Tuesday, November 29, 2011

More re-integration

Another school district in Alabama has opted to end its single-sex middle school classrooms.
Tallapoosa School District has said it will stop its single-sex program at the end of this year. This program had been in place for several years and, despite being legally required to, did not provide opt-outs for students/parents who did not want to be educated in single-sex classrooms.
The program began because of alleged hormone-induced behaviors that required disciplining.

Monday, November 28, 2011

Ann Arbor No Longer Plans to Exempt Football from Cuts

This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.

I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.

Friday, November 18, 2011

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.

Massachusetts Adds Transgender Protection to Antidiscrimination Laws

In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.

Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.

Thursday, November 17, 2011

Tennessee Rejects Equal Pay for Women's Athletics Officials

The Washington Post reports that the University of Tennessee recently rejected an internal complaint filed by three employees of women's athletics, arguing that their salaries were discriminatory because they were less than their counterparts in men's athletics. The employees held the positions of Athletics Director for Women’s Sports Medicine, Assistant Athletics Director for Women’s Strength and Conditioning, and the Associate Director for Women’s Strength and Conditioning, until the recent merger of men's and women's athletics at Tennessee.

The University of Tennessee's Office of Equity and Diversity denied their pay discrimination claims after determining that these positions in women's athletics were not comparable to the equivalent positions in men's athletics to justify equal pay. Specifically, the Office stated that due to the financial importance of football to the university, the sports medicine/strength & conditioning employees in men's athletics had a more important job because it mattered more financially that male athletes were healthy:
Football overwhelmingly is the top revenue-generating sport in Athletics and the sport that generates the most fan interest,” the report says. “If the University’s football team is successful, then the entire Athletics program reaps the monetary benefits. If the University’s football team is unsuccessful even partly because football injuries are not being prevented, diagnosed, treated and rehabilitated successfully, then the entire Athletics program suffers. “With no disrespect being intended to Ms. Moshak [Athletic Director for Women's Sports Medicine], Mr. McVeigh’s position [Director of Men's Sports Medicine] is more important to athletics because of his football-related responsibilities."
With this statement, the University of Tennessee declares its true intentions in running an athletic department -- not, as its mission statement conveys, to enrich the education of student athletes, but to exploit the revenue-generating potential of certain sports. Aside from being hypocritical and morally void, this position also suggests that the University is (or was in the recent past prior to the merger) violating Title IX with respect to its athletes, as the law requires equal treatment when it comes to "medical and training facilities and services." And the law contains no exception for football or any sport because of its capacity to generate revenue.

Nor is it clear whether football's revenue justifies paying men's medical and training staff more. If this case made its way to the EEOC, the federal agency that enforces Title VII and the Equal Pay Act, it would consider whether the medical and training staff that McVeigh oversees is comparable in size to Moshak's. Yes, it may take more work to keep the football team healthy, but if you get a larger staff as a result, you can't use "football takes more work" as a justification for unequal pay. Another factor that the EEOC would consider is whether men's and women's athletics received equal opportunity to generate revenue. If the university allocated fewer resources to market and promote women's teams, it can't use the fact that men's teams bring in more revenue to justify pay disparities between men's and women's athletics.

The article does not suggest what's next for this case. Now that the university's decision is final, having been approved by the President on internal appeal, it will be interesting to see if the employees press their claims with the EEOC. And though its less likely, it would be even more interesting to see if someone presses the disparity in medical training as a violation of Title IX.

Coach Files Retaliation Suit Against Central Connecticut State

A former track and cross-country coach at Central Connecticut State University has filed a lawsuit claiming that the university decided not to renew her contract in retaliation for her efforts to secure equal treatment for her team. The plaintiff was hired by the university in 2006 on a one-year contract, which was renewed annually until it was terminated in 2010. According to her complaint, she successfully coached the women's track and cross-country team during that time, improving the team's record and engaging in successful recruiting efforts. Yet despite being promised equal treatment compared to the men's track team, her team allegedly received a much lower budget than the men's team, less access to facilities, and had problems securing transportation to away meets. The plaintiff also noted inequitable support from a "shared" assistant coach who spent his time helping the men's team and not the women's.

