Friday, May 30, 2008

University of Tennessee-Martin Sued by Former Volleyball Coach

I read in USA Today that Amy Draper, formerly the head volleyball coach at the University of Tennessee-Martin, has filed a lawsuit challenging her termination as discriminatory and raising other violations of Title IX.

Draper's complaint, filed in federal district court, alleges that the University and athletic department officials violated Title IX and other law (including the U.S. Constitution's due process clause) when it terminated her contract without a hearing and in alleged retaliation for her challenges to gender discrimination within the department. She says she received inferior treatment relative to male coaches in the department and that her volleyball program received support that was inferior to the other teams. When she pointed out disparities in an email to the athletic director, she was told that if she continued to make allegations of gender discrimination, he would "bring the curtain down" on her. She was eventually fired before the end of her contract and without a hearing -- ostensibly for her team's "poor performance," in contrast to many male coaches whose employment continued despite never having a winning season.

Draper also alleges that the athletic department maintains a double standard with respect to coaching qualifications. The department has hired men to coach women's softball, volleyball (her replacement), and as an assistant women's basketball coach, notwithstanding their lack of experience playing in the sport that they coach. Yet it insists that female head coaches have college experience in the sport they are coaching. This double standard is common in college athletics, so it will be interesting to see how this particular allegation plays out in the litigation.

Thursday, May 29, 2008

Spotlight on Summa v. Hofstra University

A while ago, we briefly noted an ongoing sexual harassment lawsuit against Hofstra University. We had only limited details to offer at that time, but we have since received a copy of the complaint filed by plaintiff Lauren Summa (thanks, reader!). We can now provide a more information about Summa's side of the story.

In 2006, Summa was hired as a student manager of the Hofstra University football team for a one year period that would include the primary fall season and the secondary spring season. Accompanying the team to away games, she was subjected to "relentless sexual harassment" by players on every bus trip. Players teased her for having a relationship with another player, including by creating a mocking webpage on that Summa describes as "intentionally demeaning and sexist, implying that [she] was beastly, overweight, hypersexual, and overbearing." They suggested that she and her boyfriend have sex on the bus and made other offensive comments. On one trip, they barricaded her in the bathroom. On another trip, the coaches showed a movie that contained graphic sex scenes. This prompted players to jeer at Summa, and a particular scene depicting sex between a black man and a white women promoted one player to suggest to Summa that all "white women" like her want "black dicks." Summa, crying, asked the assistant coach to turn off the movie and when he did, players objected chanting "we want boobies" and ridiculed Summa even more.

Summa reported the movie incident to Coach Cohen (as she had the facebook incident). Cohen was irritated with Summa for complaining and tried to talk her out of reporting the incident to Campus Safety, arguing that it would bring negative attention to the football team. Summa followed through on her plan to report the incident, and was ultimately put in touch with the university's Equal Employment Officer, Maureen Murphy. Murphy said that she would arrange sensitivity training for the football team, but this did not happen. One of Summa's primary tormenters, Eric Taylor, was kicked off the team for reasons unrelated to harassment. Yet Taylor continued to torment Summa throughout the winter, accusing her of causing his dismissal from the team.

At the beginning of the spring season, Summa reported to work, only to find that Coach Cohen had hired a replacement for her. He told her that he presumed she was not interested in continuing with the position. Summa alleges that this presumption, contrary to custom and to her understanding with Cohen that she would work the whole year, was retaliation for complaining about harassment. The retaliation continued when Summa's offer to work for the University Relations Office was rescinded soon after Summa filed a complaint about the football incident with the state division of human rights.

Summa filed suit in federal district court, alleging that both the underlying harassment and the retaliation she experienced for reporting it violate both Title VII, Title IX, and New York's Human Rights Law. She seeks damages and an injunction against Hofstra's similar conduct in the future.

While we don't know if Hofstra will seek dismissal, attempt to settle, or proceed to trial, it should be factoring in the plaintiff-favoring trend in recently sexual harassment decisions involving college athletics -- including this case against the University of Colorado, this case against the University of North Carolina, and this case against the University of Washington, as well as the big jury verdicts in the retaliation cases against the athletic department at Fresno State.

Wednesday, May 28, 2008

NCAA Releases Figures on Salary Disparities in Coaching

USA Today reported last week that 2006 salary statistics recently released by the NCAA confirms that people men who coach men's sports earn more than people who coach women's sports. And among schools with big time football programs, they earn way more. The average salary for a Division I-A women's lacrosse head coach is $80,200, while head coaches of men's lacrosse in that same subdivision earn, on average, more than twice that amount -- $165,400. The gender gap was less pronounced among non-BCS subdivision Division I schools ($69,400 to $55,900 in DI-AA and $64,000 to $53,000 in Division I-AAA) but significant nonetheless.

