than it spends. On the one hand, the university reports football revenue outpaces expenses by $6 million. But on the other hand, expense figures such as these could exclude capital costs including the bond debt on the football stadium. (It is also worth pointing out that while UA may, coincidentally spend $6 million on women's sports, it is not exactly a convincing argument from an equity standpoint to say that "football pays for women's sports" given that the $6 million spent on women's sports amounts to less than 16% of all athletic department spending overall. Nor it is an accurate one, given that women's teams themselves offset $2 million in costs with the revenue they bring in from ticket sales and camps.)

But what is truly disappointing about the article is the praise Hansen seems to heap on Title IX because, for example, it has sent Arizona softball players across the country to coveted coaching positions or made college soccer more mainstream. He even says "Thank you, Title IX" which rings a little hollow when just paragraphs before he instructed us "Title IX activists" to "accept that it works, has worked, and stop digging for more."

I cannot bear to end on such a sour note so in an attempt to make some lemonade I have to say that the blatant inaccuracies and false praise for Title IX only make this activist want to dig all the harder.

Tuesday, December 19, 2006

WHB Posts Coaches' Opinions on Male Practice Players

If you're looking for more about the NCAA Committee on Women's Athletics proposal to limit male practice players (which we blogged about here), Women's Hoops Blog has been posting the opinions of women's basketball coaches -- see here (Notre Dame), here (Hartford, Pitt, Baylor), and see also here (opinion of former practice player) and here (linking to Nancy Lieberman's column at

I particularly appreciated the comments of LSU's assistant coach, who pointed out (among other things) that the male practice players themselves develop a strong appreciation for women's sports. They attend their "teammates'" games, they promote the team to their peers, they follow college and professional women's basketball, and some have even made a career choice to coach women.

While I recognize that last item is controversial -- after all, the more men who coach women, the fewer women get to coach period, at least until that door of cross-gender coaching opens both ways -- I am still willing to put "effect on male players" down as a positive aspect of using male practice players. Heck, if this former practice player's opinion is any indication ("Julie Rousseau, the current coach [at Pepperdine], was probably one of the most influential women in my life...."), maybe male practice players are the very thing that will ultimately foster a cultural acceptance of women coaching men?

Monday, December 18, 2006

6th Circuit Denies Rehearing in Michigan Sports Season Case

The full 6th Circuit (i.e., "en banc") recently denied the Michigan High School Athletic Association's motion to rehear a three-judge panel's decision that scheduling girls sports "off season" violates Title IX and the Equal Protection Clause. We blogged about the earlier panel decision here.

This means MHSAA's next and last resort is to appeal to the Supreme Court, which according to this article, it is likely to do next month.

Saturday, December 16, 2006

Federal District Court Rules on Motion to Limit Damages

Peer harassment cases are the worst. See, e.g., the Minnesota federal district court's recent order in AMJ v. Royalton Public Schools, 2006 WL 3626979, which opens this way:
Plaintiff contends that students at Royalton public schools subjected her to almost six years of racial, sexual, sexual orientation, and gender harassment; discrimination; violence; and retaliation. In particular, she claims that the students almost daily made derogatory statements and left notes in her locker, calling her names such as "dyke," "prairie nigger," and "fat fucking whore liar." According to Plaintiff, students also laughed at her Native American culture and traditions. She avers that students physically attacked her as well: smashing her face into the ground, tripping her, grabbing her hair, smearing gravel on her face and in her mouth, spitting on her, and shoving her into lockers and walls. The alleged harassment, discrimination, and violence was so severe that Plaintiff's parents removed her from school for several extended periods. Plaintiff's physician recently ordered her not to attend school because of the adverse effects on her mental health.

Some of the behavior and comments occurred in the presence of school staff, who did not take any action. Plaintiff claims she reported the language and behavior to school administrators dozens of times, but Defendants took no corrective or preventative action. To the contrary, Plaintiff maintains that Defendants blamed her, accused her of lying, taunted her parents, and retaliated against her.
If these allegations prove true, the defendants could be in store for a massive damages award. So they filed a motion to limit damages to $1 million, the maximum damages amount for which they were insured.

The court denied the school district's motion to cap compensatory damages for federal constitutional and statutory claims (Equal Protection Clause, Title IX, and Title VI) at $1 million. The court also decided that Title IX and Title VI do not authorize punitive damages against the school district. But the court has agreed that punitive damages may be awarded against the individual defendants, regardless whether they were acting in their official or their individual capacities when discriminating against the Plaintiff.

