Saturday, February 28, 2009

Mesa College and Other Division II School Are Adding Sports

To our surprise we keep reading about schools that are expanding their athletic programs, even in this tight economic times and even as other schools (UVM, UNI, and maybe Hawaii?) are downsizing their athletic offerings. At Mesa State College in Colorado, new men's golf and men's swimming and diving teams will begin competition this fall, and a women's lacrosse team will have its first season in the spring of 2011.

It is great to see schools adding men's sports like golf and swimming, which often get squeezed out in favor of large football rosters (which Mesa State has as well). But I hope Mesa State isn't setting itself up for cuts down the road. It currently offers only 43% of its athletic opportunities to female students, notwithstanding a 56% female student body, and this disparity does not change significantly with the new offerings. That means Mesa State must comply with either prongs two or prong three, either one of which could require it to add a women's team in the future, especially if there is significant interest. Hopefully Mesa State has the money to do this without cutting teams. Otherwise, we all know that the rhetoric will be "Title IX made us do it" and no one will blame or question the decision to add teams to the side already getting disproportionately more opportunities in the first place.

The article also notes that other Division II schools in their region have recently or are currently adding sports. Adams State is adding men’s golf, men’s soccer and women’s swimming and diving next year and men' and women's lacrosse men’s swimming and diving in the fall of 2010. Metropolitan State is adding men’s golf in the 2009-10 season and Fort Lewis College's women's lacrosse will have its first season this spring. Like Mesa State, none of these schools can claim compliance with the proportionality prong.

Friday, February 27, 2009

Still more from FGCU

The climate in Florida has never been to my liking, but the climate at Florida Gulf Coast University has got to be even worse!

We have documented (click on the FGCU tag) what we thought were the only incidents of discrimination and harassment at the university. But apparently we missed some of what has been going on outside of the athletic department. But the recent suspension of an instructor in the criminal justice program at FGCU has brought to light incidents we had not heard of.

This most recent involved the sexual harassment* of students by the instructor, Jeffrie Jinian. The investigation into the students' complaints (which was impeded by Jinian's deletion of emails related to his propositions to students) has resulted in his suspension for the rest of the semester. But he will be back teaching in the fall, though no longer serve as the internship coordinator.

Other incidents of faculty behaving badly at FGCU include an adjunct German professor who was fired after sexually harassing a graduate student. A professor in the justice studies department was suspended after he fondled a mannequin and made inappropriate comments in class about investigating deaths. He's supposed to be appealing the suspension.

This article details all the cases (including the ones we have previously covered). Provost Ronald Toll said he is happy to no longer have any active gender discrimination or sexual harassment complaints. I bet!

* The internal investigation actually concluded that any one (of the seven) complaints on its own did not constitute sexual harassment but that in the aggregate they contributed to a hostile environment created by Jinian.

Thursday, February 26, 2009

Changes in harassment law in just a decade

We have posted about the harassment experienced by Arkansas (former) high schooler Billy Wolfe, (here and here) who is engaged in a lawsuit against his former school district. That lawsuit is ongoing.
But this article reminds us that there were very few avenues for students who were victims of sexual harassment when that harassment was of the same-sex variety.
In the same schools that Wolfe attended, William Wagner, in the mid-90s, experienced harassment of a very similar nature to that which Wolfe endured not that long ago. But back then there was no protection against same-sex harassment and no remedy under Title IX. In 1997, just after Wagner's incidents, OCR released guidelines that applied the law to same-sex harassment.
That was the change. Unfortunately the administrators in the Fayetteville school district have not changed much. Actually, the have not changed at all. Those named in the Wolfe lawsuit are the same that turned blind eyes and deaf ears to William Wagoner over ten years ago.

Former Assistant Coach Sues Fresno State

Did you think we were done blogging about Title IX cases against Fresno State? Me too.

But the Fresno Bee reported Tuesday that a new lawsuit will soon be filed by a former assistant track and field coach, Ramona Pagel. Pagel is a former Olympian and American recordholder in shotput. She was an assistant coach of the men and women throwers on Fresno State's track and field team for three years, but was passed over for the head coach position notwithstanding her favorable performance evaluations and Fresno State's apparent policy of hiring from within. Pagel maintains that the hiring decision, as well as Fresno State's decision not to renew her contract, was motivated by sex discrimination and retaliation for her advocacy on behalf of women's athletics.

