Tuesday, October 30, 2007

Johnson-Klein v. Fresno State Trial Continues

In Fresno, the trial between Fresno State and its former women's basketball coach Stacy Johnson-Klein enters its second week. The list of disputed material facts to be resolved by the Fresno jury is growing and now includes:

-Whether Fresno State's drug policy was fairly applied to the former women's basketball coach, who was terminated for her addiction to vicodin, when the men's basketball team was allowed to play notwithstanding known drug problems (see also our earlier post here);

-Why University President John Welty responded to Johnson-Klein's drug problem by authorizing her suspension, rather than referring her to the Employee Assistance Program;

-What Johnson-Klein meant when, according to Welty, she told him that Fresno State should drop its investigation of her "or she would have to play that card";

- Whether then-Athletic Director Scott Johnson made sexual advances at Johnson-Klein at a car wash (he denied it on the stand);

- Whether an email from Johnson-Klein's supervisor Randy Welniak -- stating "it's all about food and clothes" -- was evidence of his dismissive attitude toward her complaints about gender inequity, including her request for a soft-drink cooler like the men's team had;

- Whether and to what extent Fresno State knew about Johnson-Klein's addiction and behavior issues before they suspended her on February 9, 2005, or whether that decision was prompted instead by either (1) Johnson-Klein's threat in November 2004 that she would file a Title IX complaint against the athletic department or (2) her email in January 2005 to Scott Johnson in which she complained that Welniak was not a good supervisor;

-Whether Johnson-Klein used her "sex appeal" inappropriately by submitting immodest photos to be included in the media guide;

-How much weight to give the testimony of Johnson-Klein's former player about Johnson-Klein's mood changes and irrational behavior that occurred in the season before she was suspended and fired.

As many predicted, it's turning out to be an intense, emotional, and complex trial. These jurors are going to have their work cut out for them.

Monday, October 29, 2007

New week, new FGCU controversy

FGCU volleyball coach Jaye Flood is still apart from her team, which has made it to the post-season; the school's investigation is complete but there is no word on what was discovered.

And now FGCU has suspended brand new assistant softball coach Gina Ramacci, also for unspecified "student welfare issues." It might be difficult to claim backlash for complaining about gender equity since Ramacci was hired in June and not part of the complaint given to FGCU over the summer that has resulted in a great deal of turmoil in the athletics department. But who knows. Ramacci may have arrived in Naples and seen that things were amiss and started asking questions.

But I also wonder about an issue that has gone unaddressed to date: homophobia. Studies that address the decline in women in coaching point to homophobia as one of the key reasons why women leave or are pushed out of the profession. There are countless stories about such situations. Is Jaye Flood, and now Gina Ramacci, being targeted because some at FGCU suspect them of being gay? Or maybe they are gay and out (though this seems more unlikely given the climate at FGCU and in that area of Florida in general) and these recent administrative leaves are retaliation. Because it seems odd that a coach would be suspended for pulling a player's shirt--it happens all the time in basketball, with both men and women--unless that coach was perceived to be a lesbian and the act was thus turned into some sexual rather than an aggressive coaching tactic.
I doubt the press will address this issue and even more doubtful that the investigation will. But I think when (or if?) the findings are revealed, we will find some interesting things in between the lines.

Friday, October 26, 2007

Leadership conference to address Title IX at 35

Babson College in Wellesley, Massachusetts is hosting its annual Women in Leadership Conference on Friday, November 9. The one-day event features numerous panels. You can read a full description of them all here.
In the afternoon there is a panel entitled "Title IX at 35: The Pipeline's in Place--Now What?" The purpose of the panel is to explore the legislation's effects not just on athletics but the classroom and the composition of the contemporary American boardroom. The panelists are all female leaders and represent a variety of occupations. Of special note is Mary Mazzio, the founder and president of 50 Eggs Productions who also produced A Hero for Daisy and whose company allows us to use a still from the documentary on our page!

Wednesday, October 24, 2007

Punishments for peer sexual harassment

The Dallas Morning News reports that some Texas schools are taking an extreme stance in punishing students for activities they deem to constitute peer sexual harassment, based on a fear of school district liability if they do not actively try to end the harassment.

This is generally a laudable goal, although when a 7-year-old is suspended from school for pointing out the bra strap of classmate, one can only hope that common sense prevails in these types of situations. After all the Davis case which established school district liability for peer sexual harassment under Title IX does set workable guidelines as to what constitutes actionable negligence on the part of the school district.

The Department of Education guidelines make clear: "Effectiveness [of the school's actions toward the offending student] has always been the measure of an adequate response under Title IX. This does not mean a school must overreact out of fear of being judged inadequate. Effectiveness is measured based on a reasonableness standard. Schools do not have to know beforehand that their response will be effective. However, if their initial steps are ineffective in stopping the harassment, reasonableness may require a series of escalating steps."

Gender Stereotypes in Teacher Sexual Harassment Cases

The AP reported last week on the different gender stereotypes that kick in when a male student reports teacher sexual harassment or sexual abuse, versus a female student doing the same thing.

The AP discusses the disturbing reaction by most media -- when a girl reports abuse by a male teacher, sometimes the girl is harassed or told to keep quiet, but oftentimes the teacher is vilified and rightly condemned by the media. When a boy reports the same abuse by a female teacher, oftentimes the media laughs it off, discussing his actions as part of a "sexual conquest" that ought to be celebrated, not complained of.

Public schools are getting better about making sure their sexual harassment policies protect both male and female students (they have to be, with the possibility of Title IX liability), but that doesn't mean that the media or our society has let go of the gender stereotypes that underpin these differing reactions to an extremely serious problem.

