Friday, August 26, 2011

Scheduling remedies in our own back yard

Several friends have informed us about a settled Title IX complaint right in our neighborhood. Amherst Regional High School has agreed to make changes in both game and practice scheduling.

Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:

  • scheduling an equal number of prime time games;

  • scheduling an equal number of nighttime under the lights games;

  • implementing a full schedule for girls' soccer, tennis, and volleyball (which had reduced schedules due to budget cuts; the athletic director said she had thought that--over the course of the reductions--cuts had been made equitably among boys' and girls' team; but apparently not);

  • and ensuring equal access to desirable practice times in shared facilities.

And in case there is a question of why this matters (though we have spoken about it before, mostly in posts about the scheduling of girls' versus boys' basketball games), Goff makes a good point. When girls' games are scheduled exclusively during the day, fewer parents can attend. This also means, as Goff noted, that these teams get less community support. Parents are their student-athletes' biggest fans and advocates. The visibility of girls' and women's sports can be directly related to when their contests are scheduled, which is why scheduling is one of program areas Title IX covers.

This story continues our theme this week of "it's not just quantity--it's quality." Also of note, Goff is a parent of a former Amherst student-athlete. He noticed the inequities when his daughter played soccer for the school a decade ago. A good reminder that anyone can file a complaint. (But note it can be anonymous.)

* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.

Tuesday, August 23, 2011

Investigations into Locker Rooms and Softball Facilities Prompt Improvements

I've been meaning to post about these two stories, from earlier this summer, in which complaints filed with the Department of Education's Office for Civil Rights prompted requirements for improvements to facilities for women's sports.

Earlier this month OCR concluded that Oldham County School District in Kentucky violates Title IX because of inequitable locker room facilities at two county schools, Oldham County High School and South Oldham High School. OCR conducted an investigation of the school district facilities after parents filed a complaint (as well as a lawsuit, as discussed in an earlier post). Oldham County is also being investigated in response to a separate complaint, filed by National Women's Law Center, challenging the disparity in athletic opportunities available to girls and boys.

Elsewhere, an OCR investigation has recently prompted Santa Clara University in California to agree to construct an on-campus softball facility to remedy disparities in facilities available to men's and women's teams.

Both stories are a good reminder that Title IX does not just require equitable number of participation opportunities, but to the overall quality of those opportunities as well.

Sunday, August 21, 2011

I wasn't going to say anything but...

...I can't not.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.

Saturday, August 20, 2011

Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case

Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.

Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.

Friday, August 19, 2011

Ninth Circuit Affirms Victory for Montana State in Retaliation Case

Despite my prediction, the Ninth Circuit Court of Appeals has affirmed the lower court's decision to dismiss former coach retaliation Robin Potera-Haskins's case against Montana State. Apparently the appellate panel was not as concerned as I was about the trial judge's failure to give reasons for his determination that Potera-Haskins lacked credibility, or why it made sense to assume, in an employment case, that money damages were not at issue and therefore a jury trial was not warranted. But the judges certainly didn't take the time to say why, affirming the lower court's decision in a four-sentence, unpublished opinion.

Tuesday, August 16, 2011

Texas Southern Coach Wins $700,000 in Retaliation Case

A jury in federal court in Texas awarded over $700,000 to Surina Dixon, a former coach at Texas Southern University who had sued the school for retaliation and discrimination in violation of Title IX and other law.

As we noted when the case was first filed, Dixon claimed that she fired her from the head women's basketball coach position to which she had recently been hired after she insisted on parity in the terms of her employment contract, noting specifically that a recently-hired men's basketball coach with less experience than Dixon received a longer contract and higher salary. She had also complained that TSU glossed over gender inequities in its NCAA Gender Equity Self-Study.

Thursday, August 04, 2011

District Court Reaches Decision in UC Davis Title IX Case

U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.

What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.

Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.

Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.

Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.

Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.

Settlement Ends Litigation Over WVU Tech Softball Facilities

A federal court in West Virginia dismissed a Title IX case against the University of West Virginia Institute of Technology after it agreed to improve facilities for its women's softball team. The lawsuit was filed in 2008 by two softball players after WVU Tech ostensibly reneged on promised improvements. The parties had been trying to settle for a while.

According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."

The court maintains jurisdiction over the consent decree to ensure compliance.

Wednesday, August 03, 2011

If only all equity data were this easy to find

T9B "Tip of the Hat" to web-savvy Kentucky citizen, Dick Richards. Leveraging the state's open records law, Richards got copies of high schools reports to the Kentucky High School Athletic Association, and then reported them online in a very searchable, user-friendly website. Thanks to these efforts, anyone in Kentucky can check on participation and spending data for girls' and boys' sports at any high school. He also developed a grading rubric that takes into account participation rates, added participation, spending per athlete, coaches salaries, and other factors. You can look up any school or district to find out how it rates.

Richards' website also provides answers to bigger picture questions like what is the gender breakdown in athletic participation statewide? (Answer: 56.3% boys, 43.7% girls) And funding? 41% on girls' sports, 59% on boys sports. Also, that the participation and spending gap is larger in the the state's largest school districts.

This tool could be invaluable to Kentucky citizens seeking empirical support to discrimination claims. It could also provide a model for activists in other states!