Wednesday, June 30, 2010

Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics

My own article by that title was recently published in the current issue of the Duke Journal of Gender Law and Policy (.pdf). In it, I examine the retaliation cases at Fresno State, FGCU, Berkeley, Montana State, Feather River College and others. I argue that:
The current spate of retaliation cases is... a relevant source of information about an important social problem [that of obstacles to women's leadership in college athletics]. Moreover, the fact that plaintiffs in Title IX retaliation cases against college athletic departments are enjoying new levels of success provides an opportunity to speculate optimistically about the power of law to effect positive change in the culture of college athletics. Following the Supreme Court’s recent validation of a private right of action to challenge retaliation in Jackson, coaches and athletic administrators have never before had more legal remedies with which to tackle sex discrimination in college athletics. Together with the recent high-profile multi-million dollar jury verdicts and settlements, these legal remedies create a strong incentive for athletic departments seeking to avoid liability to monitor for and address institutional practices that drive and deter women from coaching.
Citation: Erin E. Buzuvis, Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics, 17 Duke J. Gender Law & Pol'y 1 (2010).

Tuesday, June 29, 2010

Indiana scheduling case on the docket

The case being brought by Amber Parker on behalf of her daughter against the Indiana High School Athletic Association and Franklin High School (where Parker is also the girls' basketball coach) is headed to summary judgment.
At issue in the case is the longstanding complaint that the boys' basketball team gets more opportunities to play their games during primetime (Friday nights). This has been an issue for over ten years (as we noted in the past).
I couldn't find an actual date on which the case will be heard but the judge's decision will come within a few months.

Monday, June 28, 2010

Cuts to Men's Teams and the Shark Attack Phenomenon

This article about the Quinnipiac trial contained the following quote from the coach of the former men's track team, which was cut along with volleyball:
The unfortunate reality of Title IX in this day and age is that university’s choose to eliminate men’s programs rather than add women’s programs. From the late 70’s to the mid 90’s, Title IX created tremendous opportunities for women and I am very thankful for that. Ever since the mid 90’s, however, far more men’s programs have been eliminated in the name of Title IX than have been created for women.
Both sides of this claim, that Title IX promotes cuts to men, rather than gains for women, are belied by the most recent government study of college athletic participation trends, which was published in 2007 and relies on data through the 2004-2005 school year. According to this report, both men's and women's sports have seen net gain in the number of teams since the 1990s. Specifically, the number of men's teams in the entire NCAA membership rose from 6710 to 7845 between the 1991-92 school year and the 2004-2005 school year. The number of men's teams also increased from 5820 to 6010 in a 750-school sample of schools that were NCAA members throughout that time period (to account for any changes that might be due to schools joining or dropping out of the NCAA). And the number of women's teams also rose during this time (5941 to 8550), which also undermines the idea that Title IX only promotes cuts to men, rather than gains for women.

Of course, Title IX doesn't say anything about number of teams, just number of participation opportunities. Those are on the rise for men (179,834 to 217,123) as well as women (93,959 to 153,347).

What accounts for quotes like this one, which are repeated all-too-frequently? I think it's the shark-attack phenomenon. Schools' decisions add men's teams (like people swimming safely in shark-free waters) do not attract the same kind of media attention, so when there is a story about cutting teams, it creates the impression that it is a much more dominant trend than it actually is.

Saturday, June 26, 2010

Perspectives in QU/cheerleading

Nothing major to report. I haven't seen any coverage of the closing arguments yet but if something of note occurs, we'll post about it.
In reading some of the coverage that stemmed largely from Jeff Webb's testimony Tuesday about the legitimacy of cheerleading as a varsity sport, I came across a post from The Washington Post. In addition to incorporating the phrase "bring it on" the author also quotes Dr. Mary Jo Kane. director of the Tucker Center who put it nicely:
"How would people react if the school cut a men's sport like baseball or lacrosse and used those funds for a male cheerleading squad?"
I'm not usually one for the direct comparisons, but I think Dr. Kane's question makes people question certain paradigms that are in need of questioning.