The plaintiff claims that when she raised these concerns to a university official with oversight responsibility over athletics, her complaints were mocked and not taken seriously. Rather than investigate her complaints, the compliance officer investigated the coach herself, while one athletic department official allegedly pressured an athlete to file complaints against her. She was also threatened with "disciplinary action" if she did not "ignore everything that was happening" and continue to press her complaints. Meanwhile, the plaintiff also noted ways in which she was afforded less respect than the male coaches, such as being left off the athletic department website (when newly-hired male coaches were added immediately) and misreporting the men's head coach's title as "Head Coach for Track" (instead of "Head Coach for Men's Track"). The plaintiff claims she was also singled out for budget reductions and the cancellation of one of her athlete's scholarships. She attributes to this hostility to the fact that the athletic department had supported the assistant track coach for her position and was disappointed that the university president had required them to hire a woman instead.

In 2010, an athletic department evaluation committee recommended the plaintiff for another contract renewal, noting the athletic and academic success of her team. But the athletic director did not renew her contract and instead combined the men's and women's track teams back together, as they had been before Webb was hired. The assistant coach who had sought the plaintiff's job was hired as the head coach of the unified team, notwithstanding the plaintiff's longer experience in coaching and coaching in Division I, as well as other superior coaching credentials.

On these facts, the plaintiff's complaint satisfies the elements to establish a prima facie case for retaliation under Title IX. She alleges that she complained about gender equity, and that she experienced adverse employment consequences including being terminated from her position. She also alleges facts that support the inference that those two things are causally connected, including that she was threatened with "discipline" if she did not drop her complaints. The university will likely defend this lawsuit by proffering "legitimate" reasons for terminating the plaintiff, perhaps by arguing that she did not meet performance expectations. She will then have to prove that the university's proffered reason is actually a pretext for retaliation. For example, if the university claims she was fired because her team was not competitive, the plaintiff could demonstrate this is a pretext by proving the allegations in her complaint that the university did not terminate the coaches of other men's teams that were not as successful as hers.

The plaintiff's complaint also includes counts of direct discrimination under Title IX, as well as comparable claims under state law. She seeks compensatory and other damages exceeding $2 million dollars, a number that is not out of bounds after verdicts and settlements in similar retaliation cases against Fresno State and Florida Gulf Coast University.

Wednesday, November 16, 2011

Recommendations for cuts in at Maryland

The recommendations for how many and which teams will be cut from UMD's athletic department came faster than we expected. And it seems like President Wallace Loh will make his decision, based on the committee's recommendations, sooner than he had planned as well. (He initially said he would decide by the end of the year.)
So, as expected, men's and women's swimming and diving is on the list. Six other teams join them: the entire men's track program (a total of three programs), women's water polo, and acrobatics and tumbling.
The last was particularly interesting. Maryland was the first institution to elevate its cheerleading team to varsity status, calling it competitive cheer. This seemed to be the watershed moment for competitive cheer, which now goes by several names depending on which governing body a team aligns itself with. I would imagine this is kind of a blow for competitive cheer. We predicted that competitive cheer would be embraced by many schools because administrators view it as a somewhat cheaper way to add opportunities for women. Does this move by Maryland signal that administrators are also going to see the sport as easy to drop when things get tight?
As the WaPo article notes, these decisions are not final. Loh must make them official. I imagine he will not draw things out and do it soon.

Tuesday, November 15, 2011

Title IX and Penn State

In a two-part column at Justia.com (see here and here), Hofstra law professor Joanna Grossman and Pittsburgh law professor Debbie Brake examine whether Penn State is liable under Title IX for the sexual abuse committed by former Assistant Coach Jerry Sandusky, who used Penn State facilities to anally rape boys he associated with under the auspices of charity that Sandusky founded.

In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."

For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.

Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.

The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.

While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.

Monday, November 14, 2011

Remaining Idaho Complaint Closed with Voluntary Resolution Agreement

I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.

Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.

Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."

If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.

So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.

Pittsburgh School District Ends Single-Sex Classes

The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.