The sidebar graphic itemized average salaries in other sports as well:


One explanation for the higher salaries among men's lacrosse coaches is the larger roster size for men's lacrosse teams. In fact, salary differentials are not unlawful if they are based on nondiscriminatory factors such as squad size. Yet it is clear that there is more than squad size driving up the relative salaries for men's lacrosse coaches. Because if the size of the salary was tightly correlated to the size of the team, we would see women's track coaches outearning men's track coaches by a similar order of magnitude (instead of only ~2% more). It's likely that other factors are entering into the equation, and it's hard to ignore the likelihood that sexist assumptions about the relative value of men's sports is coming into play.

Tuesday, May 27, 2008

Women's Wrestling in Demand at Colleges

Today's New York Times reports on the demand for college wrestling programs for women, driven in part by the inclusion of women's wrestling as an Olympic sport since 2004. The article notes that over 5,000 girls wrestled in high school in the 2006-07 school year, but that only eight colleges offer varsity-level women's wrestling teams, and that three of those eight have started in the last year.

Some of the new programs are being developed by small colleges that see women's wrestling as a way to increase revenue through tuition dollars of student-athletes who would probably have chosen a different college but for the existence of a wrestling program. The article then speculates as to why women's wrestling has not gained more traction with larger colleges. One thought: (you guessed it!) Title IX. Mike Moyer, executive director of the National Wrestling Coaches Association and a "critic of Title IX," asserts that colleges have limited resources, and because wrestling is a sport with a team roster of only 20-30 students, if a college is trying to increase the participation numbers of women to comply with the proportionality prong of Title IX, it would likely choose to support a sport like rowing, which can carry a roster of up to 60 people.

Terry Steiner, USA Wrestling’s women’s national coach, and Michael Burch, an assistant men’s wrestling coach at Brown, offer a different explanation: colleges not feeling entirely comfortable with having women play such a high-contact, injury-prone sport. Burch notes, “In general, there’s this resistance to the personification of women as aggressive....We’re O.K. with women who can work hard and hustle out on the field.” Wrestling, he adds, is “another step in the evolution of egalitarian thinking.”

Friday, May 23, 2008

Empirical Study on Gebser's Effect on Sexual Harassment Cases

In 1998, the Supreme Court held in Gebser v. Lago Vista School District that educational institutions could be liable for sexual harassment by its employees only when the institution responded with deliberate indifference to ongoing harassment about which it had actual notice. In the current issue of the Richmond Law Review, student author Justin Paget evaluates the claims of Gebser's critics that the Court's refusal to apply a vicarious liability standard foreclosed remedial options for victims of sexual harassment in an educational setting. Paget compares the the number of times lower courts granted schools' motions to dismiss sexual harassment claims in two one-year periods, one pre-Gebser and one post-Gebser period. He observes that the dismissal rate did not dramatically increase with the adoption of the actual notice/deliberate indifference standard: schools won 10 out of 25 (40%) of their motions to dismiss in 1997-1998 (pre-Gebser) and 15 out of 29 (51.7%) of their motions to dismiss in 2006-2007 (post-Gebser). While it's clear that Gebser has some affect on the likelihood of plaintiffs surviving summary judgment, Paget concludes that this data -- namely, that post-Gebser, plaintiffs still survived motions to dismiss 48% of the time -- challenges the critical assumption that Gebser had a serious affect on the outcome of sexual harassment cases.

Interesting observation, but I wonder if these results are potentially explained, at least to some extent, by Gebser's deterrent effect on potential plaintiffs who would have sued had the Court adopted a vicarious liability standard instead. Since these additional phantom plaintiffs would have also presumably lost at the pleading phase in the post-Gebser era, Paget's 51.7% victory rate for schools may be artificially low.

Thursday, May 22, 2008

Student Argues Against Title VII's Application in Title IX Sexual Harassment Cases

In an interesting Comment in the Maryland Law Review, student Michael Buchwald argues that, owing to statutory differences and contextual differences between education and employment, it is inappropriate to import Title VII's "severe and pervasive" standard for employer liability to harassment cases in the education setting. Buchwald makes the case that Title IX requires educational institutions to "take a more proactive approach in identifying and prohibiting sexually harassing conduct" than Title VII requires of employers. Moreover, such proactivity is warranted "because of the trust and natural imbalance of power that exists in the teacher-student [and coach-athlete] relationship." He points out that relaxing the burden in this way "will not overly expose educational institutions to liability" because educational institutions would still only be liable for their own failure to act appropriately in response to notice of ongoing harassment.

