Wednesday, February 23, 2011

Default was not "consequence" of Title IX

There were a lot of issues/controversies raised by last week's story about a male high school wrestler who defaulted his match rather than wrestle a girl. Religion, violence, gender roles. Title IX was not one of them. Why? Because of the contact sport exception.
So I was surprised to read a blog post on the Chicago Tribune website Chicago Now entitled "The Unforeseen Consequences of Title IX" by Kirk Mango. Note that the title is pretty ubiquitous. Opponents of Title IX use it all the time to talk about a myriad of issues. But the post colon blog title "Top Iowa High School Wrestler Defaults, Won't Face Girl" was a little surprising. Because, again, Title IX does not require integration of teams when the sport is a contact sport. And as Joel Northrup pointed out when he issued a statement about his default to Cassy Hekelman, wrestling is a contact sport.
Girls have gained access to wrestling either because they have just been allowed to participate or because they have sought legal remediation under either an individual state's equal rights amendment or the equal protection clause of the Fourteenth Amendment of the Constitution.
But no one seems to be writing pieces titled The Unforeseen Consequences of Equal Protection.
For more on this I highly recommend Dr. Sarah Fields's book Female Gladiators: Gender, Law, and Contact Sport in America. She specifically addresses the legal and cultural controversies girls' wrestling has engendered.
So I hope Mr. Mango picks up Fields's book. As someone who in involved in promotion of youth sports (he has a website called Becoming a True Champion about empowering individual athletes) he--and all who work in youth through intercollegiate sports--should know what Title IX does and does not do.

2/24 UPDATE: Mr. Mango has changed his post to reflect the fact that Title IX was not a factor in the integration of wrestling. This is the new post.

Friday, February 18, 2011

NYT Editorial on Cal Berkeley

There's a good editorial in yesterday's New York Times about Cal-Berkeley's decision to reinstate three of the five athletic teams that had earlier been slated for termination. Addressing the argument that it was unfair of Cal not to also throw a lifeline to two men's teams, baseball and gymnastics, the Editors point out that women were, are, and will remain severely underrepresented in Cal athletics, even with two of their teams reinstated. They they go on to make the following point:

Restoring the women’s teams won’t eliminate the sports gender gap at Berkeley or expand opportunities for women. But it does show that they are trying to meet women’s interests and abilities. The benefits to young women from playing sports are well documented, in their health, psychological outlook, educational performance and future employment. Female athletes also say that sports give them a wonderful opportunity to test themselves.

When money is tight, the struggle to close the gap in athletic opportunity is even tougher. Thanks to Title IX, if something has to give, equality doesn’t go first.

Well said.

Thursday, February 17, 2011

Ex-Coaches Allege Retaliation by Diablo Valley College

Two former coaches at Diablo Valley College in California, part of the Contra Costa Community College district, are reportedly suing in federal court to contest their allegation that they were retaliated against for challenging the college's decision to terminate two women's teams last year. As we have earlier reported on this blog, the coaches complained both internally with the district and externally with the Department of Education Office for Civil Rights that the cuts would violate Title IX due to the severe disparity in athletic opportunities for men and women. These complaints resulted in the reinstatement of all of the terminated teams, which include the men's and women's cross country, track, and tennis teams, but the coaches who had raised the Title IX issue were not rehired to their jobs.

As I told the reporter for this story, it is often challenging for retaliation plaintiffs to prove that the reason for the adverse employment consequences (here, not being rehired) was retaliation for complaining about discrimination, rather than for some other neutral purpose such as the financial or budgetary reasons DVC maintains. Therefore, it is significant that the coaches in this case allege that they were directly told by the athletic director that "there would be negative consequences for filing a complaint." If that evidence proves true, these coaches would prevail on what is usually the highest hurdle for plaintiffs in retaliation cases.