More Military-Style Schools in Chicago

NPR reported today on a new trend in Chicago, among other cities -- to create charter schools in partnership with different branches of the military, and to impose military-type structures within those schools (here's a link to a similar charter school program in Minnesota). The purpose of these schools is to instill a sense of discipline and respect in students, and with the goal of improving academic achievement through a highly structured and hierarchical system.

One of the criticisms of these types of schools is that they (a) are inevitably geared toward working class African-American and Latino communities, whereas the magnet and charter schools in white and/or more affluent communities focus on other types of education, such as fine arts, sciences or music; and (b) that they impose a strict gender construction on students, and may very well operate under a lot of assumptions about what types of things boys and girls can learn, and what their stereotypical gender roles are.

Since these academies are charter schools and military-sponsored ones at that, Title IX may not be a useful tool for students at the schools, but the schools are still worth focusing on in terms of whether they operate, in part, on stereotypes of what public education ought to look like for people of different races, classes and genders.

Conservative Californians Seek Referendum to Repeal Law Protecting LGBT Students

Earlier this month, Governor Schwartzenegger signed into law SB 777, the Student Civil Rights Act, which adds sexual orientation to the enumerated grounds for nondiscrimination in California's public schools. Laws like this, which have already passed in thirteen other states, are necessary to ensure that schools take appropriate measures to protect against the high instances of bullying and harassment of students who are or perceived to be gay or gender nonconforming.

Now, conservative groups have begun a ballot initiative that could, if successful, repeal the law before it takes effect in January. On Monday one such group filed referendum papers with the state attorney general. Once the attorney general gives the proposed referendum an official title and summary, those groups will set about garnering the 400,000+ signatures required to put the question on the ballot.

SB 777's opponents apparently believe that a law protecting LGBT students from discrimination will indoctrinate students into deviancy by banning references to mothers and fathers in textbooks and ordering schools to allow boys to use girls' locker rooms. This is really conjecture, as locker rooms are not mentioned in SB 777, nor are there are examples from other states with similar antidiscrimination laws of locker-room gender anarchy. As for erasing mothers and fathers from textbooks, this hyperbole traces back to the bill's prohibition on adopting textbooks that "contains any matter reflecting adversely upon persons" because of their sex, race, national origin, handicap, religion, or sexual orientation. Interpreting references to mothers and fathers as disparaging to a student's sexual orientation makes about as much sense and is as unlikely as an interpretation that textbooks referencing white, male, able-bodied, Christian Americans are disparaging against individuals in the statute's other protected categories.

Despite its absurdity, judging by the results of a Google News search for "SB 777", this rhetoric has taken off like wildfire in the conservative and religious publications in California. I'm sure these articles of distortion and fear-mongering will easily convince the requisite number of people to sign the petition to put the question on the ballot. Hopefully, though, California voters will realize that to oppose a law that opposes bullying is, quite simply, to support bullying.

Tuesday, October 23, 2007

Ledbetter Invoked in Female Wrestlers' Case Against UC Davis

Mansourian v. U.C. Davis is a Title IX lawsuit filed in December 2003 that challenges the decision of U.C. Davis's athletic department to curtail women's wrestling. A federal district court recently dismissed the plaintiffs' unequal treatment claim -- but not their ineffective accommodation claim -- because it was filed too late.

We've blogged about other, related litigation involving wrestling and U.C. Davis here and here. Here is some background: In the 1990s, U.C. Davis's wrestling program was open to men and women. Female wrestlers competed against other women under "women's rules." The plaintiffs chose to attend U.C. Davis so that they would have an opportunity to wrestle. They joined the team and competed for two years.

In the 2000-01 school year, the University eliminated women from its wrestling program. After plaintiffs and the then-coach Michael Burch protested this decision and filed an OCR complaint, the University purported to change its mind in the spring of 2001. However, it never followed through. Burch was replaced with a coach who opposed women's wrestling, and in the fall of 2001 it became clear to the women who had chosen to attend or remain at U.C. Davis expecting to wrestle in 01-02 that they would be disappointed yet again.

The female wrestlers sued in December of 2003, alleging, essentially, two separate violations of Title IX: First, they argued that U.C. Davis's decision to exclude women from the wrestling program violated the regulatory requirement that schools provide equal treatment to women's athletics. They also argued that by cutting these participation opportunities, the University failed to effectively accommodate the interests and abilities of female athletes, a violation the three-prong policy.

Title IX does not specify a statute of limitations, so the court applied California's general two-year statute of limitations for personal injury cases. However, it found that plaintiffs' claims of unequal treatment all arise out of conduct that occurred between 2000 and the fall of 2001, which gave the plaintiffs until fall of 2003 to file their complaint. In dismissing the December 2003-filed equal accommodation claim as untimely, the court relied on the Supreme Court's recent decision in Ledbetter v. Goodyear Tire, which held that the statute of limitations ran from the employers' initial discriminatory decision to discriminate against the plaintiff by paying her less than comparable men, even though she continued to experience the effect of this decision for as long as she continued to work there. U.C. Davis's initial discriminatory decision to treat female wrestlers differently than men thus started the two-year clock, even though plaintiffs experienced the effect of this discrimination as long as they continued to be students.

However, the court decided that the plaintiffs are allowed to press forward on their argument that cutting opportunities for female wrestlers violated the effective accommodation component of the Title IX regulations. Unlike the unequal treatment claim, the argument that U.C. Davis offers too few opportunities for women is not subject to a Ledbetter "initial decision" rule because this discriminatory act is repeated every day that the university fails to accommodate female athletes' interests and abilities or otherwise comply with the three-prong test. The court denied U.C. Davis's motion to dismiss this claim, and ruled that the plaintiffs are entitled to offer proof of the university's noncompliance and, if successful, to seek compensatory damages.

Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2007 WL 3046034 (E.D. Cal. Oct. 18. 2007).

Gender Gap in High School Athletics, By State

The Women's Sports Foundation recently published* 2006-07 data showing for each state the percentage of high school athletic opportunities offered to girls. WSF then ranked each state by the difference between the percentage of athletic opportunity for girls and the percentage of female students overall.

By this measure, the number one state for female high school athletes is ... New Hampshire! New Hampshire girls receive 47.1% of high school athletic opportunities and make up 49% of the student population, giving it the highest score of any state, -1.9. Pennsylvania was a close second place, with a score of -2. Maine, Vermont, and Minnesota rounded out the top five (all > -3).

Alabama, whose high schools only offer 32.3% of athletic opportunities to girls, has the worst score of any state, -17. Louisiana, D.C., Tennessee, and South Carolina round out the bottom of the list, with scores ranging from -15.9 to -12.5.

*a temporary "homemade" link is provided here, which I will replace with an official, permanent WSF link once the data summary is posted on its website.

Monday, October 22, 2007

Chicago Coach Alleges Discrimination Against Boys' Basketball Team

A former high school boys basketball coach in Chicago has filed a Title IX lawsuit in federal court, alleging that the (female) athletic director, who is also the girls' basketball coach, systematically discriminated against the boys' program. After being terminated earlier this month, the ex-coach, Lamont Bryant, sued Marshall High School, its principal, and its AD, alleging that he lost his job in retaliation for complaining that the boys' team received less access to open gym times and substandard travel accommodations relative to the girls' team.

According to the Sun-Times, Marshall High School claims that Bryant was fired earlier this month for failing to live up to certain requirements in his employment contract, like appearing in certain tournaments and wearing a tie to games. Sun-Times columnist Greg Couch does not believe that the real underlying issue was a dispute about discrimination, but rather, one about scheduling: the AD wanted the boys team to play in a high profile and potentially lucrative tournament, but the coach insisted on taking the team to a different tournament instead.

The federal court will have to determine whether Marshall fired Bryant for violating his contract or whether there is anything to Bryant's claims of retaliation and disparate treatment for boys. There are clearly facts in dispute. The Tribune reports that the AD denied the allegations that the girls receive luxury travel arrangements, and the Sun-Times suggests that Bryant's complaint about travel boils down to the fact that the boys' bus once had a broken toilet. On the other hand, it is difficult to believe that a dispute about the season's tournament schedule would be enough to cause Marshall to sever ties with a 108-23 coach of a nationally-ranked team.

Hopefully, though, the parties can resolve this dispute quickly without resorting to litigation. Emotions are running high at Marshall High School, where students have protested Bryant's termination with a walkout and some players are threatening to boycott the season if he is not reinstated.

Saturday, October 20, 2007

More details on Flood "incident"

FGCU still isn't talking about the issues of "student welfare" that lead to volleyball coach Jaye Flood being placed on administrative leave last Monday. But Nancy Hogshead-Makar, who has been helping Flood challenge the administration's decision, has revealed that the incident in question involved Flood grabbing the shirt of one her players during a practice on October 8.
Hogshead-Makar is quoted as saying "This is just silly." Indeed. In a month or so you'll be able to turn on almost any collegiate basketball game and see coaches grabbing players by the shirts--in public and on national television no less.
So the suspension is: 1) silly; 2) extremely frustrating and, 3) quite revelatory in terms of what FGCU administrators' intentions. They want Flood out. This situation cannot be read as anything other than retaliation for Flood's advocacy for gender equity.
The university has apparently finished its investigation but the findings have not been revealed.
Regardless, it seems a lawsuit is in the works. And from what we know, it might be in FGCU's best interests to settle quickly and make a very public commitment to gender equity. Becoming the Fresno State of the south is probably not one their goals.

Ithaca Harassment Case Highlights Shortcoming in Title IX

In Ithaca, New York (my one-time home), community members are pressuring the Ithaca School District to reverse its controversial decision to challenge the jurisdiction of the Tompkins County Human Rights Commission by advancing legal arguments that, if successful, would render school districts immune from the jurisdiction of the state's human rights law.

Here is the background: When Amelia Kearney's twelve-year-old daughter, who is black, was racially harassed for a five-month period during the 2005-06 school year by white male students, Kearney complained to the ISD. Finding the board to be nonresponsive, she filed a complaint with the county human rights commission, the local agency that enforces the state human rights law, which protects students from discrimination on the basis of disabilities, sexual orientation, race, gender and religion.

In April of 2007, the commission scheduled a hearing to adjudicate whether the school district's response violated the human rights law. The school district responded by challenging the commission's jurisdiction. Specifically, ISD argues that the state human rights law is not applicable to schools, because the statute would require them to participate in public hearings and potentially reveal information that would violate students' privacy rights, which are protected under federal law. In August, a lower court ruled in favor of the commission. I have not read the decision, but I would have reached the same result by reasoning that it makes more sense to adjust the hearing requirement to protect students' privacy than to issue school districts a blanket exemption from the human rights law.

Last month, the ISD voted to appeal the decision to the state's appellate division, a decision that has provoked protest by members of the community.
A crowd of 90 descended upon the school board's meeting on Tuesday and Ithaca High School had to go into lockdown to quell student protests.

One argument against the ISD that has particular relevance here at the Title IX Blog came from Lambda Legal, a national gay rights advocacy group. Lambda contends that ISD's position would potentially curtail all protection for gay and lesbian students because the human rights law is the only applicable statute that enumerates protection on the basis of sexual orientation -- neither Title IX nor the state education law includes such protection.