Citation: Michael Buchwald, Sexual Harassment in Education and College Athletics: A Case for Why Title IX Sexual Harassment Jurisprudence Should Develop Independently of Title VII, 67 Maryland Law Review 627 (2008).

Wednesday, May 21, 2008

AAUW Report Debunks "Boy Crisis"

The American Association of University Women released this study on Tuesday about gender differences in educational achievement. The study, titled Where the Girls Are: The Facts About Gender Equity in Education, examines girls' and boys' performances on national standardized tests and other academic indicators. Its conclusions largely debunk the "boy crisis" we've been hearing so much about. Here are some of its major points:
  • Like girls' test scores, boys' scores are on the rise, a fact that by itself challenges the misperception that girls' academic success is coming about boys' expense.
  • Though college students of nontraditional age are predominately female, men and women who enroll in college right of out high school are doing so at relatively equal rates.
  • Differences in race and family income correlate significantly with disparities in test scores, while test score differentials between boys and girls vary with race, family income, and subject matter. For example, the general claim that girls outperform boys on standardized reading test is only significant with respect to white students. Boys outperformed girls on the math and verbal sections of the SAT, but this advantage is concentrated largely among students of lower income.
  • When gender is viewed in isolation of other factors, the gaps that do exist are small and long-standing. For example, while girls do better on standardized reading tests, this has been the case since the test was first administered in 1971! And for the last 30 years, that gap has either narrowed or stayed the same. Moreover, this advantage favoring girls is limited to standardized reading tests, as boys enjoy a slight edge on standardized math tests and on both sections of the SAT.
The absence of evidence that boys are suffering across the board, and the existence of large discrepancies by race and family income, show that recent efforts at educational reform in the form of single-sex classrooms is misdirected. Single-sex education is problematic not only because it unnecessarily imposes gender segregation that perpetuates stereotypes about appropriate interests and behaviors among boys and girls, but also because it diverts support and attention from the African-American, Hispanic, and low-income children whose education actually is at risk.

Via the New York Times and the National Women's Law Center blog.

FGCU Files A Lawsuit of Its Own

The National Law Journal has this account of Florida Gulf Coast University's efforts to enjoin former general counsel Wendy Morris from releasing information about the university that it claims is protected by the attorney-client privilege. Morris, we've noted, filed suit against FGCU in April, claiming that she was discharged in retaliation for encouraging the President to investigate allegations of Title IX violations within the university.

Experts interviewed by the Journal say FGCU's case is weak because the Florida Bar Rules of Professional Conduct contain an exception to the attorney-client privilege rule for lawyers who are suing their former employers or need to defend themselves. To qualify for the exception, Morris need only show that the information she's revealed in her complaint or other public sources is "germane to her suit" -- as opposed to extraneous information whose only purpose of to embarrass FGCU.

I've read Morris's complaint, and while all it says should embarrass FGCU, it's certainly germane to her retaliation suit.

Tuesday, May 20, 2008

What people are saying: Arizona State

Even as classes wind down and students head back from whence they came [unless you're on the softball team in which case you're headed back to campus to host a Super Regional (congratulations!)], the discussion at Arizona State over the recent athletic department cuts heats up.

The inevitable back and forth has begun. Unlike other institutions (ahem, JMU), ASU is not blaming Title IX for the cuts. As I said a week ago, school administrators have cited budget reasons for the cuts. And in keeping with federal law, ASU cut sports in a way that did not further disadvantage women. And some people see this (though this article cites equity as distribution of scholarships only). But others are talking vaguely about "interpretation." An interpretation that at least one guy thinks has become a "de facto quota system." Well no. ASU does is not in compliance with prong 1--which is what I assume he is referring to with the quota system comment. That means when a school chooses to comply with prong 2 or 3 (we're not sure which ASU cites) it cannot cut a viable women's team because it would result in (prong 2) not expanding the women's program or (prong 3) not meeting the interests and abilities of the underrepresented sex.
There is also evident a certain amount of fear about the future as the percentage of women attending college continues to grow. The "predicament of athletic directors...becomes ever more impossible" allegedly.
This sentiment and also this short piece, that initially seems to express support, indicates some problems in people's thinking. Erin's post yesterday about accounting practices addresses one of the issues briefly brought up: cost of adding women's teams. Athletic director Mark Brand noted to a reporter that the addition of women's soccer in 1996 and women's water polo in 2002 brought the department into compliance but "hurt the department economically" according to the article. Anyone want to guess the costs associated with recruiting and keeping an ASU football player versus a female soccer player? Or the costs of their respective facilities?
The commercial mindset (so intertwined with the patriarchal one) results in the idea that it's a "predicament" when women want to actually get their share of the resources of (some of which they pay for through tuition and fees) and benefits from an educational institution.
So when a male wrestler asks if not cutting a women's team is "a Title IX thing"? You can say, yes--it's also known as fairness. Isn't that one of things athletes are allegedly learning through sports--the concept of fair play?