(N.B. In case the plaintiffs or their lawyers are reading this, please know that the aforementioned reporter had asked me about general background on the retaliation standard, not about the details of your case, which were not available to me at the time I spoke to him. Therefore, while I did tell him about the aspects of the retaliation doctrine that are generally most difficult to prove, it is entirely inaccurate to suggest, as he does, that I told him I thought you might have a "hard time" winning your case. I hope he honors my request for a correction.)

ASU's Reponse to Fraternity Rape Could Be Deliberate Indifference

This week, a federal district court in Arizona held that Arizona State University had to defend a lawsuit filed by a former student who was drugged and raped at a party at the Sigma Chi fraternity in 2008. The plaintiff alleges that the university's response to her report of the assault violates Title IX. In denying the university's motion to dismiss, the judge determined that the plaintiff's complaint properly alleged facts that could, if proven, provide the basis for a finding of liability against ASU. In particular, the complaint alleged an incident of harassment that was sufficiently severe, in that the plaintiff was drugged at a party and anally raped while she was unconscious. She suffered post-traumatic stress ultimately withdrew from ASU.

Also, the complaint sufficiently alleged that the university responded with deliberate indifference to harassment about which it had actual notice. This allegation actually takes two forms. First, the plaintiff alleged that an appropriate university official, the Director of Student Life - Judicial Affairs, was aware of prior incidents of sexual harassment involving the Sigma Chi fraternity and failed to take any action that could have protected the plaintiff or any other women from the risk that Sigma Chi would be the grounds for future similar incidents. Secondly, she alleged that university officials responded inadequately to actual knowledge of her own assault. When ASU campus police arrived at the emergency room where the plaintiff was being treated, they failed to give the necessary authorization for medical personnel to conduct a rape kit or authorize a nurse exam. Neither the campus police nor the university's judicial affairs investigated the incident other than to take plaintiff's statement. No one from Sigma Chi was even interviewed about the event.

This is an important decision because it allows the plaintiff to continue to press her claims not just that the university botched its response to her case, which seems pretty egregious to me, but to generally contest and shed light upon the university's culture of looking the other way about the bad behavior of a notoriously problematic fraternity. Known as a "party house," Sigma Chi had just the day before plaintiff's assault been put on probation for hazing and alcohol violations. Nor was this Sigma Chi's first offense -- the plaintiff alleged a five-year history of violations including aggression, intimidation, humiliation, and hostility toward women. If these claims prove true, mere probation seems like a mere slap on the wrist unlikely to offer meaningful protection to other students, satisfying the "deliberate indifference" requirement. That aspect of this case therefore has the potential to send the message to ASU and other universities that it doesn't pay to enable fraternities to provide the context for sexual harassment and assault.

One other observation: this is not the first time we've blogged about rape at ASU. An earlier case involving rape committed by a football player produced a settlement in 2009 that requires all the Arizona state universities to institute programs addressing issues of women's safety on campus. This obligation does not affect the Sigma Chi assault at issue in this case, which occurred prior to that settlement. But it does raise questions about the culture of sexual violence generally at ASU, and how that problem is being addressed both in and outside of the Greek system.

Decision is: Babler v. Arizona Board of Regents, Case 2:10-cv-01459-RRB (ordering denying defendant's motion to dismiss) (D. Ariz. Feb. 15, 2010) (no westlaw cite yet available)