Board member Seth Peacock (my former classmate, I'm proud to say) has moved to reconsider the decision to appeal, a decision that the board put off until its next meeting on October 23.

Friday, October 19, 2007

"Served its purpose"?

A writer at the Corvallis Gazette-Times believes that Title IX "has served its purpose" and it's time to stop penalizing male athletes--especially football players--and find a better way of enforcing the law.
Speaking to the specifics in Oregon, primarily Oregon State and Oregon, writer Kevin Hampton suggests football get a waiver from Title IX because it requires so many players and there is no female equivalent. The waiver idea is not new, of course, it has been around just as long as Title IX itself and was wisely never implemented. Why? Because intercollegiate sports are not supposed to be a business. They are part of the larger educational experience. And selectively applying a law that is meant to ensure equity in education isn't really equity at all. (Also, by Hampton's rationale, we would have to exempt field hockey which, in the United States, has no male equivalent.)
Not surprisingly, we also get the "but football makes money" argument. The numbers support this claim as it applies to OSU. It appears that football brings in more money there than it costs. But of course this is not universally applicable--it does not even apply to a quarter of Div I football programs, a fact Hampton overlooks. Football is rarely "foot[ing] the bill" for other teams; most often it is taking more than its fair share.
We also have to remember that, as Professor Nancy Hogshead-Makar has said, the actual expenses numbers are not subject to the same general accounting practices as those in the business world because athletics has a tax-exempt status. So, for example, the costs of stadium operation are not factored into team expenses.
Hampton, thankfully, recognizes the cultural bias against women's sports and does not advocate for Title IX's elimination because it would result in decreased opportunities for women. But in his pitch to "reform" the law he perpetuates almost all of the myths we just cannot seem to shatter.

Thursday, October 18, 2007

FGCU volleyball coach put on leave

I had thought--given their reluctance to talk about the issues--that administrators at Florida Gulf Coast University wanted all the attention regarding gender discrimination and female coaches to just go away. But if that's the case, they are not doing anything to help themselves. The situation in the Athletics Department keep getting stranger and stranger. Golf coach Holly Vaughn left this week in the middle of her season saying she was "growing tired of the situation." And on Monday the 15th, the administration put head volleyball coach Jaye Flood--the only remaining female head coach--on paid administrative leave--because of unnamed "student welfare issues" that seem to stem from a particular practice session in early October. (See the memo Flood received here.)
But Flood is not going to wait around to see what an investigation finds. She is asking to be reinstated and has hired a D.C. lawyer with extensive experience in gender discrimination cases. She is also getting help from Florida Coastal law professor and Title IX expert Nancy Hogshead-Makar.
Though we don't know the specifics, it seems likely that this latest move by AD Carl McAloose and the FGCU administration is motivated by Flood's participation in the original Title IX complaint and her refusal to back down in support of gender equity and her student-athletes.

Vivas Award Reduced, Johnson-Klein Trial Begins

On Friday the judge presiding over Lindy Vivas's case against Fresno State denied the University's motion for a new trial, but reduced the damages she had been awarded by a jury last July from $5.85 million to $4.52 million. He explained that the evidence did not support the jury's calculations for past and future economic losses and shaved about $600,000 off that component of the jury award. The other component, emotional damages, was reduced by $700,000 because the judge believed that Vivas "offered no evidence that she would likely continue to suffer from debilitating psychological harm for any significant period after the verdict in this trial."

Meanwhile, Stacy Johnson-Klein's trial against Fresno State is underway. In opening statements on Tuesday, the former basketball coach's attorney Warren Paboojian described the sexist culture of the Fresno State athletic department and argued that Johnson-Klein was fired in retaliation for complaining about unequal treatment for female athletes and rejecting the sexual advances of the athletic director. The University's lawyer argued that Johnson-Klein was fired because her addiction to painkillers and erratic behavior threatened the safety of her players.

The jury also heard testimony from "the estranged wife of a Fresno State computer specialist who said her husband in 2005 implied that he, with the knowledge of university officials, had deleted some Johnson-Klein e-mails that were damaging to the university's position after the coach was fired."

Diane Milutinovich and Lindy Vivas testified on Wednesday that the athletic department became a hostile place for female employees in 1992 because of a federal investigation into unequal treatment of female athletes at the university. Then University President John Welty took the stand to defend Fresno State's apparently inconsistent approach to drug use in the athletic department. Male basketball players in 2002-03 repeatedly tested positive for drugs, but were allowed to play. Eventually, the coach, Ray Lopes, resigned as part of a deal that awarded him $200,000 in prorated salary. Paboojian's questioning cast doubt on the University's professed concern for the safety of Johnson-Klein's athletes -- if athlete safety was a paramount concern, the University would have suspended players the male basketball players who tested positive and immediately fired Lopes, not paid him to resign.

(For more background on the Fresno State litigation, use the Fresno link below.)

Wednesday, October 17, 2007

Apples and Oranges

Club sports at most schools are funded by a recreational services department, while varsity intercollegiate sports are funded by athletic departments. This is the case at the University of Iowa. Recreational Sports, however, can usually not afford to completely fund a team and that team looks elsewhere for money: fundraising, dues, etc.

According to the student newspaper, The Daily Iowan, the men's rowing club at Iowa has made a request to the student government association for money to buy a new shell. This all seems reasonable even though student government has never before funded a club sport. They seem open to the possibility.

What is curious is that in the presentation to the association, the team plans to relate what the women's rowing team receives and suggest that Title IX is to blame for the men's current situation of poor equipment and large out-of-pocket fees.

