Tuesday, July 31, 2012

Title IX Olympics?

Several U.S. newspapers have been running this article, referring to the London Games as "the Title IX Olympics" -- a reference to the record participation by women worldwide.  It's a laudable milestone that this is the first Olympics to which every country has sent at least one woman, and that countries like Russia, along with the U.S., have more female athletes in their delegations than male. But to credit Title IX for this is of course taking things a bit too far.  Title IX is, after all, U.S. law and has absolutely nothing to do with Saudi Arabia's or Russia's notions of gender equality.  It is also a misleading reference because Title IX is an education law, not a sports law.  The U.S. Olympic Committee and all of the various U.S. national governing bodies of sport are created and governed by a different law, the Ted Stevens Amateur Sports Act.  Unlike Title IX, this statute provides no legal recourse against national governing bodies that provide more resources and opportunities to male athletes -- an issue that vexes women's sports advocates who push for equal treatment among men's and women's national teams and development programs in various Olympic sports.  Outside the U.S., the ongoing Games have exposed high-profile examples of resource inequality from other countries as well as imbedded in the structure of the Games, such as the fact that these "Title IX Olympics" offer about 30 fewer events for women (see also this, but see, this). 

I'm thrilled that athletes like U.S. swimmer Dana Vollmer are crediting Title IX for creating opportunities for them to compete in high school and college. But the media's overuse of the Title IX mantra glosses over some of the real remaining obstacles to gender equality in sport, in the U.S. and around the world.

(It's also possible that I'm just angry to see the Title IX label attached to these Olympics, the first in 20 years where there is no women's softball being played -- softball being the poster-sport for Title IX in this blogger's opinion.) 

*It does have a nondiscrimination provision, but it only prohibits acts of individual discrimination based on sex and other protected characteristics, not a requirement to equal treatment by an NGB.

Friday, July 20, 2012

Premier Field in Seaside Will Include Girls' Softball

Last week we blogged about the lawsuit threatened by a father in Seaside, Oregon, challenging the school district's omission of girls' softball from its arrangement to use the premier municipal athletic complex for high school football and baseball.  

This week, school officials announced that Broadway Field would be available to a broader number of high school teams, including the girls softball team, in upcoming seasons.  However, Randy Anderson has vowed to press his lawsuit anyway.  According to this article, he believes there are other Title IX inequities that still have not been addressed. 

Thursday, July 19, 2012

STEM and stigma

Around the 40th anniversary, the White House announced a commitment to increasing the presence of women in STEM fields.
This, of course, drew criticism (because the number of women receiving degrees is--overall--higher than men) and fear that the White House was working on imposing another one of those "Title IX quota systems."
I cannot speak to what potential Title IX regulations specific to STEM may or may not accomplish--because they do not exist. And, right now, I am far less concerned with getting X number of women into mechanical engineering. Because the numbers people pull out--about how women dominate the health care field, earn over three quarters of Masters degrees in education, and 82 percent of undergraduate degrees in Public Administration and Social Services--they end.
What do I mean? Well they only tell us the degrees people are selecting into and earning. One, we don't know how many people get jobs in these fields after receiving a degree, which is perhaps a secondary consideration of mine at the moment.
My larger concern is how selection into and retention within certain fields occurs--which is all about culture. Additionally, these issues have economic effects.
Yes, there are a lot of women in social services. Most of the positions within this field are considering caretaking ones--social worker, therapist, aid worker, counselor. Many are in the non-profit sector. Most are low-paying. There are many such people in the area I live in. Of all the people I know in these positions, one is a man. Why? Because, one, there is a stigma around men in caring professions. And two, they do not pay well. Again, a man's earnings are tied to dominant beliefs about masculinity--yes, even in our so-called post-feminist era.
Men in caring professions like social work or K-12 education are often more easily pushed toward administrative positions: center directors, principals, etc.
A similar stigma applies within the health professions. The difference is that, currently, earning potential in these fields is much higher. But I am not aware of a culture that exists among, for example, nurses that discourages men from getting and/or keeping positions. Often men are praised for doing "this kind of work." This is not the case in higher education (women may earn more PhDs but they are less likely to get tenure) or in STEM fields.
Increasing the number of women in these fields will not necessarily lead to a change in culture within or outside of them. The solution to the problem, as we are so fond of saying in women's studies, is NOT "add women and stir."