Friday, June 25, 2010

Amici In High Places

I learned at the Quinnipiac trial this week that the Department of Justice has filed an amicus brief in support of the plaintiff's argument that cutting volleyball would render the school out of compliance with Title IX. In the brief, the government echoes the district court's analysis of the motion for preliminary injunction: that "extra" players added to women's teams to suggest the appearance of equity should not be counted toward Qunnipiac's purported demonstration of proportionality, since the law seeks to ensure equitable distribution of "genuine" participation opportunities, not illusory ones.

The government also argues that opportunities added in competitive cheer should not count as genuine participation opportunities. The brief points out that the Department of Education requires that before a school can report cheer opportunities toward Title IX compliance, it must receive an opinion letter from its Office for Civil Right certifying that those cheer opportunities are bona fide athletic opportunities (rather than sideline cheerleading). No schools have received one of these letters. Moreover, the brief continues, Quinnipiac's competitive cheer team does not satisfy two of the criteria OCR uses to measure whether opportunities in cheer constitute athletic opportunities under Title IX, namely, a progressive-style competition and a governing body. (Defined season, athletic department funding and support, competition as the primary purpose, and skill-based selection are some of the other elements of OCR's test.) In sum, competitive cheer opportunities as the currently exist are not sufficiently similar to the other athletic opportunities offered by Quinnipiac to be included in the inquiry of whether those athletic opportunities are equitably distributed.

This is not the first time we've seen pro-Title IX positions coming out of DOJ in recent months. The agency also filed in support of the plaintiffs who sued the Florida High School Athletic Association case and also intervened on behalf of the student challenging sexual/sexual orientation-based harassment case against the Mohawk Central School District in New York. Keep it up, DOJ. I'm glad to see that challenging sex discrimination in education is an agency priority.

Title IX Is Good for Stanford

In honor of Title IX's anniversary, here is a great article crediting Title IX for strengthening Stanford University athletics. After the law passed, some in the athletic department were resistant to expanding opportunities for women, but many of them changed their tune and eventually crediting women's programs for helping to improve moral and institutional pride. "Title IX was great asset for us," one former athletic director is quoted as saying. Coming from a school with 36 national championships in women's sports (more than any other school) and 94 championships in men's sports (second only to UCLA) -- that's saying a lot.

[h/t Helen]

Wednesday, June 23, 2010

Mythbusting in Honor of Title IX's Anniversary

Sadly, it seems that every year, folks use Title IX's anniversary to trot out tired old arguments that it's time to "get beyond" Title IX. Because these people obviously don't read this blog, or they wouldn't be so misinformed, it seems like an act of futility, on par with spitting in the wind, to address these arguments. However, I shall do my best to correct with facts the myths that belie these claims.

Myth: "Title IX activists" started "pushing for" proportionality in the 1990s.

Fact: It was actually football lobby that proposed a proportionality standard to OCR when it was coming up with its regulatory interpretations in the 1970s. They thought it would be an easier than a 50/50 standard for colleges to meet, because at that time male college students outnumbered women. As Donna Lopiano says, now that women are the majority of college students, "the shoe now pinches."

Myth: Title IX's proportionality requirement causes schools to cut men's sports.

Fact: Title IX gives schools three ways to demonstrate requirement with the law's requirement for equity in the distribution of athletic opportunities, one of which is proportionality. Basically, the three prongs work to protect women's sports from being cut when women are the underrepresented sex. Under Title IX, it's not necessarily unlawful for one sex (almost always men) to have more opportunities than another sex. All Title IX says with regard to cutting opportunities is that schools can't cut from the sex that had fewer opportunities to begin with. If there was a proportional distribution of opportunities, then Title IX would have no effect on a school's decision on which teams to cut. It could cut women's swimming and spare men's wrestling. What puts schools in the position of only being able to cut men's teams is the act of favored men with athletic opportunities all along.