That's all the detail we have at this time, but I'm sure there will be more news and analysis to come.

Wednesday, February 25, 2009

Training Rules to Premier at Philadelphia Cinefest

A documentary about Harris v. Portland will premier at a film festival in Philadelphia next month. Here is the description of Training Rules from the filmmakers' website:

Rene Portland had three training rules during her 26 years coaching basketball at Pennsylvania State University: no drinking, no drugs and no lesbians. Training Rules examines how a wealthy athletic department, enabled by the silence of a complacent university, allowed talented athletes, thought to be gay, to be dismissed from their college team.

The film follows the lawsuit filed in 2006 against Portland and Penn State by student athlete Jennifer Harris. This high profile case ignited the world of women's collegiate sports and inspired the discussions so sorely needed to end discrimination based on sexual orientation that is pervasive in all organized sports.

I really want to see this film, and I hope it comes my way!

UNI drops baseball

University of Northen Iowa has decided to eliminate its baseball program. This news comes just days after University of Vermont announced that it would be dropping baseball and softball.
The elinination will save UNI $400,000 and the remaining deficit will be made through cuts in travel budgets and not filling currently vacant staff positions.

Tuesday, February 24, 2009

Claims reinstated in high school rape case

As we wrote about not too long ago, the lawyer in a rape case involving a high school student in Upper St. Clair, PA recently filed a brief (in light of the recent SCOTUS decision) asking claims against administrators be reinstated.

And last week a federal judge did indeed reinstate the Title IX claims.

No word, that I could find, on when the case will go to trial.

Proposal Would Eliminate Sex Discrimination in Community Athletic Programs

A state legislator in Washington state has proposed a bill that would apply a Title IX-like nondiscrimination mandate to community athletic programs for children and adults. Since Title IX itself, which only applies to schools, does not cover community programs such as Little League, this new legislation would ensure that such programs provide equal access to equipment, supplies, facilities and the assignment of coaches and game officials regardless of the participants' sex.

Community recreation departments are concerned, however, that such a law could expose them to liability for discriminatory conduct of leagues that use community fields. But that is something community recreation department should already be concerned about. As government entities, they are obligated to comply with the Constitution's Equal Protection Clause, which also prohibits discrimination on the basis of sex. For example, female athletes have successfully relied on the Equal Protection Clause to challenge Little Leagues and other community supported sports leagues that denied them an equal opportunity to try out. Since this proposed legislation would clarify, but not necessarily expand, the requirement of equality to treatment as well as access, I'm don't think it's terribly persuasive to argue that such a law imposes too much additional liability on community recreation departments.

Monday, February 23, 2009

The financial deterrent effect

The initial threat levied against schools not in compliance with Title IX was revocation of federal funding.
It's a threat that has never been realized--never. As in never, ever.
But financial repercussions are certainly being felt by colleges and universities as we have noted in cases such Fresno State, University of Colorado, and Florida Gulf Coast University in which institutions pay out settlements or jury awards.
But high schools are also feeling the economic hit and in a time of budget cuts and tightening, being forced to pay attorney fees in addition to the costs of remedying the existing discrimination.
This is the situation that Ramona school district has found itself in. Parents sued the district in 2007 arguing that the softball team was not receiving equitable treatment under Title IX. The district has built a new field with amenities comparable to the baseball team--under the order of a federal judge. But the bigger cost--larger than the $200,00 on said field--is the court order to pay the legal fees the parents incurred, around $350,000. Ramona, like the rest of the state of California, is having some budget issues. They are being forced into discussions with the plaintiffs' attorneys about a payment plan. Perhaps the incursion of fees was part of the decision not to appeal the decision. Ramona may have taken a lesson from Michigan High School Athletic Association which was, as you may remember, ordered to pay the attorney fees from its lengthy battle against a parents group seeking equity in high school athletics.

Saturday, February 21, 2009

UVM to cut sports

Probably not surprising that eventually we would report on sports being cut. With all the additions of sports, we were growing a little incredulous that athletic departments were actually feeling the economic downturn.
But UVM's announcement that it will eliminate softball and baseball after this season included a lot about the need to deal with the budget crunch. The cuts will save over $1 million annually. And the department will likely remain in compliance with prong one--a consideration in the decision of which sports would be cut.

