Friday, August 29, 2008

Governor Palin Supports Title IX

(Photo from Huffington Post. Palin is on the right.)

Intrigued by the sports narrative that accompanied John McCain's announcement that he has chosen Alaska Governor Sarah Palin to be his running mate -- we were immediately introduced to Palin the hockey-mom, coach, and former high school basketball state champion nicknamed Sarah-the-Barracuda -- I wondered what the newly-minted candidate thinks about Title IX. I may disagree with the rest of her politics, but I was pleased to discover that she has publically credited Title IX for contributing to her success in politics. In a 2007 interview, the Alaska Business Monthly asked Palin:
You're the first female governor of Alaska. In a recent article, you credit the Title IX federal law, which guarantees women equal opportunities in education, including school sports, with helping you get where you are.
Palin replied:
I had a great upbringing under Title IX. I can't imagine where I'd be without the opportunities provided to me in sports. Sports taught me that gender isn't an issue; in fact, when people talk about me being the first female governor, I'm a little absent from that discussion, because I've never thought of gender as an issue. In sports, you learn self-discipline, healthy competition, to be gracious in victory and defeat, and the importance of being part of a team and understanding what part you play on that team. You all work together to reach a goal, and I think all of those factors come into play in my role as governor.
It is, to be sure, more than a little problematic (and possibly quite telling) that she claims "gender is not an issue" as this could mean that she doesn't think gender discrimination exists today. Surely as an athlete and a politician she has seen the ways in which women are marginalized, trivialized and sexualized, so perhaps what she really meant is that gender is not an obstacle. But even if that is not what she means, it is still notable that she credits Title IX for her opportunity to play and learn from sport. It would be nice to see a Republican come to the statute's defense.

Interview link via Because I Played Sports

Thursday, August 28, 2008

Court Tosses Student's Lawsuit Challenging Low Grade Received From Female Professor

If you or anyone you know teaches in a Women's Studies department, this story will sound familiar:

After receiving a D in English 111 course at Ivy Tech Community College in Gary, Indiana, student Richard Faloona complained to the administration that his female professor, Nancy Riecken, gave him a low grade because of sexism. As the only male student in the section of the course in which he was enrolled, what else could explain a D? It couldn't possibly be the quality of his writing, which had only limited opportunities to improve in light of his tendency to miss classes, leave early, and fail to make up the work.

The Dean of Students reviewed Mr. Faloona's complaint and asked several of Riecken's colleagues to independently review his grade. All concurred that Faloona should consider himself lucky to have received a D, so the Dean informed Faloona that unless he appealed in writing to the Academic Dean, the grade would stand.

Here is where a familiar story takes an unfamiliar turn: Rather than continue his internal appeals, the student actually sued in federal court. Since he was representing himself, the only thing I can think of is that he wanted an opportunity to improve his writing after all. Hopefully, he got something educational out of the experience, because he certainly did not prevail in his case. Last week, a federal judge granted Professor Riecken's motion for summary judgment, finding no support at all in the record for Faloona's allegations of sexism. For example, he claimed that the female students who earned A's missed more classes than he did, a fact belied by Professor Riecken's attendance records. Nor could he demonstrate that Professor Riecken directly considered his attendance deficit when calculating his grade. As such, his claims that Riecken violated Title IX and his rights under Constitution's Equal Protection clause both failed.

As silly as this lawsuit is, it does provide us with the opportunity to point out the fact that courts are very deferential to professors' academic decisions -- to the comfort, perhaps, of those in academia who are routinely targeted for bias claims. Students challenging their grades in court must show that the professor's decision represents “such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.” Moreover, professors who are charged with bias in dealing with students “are entitled to a presumption of honesty and integrity" and the student must prove that the professor has an actual bias "such as personal animosity, illegal prejudice, or a personal or financial stake in the outcome."

Decision is: Faloona v. Riecken, 2008 WL 3896751 (N.D. Ind., Aug. 18, 2008).