Friday, December 15, 2006

Bonnette Column Takes On Title IX Backlash

Reading Valerie Bonnette's recent column at, I get the sense that she's more than a little bit tired of people blaming Title IX's proportionality prong for debilitating men's sports.

Bonnette, a former OCR official and currently a Title IX consultant, points out that 73% of collegiate athletic departments comply with Title IX by some means other than proportionality-- which generally means prong three, satisfying women students' interests and abilities in athletics. Now that OCR has watered down prong three compliance by allowing schools to relying on responses to an interest survey, we are left with echo chamber enforcement that in Bonnette's words, allows "institution officials to decide for themselves that they comply." Yet groups like IWF and CSC continue to insist that Title IX is forcing schools to eliminate men's teams.

(Of course, this isn't the first time in history that Title IX has been rendered toothless, yet neverthless blamed for reeking havoc on men's sports. As we've recently had the opportunity to recall, most cuts to nonrevenue men's sports like wrestling happened during a period in the statute's history when there was absolutely zero enforcement.)

Schools that forgo the interest survey route (which some would call an end-run) and instead strive for proportionality are making their own choice to commit to the type of equity proportionality requires. In my opinion, and Bonnette's too, this is the right choice, but it's no mere opinion that it is a choice. Schools who make that choice and then invoke the "Title IX made me do it" rhetoric as cover are misleading the anti-Title IX reformers and they're not doing Title IX any favors either.

Thursday, December 14, 2006

The Benefits of Benefactors reports that Bucknell's wrestling team is having a terrific year considering their roster is made up entirely of freshmen. Why? Because Bucknell only this year brought back wrestling to varsity status after making it a club sport in 2002 because of the need to make their athletic opportunities more proportional.
One rarely hears of a sport being brought back (without legal intervention). In fact I have never heard of it. So what happened? Was there a significant drop in the number of women in the undergraduate population? Did the athletic department add too many women's opportunities and have to compensate by bringing back wrestling?
Nope--an alum of the school and the wrestling team came through with some big dollars (around 5 million) and created an endowment to reinstate and keep wrestling at Bucknell alive. (It's quite an incentive to encourage academic excellence among student-athletes too. This guy isn't a professional athlete--he's a businessman. I guess we don't know how much he "earned" himself versus how much was inherited.)
Though ESPN did a decent job describing Title IX mandates, they too fell into the habit of making wrestling some kind of Title IX martyr. This was enforced by a quote from a Bucknell wrestler:
"Just from what I've seen and what I know, wrestling seems to be the biggest target when it comes to Title IX," said Bucknell 197-pounder Eric Lapotsky.
If you're a wrestler what you see and what you know if probably pretty biased toward a Title-IX-hurts-wrestling viewpoint. But, as Ebuz reported here in her review of Andrew Zimbalist's book, wrestling numbers actually dropped off in the 80s and early 90s when Title IX was rarely, if at all, enforced.
What remains a little unclear is how all the numbers work out. Re-instating the wrestling team, even if the money is there, does not solve the problem of opportunities--measured in actual spots on teams--not dollars.
The article makes the donor appear to be so magnanimous as to designate part of his donation to women's sports. But my guess is that when the author writes that "[p]art of the gift established a component of the women's rowing team..." that what that really means is that the money went to increasing the number of women on the crew team by, hmm...maybe ten (the number of men on the wrestling team). Increasing the number of spots on an existing team is much cheaper than establishing a new team that needs coaches, trainers, equipment, recruiting dollars, etc.
The whole thing is an interesting "solution" but of course not widely applicable unless all schools in Title IX trouble have wealthy donors willing to endow a threatened men's team and give money to the women's athletic program.

Cincinnati Rowing Litigation Update

The rowing team may have been cut, but its lawsuit against University of Cincinnati moves along in federal court. On Monday the district court judge decided that the case could proceed as a class action lawsuit, concluing that "a class defined as 'all current and future members of the University of Cincinnati women's rowing team' would satisfy the prerequisites of Federal Rule of Civil Procedure 23 for certification of a class."

Civ Pro fans can find the opinion at 2006 WL 3591958.

(Thanks for the citation to Geoff at Sports Law Blog.)