Friday, February 20, 2009

Article Advocates Title IX Approach to Olympic Games

In the current issue of the Seton Hall Journal of Sports and Entertainment Law, attorney Susannah Carr argues that the International Olympic Committee should look to Title IX as a model for eliminating discrimination against female athletes in the Olympic Games and the Olympic Movement more broadly. Despite a considerable a increase in the percentage of female Olympians in the modern Olympic era -- from 2% in 1896 to 41% in 2004, there are still evidence of sex discrimination in the Olympic Games. At the Games themselves there are events that exclude women (ski jumping!) or favor men's participation (sailing, for example). Beyond Olympic events themselves, discrimination exists at the national level. For example, nine countries sent no female athletes to Athens in 2004, and many fail to provide equal resources toward their support and development.

To address this discrimination, Carr proposes that the IOC require participating countries and international sports federations to equitably distribute resources among male and female athletes, measured, as in the Title IX regulations, by such things as participation opportunities, equipment and supplies, travel support, scheduling, coaching, facilities, medical and training services, housing and dining, and publicity. For example, in the context of participation, governing bodies would be required to "select events that test similar skills, such as strength and agility; offer the same number of team and individual events; and select the same number of classic and high-performance events for women and men." Such a requirement would prevent sports like sailing, for example, from selecting events that rely on equipment better suited to men and effectively excluded women from the opportunity to compete. Nations, too, would have to comply with a Title IX-type measure for equal opportunities. Carr does not suggest that they be required to send equal number of male and female participants (perhaps because this outcome is based on the result on competitions, and is not entirely in a country's control) but she does suggest countries that send disproportionately fewer female athletes be made to satisfy a prong-two like standard of showing a history and continuing practice of expanding Olympic opportunities for women.

I think Carr's proposal is interesting and useful. Though it doesn't examine every application or answer every question that would be raised by such a policy, it starts a much needed conversation about the issue of sex discrimination in the context of the Olympic Games.

Citation: Susannah Carr, Title IX: An Opportunity to Level the Olympic Playing Field, 19 Seton Hall J. Sports & Enter. L 149 (2009).

Thursday, February 19, 2009

Chronicle Projects Increased Title IX Enforcement in the Obama Administration

Gender equity advocates are optimistic about Title IX enforcement under the Obama Administration, according to an article in the current issue of the Chronicle of Higher Education. Though President Obama has not made specific statements about Title IX, he did single out the Department of Education for its "lax approach to enforcement" under President Bush. Based on this statement, as well as the candidate Obama's statements about the positive role of sports in his and his daughters' lives, many except a more proactive and responsive Office for Civil Rights than the one that undertook only a single compliance review in a four year period and left "what is likely to be a sizeable backlog" of uninvestigated complaints. It was also suggested by one article source that the President's administration will rescind or at least revise the 2005 Clarification that lets institutions demonstrate compliance based on the results of an interest survey.

Dr. Christine Grant surmised that Title IX under the Obama administration "will be better than the last eight years, because I don't think it can get any worse."

The article's sources conflicted about the role the economy will play in the Obama Administration's enforcement efforts. Men's sports advocates argued that OCR should emphasize alternatives to proportionality compliance, since it is too costly for schools to add women's sports in these tough times (to this point, we've recently noted evidence to the contrary -- here, here, here and here for example). Others believe that the economic crisis could actually have a "silver lining" if it causes athletic departments to reign out of control expenditures in big-budget (and largely unprofitable) men's sports like basketball and football.

Wednesday, February 18, 2009

More hockey in Wisconsin

One might think that Wisconsin probably doesn't need more hockey, but really--can there ever be enough hockey? Especially women's hockey?

St Norbert College doesn't think so. It is banking on the regional popularity of the sport as it starts a women's team at their DIII (with football) institution.

Women's hockey (there is already a men's team) brings the total number of women's teams to 11. But it is the first sport to be added in a decade. This makes me think that St. Norbert may be seeking compliance with prong 2 given that women comprise 57 percent of the undergraduate population but receive only..ahem...32 percent of athletic opportunities. Yikes!