Tuesday, August 26, 2008

On the other hand

Boston Globe columnist Bob Ryan attributes the success of the American women's teams in Beijing to Title IX.
Too bad he keeps referring to the athletes as "ladies" in that way in which many male sports writers, thinking they are being supportive, are so condescending.

Monday, August 25, 2008

Title IX and the Olympics

You knew we wouldn't make it through an Olympics--even a highly successful one for the United States--without hearing about Title IX threatening the future of Olympic sports. This article in The Wall Street Journal is not entirely condemning of Title IX, but it does leave open the potential inferences by readers that cuts to men's Olympic sports happen because women's sports are "protected" by Title IX. Maybe we should go ask the female fencers at JMU how protected they felt.
The United States is all about medals--or at least that's the impression we get from watching the television coverage. We won the medal race this time around (but not the gold medal race--China got that one). There has been a lot of discussion over why the US track and field team did not perform as well as expected. But funding these sports at the college level is not a commitment schools are making. And with little state support, why would there be an expectation of success? Success will come to those who can pay for it as privatization takes over.
Lisa Love, athletic director at Arizona State University, which has recently gone through the cutting and backlash experience, said cuts are dictated by what the market wants. I guess if the market wants football it shouldn't complain about medal counts every four years.

PS If you're looking for the even less nuanced, factually incorrect version or you're just in the mood to get really ticked off, you can read Phyllis Schlafly's version of how Title IX hurt the US Olympic Team and how China benefited from not having to deal with all this "feminist nonsense."

Friday, August 22, 2008

Professor Dees on Brown and Title IX

In the current issue of the University of Missouri-Kansas City Law Review, Professor Jermone Dees from Faulkner University's law school argues that integration of American universities following Brown v. Board of Education, rather than Title IX, has done more to increase collegiate athletic opportunities for African-American women. From his conclusion:
African-Americans athletes have had a long history of athletic participation at the high school and collegiate level. The Brown v. Board of Education decision in 1957 eventually resulted in African-American student athletes, both male and female, experiencing greater athletic opportunities at the college level. The implementation of Title IX has increased the athletic opportunities for women overall, but has not resulted in increased diversity in the athletic participation by African-American women, due to a real or perceived lack of interest in the NCAA's nontraditional sports.

In order to create or increase African-American interest in nontraditional sports, secondary schools must provide students access to these sports within the framework of the academic environment. Additionally, recreation leagues need to act in concert with local schools to provide opportunities to learn the fundamentals and gain experience in these sports. Finally, schools and recreation departments must seek sustainable support to enhance diversity of athletic opportunities for African-American females. Until that time, integration, not Title IX, must be credited with the athletic opportunities enjoyed by African-American student-athletes.
A. Jermone Dees, Access or Interest: Why Brown Has Benefited African-American Women More than Title IX, 76 UMKC L. Rev. 625 (2008).

Thursday, August 21, 2008

Fourth Circuit Won't Enjoin JMU from Cutting Teams

Yesterday, a federal appeals court sided with James Madison University in its litigation with Equity in Athletics, Inc., the group challenging JMU's decision to cut 7 men's and 3 women's athletic teams in 2006. A federal district court in Virginia had already rejected EIA's efforts to obtain a preliminary injunction against the cuts, which EIA argues violated Title IX and discriminated against men, and yesterday's decision 4th Circuit Court of Appeals affirmed the lower court's ruling.

Specifically, the 4th Circuit evaluated the district's weighing of the balance of harms, part of the test for whether a preliminary injunction should issue. The court concluded that the district court judge was reasonable in deciding that the harm to athletes in not being able to continue to in their chosen sports was important, but somewhat mitigated by the fact that they could retain their scholarships or choose to transfer. On the other hand, the harm to JMU in granting the injunction, which would essentially force the university to reinstate 10 teams that it determined it could not afford, was great. Moreover, EIA could not make a clear showing of a likely success on the merits, given that all federal appellate courts who have considered the question have upheld universities' decisions to let cuts fall disproportionately more on the sex that had proportionately more athletic opportunities to begin with, as was the case with JMU.