But women's rowing at UI is a varsity sport. It was made a varsity sport in an attempt to comply with Title IX. That has nothing to do with the men's team.

The argument that the women rowers get more money than men rowers is inapplicable in this case, since nothing in Title IX requires intra-sport equity. Moreover, team captain Meylon's comment that "Since [Title IX] men's rowing at Iowa has been on a downward spiral" seems purely sour grapes in this situation. If Meylon and others are sore that men's rowing does not have varsity status, blame the excessively large football roster the university has or the millions of dollars the administration pumps into the football and basketball programs.

I was a little surprised that both the newspaper and the team members pursued this line of reasoning. After all, they have one of the foremost experts on Title IX, Dr. Christine Grant, right there. But it does not seem anyone spoke with her.

Illinois Students and Parents Sue School District Over Discrimination in Athletics

The Canton (Illinois) Daily Ledger reported yesterday on a federal lawsuit filed by parents and students against the Lewistown Community School District. The complaint alleges that the district is in violation of Title IX for discriminating against female athletes in the distribution of funding, equipment, and other resources. Most of the examples of discrimination described in the article relate to benefits and advantages afforded to high school male baseball players but denied to high school female softball players. For instance, the district scheduled 33 baseball games this season but only 23 softball games. Boys received new uniforms but girls had to fundraise for theirs. In contrast to the baseball field, the softball field is not regulation size, has deteriorating and inferior fences, lighting, and backstop, and does not have a reliable, working scoreboard.

Notably, the Lewistown plaintiffs are represented by Attorney Sam Schiller and Professor Ray Yasser of the University of Tulsa Law School, who also represented the plaintiffs who successfully settled a similar case against Ponco City (Oklahoma) Public Schools recently and who have brought other similar cases in Oklahoma and the Midwest.

Tuesday, October 16, 2007

Appellate Court Affirms District Not Liable for Harassment on School Bus

Last fall we described a federal district court's decision to grant summary judgment in favor of the Barnstable (Massachusetts) School Committee and dismiss the Title IX case brought by parents to challenge the sexual harassment their kindergarten daughter experienced at the hands of third-grader on the school bus.

A school district is liable for peer harassment if it receives actual notice of ongoing harassment and responds with "deliberate indifference." The district court was unable to find the school district liable under this standard because after the parents learned of the harassment and reported it to the school, they never let their daughter ride the bus again. For this reason, the kindergartner was not subject to any further harassment. Thus, the district court said, it could not be determined whether the school district's response was deliberately indifferent or whether it would have been effective at preventing the victim's harassment.

On appeal, the First Circuit Court of Appeals affirmed the district court's result, but clarified its reasoning. Contrary to the implications of the district court's ruling, a single reported incident of harassment can potentially give rise to Title IX liability. The adequacy of the school district's response is not measured by whether or not the victim actually experiences harassment after putting the school on notice, but whether the school district's response to notice of harassment is a reasonable effort to curb future harassment.

The appellate court then concluded that the school district's response was a reasonable effort rather than an indifferent one. After learning of the harassment, the principal immediately began an investigation, which it diligently pursued. The school also offered to change the victim's bus assignment and/or to make seat assignments that would separate the younger kids from the older kids on the bus. And while the court did not necessarily condone the school's decision not to take disciplinary action against the third grader, it affirmed the school's decision as a reasonable effort to balance competing interests in ensuring students' safety as well as responding with sensitivity to the third grader. (As we've noted in prior posts, there's a case to be made that schools should respond to sexual misconduct by elementary school children with educational, corrective measures rather than punishment, since children that young are unlikely to understand that sexual behavior is inappropriate and/or may be the victims of sexual misconduct themselves.)

Decision is: Fitzgerald* v. Barstable School Comm., 2007 WL 2914546 (1st Cir. Oct. 5, 2007).

*Unlike the district court, which referred to the parties by pseudonyms to protect their anonymity, the First Circuit decision uses the plaintiffs' real name. That is why the decision has a different name on appeal.

Monday, October 15, 2007

Title IX -- Good for College Football?

The college football season thus far has been rife with upsets, most notably with Stanford beating USC a couple of weeks ago (Go Cardinal!). Although some may prefer that top-ranked schools stay that way in the BCS, for others, the upsets are welcome and fun to watch.

One commentator on National Public Radio offered up the following possibility for why the college football playing field seems to be much more even than usual: many colleges have cut their rosters to 85 players, since they've been limited (by the need to comply with Title IX and other issues affecting the athletic budget) to offering fewer athletic scholarships to football players. The result is a trickle-down of athletic talent to schools that would not be able to recruit elite players if the rosters at the top-ranked schools were larger. The effect of having more elite players spread out among a greater number of schools is that the chance for an upset of a traditional powerhouse team becomes greater.

I wouldn't attribute the slew of upsets solely to the smaller rosters, but it's certainly something to consider.

Evidentiary Ruling in Johnson-Klein Case

The Fresno Bee reports that the judge in Stacy Johnson-Klein's case against Fresno State ruled some of the plaintiff's evidence inadmissible at a pretrial evidentiary hearing today. The ruling applied to a videotaped deposition testimony of former Fresno State men's basketball player Terry Pettis, who testified that he was allowed to play for Fresno State even though he failed a drug test.

The newspaper suggests that the reason it was excluded was that no one counseled Pettis of his right against self-incrimination.