Saturday, February 14, 2009

WATN? Coach Roderick Jackson of Birmingham

In the spirit of WHB's "where are they now?" feature, I note that Roderick Jackson, the girls high school basketball coach who brought the successful and groundbreaking Title IX retaliation case against the Birmingham Board of Education, is back in the coaching game -- though coaching a different game. Jackson announced yesterday that he has been hired to coach the girls soccer team at one of the Birmingham high schools, where he will be "building a program from scratch." The article raised the possibility that this new position is part of a settlement agreement between Jackson and the school district. Though Jackson's retaliation case settled in 2006, Jackson has continued to challenge what he argues is the district's failure to comply with the terms and conditions of the agreement that they had reached.

Friday, February 13, 2009

More on Indiana baseball

As we noted the other day, the Indiana High School Athletic Association has changed its rule barring girls from trying out for baseball when their school offers a softball program--likely because of the legal pressures of Public Justice and the ongoing attention being brought to the association by repeated challenges to the rule.
Here is a link to the AP story.
The association's commissioner, Blake Ress, basically said it was a cost-benefit analysis that resulted in the decision to change the rule (as in it was going to cost a lot to try to win a case there was little chance of winning). But he's not really on board. He still contends that the sports are comparable (and this is from the writer, not a direct quote from Ress) "because each involves a bat and a ball, similar positions and baselines on the diamond, and six outs in an inning." Of course there are different field dimensions, size of balls, pitching styles, and rules--just to name a few differences.

And here is the story of the origins of the IHSAA rule. Pretty interesting that it was established after another female baseball player, Kim Satterly, in 1980 was banned from the team. But she had no softball option because her school, at the time, didn't offer it. The growth of softball in Indiana is actually attributed to the rule. In fact, Satterly had to play softball her senior year when her school did decide to start a team. So growth from fear of female infiltration--a fear that clearly still exists.

Harassment Cases Roundup

Here is a quick round up of several Title IX harassment decisions that have recently come across the radar:
  • Court of appeals affirmed district court's decision that a single instance of harassment was not sufficiently severe and pervasive for Title IX liability to attach. The instance involved a male special education student who exposed himself, kissed, and lifted the skirt of a female mentally retarded classmate. Watkins v. La Marque Independent School Dist., 2009 WL 188079 (5th Cir. Jan 27, 2009).
  • District court found that school responded reasonably to incidents of peer harassment. . The plaintiff, a middle school girl, was tormented by a female classmate and her female friends with name calling and insults and butt slapping. On one occasion, the victim's breasts and/or buttocks were touched without her consent. The court concluded that this did not constitution actionable harassment because it was not so severe and pervasive as to deny the plaintiff of access to her education. Moreover, the court doubted that the bullying was motivated by the victim's sex, and agreed that school officials acted reasonably by responding to the harassment with variety of responses ranging from warnings to a formal investigation. Brodsky ex rel. S.B. v. Trumbull Bd. of Educ., 2009 WL 230708 (D. Conn. Jan 30, 2009)
  • District court refused to dismiss Title IX claims against Carl Albert College, where the plaintiff alleged that college officials knew that the assistant women's basketball coach who raped her at a party was in the habit of partying with and behaving inappropriately around female students. Court also said that plaintiff's claim that the college "created an atmosphere" of tolerance for inappropriate activity could satisfy the Title IX liability standard after Simpson v. University of Colorado. Miles v. Washington, 2009 WL 259722 (E.D. Okla. Feb. 2, 2009).

Thursday, February 12, 2009

Celebrate (and note the irony!)

Really cool event happening today down in Florida. Florida Gulf Coast University is playing host to former AIAW presidents who will gather for an event in which they will speak about their experiences in the organization and intercollegiate sports.
Merrily Dean Baker will be there. Baker is, of course, not only a former AIAWer but former AD at FGCU and was the author of the complaint that launched the numerous headaches for FGCU not that very long ago. (Click on the FGCU tag below for a reminder of all that transpired.) I'll try not to wax poetic, but it must be satisfying for all those women who did so much for women's athletics to meet in a place where a form of justice was so recently served up. Additionally, just as the women of the AIAW set certain standards and precedents so too have the women who have brought retaliation suits against athletic departments and called attention to the underlying misogyny that remains.
Oh, and my friend Amy Wilson is moderating the event!
So if you're in the area--check it out.
The NCAA will be videotaping the discussion and hopefully it will be available for general viewing at some point.