Tuesday, July 17, 2012

Testimony about equitable treatment

There have been quite a lot of personal testimonials about individuals' experiences with Title IX in the months preceding and since the 40th anniversary.
I wanted to share a piece of this one by Jennifer Imsande because it was not just about how sports generally benefited her (in career or schooling or relationships or life lessons--themes of many other testimonials). Imsande talks about the specific benefits Title IX afforded her as an athlete in pursuit of athletic success.
I've only ever experienced sport as both possible and accessible. My high school canceled classes when my basketball team went to the state tournament. In college I received expert coaching and flew on airplanes to get to meets — where, if my Achilles tendon started acting up, I could use the team massage therapist or trainer. 

These are examples of the equal treatment Title IX mandates. We have been on kind of an equal treatment push during this anniversary coverage because we want people to realize that Title IX is not just about opportunities but about the quality of the opportunity. More and more complaints and/or lawsuits have focused on equal treatment measures (in addition to those mentioned by Imsande there are issues like uniform and equipment quality and age--and who pays for it; quality of competitive experience; quality of coaching; access to facilities--and the quality of facilities).
Obviously the issue of opportunities is still one that needs attention. But the experience of the girls and women who are receiving opportunities needs to be assessed as well.

Friday, July 13, 2012

Sexual Harassment Roundup

The courts have issued a lot of sexual harassment decisions over the summer, and I admit I've fallen a bit behind.  Here is my first attempt to catch up. 

The Seventh Circuit affirmed a lower court ruling (which we also blogged about) dismissing a student-employee's case against Southern Illinois University stemming from an emeritus professor's sexual harassment of a male student.  While the lower court had a hard time seeing the harassment -- which consisted of ongoing sexually demeaning comments and touching -- as "because of sex" to qualify for protection under Titles IX or VII, the appellate court did not address that issue in its opinion.  Instead, it determined that the school's not-unreasonable response to the plaintiff's complaints of harassment, which included banning the professor from campus and  involving the university police, warranted dismissal of plaintiff's case.  Milliken v. Southern Illinois Univ., 2012 WL 2764971 (7th Cir. July 10, 2012).

A federal district court in New York rejected that students' teasing of a male high school student with Asperger's syndrome was motivated by the victim's sex.  Even though the harassment consisted in part of anti-gay slurs, those comments did not sufficiently convey animus towards the plaintiff's gender.  But the court did allow the plaintiff's case to move forward on his claim that the harassment related to his disability rendered the school district liable under the Rehabilitation Act.  Using a similar analysis to that of Title IX harassment, the court agreed that the plaintiff sufficiently alleged that school officials responded with the requisite 'deliberate indifference' because they did not respond to numerous reports of harassment filed by the plaintiff's parents.  Preston v. Hilton Cent. Sch. Dist., 2012 WL 2829452 (W.D.N.Y. July 10, 2012).

In a similar case, a student with a condition called hereditary multiple exostoses sued his school district over peer harassment he sustained throughout elementary and middle school.  Even though some of this teasing involved sexual innuendo, the court decided that it was not sufficiently motivated by the victim's sex to warrant protection under Title IX.  However, the court left open the possibility that the plaintiff could add allegations to make clear that the harassment occurred because he was gender-nonconforming in some way.   Similarly, the court also rejected the plaintiff's case under the theory of disability discrimination, finding insufficient allegations that incidents of harassment were motivated by the plaintiff's disability, given that only one reported instance of harassment involved mockery of the plaintiff's bone disorder.  Hoffman v. Saginaw Public Schools, 2012 WL 2450805 (E.D. Mich. June 27, 2012).

A federal district court in Arizona dismissed a case involving a freshman female student's allegation of sexual assault by a senior boy.  The plaintiff alleged that school officials had notice of the threat harm because the principal, who happened to be the accused's father, knew that his son had committed an earlier act of rape against another girl.   The court rejected that this constituted knowledge of a specific threat to the plaintiff, however.  Doe v. Round Valley Unified Sch. Dist., 2012 WL 2064382 (D. Ariz. June 7, 2012).