The University's expected defense in this gender discrimination trial is that it fired Johnson-Klein, the women's basketball coach, not because of gender discrimination but because of a drug problem. Pettis's testimony, if it had been allowed, would have supported a counterargument that the drug problem rationale was a pretextual. Specifically, a jury might have concluded that if Fresno State retains a male athlete with a drug problem but terminates a female coach with a drug problem, the reason for termination is not drugs but gender.

It remains to be seen whether this ruling hurts Johnson-Klein's ability to convince the jury of Fresno State's discriminatory motives as the trial is still in jury selection phase. But soon the plaintiff will get to start calling witnesses, and we'll be able to better assess the strength of the case.

A tennis player's woes

Tennis player and Brigham and Young University sophomore Bradley Ferguson has a column in BYU's student paper about how unfair Title IX is. A regular varsity contributor to the tennis team, Ferguson receives no scholarship money. When asking his coach about this, the response he received was essentially "Blame it on Title IX." And he has, despite the facts that he himself reveals about the number of scholarships and opportunities that BYU football usurp.

Ferguson writes that there are women on the tennis team (which received 8 scholarships to the men's 4.5) who have never played a varsity match. [This is information he received second-hand, however.] He does not receive anything and plays all the time. He finds this unfair. He does not seem to question all the football players who are on full scholarship (and receive all the "perks" that big-time football programs provide) who will never see a minute of playing time. There are far more of these than there are non-playing women's tennis players.

Once again we see a situation where someone supports the "intent" of Title IX because "it's in the right place" but ultimately concludes that men's participation is ultimately more important.

Saturday, October 13, 2007

Details on Portland Case Remain Sealed

According to The Daily Collegian, a federal district judge in Pennsylvania has denied a plaintiff's subpoena for information about Penn State's response to Jennifer Harris's discrimination complaint against former coach Rene Portland, which remains sealed under the terms of settlement that ended that case. As we noted last month, the plaintiff, professor Constance Matthews, sought the information to help her build her own discrimination against Penn State, which she alleges denied her promotion because of her sexual orientation and advocacy for gender equity. The judge denied Matthews's attempt to subpoena information from Portland and AD Tim Curley. He reasoned that evidence of discrimination in one university department, like athletics, is not relevant to a charges of discrimination by another university department, a distinction recognized by federal courts. He also said that it would be unduly burdensome to force Curley and Portland to comply.

"Don't Mess With Texas"

In a story that sounds like a plot line from Friday Night Lights, a former student has sued her Texas high school over sexual harassment by football players and cheerleaders who for two years called her names like slut and whore and spread stories about her sex life. The student claims that she complained regularly to school officials, but rather than protecting her from harassment the principal said things like, "You really don't move to Texas and mess with their football players and cheerleaders."

Friday, October 12, 2007

Big Settlement in Fresno

Fresno State has agreed to a $3.5 million settlement to end plaintiff Diane Milutinovich's sex discrimination case against the University. Milutinovich is one of three female, former athletic department employees who argue that they lost their positions -- in Milutinovich's case, transferred outside the department where she had been the senior women's administrator -- in retaliation for their advocacy for gender equity. Fresno State is challenging the $5.85 million verdict awarded to plaintiff Lindy Vivas this summer, while the trial of former basketball coach Stacy Johnson-Klein began this week with early rounds of jury selection.

Milutinovich's lawyer attributes the $3.5 million figure to the strength of her case. State Senator Dean Florez, who is leading efforts to strengthen Title IX enforcement in California, views the settlement of further evidence of a pattern of discrimination at Fresno State.

Thursday, October 11, 2007

Football, tradition, and Title IX enforcement

Director of the California Women's Law Center, Vicki Barker, has written an editorial about the special privileges high school football teams/players receive. It does not seem to be addressing a specific situation though I think it is a good companion piece to consider in light of the situation in Pennsylvania.

Barker challenges the typical "but it's tradition" rationale and notes that Title IX enforcement will be hard to come by if this special treatment continues. These privileges also reinforce societal beliefs in the importance of football which simultaneously devalues girls' sports and even some other boys' sports.

Wednesday, October 10, 2007

CU Seeks Reconsideration from 10th Circuit En Banc

As we noted last month, University of Colorado was weighing its options in the wake of the 10th Circuit panel decision that reinstated two female plaintiffs' sexual harassment case against the university. Those options included seeking reconsideration from from the en banc (entire) 10th Circuit, appealing the panel decision to the Supreme Court, or going to trial. Today the Rocky Mountain News is reporting that CU lawyers have filed a petition for reconsideration by the 10th Circuit en banc.

CU is arguing that the panel decision departs from Title IX precedent by expanding university liability for sexual harassment by its students beyond what prior courts have allowed. The plaintiffs will oppose the petition and argue that under existing Supreme Court precedent, CU should be liable for the sexual misconduct of its unsupervised football recruits given the warning signs and the athletic department's policy of showing recruits "a good time."

A tale of two locker rooms

The Intelligencer out of Pennsylvania reports on a new "space crunch" for athletics teams at Hatboro-Horsham where the expansion of the boys' football team has resulted in their use of a second stadium locker room (previously used by two girls' teams) to accommodate the extra gear and equipment.

The two girls' teams, field hockey and cross country, were reassigned locker rooms back at the high school (not adjacent to the stadium) but this space is already used by three other teams and the PE department. Most of the displaced girls have opted to change in their cars or in the stadium bathrooms rather than deal with the space issues and the trek back to the high school.

The displacement has a lot of people talking, including school board members who were not informed of the relocation prior to its implementation.

The athletic director does not see the problem and believes that all of the high school's eleven teams have adequate locker and shower facilities.

But Peg Pennepacker, a consultant who advises the school on Title IX issues, is not so sure and will be looking into these new "assignments" which, according to the school superintendent, is only a temporary solution not expected to last beyond this football season.