Player Sues Coach for Heterosexual Bias

Via Helen at Women's Hoops Blog, I learned about this recently filed lawsuit against Central Michigan State and its women's basketball coach, Sue Guevara. The plaintiff, former player Brooke Heike, alleges that Guevara, who was hired before Heike's sophomore season, dismissed her from the team and terminated her scholarship because she is heterosexual. She also argues that the university did not give her a fair and unbiased hearing when she appealed the coach's decision to the athletics department.

As the basis for her bias claim, Heike alleges that Guevara repeatedly told her she was not "her type" of player. The complaint continues:
Based on defendant Guevara’s comments to her both when they were alone and when they were in front of others (such as her teammates), plaintiff believed that defendant Guevara did not consider plaintiff to be her “type” of person because plaintiff identified herself as heterosexual and wore make-up (which defendant Guevara deemed to be an unacceptable heterosexual behavior) and would not identify herself as homosexual or give up heterosexual behavior.
That's really it in terms of allegation that support Guevara' treatment of her was motivated by her heterosexual orientation. It is possible that Guevara and the athletic department was mean or unfair to Heike, as she alleges in greater detail throughout the complaint. But to succeed on her discrimination claims against Guevara (filed under the Equal Protection Clause and the Michigan Civil Rights Act) there needs to be a basis for her claim that she was targeted because of a protected classification -- sexual orientation. (Heike also vaguely argues that she suffered discrimination because of her race; she is, according to the complaint, of Caucasian and Native American descent).

I admit that I reacted skeptically to this case before I looked at Heike's complaint, as women in sport usually have more to gain by conforming to normative femininity than not. So feel free to take this observation with a grain of salt. But "not my type of player" seems like a pretty meager basis for the charge that Guevara discriminated against her because of heterosexual orientation. In Jennifer Harris's lawsuit against Penn State coach Rene Portland, by contrast, Harris claimed that Portland was vocal about her no-lesbian policy and enlisted the help of players and others to try to catch Harris in violation of it. This is not to say that discrimination needs to be as overt as this in order to be actionable, but it does underscore the absence of some form of corroboration. There seems to be nothing but a hunch or general understanding that "not my type" is code for "not lesbian." Guevara's prohibition on makeup is interesting (and also arguably analogous to Portland's opposition to Harris's cornrows) but does not, in my opinion, does not corroborate the charge that Guevara was motivated by bias against heterosexuals.

Update: I just read Pat Griffin's excellent post about this case. She points out that the charges against Guevara trade in stereotypes of the predatory lesbian, and in that way, are harmful to lesbian coaches everywhere. Definitely worth reading in full.

Wednesday, February 11, 2009

Former Athletic Director Settles with Georgia State

In December, Georgia State University dismissed its athletic director, Mary McElroy. McElroy, one of the few African-American female athletics directors at a non-historically black college or university, had served in the position since 2005 and was under contract until October 2011. McElroy did not pursue litigation, but she did appealed the decision to state Board of Regents. Also in dispute was whether McElroy's contract required GSU to pay her $500,000, as McElroy argued, to terminate her contract. On Monday, however, McElroy announced that she would withdraw her appeal to the Regents and accept GSU's payment of $200,000. She cited the desire to "move on" with her life as the reason for dropping her challenge to GSU's decision.

Carl Patton, the (former) GSU president who made the decision to dismiss McElroy, did not go public with his reasons, so it is hard to evaluate the strength of any case McElroy could have made against the university. One paper pointed out that McElroy had made enemies with the track coach, John Rowland, when she considered eliminating the track and field team in order to keep gender equity in balance as the university added football. Personnel records suggest that Patton was frustrated with McElroy about this situation. He was also upset that McElroy "prejud[iced]" the decision of the Board of Regents on the football proposal by holding a press conference about it on the same day as the Board's vote.