NCAA Committee Limits Use of Male Practice Players

The NCAA regulates its member-institutions in, among other things, the use of male practice players by women's teams. Yesterday, the NCAA's Committee on Women's Athletics proposed stricter limits on the use of male practice players. According to this article,
The proposal being considered does not eliminate the practice, but limits it to the traditional season and in only one practice per week. The proposal also would limit the number of male practice players in team sports to no more than half of the number required to field a starting women's team (for example, only two male practice players would be permitted in a sport with five starting players).
This policy would apply to Division III schools only; as the committee is still working on proposals for Division I and II.

The CWA objects to the use of male practice players "because the message to female student-athletes seems to be 'you are not good enough to make our starters better, so we need to use men instead.'" This, the committee suggests, is a gender equity concern that violates the spirit of Title IX.

I am pleased that the NCAA is concerned about the ways in which collegiate sports inferiorize female athletes by "sending messages" to women they they are not as good or their sports are not as important as men's. I totally agree that issues like this fit within spirit of Title IX should be important to schools and the NCAA. (I'd love to see them take on the tiresome practice of male athletes and coaches insulting other male athletes by telling them they play like girls.)

But I see both sides of the male practice players issue. I get the point that this practice could indeed stigmatize the non-starting players. But couldn't a ban on male practice players also be interpreted as stigmatizing women athletes as a whole, by suggesting that a rigid separation of men's and women's sports is required for women's sake? Perhaps the use of male practice players is a step toward a more egalitarian future of integrated sporting practices?

Wednesday, December 13, 2006

Clarion U Cuts Three Teams

Clarion University in Pennsylvania recently announced plans to cut its men's cross country and indoor and outdoor track teams. The resulting distribution of athletic opportunities does not put the school in compliance with the proportionality prong, but it does close the gap somewhat: Clarion's percentage of female students is 61%. Prior to the cuts, only 41% of athletic opportunities went to women. By my math (using numbers from this article), cutting three teams (60 opportunities*) brings the percentage of athletic opportuntities for women up to 48%-- still 13 percentage points away from proportionality.

Of course, people are blaming the cuts on Title IX. This is unfortunate, but not surprising when articles like this one call the proportionality option a "mandated Title IX requirement." How many times does OCR have to "clarify" that a school can choose compliance with either of three prongs?

Clarion, by the way, is a Division II school. 90 of the 222 (now 152) opportunities it provides for male athletes go to football players.

*60 opportunities were cut, but the number of actual athletes affected was 25, as many of them competed in more than one sport.

Tuesday, December 12, 2006

U of Cincinnati Rowing Cut Independent of Lawsuit

Last week the University of Cincinnati announced that it would be cutting women's rowing team and replacing it with women's lacrosse.

This decision prompted speculation that rowing was in the crosshairs because of its pending lawsuit against the University, prompting the AD to declare that the decision "was made independent of the lawsuit," done after a lot of thought and "research and with the best interests of this department and this university."

The pending lawsuit, filed last year by members of the rowing team, seeks equity in facilities and support for women's sports in the form of a boathouse and adequate practice space, additional equipment and coaching staff, and equal opportunity for scholarships.

Gender stereotyping and educational choices

The Washington Post's Shankar Vedantam wrote an interesting piece yesterday highlighting how even subtle questions or comments can greatly affect students' educational choices and even test performance.

The basic gist of the research conducted by psychologists at York University in Toronto and Tufts University in Boston was that even seemingly innocuous questions -- like whether students had a preference for co-ed dorms -- that just reminded women college students of their gender led to a significant difference in whether those students expressed a preference for the arts or math subjects. The women tended to respond in a gender-stereotypical way, with more saying that they preferred art. When a different set of women were asked about their preference over telephone service, which presumably has no gender connotations at all, more tended to express an interest in math.

The researchers also found that when women were subliminally exposed to words like "lipstick" or "skirt", they tended to indicate a preference for art. When women were subliminally exposed to "suit" or "cigar", they tended to indicate a preference for math. This research builds on other studies that have shown that when girls are explicitly reminded of their gender, they tend to do worse on math and science tests.

The article in the Washington Post goes on to point out that various other stereotypes are often at work in the classroom: when Asian girls are reminded that they are Asian, they tend to do better at math tests; when they are reminded that they are girls, they tend to do worse. Similarly, when white students are reminded that Asian students tend to score well on math tests, the white students tend to do worse on those tests. Other research has also pointed out how subtle and seemingly benign indicators can have a strong effect on students: when an American flag was placed in a classroom, white students tended to do better on exams, whereas the scores of racial minorities were unaffected.