No explanation of how or why the situation might be different next year, though, or why the suggestion that the extra equipment generated by the 30 new players on the football roster cannot be stored in the snack stand on site was seen as a punishment for the football players.

Personally, I am a little curious about why the team added 30 players this season to bring their roster to 110 and why the superintendent was adamant that all these players had to remain on the team. Is this a trickle-down mentality from the collegiate game which still insists that 100+ player squads are required?

Tuesday, October 09, 2007

Editorial hits the mark

We come across a lot of editorials about Title IX written by students in their college papers, most of which cite "discrimination" against men when teams are cut or suggest that Title IX is good in theory but not in how it is applied.

But this column in Purdue's student paper, The Exponent, illustrates that some people really do get it; that the major points Title IX advocates are making about poor budget decisions and institutional priorities as the primary causes of cuts to men's teams are not falling on deaf ears. Writer Adam Poor makes these same points, noting that Purdue has not had to cut any sports because of "controlled growth" and keeping the number of varsity teams at 18. [It also should be noted, however, that Purdue's percentage of female undergrads is only 40 percent which makes it much easier to comply with the proportionality prong than schools where the percentage of male undergrads is around 40. Why a school that is known for its engineering and technology programs has such a low percentage of female undergrads is another Title IX discussion for another time.]

Additionally, Poor goes on to criticize OCR's 2005 clarification that allows email surveys to gauge student body interest saying that it is a poor measure of interest to ask the current student body what they want for varsity sports given that those interested in sports the university does not offer have likely gone elsewhere.

My only concern is his suggestion that more schools try to go with prong two, history and practice of expanding opportunities, and that OCR should offer a little wiggle room about just how long this actually takes saying that even if "progress is slow" a school should not be found noncompliant. Well, given that 2007 does mark the 35th anniversary of Title IX and finds so many schools not compliant I am not so ready to perpetuate this slow progress standard.

Even so, Poor has shown that he understands the spirit and correct application of Title IX. Many of us have heard, sometimes out of our own mouths, complaints about students--both men and women--who don't know what Title IX is, or don't think we need it anymore, or find it unfair to men. It's heartening to know some students are getting it. I'd give Adam Poor an A.

Monday, October 08, 2007

Students Challenge University of Maryland's Clothesline Project Policy

Last week, University of Maryland officials announced that students participating in the semiannual Clothesline Project could not write the full names of sexual assailants on the T-shirts that will be hung around campus. The Clothesline Project takes place in hundreds of communities and campuses around the country each year to raise awareness about sexual violence against women and to promote healing among survivors. A participant will decorate a T-shirt that represents an event of sexual violence against herself or another woman, and local organizers will collect the T-shirts and display them together on clotheslines.

Student organizers and supporters of the Clothesline Project at the University of Maryland are protesting the University's policy against naming assailants. The University's fraternities joined together in a letter of support for the Clothesline Project organizers and objection to the ban, while organizers are considering seeking an injunction against the University. If they do pursue legal action, they have indicated that they will argue that the policy violates Title IX because of its disparate impact on women.

If this controversy were to reach a judge, I think it would be difficult for the University's opponents to prevail on a Title IX claim. I think a judge would be persuaded that the University is limiting victims rights for a permissible, nondiscriminatory purpose, that of avoiding libeling individuals whose names appear on the shirts but who have not been convicted of assault. Notably, the founding Clothesline Project advises local organizers to encourage participants "not to name their perpetrators by both the first and last name unless they have been convicted of that particular crime" for this very reason. University officials would probably also argue that the policy against naming is the least discriminatory means of accomplishing this purpose, as it still leaves open the opportunity for victims to name and challenge their assailants through the University's disciplinary process.

Interestingly, one student who opposes the ban suggests that the University is responding to two specific shirts that have been included in past Clothesline Projects in College Park that name football players, one of whom plays for Maryland. Even if the University feels confident in the legality of its position, it may strike some kind of compromise with the Clothesline Project to avoid giving the appearance that it is silencing a victim of sexual assault in order to protect a football player.

Friday, October 05, 2007

Mediation Could Resolve Feather River College Litigation

Here is a brief update about the ongoing Title IX litigation between Feather River College and three of its former employees who are challenging the College's decision to fire them as discriminatory and retaliatory. For background, see this prior post. KRNV news is reporting that the three plaintiffs and FRC have been in mediation, which is a form of alternative dispute resolution that assists parties in pursuing a settlement in lieu of a verdict.

Thus, a mediated settlement, should it occur, has the potential to curtail the ongoing litigation, which has been proceeding simultaneously in three venues: federal court, state court, and in administrative hearing before the California State Personnel Board. Of all three, it is the CSPB that is scheduled to make the next move, as it plans to conclude its hearings in early November. I'm guessing that the timetable for mediation has that date in mind and that if the parties are going to settle, it will be prior to that time.

Thursday, October 04, 2007

Supreme Court Denies Cert. in Jennings v. UNC

The en banc Fourth Circuit decision holding that former UNC soccer player Melissa Jennings may pursue her sexual harassment case against the university will stand, as the Supreme Court recently denied certiorari. Womenstake.org has more.