Finally, for this roundup at least, comes a decision from a federal district court in Ohio that allows a Title IX sexual harassment case to proceed to trial.  The plaintiffs are suing on behalf of their daughter Jessica, a senior in high school who committed suicide in 2008 after her naked picture was circulated among her classmates via text message (Jessica's suicide received national attention).  The court agreed that this incident and its aftermath, which included name-calling of a sexual nature, constituted harassment because of sex.  Furthermore, the complaint alleged that school officials had actual notice of the harassment based on a combination of Jessica's report to a teacher that generally referenced harassment, though not the specific details, as well as an interview Jessica later recorded for a local television station about the dangers of sexting, though her face and voice were obscured.  Based on these allegations, a jury could find that school officials knew enough about what was happening to warrant stepping in to protect Jessica.  The case will move forward on the Title IX claim, and the court will also allow the plaintiffs to pursue individual liability under 42 U.S.C. 1983 and the Constitution's Equal Protection Clause.  Logan v. Sycamore County Bd. of Educ., 2012 WL 2011037 (S.D. Ohio June 5, 2012).

Thursday, July 12, 2012

Oregon Dad Challenges Softball Team's Exclusion from Premier Field

The Oregonian reports that parent Randy Anderson has filed an intent to sue the Seaside School District to challenge a disparity in athletic fields.  The city recently constructed a state-of-the-art athletic complex, which includes an astroturf football field and baseball field for the high school boys' teams to play on.  In contrast, the Seaside High School girls' softball team, on which Anderson's daughter plays, uses an 11-year-old former baseball field that was constructed on a wetland and prone to flooding.  Anderson says about the new "million dollar field" that "everyone and their brother can play on it -- except the girls."  Moreover, the remedy he is seeking is very modest -- he says the city could install a portable pitching mound and move the bases to allow the field to be used for both baseball and softball.  Hopefully, the school district and the city will agree that that's a much easier solution than litigating what appears to be a strong case. 

The case against Seaside isn't the only softball-related dispute in the news these days.   Here's a similar story about a former coach challenging disparities between softball and baseball facilities used  by the Homewood-Flossmoor School District in Illinois.  The article makes the point that while this disparity is the only one mentioned in the complaint, other schools in the area have similar problems resulting from what appears to be a trend in constructing stadium-like facilities for baseball provide far more amenities to the boys who play there than are available at even the very good softball fields that exist for girls.

Wednesday, July 11, 2012

Column Describes OCR Enforcement of Title IX to Prevent Sexual Violence in Schools

Professor Joanna Grossman's latest column at Justicia.com looks at recent efforts by the Department of Education's Office for Civil Rights to enforce Title IX's requirement that schools address sexual violence as part of their obligation not to discriminate based on sex. In addition to having issued a Dear Colleague Letter in April 2011 that explains how school and college officials should respond to charges of sexual violence on campus, the agency has recently adjudicated an enforcement action against a school district that failed to properly investigate a student's report of sexual assault.  Professor Grossman described the case, called "Student v. Henderson Independent School District" as precipitating from a student's sexual assault by another student in the band room at Henderson (Texas) High School.  Though the student reported it to the assistant band director, no action was taken by the school until she reported it again, two days later, to another school official.  That official called the police, who upon investigation, determined that the incident was criminal in nature. Based on that conclusion, the school district took no further action to investigate the matter, and disciplined both students for committing acts of "lewdness" in violation of school policy.

Grossman characterizes the school's response as containing a "classic, but unacceptable error: it deferred to the police to investigate the allegation, and based its disciplinary action on the police findings alone."  She then explains how OCR used this error as the basis for determining that the school district violated Title IX, reasoning that because Title IX -- as part of civil law -- uses the "preponderance of evidence" standard to determine a student's guilt rather, the conclusions of police are not dispositive of whether sexual assault was likely enough to have occurred to warrant protective measures taken by the school.  The police, after all, look for whether the evidence of assault was sufficient to satisfy the stricter clear and convincing evidence used in criminal cases. The school should have conducted its own investigation, and acted on their findings accordingly.