Bottom line of the new research: reminders of gender roles or gender stereotypes, even in an innocuous way, affect the educational choices and test scores of women and men.

Monday, December 11, 2006

Media misunderstandings and Title IX

I have written about the issue of Title IX's misrepresentation in the media previously--though briefly--here. But I bring it up again now because of a recent little blip in a paper in Arizona about the addition of a women's water polo team at the University of Arizona.
Despite the fairly simple premise of Title IX that calls for equitable treatment of the underrepresented sex in publicly-funded educational institutions, the statute itself, as this blog has hopefully demonstrated, is quite complex.
The complexity that has arisen due to various and changing legal interpretations is further compounded by the multiple components that constitute compliance--and I am speaking only in its application to athletics here--with the law.
Unfortunately many who report on or speak to Title IX issues in the media lack an understanding of this complexity. (Note that I am not citing all journalists. Welch Suggs, when he covered Title IX issues for The Chronicle of Higher Education, did an excellent job covering the mulitfaceted issues the law engendered.)
This lack of understanding around equity, sport, and Title IX is exhibited by Greg Hansen in the above mentioned blip that appears in a sports opinion column in the Arizona Daily Star. UA is adding women's water polo to its roster of intercollegiate sports. I haven't scrutinized UA's numbers regarding opportunity levels but I going to assume that Hansen is right that the university is adding water polo to try to achieve compliance.
But there are a few things wrong with Hansen's assessment of the situation. In comparing how (non)compliant UA is with other Pac-10 teams Hansen lists the number of male athletes and the number of female athletes at the schools. But such numbers are meaningless if we don't know the breakdown of male and female students in the entire undergraduate population. Because Title IX is not about strict equality of numbers but about equity which, if an intitution is trying to achieve proportionality, is about making athletic opportunity numbers more in line with the percentage of male and female undergraduates. If UA has more female undergrads than male, as is the situation in many colleges and universities, even equal numbers of male and female athletes will not result in compliance.
Hansen also seems to cite Title IX as the reason why budget-strapped UA (who isn't budget-strapped these days though??) is adding water polo (whose popularity is pretty much centered in the Pac-10) rather than a revenue-generating sport. Basically he implies that women's water polo will be a drain on the budget and it's all because of "the federal government's gender equity laws."
But a quick look at UA's list of varsity sports shows that all the (potential) revenue-generating sports for women (and men too!) already exist. Women's (Div. I) basketball is pretty much the only sport that can automatically be placed in the revenue-generating column. Depending on the school and the region other sports such as women's volleyball and gymnastics have the potential to be revenue generating. Both of these are already offered by UA, though I don't know if they do indeed generate revenue.
Hansen does not see that sports--especially women's sports--are not inherently revenue generating. Revenue-generating sports are created. Our default is to believe they are created by fan interest which is also believed to be innate when it is, in fact, taught.
Take for example University of Iowa's volleyball team. Though the popularity of women's volleyball is growing it is not necessarily a revenue-generating sport. But Athletic Department administrators at UI want it to become one. So they are making it into one through a variety of methods including hiring an established coach, throwing more money into recruiting and promoting the heck out of it through ticket promotions (your football ticket gets you into that night's v-ball match) and lots of publicity.
UA could turn women's water polo into a revenue-generating sport if it made the effort. But that requires either a bigger budget or shifting money away from men's sports to do so.

Tuesday, December 05, 2006

UC Davis Settles Retaliation Suit with Wrestling Coach

According to this article in the Davis Enterprise, U.C. Davis has settled with a former wrestling coach Michael Burch, whose Title IX claims against the university "alleged that his dismissal in May 2001 was a result of his outspoken support for two women who had been cut from the team." The underlying dispute is also the subject of litigation, as four women cut from the U.C. Davis wrestling team in 2001 continue to press Title IX claims against the university.

The article notes that Burch's case "had attracted a great deal of outside attention, especially for the rare sight of a wrestling coach who supports Title IX."

Monday, December 04, 2006

Johns Hopkins University Strives for Gender Parity recently reported on John Hopkins University's 2006 Report of the Committee on the Status of University Women, in which JHU outlines its plans to "achieve a 50% representation of women in senior faculty and leadership positions and gender equity with respect to every measure of career satisfaction and advancement" by the year 2020. Presently women constitute 36% of faculty members, 18% of full profesors and 15% of department heads. JHU says parity in leadership is more realistic first step because "leadership turns over much more frequently than faculty."