More turnover at FGCU

Holly Vaughn, one of two female head coaches at Florida Gulf Coast University, has resigned her position as golf coach mid-season.
Though Vaughn would not comment on the contentious Title IX investigation of this past summer and subsequent EEOC filings, it appears that this resignation is a result of the hostile environment for female coaches at FGCU. Leaving mid-season with no place to go seems drastic and certainly hurts ones chances for future employment in coaching (especially given that Vaughn's record was not exceptional in the wins column). Former AD Merrily Dean Baker who filed the original complaint on behalf of a group of employees in the department told the Naples Daily News that Vaughn's resignation is likely a sign that things have not improved down in Florida.
What has changed: five new female assistant coaches have been hired. Their experiences in the department will be something to watch. Will the issues raised by Baker and others drive them out as well or will the department begin to change its ways? The latter does not seem out of the question given the FGCU is getting a new president in November. Outgoing (interim) president Dick Pegnetter was not very forthcoming or apparently receptive about these issues. Incoming president Wilson Bradshaw may have no choice given the publicity and the pending issues in front of the EEOC.

Tulsa Parents Settle Softball Suit

Last year, we noted that Oklahoma parents had sued the Ponca City Public Schools under Title IX, alleging discrimination against girls' sports evidenced by their sub-par softball facilities. The parties since resolved the suit via settlement that "calls for improvements to the district's softball field as well as upgrades in other areas, such as uniforms, equipment and locker-room facilities." This settlement was finalized recently by the federal district court, which also awarded attorneys fees to the plaintiffs.

Wednesday, October 03, 2007

Another Fresno Coach Prepares for Trial

Fresno State prepares to defend itself in a second employment discrimination trial of the year. This time, the plaintiff is former women's basketball coach Stacy Johnson-Klein. Like Lindy Vivas, the former volleyball coach who won a $5.85 million verdict against the university in July, Johnson-Klein alleges that she lost her job as part of Fresno State athletic department's discriminatory and retaliatory practices against female coaches and administrators. Johnson-Klein's testimony at Vivas's trial described the misogynist and homophobic culture of the athletic department.

Johnson-Klein's trial starts next week, but yesterday the judge made a pretrial decision to allow the jury to hear evidence of Johnson-Klein's former addiction to pain medication following a car accident. Fresno State is expected to argue that this, not gender discrimination, is the reason she lost her job, and Johnson-Klein's attorney will try to convince a jury that this rationale is merely a pretext to cover up its unlawful discriminatory motives.

This fact of Johnson-Klein's vicodin issue seems to have been well publicized, so I don't think any jurors will be hearing this for the first time at the trial. In fact, from her perspective, it is probably better to have the evidence come in, so that her lawyer can address it square on, rather than have to wonder whether the jury is considering it anyway. But owing to this particular dimension of Johnson-Klein's case, I agree with KFSN that her trial "will be very different from the Vivas case."

Tuesday, October 02, 2007

Girls' Sports and Concussions

The NY Times has an interesting article today on the prevalence of concussions in girls' high school sports. A recent study showed that in sports such as soccer and basketball, the rate and severity of concussions is significantly higher for girls than boys (neither sport comes close to football, though).

Compounding the effect of this disparity is the fact that concussions in high school girls often go undiagnosed, because school health providers or private doctors and specialists sometimes fail to recognize that a female athlete might have a concussion -- believing, according to the article, that girls might not play sports so aggressively that a concussion would be likely -- and also because the athletes themselves tend to downplay the seriousness of the symptoms in order to be allowed to continue playing.

Undiagnosed concussions is a problem that affects both male and female athletes, but clearly there needs to be some more education here -- for the athletes themselves about the potential long-term effects of undiagnosed concussions, and for health care providers to realize that all athletes are susceptible to serious head injuries such as concussions and, according to this study, girls moreso than boys.

Editorial questions Oregon AD

There was a very well-written editorial last week in the University of Oregon's student newspaper. The author questions the logic of adding competitive cheer, which no school other than Maryland has elevated to a varsity sport, when the reason given for reinstating baseball was that Oregon was the only Pac-10 school without it. The writer concludes that "the choice of competitive cheer, over crew, swimming or gymnastics, serves only to showcase the athletic department's concern with its own bottom line - not with equality for women."

Unfortunately the editorial cartoon that is alongside the column seems to negate the sentiments expressed in it. It pictures two cheerleaders forming a "IX" and holding a placard with "Title" written on it. And they are standing on top of wrestlers. A more accurate depiction of the situation would have been athletic department administrators standing on top of the wrestlers. They are the ones who quashed the program--not Title IX.

Monday, October 01, 2007

South Carolina and Single-Sex Education

In a recent story for the Associated Press, reporter Seanna Adcox touted South Carolina as a "leader" in single-sex education, as the first and only state to name a statewide coordinator of efforts to separate boys and girls into separate classrooms.

Thanks to the efforts of that statewide coordinator, David Chadwell, single-sex education in South Carolina is flourishing. About 70 of the 360 programs to go into effect nationwide under the Department of Education's 2006 regulations are in that state.

So what is it that South Carolina's separate classrooms look like? Adcox's article gives us a glimpse:
In one recent boys' class, a group of gangly seventh-graders sprawled on the floor around a giant vinyl chart, using skateboard parts and measuring tape to learn pre-algebra. In a different school a few miles away, middle school girls interviewed each other, then turned their surveys about who's shy and who has dogs into fractions, decimals and percentages. Classical music played softly in the background.
With so many sex stereotypes crammed into these three sentences, it's hard to avoid the conclusion that single-sex education is anything but a self-fulfilling prophecy. Doesn't anyone in S.C. see the inequitable consequences of encouraging boys, but not girls, to "sprawl" -- to take up space and to be in touch with their bodies? Isn't anyone in S.C. concerned about a curriculum that attaches the label of "shy" to some measurable percentage (or fraction, or decimal) of girls --but not boys-- but assumes that boys--but not girls-- might be more interested in a math lesson premised on skateboards and tools? I think policies like these are socially engineering gender differences more than they are responding to them.