Myth: Football funds women's sports (and therefore, we shouldn't care if there are men have more athletic opportunities due to football).

Fact: While this may be true at a small number of institutions, most football programs lose money. And football "profits" would be even smaller if schools had to report the true cost of running a program. I hate the argument that profitable sports are somehow more valid in the non-profit sector of education. If colleges want to decide what sports to keep based on commercial standards like profitability, they better be ready to give up their their tax-exempt status and their federal funding.

Myth: Title IX is 38 years old, and the regulatory interpretation that gave us the three prong test is 31 years old.

Fact: Well, this is technically true. But the purpose for which people tend to cite the age of Title IX is usually to suggest that it's time to repeal the law because it's done its job. And that's clearly myth. There are existing disparities in opportunities, support, and scholarships. In college, men still have more athletic opportunities than women -- in absolute numbers, not just relative to enrollment. Male athletes still receive $133 million more scholarship dollars than female athletes every year. The other thing that gets covered by references to Title IX's age is the fact that colleges and universities fought hard to avoid Title IX compliance for much of the 1970s and 1980s, and for much of the 1980s (the Reagan-Bush era) the government was not enforcing the law. It wasn't until the Supreme Court decided in 1992 that the law allowed private plaintiffs to recover money damages that there litigation posed enough of a threat for schools to take the law seriously. So while Title IX the statute may be 38, in some ways, the law is still a teenager. No wonder it hasn't reached its full potential yet.

Cheerleading on Trial

As Kris mentioned, we were both in the courtroom yesterday for all of Jeff Webb's fascinating testimony about the nature of competitive cheer. Webb is a national expert on college cheerleading, by virtue of his position as CEO of Varsity Brands, which owns and operates all of the major cheer competitions and camps, and his leadership in other governing bodies and associations related to cheerleading. Webb was a witness for the plaintiffs, the members and coach of the Quinnipiac University volleyball team, who are arguing that the university's decision to cut their team violated Title IX because of the resulting imbalance of athletic opportunities. Part of QU's defense is that the newly-added opportunities in competitive cheer help make up for some of that disparity. Which raises the question, is competitive cheer a sport for Title IX purposes?

Webb testified that as it currently exists, cheer is not a sport in the same vein as other, typical college varsity sports. I've heard many times people offer a knee-jerk reaction to competitive cheer by referring to the athleticism apparent in National Cheer Association and Universal Cheer Association competitions, which are often televised on ESPN. But Webb, whose company owns these competitions, pointed out they provide cheer squads one annual opportunity (because you can't enter both) to perform a single, two-minute routine in competition. There are virtually no other competitive venues for competitive cheer. This made me think of the following analogy: imagine that QU formed a volleyball team whose only competition for the entire year was just two minutes long. Should this be considered a sport, comparable to men's hockey, track, and other sports, for purposes of Title IX? I think it would be clear to people that even though the act of playing volleyball in a competitive setting is athletic, to be a "sport" there has to be something more. Specifically, there has to be more of a season.

On this issue, we also heard lots of testimony, some from Webb, and also by the QU Athletic Director Jack McDonald, about the efforts of a handful of colleges and universities to come up with a competitive meet format for cheer, so that squads could compete throughout a season. This testimony largely showed that the sport of competitive cheer, while one of apparent potential, does not currently offer enough competitive opportunities to warrant substituting cheer for volleyball. There are only seven varsity competitive cheer squads in the country. The closest one one geographically to Quinnipiac is at the University of Maryland. This lack of similarly-situated programs makes it difficult to compare competitive cheer to other college sports that have regional conferences and regular competition. Moreover, unlike other sports offered by Quinnipiac, competitive cheer does not have a championship run by the NCAA, nor does competitive cheer bear the NCAA's designation of an official "emerging sport for women" (indicating that schools are adding the sport in sufficient numbers that it will be an NCAA sport after a trial period of several years.) The NCAA has indicated that before it will even consider cheer as an emerging sport, there must be an official determination by the Department of Education's Office for Civil Rights that the sport would count for Title IX purposes. No such determination has been issued, and from McDonald's testimony it was not even clear on whether one had been requested. (FYI, contrary to the New Haven Register's account, "emerging sport" it is the NCAA's designation, not OCR's.)