EIA has not said publically whether it plans to continue to pursue its litigation against JMU (its motion for a permanent injunction against the cuts is still pending, but looks rather futile now) or its litigation against the Department of Education, in which it challenges the legality and constitutionality of the regulatory interpretation of Title IX, on which JMU purportedly relied. However, since the Title IX standard does not require any school to make cuts -- it only protects women's opportunities from cuts when women are underrepresented in athletics in the first place -- EIA will likely have difficulty establishing standing to challenge to sustain this claim. But given that EIA seems to exist for the primary purpose of challenging Title IX's regulatory interpretation, I don't think this weakness will stop them from trying.

Decision (.pdf) is: Equity in Athletics v. Dep't of Educ., No. 07-1914 (4th Cir. Aug. 20, 2008) (unpublished).

Monday, August 18, 2008

More Iowa troubles

A University of Iowa professor has been charged with sexual harassment after asking female students (via email) for a chance to see and grope their breasts--in exchange for an A. This blog post, by Zuska, offers the cynical take that we here at the Title IX blog try to refrain from most of the time but do enjoy reading. A more news-like article from the Chronicle of Higher Education about the situation goes through some of the facts including the now mandatory sexual harassment training the university is instituting for all faculty and staff members.

One blog commenter asks whether such training (which is already mandatory for anyone in a supervisory position at Iowa) would have really prevented this particular situation, i.e. most people know it's wrong to ask to see someone's breasts in exchange for a good grade. True, but such training has been proven to be effective in situations that are not so clear-cut.

Of course, in the end, Zuska's frustration over this situation (and some others cited in the same post) that we still have such egregious behavior in our educational institutions 35+ years after the passage of Title IX is understandable.

Friday, August 15, 2008

Nebraska-Kearney adds women's soccer

University of Nebraska-Kearney is adding women's soccer as a varsity sport in fall 2009. Though much of the discourse around the addition is centered on adding a sport that almost every other state university already has and the popularity of the sport in Nebraska high schools, the brief mention of Title IX and the fact that the university has not added a sport--any sport, men's or women's--since 1963, makes me think that providing equitable opportunities was more of a factor than the university is letting on.
I am a little curious about the statement that none of the funding will come from any new state dollars and thus not "take away" from any of the existing programs. The program is expected to be self-sufficient and that revenue will be gained through ticket sales. There is a belief that fans are ready--have been ready--for women's soccer at UNK for a while now. I hope they're right. Because even if they don't show up and if they cannot become self-sustaining, the university, it would seem from the facts given, will be obligated to keep the program and not take away opportunities from women.

Thursday, August 14, 2008

Settlement Scuttled in WVU Tech Case

An odd development in the lawsuit by the WVU Tech softball players' Title IX case we blogged about in February: the players' lawyer has asked the judge to let him off the case because the players are refusing to sign an agreement that the lawyer believes reflects a settlement both sides had agreed to.

The players, Alexis Cox and Teri Harrison, initially filed a complaint with OCR about inequitable athletic facilities at WVU Tech, which they dropped after the university agreed to make certain upgrades and improvements to the softball field. The players later sued when those upgrades did not materialize. In June, both sides agreed to a mediation. According to Michael Ranson, the players' lawyer, during this process WVU Tech "agreed to even more improvements and upgrades to the women's softball and facilities than previously memorialized" in exchange for Harrison and Cox dropping the suit. But when the agreement was memorialized in writing, the players "surprisingly refused" to sign the document, according to WVU Tech's counsel.

No explanation for the players' decision has been offered, but Ranson is seeking a hearing so that the judge can determine whether an agreement between the parties in fact occurred over the course of the mediation. He has asked that Harrison and Cox attend the hearing and voice their objections to the settlement, so perhaps we will find out their side then.

