Tuesday, December 18, 2012

ACLU Files Complaints Against Single-Sex Classes Idaho and Alabama

Earlier this month, the ACLU filed formal complaints (see here and here) with the Department of Education's Office for Civil Rights, challenging single-sex educational programs at Middleton Heights Elementary in Middleton, Idaho and Huffman Middle School in Birmingham, Alabama.

Middleton's program, in place since 2006, separates girls and boys into separate classrooms and teaches differently to each group.  Boys' classrooms incorporate exercise and movement, while the girls are given a quiet environment.  Boys are not seated face-to-face, as girls are, on the theory that "boys are more competitive and should not be forced to make eye contact." Boys receive more explanation for assignments, and the school makes efforts to bring in "male role models" to combat concerns about them having too many female teachers.  The school does not inform parents that the program is voluntary, and many believe they did not have a choice to opt out, which the law requires.  One final objection to Middleton's program is that it has not caused any academic improvement, belying its justification in the first place.

In 2010, Huffman Middle School began separating boys and girls for all classes and activities, even lunch. It offers no coeducational alternative, which is a clear violation of Title IX's regulations on single-sex education.  The curriculum in boys' classes calls for "stressing 'heroic' behavior that shows what it means to 'be a man.'" The ACLU complaint also criticizes the school for relying on a book "that teaches that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have similar skills only 'a few days per month' when they experience 'increased estrogen during the menstrual cycle.'"  Huffman's program, like Middleton's is not supported by any evidence that academic achievement has improved. 

According to its website, the ACLU wants OCR to investigate these cases and bring them into compliance with Title IX regulations, which only allow single-sex programs that have an academic justification.  The organization also wants OCR to clarify to school districts that sex stereotypes such as those reflected in Huffman and Middleton's curricula are not justifications for segregation under the law.  

Monday, December 17, 2012

Title IX and the Spending Clause

What does Title IX have to do with Obamacare?  The answer is in the Constitution.  Congress can only pass legislation pursuant to one of its constitutionally enumerated powers, and for both Title IX and one provision in the Affordable Care Act (a/k/a/ Obamacare) Congress relied on the same provision -- the Spending Clause.  This provision of the Constitution gives Congress broad power to spend money, and pursuant to this power, Congress can conditional spending on the recipients agreement to comply with certain conditions.  In the case of Title IX, recipients of federal education funding agree not to discriminate on the basis of sex.  In the case of the Affordable Care Act, one of its provision asked states who agree to take federal funding for Medicaid to expand its coverage to include individuals with a higher income level than the current eligibility level.  While the Supreme Court upheld most of the Affordable Care Act under a different constitutional provision (i.e., the Taxing Clause) the Court struck down the Medicare expansion as a violation of the Spending Clause.   Given that Title IX is also Spending Clause legislation, does the Supreme Court decision about Obamacare jeopardize Title IX as well?

In a recently published issue brief, the American Constitution Society and author Emily Martin explain that, notwithstanding the Court's new Spending Clause jurisprudence, Title IX remains safe from attack.  Martin argues that Title IX is sufficiently different from the Medicaid provision of the Affordable Care Act to be affected by the Supreme Court's recent decision striking it down.  First, the Medicaid provision in the ACA made conditional requirements on the states themselves, impinging on state sovereignty in ways that Title IX -- which binds mostly private entities, along with state institutions but not the states themselves -- does not.  Next, the amount of federal money subject to conditions in each of these laws differs by degree.  In the case of the Medicaid provision, enough federal money was at stake for the conditions to be deemed coercive -- states wouldn't have been able to say no to them with so much federal money on the line.  But in the education context, schools can (and a few even do) opt out of federal money in order not to have to comply with Title IX. The amount of money at stake is not enough to constitute coercion.  This distinction is further illustrated by the fact that Title IX contains a provision limiting the federal funds that are conditioned on compliance to only those funds that may be demonstrated to be supporting the discrimination at issue. 

Finally, unlike the Medicaid provision of the ACA, Title IX is justified not only by the power vested in Congress by the Spending Clause, but also by the power vested in Congress by the Fourteenth Amendment as well.  Title IX overlaps with the Fourteenth Amendment when it comes to prohibiting sex discrimination by state educational institutions, and the extent to which Title IX's prohibition on discrimination extends to private institutions as well, is still within the outer boundary of Congress's enforcement power as defined by the Supreme Court.  

Kudos to the American Constitution Society and Emily Martin for proactively addressing this issue and providing the response to any potential challenges to Title IX under the Court's new Spending Clause jurisprudence.