The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”

Friday, November 11, 2011

Women's Sports Foundation Reports on Participation Trends in High School Athletics

The Women's Sports Foundation has published a new report called “Progress Without Equity: The Provision of High School Athletic Opportunity in the United States, by Gender 1993-94 through 2005-06.” Using data from the Civil Rights Data Collection and the National Center for Education Statistics, the report authors, Professor Don Sabo from D'Youville College and Phil Veliz from SUNY Buffalo, examine gender differences in athletic opportunity in a sample of 24,370 public high schools across three school years, 1993-94, 1999-2000, and 2005-06. The authors measured the number of athletic participation opportunities, the number of teams, and the number of sports in the sample school districts during these years, and then controlled for a variety of factors about those schools including geographic region, level of resources, and whether urban, suburban or rural. As described in the report's abstract, its key findings include:

  • While high schools gradually increased their allocations of athletic participation opportunities between 1993-94 and 2005-06, progress toward closing the gender gap slowed after 2000.
  • Boys received a larger proportion of athletic participation opportunities than girls did for each school year in all communities (i.e., urban, suburban, town, and rural). The lowest percentages of athletic participation opportunities occurred in urban schools, whereas the highest percentages were issued in rural schools.
  • Schools with greater economic resources provided more athletic participation opportunities for their students—both girls and boys—than their less fiscally sound counterparts.
  • Girls were provided proportionately fewer athletic participation opportunities than boys during each school year and in all geographic regions (i.e., Northeast, Midwest, South and West.
To me, this report provides an answer to those who would curtail Title IX's enforcement at the high school level. By proving that girls' opportunities are still lagging and progress towards equality waning, this report should encourage regulators and lawmakers to strengthen Title IX's application to high school athletics such as by taking seriously those seeking OCR enforcement against continued disparities, and by passing legislation that would standardize participation data and make it available and easier to find for those seeking to file a complaint or a lawsuit.

Wednesday, November 09, 2011

Maryland athletics cutting teams

University of Maryland has some tough decisions to make. The department, which is required to be self-sustaining (no money from the general fund; it does receive student fees) is not. Facing major deficits, it now faces the task of cutting teams--many teams--up to 10 according to this WaPo article.
It looks like men's and women's swimming and diving are almost certain to be cut. The university president has formed a commission and asked for a study which will include recommendations for teams to be cut. But the swim teams have caught wind of the news already; so has Bob Groseth, the executive director of the College Swimming Coaches' Association. Some coaches and administrators within the swimming community have been none too happy with Title IX, blaming the law on the elimination of men's swim teams.
But Groseth, whatever he thinks about Title IX, makes this observation about swimming in DI:
As you see with all this conference [realignment], there is a growing number of athletic directors who are using athletic departments as a bottom-line business model — not as part of an overall education model.

He notes that swimming has grown at the DII and DIII levels, though.
And it's true. UMD is in a big-time conference (ACC) playing big-time sports and they now seem to have no choice but to make similar decisions as other big-time programs--cutting the so-called minor sports.
It's going to be a tough year for UMD athletics--at least morale-wise--as rumors swirl and campaigns begin to save sports.

New study on sexual harassment of youth

We all knew that grade 7 through 12 are not always pleasant times for kids.
We know about bullying and its severe effects.
But a new study by the American Association of University Women has revealed some pretty bleak statistics around the sexual harassment of both teenage boys and girls. Over 50 percent of girls surveyed reported experiencing sexual harassment and about 40 percent of boys self-reported harassment.
The survey of just under 2,000 students asked students only to report sexual harassment (defined as unwelcome jokes or comments, inappropriate touching, and sexual intimidation) within the last year (2010-11 academic year). It included harassment that happens in person and via other mediums (texts, social media, etc.).
The effects of such harassment are both physical and mental with many reporting headaches and stomach pain.
The AAUW undertook the study to bring attention to the issue of sexual harassment, which members do not want forgotten in the midst of the discussions about bullying.
The authors, or at least the NYT's portrayal of the authors, seem to make a stricter distinction between sexual harassment and bullying than I might. Sexual harassment is a form of bullying and so much bullying involves sexual harassment.
For example, the study found that 18 percent of both girls and boys report harassment based on perceived sexual orientation. This is also bullying. This is why, in some bullying cases, Title IX violations are cited.
And, of course, all sexual harassment in schools is subject to Title IX. Though we here at the blog believe that Title IX is quite underused in sexual harassment cases. It seems that the AAUW feels similarly, though T9 only got a brief mention in the article.