This is pure speculation, but I wonder if Harrison and Cox had second thoughts about the settlement because they had been on the receiving end of WVU Tech's promises before -- maybe on further reflection they were not satisfied with the (alleged) settlement because it contains no automatic penalty for failing to satisfy the timeline for the improvements. Another possibility is that the players realized that agreeing to drop the entire lawsuit in exchange for facility improvements would prohibit them from continuing to press their claim that WVU Tech retaliated against the team and its former coach after they filed their complaint with OCR.

Wednesday, August 13, 2008

Nevada soccer dad update

On Monday soccer dad and assistant US attorney Eric Johnson brought his Title IX complaint before a federal judge who will rule today (this article says next week, though) on whether to issue a temporary restraining order against the Nevada Interscholastic Activities Association to keep girls' soccer in the southern part of the state a sanctioned winter sport.
The argument Johnson made in court yesterday is based on his belief that moving girls' soccer to the fall (which schools could choose to do or they could keep it in the winter as an unsanctioned or club sport) would permanently remove a girls' sport from the winter slate of sports and thus create an unequal number of opportunities. But, as I have said before, Title IX does not require an equal amount of sports in any given season--it doesn't even require an equal number of girls' and boys' sports overall.
I am quite befuddled as to how this case actually made it to court. If anyone involved, Johnson, the judge, the NIAA knew anything about Title IX they would know Johnson's claims are bogus. A real Title IX suit would contend that the school is not providing equitable opportunities. But such a claim would not help Johnson--or rather his daughter who plays both soccer and volleyball, which are traditionally played in the fall. Removing soccer entirely could indeed be a Title IX violation, but moving it to another season, while preserving the number of opportunities provided to girls, is not.
The NIAA is worried about how much money it is spending on this case. They are liable for plaintiffs' legal costs if the temporary restraining order and injunction are put into place. If anyone knew what was what, Johnson would have to pay NIAA's costs for bringing such a frivolous case.

Tuesday, August 12, 2008

ESPN column breaks down intercollegiate soccer

Maria Ortiz Burns, a former intercollegiate soccer player, has written a good editorial at EPSNSoccernet breaking down the myth that men's intercollegiate soccer has suffered because of women's intercollegiate soccer. She begins with the basics: that men's soccer has not declined--the number of DI teams and the number of players per team has actually grown over the past two+ decades. She then moves on to the money issue with more stats and basic facts before moving into a discussion of scholarships--numbers and dollars.

She does irk me a little bit when she says that the arguments about football being exempted because it is a revenue-producing sport and that it has no female equivalent are valid though not likely to sway the NCAA. Though she does quickly follow that even as football continues to be counted we cannot blame women's sports for taking away resources and opportunities for men.
Overall it's a good breakdown of the intercollegiate soccer and Title IX's effects (and non effects).

Monday, August 11, 2008

Nevada soccer dad headed to court

In April we wrote about an odd argument using Title IX to prevent a girls' sport from being moved into its traditional season.
Seems that that soccer dad, who happens to be an assistant US attorney, has gotten his case to federal court this week. Eric Johnson filed suit against the Nevada Interscholastic Activities Association and the county school district where his daughter plays soccer because they wanted to move girls' soccer from the winter to the fall. He dropped Clark County from his suit because they voted to keep it in the winter. But the NIAA overruled them.
His Title IX argument this time around* is that should the girls in Clark County and elsewhere in southern Nevada, which has held its own championship, continue to play in the winter--unsanctioned by the NIAA--then any championship title they receive would not be recognized. This is a violation of Title IX, Johnson says, because the law guarantees girls should have equal recognition for their achievements.
Hmmm...well girls and women certainly do not get equitable recognition from the media or society in general. But if he is referring to recognition from governing bodies that's not quite right either. The NIAA can sanction whatever sports it wants. Schools/districts then choose which sports they want to offer. In theory these offerings should provide girls and boys with equitable opportunities, facilities, coaching, etc.
I am not quite sure what is happening here. Is this truly the argument Johnson, a US attorney, making? Is the media, perpetually confused about what Title IX entails, getting this story wrong?
Hard to tell. Either way it does not seem that any viable Title IX argument can be presented as to why girls' soccer in southern Nevada should remain a winter sport. And Johnson, who is reported to be the the only parent to ever raise this issue, doesn't seem to have much community support either.