Wednesday, February 16, 2011

Montana goes with prong three

A piece out of a local news outlet in Missoula, Montana focuses on how the University of Montana is choosing to comply with prong three of Title IX. Montana's Senior Associate Athletic Director Jean Gee said Montana has vowed not to cut sports, but must address Title IX issues (in terms of opportunities offered) in other ways at a school where male students comprise 48 percent of the undergraduate population and male student-athletes received 59 percent of the athletic opportunities. So Montana regularly surveys and interviews its female students about their interests and abilities in various sports. And it's not just CYA stuff. Montana administrators realize that the popularity of softball at the high school level and the lack of a DI program at a state school means Montana will have to add softball to its roster soon.
According to the associate director of the state's high school athletic association, JoAnne Austin, athletic administrators in the state are required to have a working knowledge of Title IX which appears to lead to an overtly pro-Title IX stance.
Said Austin:
"For a lot of schools, big time schools, football is king. Football is what makes them the money and I really think that Title IX keeps them in check to some extent. And I think that if Title IX were to go away, you'd start to see a slide back, and more and more money and funds being funneled into football...where you would literally probably have football only schools."
Not sure if there would be football-only schools, but I do think there would be some significant backsliding.

Friday, February 11, 2011

Cal saving three sports

The University of California Berkeley announced yesterday that, due largely to fundraising efforts, it will reinstate three of the varsity sports it had been planning to cut. Men's rugby, women's lacrosse and women's gymnastics are back on the school's intercollegiate roster. Men's baseball and men's gymnastics, however, apparently did not meet the necessary requirements for fundraising and will no longer exist as varsity sports next year.
So it appears they are indeed trying to unring the bell. How successful this move is remains to be seen. When the NYT picks up a story and runs the numbers (months and months after some of us noticed the discrepancy... but better late than never), people pay attention. And so Cal remains on the spot having to answer to athletes, alums, the anti-IXers, and the media. And to advocates as well. I still wonder how it is that Cal can claim that when the initial decision to cut five sports was made last fall that the Title IX ramifications were factored into the discussion.
So here are the new numbers based on the three sports being saved as based on EADA data. Men have 524 opportunities. Women have 388. That bumps up the percentage of female athletic opportunities to 42%. While Cal is still planning on adding roster spots to current women's teams and reducing roster sizes on the men's side, I don't know how they can make up such a disparity doing that. In other words, it does not seem like prong one compliance is an immediate option. And it is hard to tell if adding those roster spots will constitute prong two compliance. It's possible. And given that the women's rugby team asked to be elevated to varsity status, it also looks like prong three is not an option.
In short, until Cal reveals a specific plan, they remain on very shaky ground.

Thursday, February 10, 2011

Cal Berkeley Could Restore Women's Teams

Perhaps some folks at University of California--Berkeley read our questions about the Title IX compliance problems posed by the university's decision to cut two women's teams (gymnastics and lacrosse) four months ago. As we explained in that earlier post, the decision to terminate women's teams seemed a likely violation, as women were and remained underrepresented in athletics, even factoring in the men's teams also cut. The New York Times reported this week that Cal is apparently considering reinstating some of all five teams that were cut last fall, though the athletic director, Sandy Barbour, explains that the reconsideration was motivated by the outcry by the teams' supporters, as well as pledges of financial support. She denies that this has anything to do with Title IX, though I have to believe they are reading the writing on the wall and acknowledging the fact that the cuts backed them into a corner of having to achieve proportionality. Cal is so far from proportionality, that they would have to add 50 women's opportunities and cut 80 men's opportunities, according to the Times article.

But I'm not so sure that Cal can simply unring this bell by undoing last fall's decision. After all, they weren't any closer to proportionality back then. And even restoring women's gymnastics and lacrosse, it is still far from certain that it is achieving compliance by the alternative method of demonstrating no unmet interest in women's athletics. As the Times article notes, the athletic department denied a request to elevate the women's rugby team to varsity status. If those disappointed athletes sue or complain, they would have a strong case that could produce an obligation on Cal to add them, or come into compliance some other way. Cal's decision to cut teams brought the university into a compliance spotlight, and that spotlight will be very hard to shake.