Monday, May 19, 2008

NCAA Releases Report on Athletic Department Profitability

The Chronicle of Higher Education reported last week that the NCAA has released a report on the finances of college athletic departments. The report is notable because it is the first time the NCAA has broken out "allocated" revenue (money the department gets from the institution itself) from "generated" revenue (money that it gets from outside sources, such as ticket sales and private donations) in reporting on the profitability of athletics. Past NCAA reports as well as government data fail to make this crucial distinction, and this fuzzy accounting has obscured the true cost of college athletics.

When you don't count institutional subsidies as revenue, only 17 out of 300 Division I program (5%) were profitable during the 2004-2006 period that was the scope of the study. 16 of these programs were in the Football Bowl Subdivision (formerly, DI-A). Moreover, DI institutions' expenditures rose an average of 23%, outpacing the increase in revenue, which rose 16%.

Why is this important and what does this have to do with Title IX? The new report is important because it begins to dismantle the common misperception that college athletics can generate "profit" for the institution, which is to blame for the epidemic of profit-seeking that has unmoored college athletics from its educational mission. Among other problems the commercial mentality has caused (commodification of athletes, low graduation rates, etc.) it has also incited an arms race of spending on state of the art facilities and other amenities that are designed more to help recruiting than to contribute to a meaningful student-athlete experience.

To be sure, some of this spending trickles down to sports that do not operate in profit-seeking mode, a category that includes nearly all women's sports. The Chronicle gives some examples "state of the art facilities for sports that have no chance of recouping the costs of those structures" like softball, swimming, and soccer. This statement illustrates the problem with the commercial mentality of sport and why it is bad for women. The ability to "recoup costs" is inconsistent with not-for-profit, educationally sponsored athletics. This irrelevant consideration also results in a spending bias against sports that happen not to appeal to the public, which, unfortunately includes nearly all women's sports. The so-called profit sports still receive the lions share of the money. And the minority of funds that do wind up in "state of the art softball fields" are usually blamed as the sole source of economic strain that causes universities to cut teams, a burden borne largely by men's teams (but only because women are underrepresented in the first place). This situation creates backlash against Title IX and women's sports and alienates women's sports from its natural allies in men's sports like wrestling.

I have no optimism that colleges will change their paradigms out of concerns for the educational mission of sport. But rational administrators, confronted with the reality of the low likelihood of turning a profit, should think twice before entering into or sustaining a commercial mentality. Athletic departments need to accept their role in not-for-profit education, and spend accordingly --in a manner proportional to the value of sports to the students themselves, sacrificing "state of the art" in select sports in order to more equitably support a wider array of student-centered athletic opportunities.

Friday, May 16, 2008

Retaliation Cases Make Page 1 of USA Today

Tuesday's edition of USA Today raised the public profile of several retaliation cases we've followed extensively on the blog. The primary piece focused on the Fresno State plaintiffs -- Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein -- whose lawsuits generated multi-million dollar verdicts and settlements in the past year. The article calls the Fresno State cases "part of a series of lawsuits that have landed before courts since the U.S. Supreme Court ruled in 2005 that whistle-blowers who allege retaliation in Title IX cases can sue for monetary damages." Along with other, similar cases "from Hawaii to Florida" they "reflect the ongoing tension over the law that bans sex discrimination at schools receiving federal funds."

Other, related pieces provide a timeline of events at Fresno State, a focused piece on the discrimination Lindy Vivas experienced at Fresno State, a separate article about Johnson-Klein's trial and astounding jury verdict, and an interview with Karen Moe Humphreys, the former Berkeley swim coach whose retaliation case settled for $3.5 million, and an article about a gender equity complaint against the University of Southern California that has been under investigation for 10 years.