Sunday, December 16, 2012

College, HS League Take Steps Toward Compliance

Two stories about how Title IX is still improving athletic opportunities for female students were in the news this weekend:

Madison Area Technical  College will reportedly add a women's soccer team to help balance out athletic opportunities, which presently favor men despite women making up more than half of the student body.  The college is under investigation by the Department of Education's Office for Civil Rights, in response to anonymous complaint filed last year.

And here in Massachusetts, the high school athletics conference in Middlesex County has rescheduled its basketball games to ensure equity in the number of prime times girls and boys receive.  The Middlesex League was reportedly motivated by a Lexington supporter, who explained that the League's former system of scheduling girls' games first in all double-headers constituted sex discrimination under Title IX.  Under the new schedule, girls and boys will play on different nights, with JV leading off, followed by the varsity.

Friday, December 14, 2012

Colleges Add Men's Sports, Despite Serious Gender Gap in Athletic Opportunity

A reader shared with me three separate stories about colleges that are adding lacrosse for men and women -- Brevard College in North Carolina, Capital University in Ohio, and Rockhurst University in Missouri. Seems reasonable, you might think, that when adding a program, colleges would afford equal opportunities to men and women.  The problem is, at all three of these institutions, women are seriously underrepresented in the proportion of athletic opportunities made available by the institution: 
  • At Brevard, women constitute 39.9% of the student body, yet receive only 30.5% of athletic opportunities -- a gap of 9.4 percentage points.
  • At Rockhurst, women constitute 59.4% of the student body, yet receive 47.1% of athletic opportunities -- a gap of 12.3 percentage points.
  • At Capital, women constitute 56.9% of the student body, yet receive only 38% of athletic opportunities -- a gap of  18.9 percentage points!!
Adding a sport for both men and women, however fair it may seem through the shallow lens of just lacrosse, does nothing* to close these overall gender gap in athletic opportunities, which are some of the most egregious I've seen!   For a school with such a serious gender gap to still add a men's sports -- even in the context of simultaneously adding a women's sport -- represents a missed opportunity to take a step in the right direction toward equality.  The even-handed addition of lacrosse at Capital, for example, won't change the fact that 22% of its male students have an athletic opportunity, compared to 10% of its female students.  I don't know how a school with numbers this bad, when it can clearly afford to add two sports, doesn't decide to add two women's sport (and then go back to figure out how they can add even more).

Title IX, for its part, does not require equal opportunities within a single sport like lacrosse, but equity in the overall distribution of athletic opportunities.  Thus, not only is there a serious fairness question about adding men's sports when women are so seriously underrepresented, it's also terrible risk management.  Title IX compliance requires either (1) proportionality, (2) continuous women's program expansion, or (3) no unmet interest among female students.   In the short term, these schools have at most** bought time under prong two.  But unless these schools are prepared to continue to add new opportunities in the future every few years, they will quickly fall out of compliance.  What about prong three?  My guess is that with such lopsided numbers, latent unmet interest is a ticking time bomb. It's only a matter of time before a club team asks to elevate, or other evidence of unmet interest emerges -- perhaps under the spotlight of an OCR investigation.  When either the prong two or prong three chickens come home to roost, what will these schools do?  Will they complain then that they don't have the resources to add women's teams?  Will they be forced by their own bad planning to downsize a men's team or two in order to satisfy the only prong that doesn't require an investment of resources?  

The Department of Education promulgated the three prong test in 1979.  In an ideal world, colleges and universities would have from that point forward held their men's programs steady while gradually adding opportunities for women (easily satisfying prong two) until opportunities were proportionally distributed.   Then they could have moved forward, adding -- or cutting -- opportunities for men and women as resources allow or as changing enrollment requires.  I don't understand why this is so hard! College athletic administrators seem to labor in blissful ignorance of either the law, the changing demographics of college enrollment, or the economy -- or maybe all three.  I'm not rooting for these institutions to run into Title IX compliance problems -- that's not good for students.  But if it happens, it will be hard not to say I told you so. 

*To be fair, Rockhurst is also adding women's cross country, but this hardly changes my point, since that single team would have to have over 90 athletic opportunities in order to even out the opportunities between men and women at that school. 

** And even this is a generous assumption.  The article about Rockhurst helpfully notes that 2005 was the last time a women's sport was added.  There's no question: Rockhurst clearly doesn't comply with prong two either. 