* Last time the media coverage seemed to stress that he was arguing that there would not be an equal number of girls and boys sports in the winter season should the change be implemented.

Friday, August 08, 2008

Midland College Softball Team to Get Locker Rooms

Congratulations to the Midland College (Texas) softball team, who will finally have locker rooms and equipment storage at their practice facility starting next year. A local, city park serves as the home field for Midland softball, so the college had to get permission from the local Parks & Rec board to erect a $30,000 temporary structure for use by the college team.

This story may seem insignificant, but I think it underscores a couple of bigger points about the role of Title IX. First is the fact that the college could not use as an excuse the fact that they do not own or control the city park where the softball team plays. If parks and rec had said no to the temporary structure, Midland College would have had to figure out another way to get equivalent facilities for its softball team as the men's teams enjoy. (I assume by the way the article references Title IX that all the men's teams have locker rooms at their facilities.)

Second, I want to highlight the last line of the article, a quote from Midland's vice president of student services, who expressed gratitude for the city for finally giving approval to the structure, saying, "The last time the project fell through, I had all 18 players in my office upset about it. They will be very happy to know that they will have locker rooms." Does this line remind anyone else of A Hero for Daisy? In 1976, the Yale women's crew team was similarly "upset" about the lack of locker room facilities at their practice site, which they famously protested in the office of a female administrator (by taking off their clothes to reveal the words "Title IX" written in marker on their bare bodies). Despite the progress made under Title IX, female athletes are still battling for the basic right to a place to change their clothes.

Thursday, August 07, 2008

Title IX "Update" in Vermont Bar Journal

Brian Porto, Esq., has published an article called "Halfway Home: An Update on Title IX in College Sports" in the current issue of the Vermont Bar Journal. Porto summarizes many of the current issues in Title IX law and policy, including the 2005 Clarification, the debate about proportionality and men's sports, and the recent trend in retaliation cases. Scholars, activists, and regular readers of the Title IX Blog will likely not find anything new in this article. But you should appreciate, as I do, Porto's efforts to raise the profile of these issues among practitioners of law.

Citation: Vermont Bar J., v. 4, Summer 2008, at 28.

Wednesday, August 06, 2008

Temple's Sexual Harassment Policy Ruled Unconstitutional

A graduate student a Temple challenged the constitutionality of the university's sexual harassment policy, arguing that its broad scope prohibited speech otherwise protected by the First Amendment. On Monday, the Third Circuit Court of Appeals agreed.

Here is Temple's policy:
For all individuals who are part of the Temple community, all forms of sexual harassment are prohibited, including the following: an unwelcome sexual advance, request for sexual favors, or other expressive, visual or physical conduct of a sexual or gender-motivated nature when ... (c) such conduct has the purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or (d) such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.
The court took issue with the policy's inclusion of conduct that has the purpose of intimidation or offense "regardless of whether these motives and actions had their intended effect." Thus, the court determined, the policy runs afoul of the Supreme Court's ruling that "speech cannot be prohibited in the absence of a tenable threat of disruption." The court also criticized the policy's use of terms “hostile,” “offensive,” and “gender-motivated” for potentially prohibiting "'core political and religious speech, such as gender politics and sexual morality."

In theory, this ruling should not effect the level of protection afforded by Title IX against sexual harassment. The Third Circuit indicated that it would be satisfied had the policy's prohibition extended only to conduct that is severe and pervasive -- that it "objectively and subjectively creates a hostile environment or substantially interferes with an individual." In other words, coextensive with protection of Title IX, as stated in Davis.