[thanks, D.C.]

Thursday, May 15, 2008

Henin and Sorenstam Retiring

Tennis star Justine Henin and golf star Annika Sorenstam both recently announced their retirements. The story was covered today on National Public Radio's Morning Edition, with the commentary that although the sports of tennis and golf will miss these two athletes, the advent and success of Title IX has ensured that there is no dearth of exceptional women athletes coming up through the ranks in these two sports (or a host of other sports, I would add).

Wednesday, May 14, 2008

NYT Profiles Women's Football

Women play football. If you didn't know that, read yesterday's New York Times.

In fact, there are more than 80 tackle football teams for women, all across the country. Many are affiliated with either the Independent Women's Football League or the National Women's Football Association.

The Times article profiles Jennifer Blum, who has played for the IWFL's New York Sharks since the team's inception in 2000. Blum is a New Jersey attorney, a former American Gladiator, and a 2002 alumna of Western New England College School of Law (how I wish that last fact had made it into the article!) As a kid, she fought and won a lawsuit to be able to play on the boys' all star community soccer team. Blum and her teammates seem aware of their role model status, working with the NFL's New York Giants to offer football clinics for girls. Blum's teammate, QB Karen Mulligan says they are "letting younger girls know this is something they can do."

And indeed, girls legally can play football -- though, technically, Title IX exempts schools from letting girls go out for boys teams in contact sports. But there are judicial decisions that rely on the Constitution's Equal Protection Clause to require community and other publically-sponsored football programs to let girls try out for boys' teams. Moreover, under Title IX, a school that does not offer athletic opportunities to girls in proportion to their enrollment (and most don't) can't easily turn down a request from female athletes to start a new team when there is sufficient interest and ability among the students and a reasonable likelihood of competition. The reasonable likelihood of competition would be an obstacle at first, but once the idea catches on in a few places, schools can no longer use that as an excuse. This scenario doesn't seem far fetched to me, as girls' lacrosse and hockey -- both nonexistent here in New England fifteen years ago when I was in high school -- seem to have followed this very pattern.

Could football be next? For those who hope it is, it certainly helps that there are women like Blum who are playing football, sharing their love of the game with girls, and receiving coverage in the New York Times. Now if only we could watch the Sharks play on ESPN...

[thanks, Sam!]

Arizona State budget issues lead to cuts

In an effort to fully fund and support its student-athletes and sports teams, ASU has decided to cut three sports: men's tennis, wrestling, and swimming. ASU had been carrying 22 sports--quite a few for a big-time DI program. Now they are down to 20 (they are keeping men's diving which had been combined with the swim team). The decision seemed swift and firm--probably a good thing in stemming backlash--though signs indicate that an uproar is inevitable. The VP of Athletics decided that cutting teams was preferable to taking away bits and pieces from all teams. No one has ruled out the possibility of the cut teams raising enough money for endowments but in an effort to be fair to student-athletes and give them an opportunity to transfer, the department opted to announce the cuts before fundraising began.
No one at ASU has mentioned Title IX. And rightly so. But members of the local wrestling community have already spoken out and blamed Title IX.
Said one wrestling booster who was particularly irate because he had hoped that ASU would never use Title IX as an excuse to cut wrestling (they haven't, by the way), "all these schools have a book on how to drop sports."
I wonder if that book includes instructions on how to deal with all the anti-Title IX backlash.

Tuesday, May 13, 2008

Vaughn Joins Lawsuit Against FGCU

It is only our good taste that keeps us from keeping a little thermometer icon in the corner and raising the mercury every time someone files a gender discrimination lawsuit or complaint against Florida Gulf Coast University.

The Trial Lawyers for Public Justice announced yesterday that former women's golf coach Holly Vaughn has joined Jaye Flood's pending lawsuit against FGCU. Like Flood, Vaughn alleges that she was retaliated against for pointing out athletic department's favoritism of men's sports and male coaches. Vaughn complained about such disparities in such things as office space, the autonomy to select assistant coaches, and the option to accept more duties in exchange for full time status. According to the complaint, Athletic Director Carl McAloose told her, "If you don’t like it here, you can get the hell out." Then, after Vaughn assisted former Interim Athletic Director Merrily Dean Baker gather and present evidence of systemic discrimination within the department, she received a negative performance evaluation, whose baselessness was corroborated by an external investigation. The conditions of her employment forced Vaughn to resign last fall.

Between this lawsuit, that of former general counsel Wendy Morris, and a grievance by former assistant softball coach Gina Ramacci, the tally in our imaginary thermometer is at four. Do I hear five?