The student could have used Title IX to sue the school district in court for damages, but instead pursued relief through the OCR.  Grossman explains the advantage she might have had in going the agency route. OCR can't require a school to pay money damages for things like pain and suffering and other noneconomic harm, and is instead limited to relief that is mainly prospective in nature. But because money damages are not driving the case, OCR can use a lower bar than the courts for finding a school district responsible.  It's possible that the student did not have enough evidence of the school's deliberate indifference to warrant a court judgment in her favor, but what evidence she did have was enough for an adjudicative victory.  This case ended up producing a resolution agreement under which HISD is required to review and revise its policies and procedures for investigating sexual harassment and sexual violence complaints and take other steps to make sure this doesn't happen again.  It must also required the school to remove the lewdness violation and punishment from her educational record and pay for her to receive private counseling.  OCR was able to validate the victim's experience and provide a remedy that was appropriate for this case.

OCR Settles Four of Twelve NWLC Complaints

The Office for Civil Rights announced last week that it has settled four of the twelve complaints filed by the National Women's Law Center in 2010 against school districts across the country to challenge gender disparities in athletic opportunities (see additional coverage of the settlements here and here). The four districts to settle include Wake County public school system in North Carolina, the Houston Independent School District, Columbus City Schools in Ohio, and the Deer Valley Unified School District in Phoenix.  The remaining eight districts remain under investigation. 

With respect to the four districts to settle, OCR's investigation of each of these districts revealed that the none satisfied prong one of the three-part test for compliance, as a large gap between female enrollment and athletic opportunities for girls existed in all four districts.  Nor did any of these districts add opportunities for girls recently enough or with sufficient regularity to qualify for compliance under the second prong.  OCR's settlement agreements with the districts gives them the opportunity to prove compliance with the third prong by assessing and responding to athletic interest among female students.  They must also create procedures to create mechanisms for considering requests for new athletic opportunities by parents, coaches, and students. 

It's great that these four districts are now highly motivated to take prong three seriously.  But I'm a little worried about the message this story sends to school districts.  It took OCR 21 months to settle on terms that require schools districts to assess and respond to the interests of the underrepresented sex, i.e., what they should have been doing anyway.   This system of enforcement doesn't exactly provide strong motivation to proactively comply. 

Tuesday, July 10, 2012

Single-Sex Education in the News

Nothing "new" is happening, but single-sex education has been in the news recently.  USA Today ran an article about it last weekend, and it seems other publications have reprinted it or otherwise picked up the ball (see here, here and here).  These articles don't seem to be making a particularly complex point beyond "this is controversial -- people disagree," so I was glad that a little analysis entered the discussion via this recent column in Slate.  The author, Cassie Murdoch, made the point that SSE sounds compelling when proponents like Leonard Sax describe it as a mechanism to break down gender stereotypes -- to give boys and girls the freedom to pursue interests that might be constricted by usual gender dynamics.  But, she continued, it is hard to find evidence of this objective being realized in real-life segregated classrooms.  Quoting from a description of segregated elementary classrooms in Idaho, Murdoch says:

"In the single-sex classes, teachers use microphones that allow them to electronically adjust the tone of their voice to match the level that research suggests is best for boys. When preparing for a test, the boys may go for a run, or engage in some other activity, while the girls are more likely to do calming exercises, such as yoga."  Okay, so that’s maybe not the worst thing imaginable, but might it be more beneficial to teach some of the boys to learn to calm themselves down using yoga and to encourage some girls to run around more?
In the end, Murdoch makes the point that segregating classrooms harmfully ignores the variation in learning styles within each gender. 
Maybe instead of presuming all boys need to run before a test, they could sort the kids by finding out which ones—boys or girls—benefit from being more active and which ones thrive in a quieter, more introspective environment. If we instead just give in to what we assume girls and boys are stereotypically interested in, it doesn’t change anything; it only reinforces the problems we already have—and risks alienating a lot of kids who don't fit neatly into gender stereotypes
Amen to that.