However, the practical effect of this ruling remains to be seen. If this decision causes universities to become more concerned about First Amendment litigation than Title IX liability, they could repeal, weaken, or underenforce existing policies, leaving students and others in the university community more vulnerable to harassment.

Decision: DeJohn v. Temple University, 2008 WL 2952777 (3d Cir. Aug. 4, 2008).

Oklahoma Harassment Suit Survives Summary Judgment

A federal court in Oklahoma agreed that a jury should decide whether the Hilldale Independent School District is liable under Title IX for failing to protect the plaintiffs' fourteen-year-old daughter and another student from sexual abuse by the band director, Brian Giacomo. The district tried to argue that its response did not qualify as "deliberate indifference" necessary for Title IX liability to attach, but the court disagreed. A jury could reasonably conclude that the district should have conducted an investigation after the principal initially learned from another student that Giacomo was engaging in sexual conduct with students on a band trip. Instead, the district did not investigate or terminate Giacomo's employment for several more months, after the principal received copies of sexual comments Giacomo left on students My Space pages and other evidence. Noted the court, "Often, the minimum required response to avoid 'deliberate indifference' is for the school to conduct a legitimate investigation," which, a jury could conclude the district waited too long to do.

Decision is: J.M. v. Hilldale Indep. Sch. Dist., 2008 WL 2944997 (E.D. Okla. July 25, 2008).

Tuesday, August 05, 2008

Reasonable Women Don't Consider Man's Unwanted Advances to be "Severe" Harassment, Says NJ Supreme Court

Yesterday the New Jersey Supreme Court affirmed lower courts' dismissal of a complaint against Princeton Theological Seminary filed by two female students. Beth Godfrey and Jennifer Kile had alleged that the school violated Title IX and New Jersey's Law Against Discrimination when it failed to protect them from the unwanted amorous advances of a seventy-year old alumnus, William Miller, who lived on campus and had taken to hanging around the seminary. The court, however, did not consider Miller's conduct to be severe and pervasive. The crux of the court's reasoning is here:
Objectively viewed, Godfrey's encounters with Miller occurred over a period of years and involved sitting with him during lunch at a school cafeteria table with others, seeing him at three Friday Night Fellowship gatherings, receiving a couple of social invitations as well as a Christmas parcel containing a Christmas card and Winnie the Pooh note cards, and finding five messages on her telephone answering machine in which Miller became more urgent and persistent in his pursuit of a date with her. She also ran into him in a local Hallmark store.

Kile's interactions over a similarly lengthy period of time involved three innocuous encounters in the library, receipt of a package containing religious articles, including a devotional book and scripture card, and a Christmas card and newsletter, the cafeteria/chapel incident, and the e-mail that she received while in England, to which she did not respond.

The events are intentionally described in sterile terms, stripped of the overlay of Godfrey's and Kile's subjective reactions to these interactions, which comprised most of their testimony. Indeed, Kile described herself as “on the lookout for him,” “on guard,” “freaked out” by Miller's decision to attend the chapel service because Kile had said that she would be there, and “stalked.” Godfrey also was disturbed by her feeling that Miller was “monitoring ... [her] comings and goings,” and she described herself as “distress[ed]” by his presence. However, plaintiffs' subjective responses to the allegedly harassing conduct do not control, or otherwise affect, the determination of whether the conduct is severe or pervasive, which requires application of the reasonable-woman standard. Viewed from that perspective, we have no doubt that the trial court and the appellate majority correctly regarded the totality of that evidence as falling short of severe or pervasive conduct that a reasonable woman would determine to constitute sexual harassment.
What bothers me about this opinion is that in its over-emphasis on whether the plaintiffs were "reasonable" in their reaction to a creepy stalker, the court looses sight of how little the seminary had to do to address the problem and make the plaintiffs more comfortable. The seminary even admitted that Miller had no formal connection to the school. So why were they so protective of his right to hang around? Why not ask him to stay out of the dining halls, dorms, and campus center? As the court notes elsewhere in the opinion, the seminary's dean would not take this action because "a male student had become irate when he discovered that he could not invite Miller to eat with him in the Campus Center." The NJ Supreme Court is saying that it's not a discriminatory response to favor the rights of men to merely eat lunch in the campus center over the rights of women to go to school without harassment. Even if the court was right that the harassment was severe only from the plaintiffs' subjective point of view, I don't think that's fair.