The media support that Title IX doesn't really need

We comment on quite a few editorials that invoke Title IX. And we let, believe it or not, many just go by with a sigh and a shrug.
But our very patient colleagues at the John Curley Center for Sports Journalism at Penn State have poured through three years worth (2002-2005) of editorials on Title IX in a recent study on how writers discuss and frame the law and its application.
The findings should not surprise anyone who is paying any attention. Despite the liberal rhetoric, despite what looks like support for gender equity, many editorialists continue to frame Title IX as beneficial to women and girls (that's the "support" part) but detrimental to men and boys. And as the study's authors state, such "faulty assumptions" will have long-term (and I would argue short-term as well) effects on the viability of the law.

Monday, May 12, 2008

NYT on Girls and Sports Injuries

The New York Times magazine devoted its main story this week to the rate of injuries for girls playing sports such as soccer, and how the injury rate is startlingly higher than that of boys. It's a long and interesting article that offers a lot to discuss, and this blog post is just a starting point for discussion of the piece and the issues that it raises.

The article focused largely on high school girls playing soccer, and how the rate of serious knee injuries is about five times than of boys. The article explains some of this differential through the biological changes that occur when girls go through puberty, such as ligaments becoming looser in order to afford the body more flexibility, which in turn leads to knee and ankle injuries at higher rates than for boys, whose ligaments are more rigid, which helps keep muscles and bones in place. There also seems to be a growing concern over these injuries as the number of girls and women playing high school and college sports has increased dramatically in the last 35 years since Title IX has been in effect.

Overall, I thought the message of the article was a good one -- if girls are engaged in sports that boys have traditionally played, and the play of those sports requires movements and motions that are perhaps geared toward the way boys' bodies often develop, then we should be aware of the potential for higher injury risk to girls and take preventative measures, such as specific warm-up exercises that have been helpful to strengthen the knees and improve form, to try to reduce risk of injury.

My concerns about the article relate to its premise that people are either blindly pushing for girls to play sports to "even the playing field" with boys, without regard to potential injury risks (described in the article as "hard-liners"), or they are concerned about girls' health and want attention drawn to the disparity in injury rates. What about having it both ways? There are many of us who would like to see more encouragement, support and opportunity for girls and women to play sports, AND who would like to see more health research regarding injury rates and better ideas to prevent those injuries.

The second concern is related to the tone of the piece. The cover art, of a girl with a bandaged head being bonked on the head with a soccer ball, with the words "Hurt Girls" above it, seems to diminish the female athletes, and at the same time not give a second thought to boys who suffer serious injuries in sports. I am a firm believer that health research ought to take gender into account, when appropriate, to analyze problems and develop potential solutions, and we shouldn't just lump knee injuries for boys and girls into the same category when there's evidence that the problem ought to be treated differently. However, the article seemed to be editorializing as to whether it was appropriate for girls to play "rough" sports where they might get hurt, whereas we accept the idea that boys "play rough" and that their injuries are just part of the game (another NYT article discusses the knee injuries of professional football players, and how it's just the price that athletes pay for being able to play the game they love).

Sunday, May 11, 2008

Coeur d'Alene High Schools Violate Title IX

Last fall we noted that OCR had reopened an investigation against the Coeur d'Alene (Idaho) school district after an anonymous complainant came forward with new evidence to support a previously dismissed claim of Title IX violations in athletics. We said, "the administrators in Coeur d'Alene seem confident this new information will not alter the initial finding of compliance."

Turns out the administrators were wrong. The Coeur d'Alene Press reported Friday that OCR has determined that the district violates the Title IX requirement that schools provide an equitable number of athletic opportunities to boys and girls, as measured by one of three prongs. The district is not eligible for compliance under the first prong, substantial proportionality, because the percentage of athletic opportunities for girls (39%) is much less than the percentage of female students (48.4%). The district did not satisfy the second prong, which requires a history and continuing practice of expanding athletic opportunities for girls, as the last time a girls' sport was added in CDA, someone named Carter was president. Last, the district failed the third prong because both high schools in the district turned away girls from the volleyball program in sufficient numbers to have fielded another, competitive team. Under prong three, when girls are underrepresented in athletics and when the school has not been proactive about adding girls sports, the school is obligated to ensure that there are at least as many opportunities for all the girls who are interested and able to play competitive sports. The disappointed volleyball players prove that the district had not done so.

OCR's report also contained a finding that the district does not provide adequate support to the girls' swim teams at CDA and Lake City High Schools.