Thursday, December 13, 2012

Butte Enters Voluntary Resolution Agreement

Butte (Montana) School  District No. 1. has entered into a voluntary resolution agreement with the Office for Civil Rights that will resolve a Title IX complaint filed against the district challenging inequities in the athletic facilities available for male and female students.  As we noted earlier this year, the complaint was filed by former softball coaches, who complained that their team had to play in a city park of inferior quality to the school's new stadium that was available for boys' football.  The resolution agreement requires the school district to investigate its locker rooms, practice and competitive facilities, by December 31.  It then has until January 14 to devise a plan to remediate any inequalities revealed by that investigation, which it must then execute.  If the district fails to adhere to the terms of the agreement, OCR will reopen its investigation into the complaint.

Note: this post was updated on Dec. 14 to correct that the school's stadium is for football, not baseball as earlier reported.  Baseball is not a high school sport in Montana. 

Monday, December 10, 2012

A case study of roster management and prong two

The University of Georgia's student newspaper has an article on how the school approached compliance with Title IX and what this means for the athletic department, student-athletes, and club sports. Regarding the latter, it seems that many club sports are waiting for their call up, to use a baseball metaphor, to "the show." In other words, because UGA chooses prong two compliance (expanding opportunities) and has added teams in the past to meet this version of compliance, some women's club teams are wondering when it might be their chance. Women's rowing has been especially hopeful. Rowing has been used--with mixed results and mixed motivations--as a sort of panacea for football problem that most schools that field a football team have: an imbalance of opportunities.
But rowing--along with other UGA club sports--is losing hope. There has not been a new women's team added since 2002 and no talk of adding another team for 5-6 years according the rowing coach. UGA has opted to add spots to existing women's teams instead. This practice, referred to as roster management, has come under scrutiny, not because it is not a viable way to comply, but because it is often not done correctly. The NYT ran an investigative piece in 2011 about the roster management scams happening at some schools--adding athletes without them ever knowing, adding athletes and then dropping them once the season starts (and rosters are in), using male practice players to pad women's numbers. And it received a great deal of attention. We hoped this national coverage would put schools who were engaging in these practices on notice. And it may have.
It does not appear that UGA is doing anything wrong. But we have to wonder just how many spots they can add to existing teams without overburdening the teams and taking power over roster size out of a coach's hands. And we should ask how equitable this practice is. Are we asking the coaches of men's team to increase their roster sizes, to deal with additional players? How big can one make the softball team and still provide student-athletes with a comparable experience? Equal opportunities is only one area of compliance. A school cannot simply add spots while not guaranteeing equal treatment.
Of course there is no guarantee of equal treatment when a whole team is added. This has actually been a problem, especially for women's rowing teams. They get elevated to varsity status but wait years for facilities, for better equipment, for equitable travel situations. Some even have to file complaints with OCR or lawsuits against the school in order to get what they were promised.
Again, this has not happened at UGA, maybe in part because UGA has been careful about when and which sports to add. The question is, how many spots do they have to add a year, every two years, every three years, in order to remain prong two compliant? At what point does the rowing team--or any other club team--have a viable argument that the school is not providing equitable opportunities?

Friday, December 07, 2012

Minute-by-minute compliance?

There has not been much news around the addition of teams at the collegiate level of late. A few here and there, a mention of Title IX compliance.
The forthcoming additions of two women's teams at Central Michigan University is the same. Women's golf and lacrosse in two and three years, respectively.* The university has not added a women's team since 1998. Though nothing in the article explicitly states that CMU is adhering to compliance via prong two, history of expanding opportunities for women, that is the impression one gets from reading based on statements such as the following:
"As long as we are working toward equality, we are in compliance"--Judy Chandler, chair of Gender Equality Committee
“This is step one. We aren’t done yet.” --University President George Ross
What struck me about this story was the comment Chandler made after the above remark: "No one can stay in compliance every minute, because things are always changing."
This might be true if an institution is opting for prong one or prong three compliance. If following the latter, interests do change and student populations change. Of course it is the school's responsibility to be diligent in its monitoring of these changing interests. And things change in terms of proportionality as well. Undergraduate populations fluctuate in terms of size and gender breakdown and are not always predictable. But again, the university has an obligation to remedy discrepancies in a timely manner.
But prong two is another story. If CMU has not added a sport since 1998 but still contend that they are expanding opportunities for women's participation, well--they aren't. Or they weren't. That situation was not changing--unless they were systematically adding roster spots to existing women's teams. There was no mention of that practice.
It seems to me that there were a lot of minutes of non-compliance. It doesn't appear that the university was scrambling to add opportunities for ten years or so and just couldn't because of some constantly changing circumstances.

* Apparently eight sports were up for consideration and golf and lacrosse were chosen because they are "Michigan sports." Unfortunately, women's golf is not a recognized part of the MAC, the conference to which CMU belongs. It will have to find a difference conference affiliation for this sport, along with making contacts and contracts with local golf courses to use for practice and competition.