Via Feminist Majority Foundation/Feminist Daily News Wire.

See also AAUW's recent report on underrepresentation of female faculty, which we blogged about here.

Friday, December 01, 2006

Court Upholds State Athletic Association's Exclusion of Boys from Girls Gymnastics Competition

A state appellate court in Wisconsin upheld yesterday a policy of the Wisconsin Interscholastic Athletic Association that excludes boys from girls' gymnastics competitions.

The plaintiff was Keith Bukowski, at student at Stevens Point Area High School. He challenged the WIAA policy under the Equal Protection Clause of the 14th Amendment, Title IX, and state law grounds, and lost on all claims. I haven't seen the briefs, but based on what the court says about the plaintiff's argument, it looks like Bukowksi didn't have the world's best attorney.

The court dismissed the Equal Protection claim on the grounds that the WIAA is not a state actor. The Supreme Court has held that Tennessee's state interscholastic athletic association to be a state actor, and the 6th Circuit found similarly about Michigan's. So arguing that the WIAA is as well is not a crazy new idea. From the Tennessee and Michigan cases, we know that courts are looking for evidence of a tight relationship between the association and the public schools it represents. It will consider things like whether the asscociation is primarily made up of public schools, whether its funds come from the schools (such as dues or ticket revenue from state tournaments), and whether the state treats the association's employees like state employees. But in this case, "The only evidence Bukowski points to as purportedly establishing that the WIAA is a state actor is an affidavit by the superintendent of the Stevens Point School District, in which the superintendent averred that SPASH receives federal funding. " All the lawyer would have to do is find the WIAA bylaws (which are available on line) and s/he could have at least proven that federal funds go from SPASH to WIAA in the form of dues and (potentially) fines. The lawyer could have also easily proven that the WIAA's board of control is made up primarily of representatives from public schools. On the other hand, it doesn't appear that WIAA employees are treated like state employees (they have their own pension plan). But this isn't necessarily a required element of state action, so this doesn't excuse the attorney for not presenting a stronger case.

The court also dinged Bukowski's Equal Protection argument on the alternative grounds that his attorney argued the wrong legal standard when s/he suggested that the WIAA policy did not survive "strict scrutiny." Now the Supreme Court's Equal Protection caselaw is not a model of clarity, but any first year law student can tell you that "intermediate scrutiny" is the correct standard for EP gender discrimination claims.

Moreover, the Title IX arguments here were excedingly weak:
Title IX argument on appeal consists solely of quoting the language of Title IX and then stating that "Title IX has been interpreted to provide that policies prohibiting boys from participation in girls' sport is a permissible means of attempting to insure equality of opportunity for girls in interscholastic sports and of redressing past discrimination." That is the entirety of his Title IX argument; Bukowski provides no further explanation of how Title IX applies to his circumstances and provides no relevant legal authority in the form of Title IX cases.
Bukowski's lawyer would have had a chance if s/he'd bother to read the caselaw. Because gymnastics is non-contact sport, Title IX regulations say that members of the "historically undereppresented sex" must have an opportunity to compete, whether by getting their own team or being allowed to join the existing team. There are courts that have construed "underrepresented" to mean underrepresented in the school's athletic program overall, generally, rather than underrepresented in a particular sport. So there is no guaranteed victory for Bukowski on the merits of his Title IX claim. But it is shocking that his attorney did not even try.

The attorney didn't even bother to attempt to show that WIAA receives federal funds, without which, Title IX can't possibly apply. A federal district court in Michigan held that Title IX governed a state athletic association because the assocaition received dues from federally-funded public schools. Its bylaws prove that WIAA receives dues from federally-funded schools. So this is an argument that Bukowski's lawyer could have and should have made.

And I don't know anything about Wisconsin statutory or constitutional law, but I do know this one- sentence argument is not going to prevail: "For all of these reasons, the actions of the WIAA also violate the Wisconsin Constitution and WI Stat. 118.13."

Last, I can't figure out why Bukowski's lawyer didn't sue the school. SPASH is clearly a federal-funding recipient subject to Title IX. The attorney could have argued that SPASH must either opt out of the WIAA and let Bukowksi on the gymnastics team or forego its federal funds. If this argument against SPASH prevailed, then it could likely be levied against all WIAA public school members, until eventually WIAA risks losing them all as members. I bet they'd change the policy before that happened.