The district has until May to voluntarily comply. The article notes that one of the high schools has already added another volleyball team, so the district is perhaps taking steps in the right direction.

[thanks, H.]

Saturday, May 10, 2008

McCain gets another "fact" wrong

Not much attention is being paid to John McCain's campaign these days. But occasionally we get to hear about some misinformation the Republican candidate for president has been perpetuating, usually involving some confusion over Iran versus Iraq. But this time he's really done it:
The U.S. Department of Education under President Clinton took liberties in interpreting the law and without debate determined that universities must fund men's and women's sports programs in proportion to the ratio of male to female students, or else lose federal funding for any part of the university including financial aid. In doing so, the adverse consequence of this interpretation unfortunately has been that many schools have adopted policies of strictly equal funding for male and female athletic programs. Unfortunately, many popular athletic programs have been cut because the overall amount of funding available for athletics programs will not sustain identical men's and women's programs in every sport.
This wasn't even an on-the-spot response at a news conference. USA Today writers posed the same questions to each of the remaining candidates. I guess, as I have pointed out so many times before, if sports writers across the country cannot accurately explain Title IX, it shouldn't be expected that the guy who wants to be the next leader of the country can either.
I would really like to ask McCain to list all the athletic programs that equally fund their men's and women's athletic programs. Most athletic programs do not even obtain a 50/50 split let alone a proportional one, which, technically, is okay because THAT'S NOT WHAT TITLE IX CALLS FOR nor has that ever been the interpretation under any presidential administration.
What the other candidates had to say: Obama supports the High School Sports Information Collection Act, does not support the survey policy, and believes the growing number of complaints filed with OCR is indicative of ongoing sex discrimination. Clinton's answer was a little more nebulous. She supports the continued enforcement of Title IX and disagrees with the survey policy.

Wednesday, May 07, 2008

PA whistleblower revealed

A few weeks ago I wrote about the then-anonymous Title IX complaint against Central Bucks School District in Pennsylvania. The superintendent, Robert Laws, was somewhat confused over who would do this and why.
Well all has been revealed. Robert Landau filed the complaint alleging inequities in facilities, practice and game scheduling. Landau is not a parent of an athlete or a former athlete in the district. He is not a coach, teacher, or administrator. He doesn't even live in the district. He is just a man who believes that women's and girls' sports, of which he is a fan, should get equitable treatment. Last year he filed complaints in two other PA school districts.
Landau began his activism in 1994 when his favorite girls' basketball team, Cheltenham, played their championship game in the high school when the boys' game was played in an arena. He got a court to issue an injunction against the boys' game and the district gave in after only three hours and agreed to hold the girls' game in the same location.
And he has been a fan and advocate ever since.

OCR has met with district representatives who have until July to file a report that will be used to evaluate their compliance.

Tuesday, May 06, 2008

OCR Investigation Clears Scotts Valley

In December we noted that the Office for Civil Rights was investigating alleged Title IX violations at Scotts Valley Unified School District in California. An anonymous person had complained that the high school was violating Title IX by providing female athletes, including softball players, with inferior equipment, facilities, scheduling and coaching.

Yesterday, OCR released an investigation report in which it concluded that Scotts Valley was not in violation of Title IX. According to the Mercury News, the report acknowledged "individual instances of disparities favoring males or females within the athletic program" but determined that on the whole, they "do not show a pattern of disparities or 'second class status' for either gender." For instance, "while some teams had more or better equipment and supplies, and some sports used more athlete-owned equipment, these differences were not based on the sex of the athletes. While more boys teams had full sets of uniforms than girls teams, more girls teams had warm-ups and bags than boys teams."

Regarding a separate claim that Scotts Valley should have added a freshman girls soccer team, OCR concluded that, since there was no
"reasonable expectation of competition within the normal competitive region," the school did not run afoul of prong three, which measures compliance by the absence of unmet interest on the part of the underrepresented sex. It also apparently noted that the high school has a history of (in the reporter's words) "supporting expansion of athletic opportunities for girls' teams by approving new sports when there were enough students to support a [competitive] team." I'm not sure if this means that OCR found the high school to alternatively comply with prong two, which measures compliance by a history and continuing practice of expanding opportunities for the underrepresented sex. If so, this seems like a pretty watered down version of prong two, which I always understood to require schools to take a more active role in developing new opportunities that just waiting to be asked by an already-existing team.