Tuesday, November 08, 2011

Interesting start to stipends

Who was going to pull the trigger first, we wondered, when we heard about the NCAA's approval of living stipends for DI student-athletes.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.

Monday, November 07, 2011

OCR Drops All Idaho Complaints But One

The Office for Civil Rights will reportedly drop the complaints against 77 of the 78 Idaho school districts cited in the mass-complaint filed over the summer. Only the Meridian School District, the largest in the state, remains subject to OCR investigation for claims that it violated Title IX by failing to provide an equitable number of athletic opportunities for boys and girls.

There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.

Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.

As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.

Friday, November 04, 2011

NCAA releases participation numbers

The numbers of student-athletes participating in NCAA championship sports has increased again this year. As has been the case for over a decade, there are more women's teams than men's teams. And has been the case since--well, since the inception of the NCAA--there are more male student-athletes than female: 252,946 men to 191,131 women.
Though some men's intercollegiate sports teams have been cut--wrestling has suffered the most losses--there has been a net gain of 510 men's teams since 1988. And women's opportunities have grown tremendously in that time as well with a net gain of 2,703 teams.
We were glad to see more opportunities, though somewhat surprised given the constant news we see about cash-strapped athletic departments.

Wednesday, November 02, 2011

Feminists Address Feminists on the Other Side of the Single-Sex Education Debate

Rebecca Bigler and Lise Eliot are right when they point out that "feminists tend to be of two minds about single-sex schooling." In my experience, such discussions between these groups of feminists -- whether personal or playing out in the New York Times -- reflect an uneasy awareness of this divide, with both sides often choosing to address the common "enemy" in programs that take single-sex education too far, rather than address the conflicting positions between them. Of all the discourse over single-sex education that has spewed forth these last few months, Bigler and Eliot's piece in Slate notable for actually taking issue with the feminist variety of single-sex education -- the pro-woman Smith and Wellesley type. This respectful, measured, and evidence-based column makes the case that sex-segregated classrooms promote sex stereotypes that are the basis for bias and privilege. It delivers a persuasive argument that feminists would do more to promote gender equality by working together to end sex-segregated schools and enhancing co-education. It's worth a read.

Badminton Proves Popular Addition in Deer Valley, Arizona

Girls' badminton, the newest sport offered by the Deer Valley Unified School District in Phoenix, Arizona, easily filled up at the district's five high schools, providing new athletes with a sport and demonstrating once again the "if you build it, they will come" relationship between Title IX, opportunity, and interest.

Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.

With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.

Tuesday, November 01, 2011

NCAA Division I Votes to Increase Athletes Financial Aid

Last week, the NCAA Division I Board of Directors voted to allow conferences to increase athletic scholarships by $2,000 so that athletes can have spending money. With this plan, the NCAA acknowledges that student-athletes have little time to work due to the professional-like demands on their time. To many, athletes' uncompensated labor seems like exploitation, especially when universities reap revenue, and a small handful, actual profit, from that labor. While I am sympathetic to the argument about exploited labor, I'm disappointed that the remedy isn't instead to reduce the professional-like demands on student-athletes time. That, of course, would require putting an end to the commercialization of college sports and returning it to its truly amateur status. This new policy seems to suggest that ship has sailed.

But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.

Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).

But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.

Washington High School Receives Complaint About Fields

A group of parents have reportedly complained to the administration of Castle Rock High School, in Washington, about the unequal treatment received by the girls soccer team, which plays on a field without lights while the football team plays in a comfortable, lighted stadium that it does not share with other teams. As a result, girls' games are sometimes called early due to darkness, which reduces their playing time in a way that football players never experience -- sometimes J.V. games have been shorted to as little is 32 minutes, instead of the usual 80. (The boys' soccer team does not use the stadium either, but their season is in the spring so they don't have the darkness problem.) Adding insult to injury, they claim, is the fact that while their games are called for darkness, the football stadium is sitting unused, because their game schedule does not conflict with high school football practice and game times.

To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.

Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.

Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.