Decision is: Godfrey v. Princeton Theological Seminary, 2008 WL 2951891 (N.J. Aug. 4, 2008).

Monday, August 04, 2008

Beijing Sex Testing Criticized

Begging your indulgence for a slightly off-topic post, but I am inspired by Colby College professor Jennifer Finney Boylan's insightful op-ed in today's New York Times to address recent reports that Olympic organizers in Beijing will run sex-verification tests on athletes competing in women's events whose female-ness is "suspect."

While the IOC has banned blanket sex-testing and has allowed transsexual athletes who meet certain surgical, hormonal, and legal qualifications to participate in the category of their post-operative sex, Beijing officials recently announced a plans to operate a “gender determination lab” to evaluate athletes' sex based on their physical appearance, hormones, genes and chromosomes.

Boylan, like some of the bloggers who have also criticized the policy (e.g., here and here), points out that gender testing is far more likely to inflict dignitary and emotional harm on those tested -- especially those who test positive for athletically irrelevant anomalies -- than it is to nab any genuine gender impostors, of which there has been only one in Olympic history. Because, like gender itself, gender testing is fraught with ambiguity. After all, Boylan asks, "what makes someone female?":

If it’s not chromosomes, or a uterus, or the ability to get pregnant, or femininity, or being attracted to men, then what is it, and how can you possibly test for it? The only dependable test for gender is the truth of a person’s life, the lives we live each day. Surely the best judge of a person’s gender is not a degrading, questionable examination. The best judge of a person’s gender is what lies within her, or his, heart.....A quick look at the reality of an athlete’s life ought to settle the question.

Boylan concludes by imploring the Beijing organizers to "make peace with a world in which things are not always quantifiable and clear." As I imagine the unspeakable pain and degradation that a gender witch hunt would cause to sport, to women, and to the Olympic games, I hope they take her advice.

Cross posted at Feminist Law Professors.

Saturday, August 02, 2008

Another Settlement in Fresno

This just in: Fresno State will pay $125,000 to former men's basketball secretary Iris Levesque in settlement of her sex discrimination lawsuit against the university. We blogged about Levesque's case when she filed last December, claiming that the university's purported "financial reasons" for laying her off were really pretext for punitive motives for complaining about the hostile and discriminatory atmosphere of the basketball office under then-head coach Ray Lopes.

Under the terms of the settlement, Levesque will be hired as a receptionist/accounts receivable clerk in the university's housing department. She will also be hired retroactively for a three-month period by the by the Fresno State Athletic Corporation so that her retirement account will vest. She will also be paid $86,000, a figure that includes salary for the retroactive employment period, and her lawyers will receive $39,000.

The Fresno Bee notes that this brings Fresno State's total potential payout in sex in discrimination lawsuits involving athletic department employees to slightly more than $16 million.
  • $4.52 million jury award to former volleyball coach Lindy Vivas; an appeal is pending.
  • $3.5 million settlement with former associate athletic director Diane Milutinovich.
  • $7.3 million to fund a $9 million settlement with former women's basketball coach Stacy Johnson-Klein (Fresno State's contribution is discounted because the payments are spread out over 25 years).
  • $605,000 settlement with softball coach Margie Wright, the only case with no lawsuit.
  • $125,000 settlement with Levesque.
[Thanks a lot to DM and DW, who each promptly alerted me to the story!]

Friday, August 01, 2008

A Title IX for Disabled Athletes?

In July, political efforts to enhance opportunities for disabled student-athletes reached two noteworthy milestones.

First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).

After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.