I find ironic the possibility that McElroy's zealous advocacy for the football program is what got her into trouble. A black, female athletic director in McElroy's shoes might accurately conclude that she needs to zealously advocate on behalf of football in order to secure standing in a male dominated field, which is made vulnerable by racial and and gendered stereotypes about her inability to lead. To emphasize the point, consider what would have happened to McElroy if she had been more modest in her efforts to promote football or if she had argued against adding football because it would divert resources and opportuntities from men's track. She likely would have been fired even faster.

Tuesday, February 10, 2009

Update on Indiana Baseball

The Indiana High School Athletic Association (IHSAA) passed an emergency ruling allowing girls to try out for high school baseball teams, even if their schools offer softball. Public Justice, a public interest law firm, gets tremendous credit for filing a complaint that prompted the rule change.

As we've blogged previously, the old rule precluded Indiana high school girls from trying out for baseball if softball was available at their schools. If an individual student had threatened a lawsuit, the IHSAA often granted waivers to them, but did not change the overall rule. It looks like the Public Interest lawsuit likely caused the IHSAA to reconsider their rule and open up opportunities to all girls, whether they were planning to litigate or not.

Monday, February 09, 2009

Seeing effects of SCOTUS ruling

In light of the recent ruling by the Supreme Court, the lawyer of a female high school student in Pennsylvania, who alleges she was raped by a fellow student, has asked a judge to review previously dismissed claims made in the civil suit. There are not a lot of details on the case or the recently filed motion asking for the Title IX claims to be reinstated. But it is a sign, of course, of the important of the ruling.

College of Marin adding sports

I need to think of a new way to say "despite these tough economic times, _____ is adding sports." Because it's happened again and I am starting to wonder if we've now reached trend status.
The College of Marin in California is adding two women's sports: softball and volleyball. Oh, and it's also renovating some of its athletic facilities.
The addition of the two sports is part of the plan to remedy a 2006 complaint to OCR apparently filed by a student. And the school is optimistic that the additions will help the rosters of other women's teams because of the possibility of multi-sport athletes as well as help recruiting generally.

Worries over the WNBA

Feminist blogger Nancy Goldstein at is expressing concern over the financial stress facing the WNBA these days.

Due to the dissolution of the Houston Rockets and the mandated roster cuts on all other teams, the league is cutting approximately 20% of its players for the coming year. Goldstein notes the high hopes in 1997 (when the WNBA was launched) that Title IX had created professional opportunities for women athletes that had not previously existed. Those professional opportunities have a trickle down effect, allowing high school and college athletes to plan for a future in the sport that they love.

Goldstein seems pessimistic about the survival of the WNBA given the level of financial difficulty it's facing now; perhaps a best-case scenario is the WNBA taking a similar path as the NBA--having some rocky years in which its demise was predicted, and taking several decades to become a cohesive league that was on steadier financial ground.

Saturday, February 07, 2009

Russlyn Ali to Head OCR

President Obama has announced plans to nominate Russlyn Ali as the Department of Education's assistant secretary for civil rights (see also here). Ali, a woman of color, comes to OCR from a private, nonprofit research and advocacy organization, Education Trust, that works to promote education achievement generally with a particular focus on low-income and minority students. Ali's background also includes leadership positions in other advocacy organizations like Children's Defense Fund, a stint as chief of staff to the president of the Los Angeles Unified School District, and a legal practice in corporate and civil rights law.

Not much is known in Ali's position on Title IX issues per se, but her career-spanning efforts to secure educational equality more generally suggests she is likely to take Title IX enforcement seriously and give serious consideration to the effectiveness of OCR policy at dismantling gender discrimination.

Friday, February 06, 2009

6th Circuits Reinstates Plaintiff's Anti-Gay Harrassment Case

The Sixth Circuit Court of Appeals recently overturned a lower court's dismissal of sexual harassment case against the Hudson Area (Michigan) Schools. The plaintiffs sued the school district on behalf of their son, DP, who had suffered ongoing harassment from sixth through ninth grade. This harassment began with teasing, name calling (such as "queer," "faggot," "fat," "pig," and "man boobs) and defacing of DP's property and his locker with homophobic slurs and suggestive drawings. One one occasion, someone broke into his gym locker to urinate on his clothes and stuff his shoes in the toilet. Finally, in ninth grade, DP was sexually assaulted by a fellow student and baseball teammate, LP, who forced DP into a corner, jumped onto his shoulders, and rubbed his genitals on DP's face and neck. Another teammate blocked the door so DP couldn't leave. Later, their coach warned the team about joking around "with guys who can't take a man joke" and let LP attend the team banquet one week later. (LP later plead guilty to criminal charges and was expelled.)