Sometimes the testimony got confusing because there are many different types of cheerleading, and the lawyers and witnesses always had to carefully explain what type was being referred to in any given context. Varsity competitive cheer programs are those administered by college athletic departments as a sport like any other. They exist only for the purpose of competition and do not perform on the sidelines of other sports. This what Webb was referring to when he said "they do not cheer and they do not lead." (quoted here.) To avoid confusion, Webb said this would ideally be called by another name, one that doesn't use either word. For example, Oregon calls their varsity competitive cheer program "tumble and stunt" and the college administrators who are working to design a competitive program formed the National Competitive Stunt and Tumble Association (NCSTA) earlier this year. Varsity competitive cheer teams are not the same as college-affiliated competitive cheer clubs, which are more numerous than the 7 varsity programs referenced above. Like club sports teams, which are not run by athletic departments, competitive cheer clubs are not properly compared to varsity athletic opportunities for purposes of determining whether the school is equitably distributing athletic opportunities. It's also important to distinguish competitive cheer from traditional sideline cheerleading, which is not a sport because its primary purpose is entertainment and spirit raising.

In sum, I thought the plaintiffs' counsel and their witness, Webb, presented a compelling case that competitive cheer opportunities as they exist right now are too different both in scale and scope from other sports to warrant a fair comparison between opportunities provided to women in cheer and opportunities provided by Quinnipiac's men's sports. This does not foreclose the possibility that competitive cheer could "emerge" into a bona fide sport. But until that happens, a university' decision to substitute it for an existing sport will raise Title IX concerns.

We will of course follow the rest of the trial as it unfolds (no more field trips to Connecticut, I'm afraid, so we'll be reading about it in the Connecticut press) to see how the defendants address this and other issues raised in the plaintiff's case. The trial is scheduled to conclude tomorrow an the judge's decision on the issue will likely take several months.


Happy Anniversary Title IX! 38 years and counting.

I find it appropriate that a big Title IX case is currently underway during this anniversary, the outcome of which is likely to have a very large impact on the the law's application.

And I also use this moment to remind people that because the legislation still exists, because equity in education has not been achieved, because we hear every week (at least!) about disparities, that we are not in a post-Title IX era. We are in the Title IX era.

QU trial: Lopiano testifies

So the Title IX Blog did indeed take a field trip to Connecticut yesterday to watch some of the Quinnipiac University trial. Erin will be posting about what we saw (because she took notes and I just sat there amazed at some of the things people say and the amount of paper involved in these things--binders and binders full of emails and letters and other evidence).
And while we enjoyed being there live and listening to the testimony of three different witnesses we were a little disappointed to find out that we had missed Donna Lopiano's testimony--especially when we found out she was on the stand for six hours!
The New Haven Register covered the story (and has actually been the only coverage I have seen of Lopiano's testimony thus far*). Lopiano covered a lot of ground including addressing the suspect roster management that some QU coaches/administrators engaged in as well as one of the most interesting aspects of this case: whether cheerleading is a sport--even when the word "competitive" appears in front of the historically sideline, supporting role activity. Lopiano does not believe that cheerleading, in its current manifestation, is a sport:
"The NCAA does not classify competitive cheerleading as an emerging sport. It’s clear the NCAA does not support it. It doesn’t fulfill the criteria set forth by the Office of Civil Rights. I do not believe any school can count it as a sport. It hasn’t evolved enough. In the future it could, but not as it exists today. It’s not a sport. It’s not even close.”
[Jeff Webb's testimony from yesterday elaborates (a lot!) on this assertion.]
She also testified that QU would have to keep both competitive cheer, which will have a roster of 36 as well as the volleyball team in order to remain compliant with prong one (which is the only option for QU right now).
Lopiano is an assertive woman. I've seen her speak. She has a presence about her. And apparently she didn't mince words (she was testifying for the plaintiffs, by the way) and I guess the defense (and I am not sure which lawyer questioned her though I would be interested to know whether it was the defense team's one male lawyer or one of the women) kind of got into it with Lopiano. So much so that Judge Stephan Underhill had to warn both parties about getting into "one-on-one" arguments.
No video allowed inside the courtroom so it's not as if this one is showing up on You Tube any time soon. But I would be really interested in seeing the transcripts of Lopiano's testimony since I can't get a whole lot more from the limited coverage of it.