Monday, May 05, 2008

Researchers Find Rampant Peer Harassment

The New York Times reported last week that more than a third of middle- and high-school students may be victims of sexual harassment by their classmates, according to a new study in the journal Sex Roles. The researchers also determined that sexual harassment takes an even stronger "emotional toll" on students than bullying -- a more visible and frequently-occurring form of peer abuse. Girls and "sexual minorities" -- openly gay students or those perceived to be gay -- are particularly susceptible harassment and its adverse health effects.

Title IX Sex Abuse Trial Underway in Texas

A Title IX trial commenced today in the federal district court for the Western District of Texas. The plaintiff is a former student at Bowie High School in Austin. He is suing the high school, the Austin School District, and a former color guard instructor named James Johnston, alleging that during the 2003-04 school year, Johnston made "made offensive physical contact" with him at the school and other locations, and that school district officials failed to protect him from this risk of which they should have been aware. According to the Austin Statesman-American, the school district defends that it was not aware of the student's accusations. Thus, the focus of the trial should be one who within the district knew what about Johnston and when.

See also the Houston Chronicle's coverage here.

Saturday, May 03, 2008

Conference in India: Save the Girl Child

Last week, India's Ministry of Health and Family Welfare convened a national conference to "Save the Girl Child." Among the topics addressed at the conference were equal educational opportunities for girls and boys, promoting the physical and mental health of girls, and curbing the practice of sex-selective abortion (which is illegal in India, but practiced by some in order to abort female fetuses).

On the topic of promoting educational opportunities for girls, the conference organizers discussed a new government program, Dhan Laxmi, that aims to pay families who fulfill certain benchmarks for their daughters -- including getting the recommended course of childhood immunizations, completing a high school education and holding off on marriage until at least the age of 18.

Friday, May 02, 2008

Female Wrestlers' Discrimination Claim Dismissed for Lack of Notice

Now that last week's decision in the U.C. Davis wrestling case is available online, I can offer the fuller analysis I promised.

The background, briefly, is this: In 2000, U.C. Davis decided that women would no longer be eligible to participate on the wrestling team. The female wrestlers sued, alleging discrimination by the athletic department in the overall treatment of women's athletics (in terms of scholarships, access to facilities, coaching, etc.) and failing to effectively accommodate female students with an equitable number of opportunities to participate in athletics (the three-prong test). Last year, the unequal treatment claim was dismissed as untimely in an application of the Supreme Court's controversial Ledbetter standard.

Last week, the district court dismissed the remaining ineffective accommodation claim because "plaintiffs have not alleged they gave defendant notice and an opportunity to remedy any purported systemic non-compliance with Title IX." The district court relied on a 1998 Supreme Court decision, Gebser v. Lago Vista School District, which emphasized that an institution could not be liable to a private plaintiff for money damages unless it had notice of the discrimination the plaintiff faced, and an opportunity to fix the problem.

Gebser was, of course, a sexual harassment case, and its applicability in athletics context is questionable. If a plaintiff is harassed by a teacher or another student, the discriminatory conduct that can attributed to the institution itself (and thus, subject to Title IX) is its failure to take appropriate steps to protect the plaintiff and prevent the harassment from continuing. It makes sense to emphasize the notice requirement in that context, since an institution can't reasonably be expected to prevent someone else's harassing behavior if it doesn't know about it.

In the athletics cases, however, plaintiffs are alleging discriminatory conduct in the form of institutional decisions to configure its athletics program in a certain way. It doesn't make sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.

The district court cited one other case that applies Gebser's notice requirement against Title IX plaintiffs in the athletics context. That decision is Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). But from what I can tell, that is the only other one. I hope the plaintiffs appeal this decision. Perhaps we'll see a circuit split.

Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2008 WL 1860031 (E.D. Cal. Apr. 23, 2008).

Thursday, May 01, 2008

Alhambra High School Softball Team Celebrates New Field

Four years ago, softball players at Alhambra (California) High School sued the Alhambra School District, challenging the disparity between their crappy softball field and the boys' new $900,000 baseball complex as a violation Title IX. After two years of litigation, the District settled, agreeing to construct a two new softball fields with "the same amenities and maintenance as the baseball fields" available to the boys.

On Tuesday, the softball team finally played their first game on the new field. The original plaintiffs, their lawyers, and school officials were all in attendance for a special ceremony to open the new field. KABC in Los Angeles covered the story on the evening news.

According to their lawyers at the California Women's Law Center and the Legal Aid Society-Employment Law Center, Cruz v. Alhambra School District was the first high school Title IX case in California.