The school district argued (persuasively to the lower court) that it responded adequately to individual incidents of harassment. None of the students who received warnings and verbal reprimands bothered DP again. However, the Court of Appeals recognized that that school officials could still exhibit the requisite "deliberate indifference" on these facts. School officials could have realized that their approach -- dealing with harassment of DP one offender at a time -- was not stemming the tide of increasingly violent harassment and assaults more generally. And failure to take a different course of action in light of this realization might constitute an unreasonable response. As the court put it, "even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district's response is clearly unreasonable." Moreover, it continued "[w]e cannot say that, as a matter of law, a school district is shielded from liability if that school district knows that its methods of response to harassment, though effective against an individual harasser, are ineffective against persistent harassment against a single student. Such a situation raises a genuine issue of material fact for a jury to decide."

This is an important clarification of the deliberately indifferent standard; it recognizes that while harassment can consist of discrete, isolated instances, addressing all harassing conduct as such may be unreasonable when doing so manifests indifference to a widespread, ongoing, systematic harassment by the victim's peers in general.

Decision is: Patterson v. Hudson Area Schools, 515 F.3d 438 (6th Cir. 2009).

Thursday, February 05, 2009

UAA gets an extension

University of Alaska-Anchorage was prepared for a cantankerous battle with OCR over a gender equity complaint filed anonymously in the summer of 2008. Athletic director Steven Cobbs was not too pleased with the complaint (and a pending OCR investigation) which he thought was groundless. (The specifics--vague as they are--of the complaint can be found in the above link.)
But OCR has given UAA until May to complete its own internal investigation of gender equity including a plan to address inequities that must be implemented by August 2009.
We here at the Title IX Blog have a certain, shall we say, healthy skepticism when it comes to internal investigations, but we know times are tough and Alaska is a long way away (it appears the Seattle office is doing the investigation). And given Cobbs's initial utter disbelief that his department could possibly be in violation, that skepticism remains. The internal investigation team will, of course, be comprised of people both inside and outside of athletics.
I hope they seek a little guidance though. Perhaps Valerie Bonnette's guide, or Bonnette herself, or heck, I would even head out to Alaska to help out--just send me a plane ticket and some shearling-lined boots and I am there.

Wednesday, February 04, 2009

Happy National Girls & Women in Sports Day!

Today is the 23rd annual celebration of National Girls and Women in Sports Day.

Here, via the NGWSD website, are 10 ways to commemorate the day:

1. Buy a basketball, glove, soccer ball or other sport gift for your favorite sportsgirl - send her the message that you think she can play sports.

2. Take your friends and family to a women's sports event - high school, college, or professional sports. [Relatedly, Donna Orender points out that it's the perfect day to support the WNBA!]

3. Watch a women's sports program on television and call the station to thank them for carrying women's sports (so they'll continue to air women's sports programs).

4. Write a letter to your local newspaper editor either asking them for fairer coverage of women's sports or thanking them for great coverage.

5. Buy women's collegiate and professional sports merchandise like t-shirts and hats. It's an important way to advance the economic success of your favorite team.

6. Take someone who has never attended a women's sports event to a high school, college, or professional women's sports game. Introduce others to the excitement of women's sports. Help grow the fan base!

7. Visit your local sports retail store. If they are not carrying licensed merchandise for your favorite women's sports team (college, WNBA, WUSA, etc.), write to the manager to tell him or her you want to purchase this product and you would appreciate it if they would carry it. If they are carrying the product, thank them for doing so.

8. Write to sponsors of women's sports to tell them how much you appreciate their support of women's sports.

9. Conduct a sports clinic for local elementary school girls. Tell each girl why it's so important for them to play sports and how much fun it is.

10. Grade your school on whether it is treating male and female athletes equally. Write a letter to the principal either asking for change or applauding the school's commitment to girls' sports.

You can also find out how your community is celebrating NGWSD by checking out this state-by-state calendar. And you can take the opportunity to support legislation to improve Title IX enforcement at the high school level.