* But I have already heard/seen about cheerleading expert Jeff Webb's testimony from three different media outlets all before 8am! Again, Erin will be posting about this aspect of the trial.

Sunday, June 20, 2010

Quinnipiac trial begins tomorrow

The trial in the Quinnipiac University volleyball case begins tomorrow in federal court in Connecticut. There is nothing new to report since last month's decision to grant class-action status to the case being brought by five volleyball players.
As a reminder, at issue is Quinnipiac's "roster management" practices which seemed--in the past at least--to under report the number of men playing sports and overinflate the number of women doing so--so much so that some of these squad sizes were not in compliance with NCAA regulations.
Also at issue is the addition of competitive cheer as a varsity sport.
We will be doing our best to keep the details of the trial coming. (There might even be a Title IX Blog field trip to Connecticut!)

Friday, June 18, 2010

Softball Added at Weatherford College

A year-and-half ago, OCR launched an "inquiry" into Title IX compliance at Weatherford College in Texas, in response to gross disparity in athletic opportunities for male and female students. The inquiry produced an agreement that obligated the college to add sport if a survey of the female student body revealed sufficient interest. Last week, the college Trustees approved plans to address this disparity by adding a women's softball team, though it does not seem to be a survey that motivated the decision. According to the Athletic Director, Steven Garippa, softball was chosen because "the softball demographic in our area is phenomenal" and other factors such as "the availability and cost of facilities, the competition that is available immediately, the number of participants that can be involved and the interest in our service area" made softball the right choice. There is no mention of whether a survey was or will still be administered pursuant to the agreement. Perhaps the Trustees did not need a survey to reveal what it already knew about unmet interest in women's softball, and hopes that by adding the program now, any future surveys will demonstrate that women's interest is being met.