Wednesday, February 09, 2011

CSC and Pacific Legal fight complaints

The College Sports Council, a group advocating for Title IX reform, and the Pacific Legal Foundation, a conservative legal group, are challenging the Title IX complaints filed by the National Women's Law Center last fall in 12 of the nation's schools districts.
PLF sent letters to the district offices of OCR suggesting that the 3-prong test does not apply to high school athletics. And CSC sent letters to the actual districts, targeted by NWLC for their especially disproportionate distribution of athletic opportunities, suggesting that the districts fight complaints.
Both organizations are claiming that high schools do not have to meet the 3-prong test and that application of the test to high school athletics might be unconstitutional--specifically that it violates the Equal Protection Clause.
Responses from the Department of Education and NWLC mention that this issue is moot; that PLF already raised it--two years ago--and that some courts have already applied it to high schools.
It will be interesting to see if the hand being offered by CSC to the affected districts will be taken by any of them in a potential fight with the Department of Education.

Monday, February 07, 2011

Pilot mentoring program ended in PA

From Ms magazine, news that a mentoring program in Pennsylvania has been revamped due to the controversy over its practice of segregation. Homerooms at McCaskey East High School in Lancaster were divided based on race and gender. Though this article says that the mentoring program itself was segregated and only available to some students who met, as part of the program, once a day for a short time as well as twice a month. Rather than abandon the program, however, the school is opening it up to all students.

Saturday, February 05, 2011

Bring in 'da Noise, Bring in 'da Funk: Cheer is here

Rather STUNT is here.
USA Cheering's season of STUNT began last week with a competition at University of Louisville featuring teams from the host institution as well as West Virginia University, and Moorehead State.
You might recall a certain schism in the cheering world that occurred after the announcement of the Quinnipiac University cheerleading decision last summer. USA Cheer, a for-profit entity that, to date, has controlled the majority of...well...all things cheerleading (competitions at all levels, apparel, gear, camps) in the US for decades. USA Cheer announced it was creating a sport called STUNT with the aim of meeting NCAA standards for an emerging sport and Title IX standards for what constitutes a sport.
They are seemingly in competition with a group comprised of university administrators seeking the same end goals. This group, the National Collegiate Acrobatics and Tumbling Association, has partnered with USA Gymnastics in an attempt to give competitive cheerleading sport status at colleges and universities.
Anyway STUNT has scheduled about 10 contest over the course of its season (the establishment of a season is part of the requirements) that lasts from January until April.
The first competition was deemed a success by its organizers:

"This competition was a huge success for USA Cheer and STUNT, the competitive morale and immense team spirit at the event was evidence that STUNT is becoming increasingly more popular and important in communities across the country," said USA Cheer Executive Director, Bill Seely.

The first link above explains the format of the competitions and how STUNT (not sure why the all-caps thing) is different from traditional cheer.

Friday, February 04, 2011

Jury Finds for FGCU in Retaliation Case

Today it's reported that after 2 1/2 hours of deliberation, a federal court jury in Florida found that Florida Gulf Coast University did not violate Title IX's prohibition on retaliation when President Wilson Bradshaw demoted Bonnie Yegidis from her position as provost. Specifically, the jury found that Yegidis did not present enough evidence to prove the first required element for a retaliation claim, that she engaged in protected conduct by blowing the whistle on discrimination. Yegidis had alleged that she was fired for urging the President to take seriously the complaints about Title IX violations presented by the university's female coaches. This article in the Naples Daily News suggests that the jury might not have seen her as whistleblower because FGCU presented evidence that Bradshaw already knew about the Title IX concerns and Yegidis was not telling him things that others weren't already.

Yegidis, who is now a Professor of Social Work at the University of South Florida, has not said whether she plans to appeal the verdict. She did tell the press that she's disappointed in the verdict and hopes that it doesn't "send a message to people -- to men and women -- that they can't bring cases forward."