Serena praises Title IX

I don't get to write much about tennis here given that much of the tennis news comes from the professional ranks. So even though this isn't much of a story, I still wanted to mention that Serena Williams, who just won her 10th Grand Slam title down in Australia this past weekend (and in doing so become the highest-earning female athlete ever) gave a shout-out not only to Billie Jean King but also Title IX.
BJK and both of the Williams sisters are close and they definitely seem to have learned from her activism, but neither Serena nor Venus directly benefitted from Title IX in terms of getting an opportunity to play given the somewhat unique road elite junior tennis players take. Nevertheless, it was nice that Serena sees the larger picture: the growth in numbers of women playing sports and to credit BJK and Title IX for that.
It's certainly a switch from the response another American female tennis player gave in her phenom days. When Jennifer Capriati was asked about Title IX, she had to say she didn't know what it was.

Tuesday, February 03, 2009

Breaking news: ASU settles

A case brought by a (now former) female student at ASU who was raped in 2004 has settled for $850,000--the second largest settlement in a sexual harassment case to date. The settlement also requires the Board of Regents to start a program at all the Arizona state universities to address issues of women's safety. The regents, of course, admit no liability.
This case kind of flew under the radar--at least compared to other cases like the Anson Dorrance/USC case and, of course, University of Colorado. A connection between the latter and the ASU case was lawyer Baine Kerr who represented the still unnamed victim in her civil suit against ASU. They argued that the university knew the football player who raped the victim was a threat, specifically a sexual threat to women and yet they let him remain in the football program and the dormitories after previous behaviorial issues.
Kerr and his client are stressing the importance of the forthcoming program. It appears to have played a large part in settlement talks.

Monday, February 02, 2009

Wisconsin Court Says Cheerleading Is a Contact Sport

File the Wisconsin Supreme Court's recent decision in Noffke v. Bakke under examples of cheerleading's increasing acceptance as an athletic activity.

Brittney Noffke was a high school varsity cheerleader who was injured while practicing a sideline stunt. (Cheerleading, we've noted, has a higher rate of injury than all (other) women's sports combined.) She sued, among others, a fellow cheerleader named Kevin Bakke, whose role in this particular stunt involved spotting her while she stood on the shoulders of another cheerleader. Bakke was out of position, and thus unable to catch Noffke when she fell. In his defense, Bakke argued that under a Wisconsin statute, an athlete who injures another athlete through negligence is immune from liability and cannot be sued. But for this immunity to apply to Bakke, the courts had to find that Naffke and Bakke were participants in a "recreational activity that includes physical contact between persons in a sport involving amateur teams, including...high school." In other words, Bakke was immune from suit only if cheerleading is a contact sport. The lower court agreed with Bakee that it is, but the decision was reversed on appeal. Bakke appealed to the Wisconsin Supreme Court, which reinstated cheerleading's status as a contact sport and dismissed the case against Bakke.

The court concluded that cheerleading is a sport because it involves physical exertion and skill, it is governed by a set of rules or customs, and its participants are organized and work together as a team to compete and to generate fan participation on the sidelines. Moreover, cheerleading incorporates the requisite physical contact as stunts require cheerleaders to toss and lift and have other manners of "forceful interaction" with each other. For purposes of the immunity statute, it did not matter that the accident occurred while practicing for a sideline routine rather than a competition, since the immunity rule by its terms does not turn on whether participants are in, or training for, competition.

The court's conclusion that cheerleading is a sport--and a contact sport at that--is of course limited to the immunity statute at stake in the case. It does not directly bear on whether the activity is sufficiently sporty to count as an athletic opportunity under Title IX or a contact sport that can, under the regulations, exclude a particular sex. While OCR endorses the practice of counting cheerleading for Title IX purposes if the team is treated like, and is as focused on competition, as any other athletic team, courts have not weighed in on this question or whether the contact sport exception applies to cheerleading. But for a court to recognize that cheerleading is not only a sport, but a contact sport warranting application of the same immunity rules that were written for sports like hockey and football, is not only evidence of the evolving, athletic nature of cheerleading but judicial acceptance of that fact as well -- acceptance that we could see spill over into the Title IX context.