Thursday, June 10, 2010

Title IX, World Cup, human rights, and the quote of the day

The College Sports Council, which advocates for Title IX "reform," has used the start of the men's World Cup to issue a report on the alleged lack of growth of men's soccer at the collegiate level in the United States. This is not a new argument as I have noted previously.
But CSC claims that Title IX has stymied the growth of men's intercollegiate soccer while women's soccer has been allowed to flourish.
One of our favorite Title IX and women's sports advocates, Professor Nancy Hogshead-Makar, expertly dismantles CSC's study and findings (in the above link), so I won't bother to do it here.
Obviously as one of the Title IX bloggers, I care about Title IX, but to tie the law to this event ignores a lot of other gender issues around the men's World Cup so I thought I would take the opportunity to go slightly beyond the usual purview of this blog. . First, the extreme nationalism is problematic and gendered. I know this is a battle of countries, but the extremism is frightening and it is certainly more intense around the men's World Cup than the women's. On a micro level and tying into CSC's concerns, for example, when the US Women's National Team loses there is not a whole lot of talk about trying to add teams and improve the quality and conditions of women's intercollegiate soccer.
Second, let's look at this event in the global context and think about some human rights issues. For example, the labor involved in the making of sports apparel. The issues around sweat shops (which employ, for the most part, women as laborers) making athletic clothing are fairly well-known. But the labor around the making of the actual soccer balls is also of concern. Soccer ball stitching and the conditions for children and adults who do this work has been the focus of international labor and human rights campaigns. The soccer balls in this tournament are not stitched. Stitching of soccer balls does still occur, however. This You Tube video shows the production of the current men's World Cup balls. It seems benign but it is also apparent that most of the workers--though you never see their faces--are women. It all looks clean and modern, but I think given the history of the sports apparel and equipment industry, it's important to remain vigilant on this front.
Another issue of (in)visibility when it comes to women and the men's World Cup is around sex work and the sex trade. There is concern that the large influx of people into South Africa will increase sex trafficking. Steps are, thankfully, being taken by national and international entities to monitor the situation. So not as invisible as the issue has been in the past; but certainly not something you're going to see as a special feature about South African culture.
So please keep these things in mind as the tournament starts. The above link on soccer ball stitching also has a list of actions you can take in response to unfair labor practices in this industry.
But I going to end with something that made me smile this morning: this great response to CSC's claims by NCAA director of gender initiatives, Karen Morrison.
"The CSC continues to bend the data like an errant soccer kick when describing trends in intercollegiate athletics and in particular college soccer. Soccer continues to grow in popularity around the world and on our campuses. It is one of the four fastest-growing men's sports in the NCAA. There is no evidence that the relatively minor differences overall in soccer participation are related to Title IX."

Sunday, June 06, 2010

Falsified Data Justified Sex-Segregated Middle School

The ACLU continues to challenge the sex-segregated middle school in Vermilion Parish, Louisiana, having recently filed an appeal of the district court's refusal to issue a preliminary injunction against continuing to separate boys and girls in core curriculum and other classes. (See also our prior post here).

The ACLU's appellate brief is a fascinating read. The brief argues that the district court should have found a high likelihood of success on the merits (a key consideration in preliminary injunction analysis) because the Equal Protection Clause and Title IX require schools to have an "extremely persuasive" justification or "important objective" for treating boys and girls differently in the education context. Yet the only justification for the segregation at Rene Rost Middle School were results from a small-scale study conducted by Principal David Dupuis during the 2008-2009 school year, which we now understand to have been falsified and erroneous. Since touting that the segregated classes in the study produced higher graders and fewer disciplinary problems, Dupuis, who conducted the experiment as part of his doctoral dissertation, has admitted to including grades of students who were not part of the experiment in his findings in order to make the case that segregated had better report cards than co-educated students. It is also clear that he omitted the grades of students who were part of the experiment but who did not earn higher grades in the segregated classes. In fact, when these grades are factored in, Dupuis's experiment shows that grades decreased in segregated classes, despite his claims to the contrary. Dupuis also admitted to errors that belied his findings that disciplinary infractions decreased in sex-segregated classes.

Not only is this outrageous behavior on the part of the principal (I hope Nova Southeastern University, who awarded him an Ed.D., is paying attention to the academic fraud issue!), it clearly does not satisfy the legal requirements for different treatment on the basis of sex. When bogus claims of "findings" are stripped away, the only justifications for segregated classes that seem to remain are the tired old stereotypes and folk-beliefs about the differences between boys and girls.

Wednesday, June 02, 2010

Community saves sports at Bakersfield

In February we noted that CSU Bakersfield was, due to budget shortfalls, being forced to cut four sports: golf (MW), tennis (W), and wrestling (M).
But community members and donors have rallied in what appears to be two separate campaigns to raise money to keep the sports going for at least another year, maybe even two. The preexisting Roadrunners' Club has raised $500,000 and a new organization simply called Save the Sports has raised $700,000. The combined total gets the university every close to the $1.4 million that is estimated to be needed to keep all four programs supported for two years. But if fundraising stalls or the numbers change, CSU-B president Horace Mitchell reminds us that the state funding is just not available. These sports must remain self-supporting. At least in the near future. But Mitchell is certainly pleased to keep these four sports for a little while longer.