Report ready for digestion in PA

Title IX consultant Peg Pennepacker finished her report on the gender disparities within Hazleton School District in Pennsylvania. We wrote about this situation just over a year ago. Interestingly, the reporting of the complaint about the lack (i.e. none) of middle school girls' sports in the winter seemed to be more focused on whether girls' basketball should be moved out of the spring season to its traditional winter season.
But the raising of the concern clearly triggered an investigation and brought Pennepacker into the situation. Her report goes a lot further than just winter sports, too. (Sometimes educational administrators are not very smart.) A large concern highlighted in the report seems to be the use of booster donations. Or at least that is what people are talking about. And it seems the ad-hoc committee, created in order to "digest" the report, is getting on the booster club issue immediately, suggesting that there be a district-wide booster club policy and that financial audits of booster clubs be conducted.
And I can see why a special digestion committee is necessary. Here are the rest of the items that "warrant action" in order to achieve Title IX compliance.

Increase number of participation opportunities.

- Improve equality in supply and condition of athletic equipment and supplies.

- Improve scheduling use of athletic facilities including locker rooms, practice and competition facilities.

- Re-evaluate team transportation and meal allocations.

- Recruit best-qualified coaches and offer coach training.

- Make publicity and promotional activities available to all groups.

- Improve game and practice scheduling.

- Re-evaluate access to training facilities and medical services

Wednesday, February 02, 2011

Yegidis v. FGCU Day 1

In a Florida federal court, a trial began Tuesday in the Title IX retaliation case between Florida Gulf Coast University and its former provost Bonnie Yegidis, who was fired from the position, she alleges, because she urged the president to take seriously coaches' allegations of gender discrimination in athletics. According to press, FGCU President Wilson Bradshaw testified consistent with the university's defense that Yegidis was fired instead for being part of an ineffective "hornets' nest" of a senior management team. While acknowledging her positive evaluations and past performance, he nevertheless characterized Yegidis as "such a disruptive force that I had to take action."

Former Athletic Director Merrily Dean Baker also took the stand and described her role in underlying Title IX dispute, meeting with female coaches and compiling their concerns about discrimination in a letter to Bradshaw's predecessor, Richard Pegnetter.

Tuesday, February 01, 2011

Gender equity and geography bees

A professor in North Dakota has filed a lawsuit alleging that the National Geographic Bee is not making their contests equitable.
Professor Emeritus Eric Clausen (Minot State University) is naming the NGB as well as other entities and charging them with failure to make the geography bee more fair to girls. He filed a previous claim, which included an allegation that he was retaliated against for his complaints, that was dismissed (see our prior post here). This time he has added additional groups to the list of defendants including his own university.
The details offered in the above linked article are not that clear, and I cannot speak to the merits of Clausen's case.
But I can comment on a few things. First, the preponderance of male winners of the national bee is indisputable: only 2 female winners in the 19-year history of the bee. The North Dakota state contest has an overwhelming majority of male contestants. NGB has apparently looked into this, including commissioning a study by two Penn State researchers in 1996. But the study only found that there is a small difference in what girls and boys know about geography. The study is slated to be updated in the next year.
But really, that's it? I hope the conclusions went a little deeper than that and the article just left them out. But this section of the article worries me:

Beverly Sandness, director of the North Dakota bee, was asked if she had a theory on why boys have dominated the competition.

“No,” she said. “Everybody has their own, I suppose, slant on that. I’ve been in education since 1959 and some things are just hard to explain.”

Someone who has been in education for 52 years thinks that gender differences in the ways boys and girls experience the educational system in this country is just "hard to explain." I find that worrisome. I am NOT in primary education, but even I have a few theories as to why the boys might be dominating in these contests that has nothing to do with that so-called slight difference in what they know about geography. Maybe it has something to do with the performance aspect of the event, specifically what it means to perform your intelligence in front of both peers and strangers. This is a contest for students in grades four through eight. A time when girls are ingesting different messages about what it means to be a girl, when being smart is not as highly prized as being pretty, when beating boys might not be as socially acceptable.
These might not be issues NGB can completely alleviate. But they should at least be aware of the issues and be discussing them and their ramifications on NGB contests. Hard to say if a questionable lawsuit will get them there.