Monday, March 31, 2014

Equality brackets

At the start of this year's March Madness, Mother Jones published a men's bracket that determined winners based on the spending each school does on women's sports as a percentage of men's sports.  They asked the big what-if: does spending more on women's sports lead to tournament success?
American University came out the winner (116%) barely beating out cross-town rival George Washington; and Stanford was the best in the BCS (63%).
I'm not sure if Mother Jones was attempting a correlation here. If so, there was no argument to that effect. But it does raise an interesting question about whether spending on women's sports can also be beneficial to men's teams. We would have to approach this question with a paradigm based in social sciences and cultural studies research over a purely economic model and look at factors such as athletic department unity, the effect of perceived fairness, level of sex segregation across athletics departments, etc.
What I was curious about was why there was not a women's bracket that shows the same figures. This would allow those who enjoy some quantitative with their qualitative to examine the outcomes when the tournament has concluded.

Other imaginary brackets that are produced at this time of the year includes ones that use APR to consider the relationship of academic success with sport success. The APR, Academic Progress Rate, was established by the NCAA in 2004 and is calculated for Division I institutions. The academic progress of scholarship athletes is calculated on a team. That team's APR must meet an NCAA established minimum in order for--in part--the team to compete in post-season play.
The APR was created and is maintained to address issues of athlete education.

Here's the imaginary bracket I would like to see. Actually, scratch that. What I would like to see is a real commitment to gender equity by the NCAA comparable to the one it has made to the education of student athletes. How about post-season play based on Title IX compliance? It seems like such a swing back from where the NCAA is now given that the organization is no longer engaging in accreditation (which included an assessment of gender equity). How would such a system affect the real brackets?

Friday, March 28, 2014

More Thoughts on the Title IX Question in Pay-for-Play

Yesterday I posted about why Title IX's equal treatment mandate would require schools to provide female athletes with the same benefits they award to male players via collective bargaining.  To make my point, I used the example of extended health insurance, because that is the benefit that the football players have stated is the purpose of their efforts to unionize. 

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here's why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes.  A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don't.  That is well-settled, "black letter" Title IX law.  So the revenue argument would not justify providing extended health insurance to players of one sex.  Nor should it justify providing salaried compensation to players of one sex.

Many have pointed out that there is case law holding that it is not a a violation of the Equal Pay Act to use revenue as the basis on which to pay one coach more than another for otherwise similar work.  In particular, folks have pointed to Stanley v. USC, 178 F.3d 1069 (9th Cir. June 2, 1999). In that case, the court rejected a female coach's Equal Pay Act claim after finding that the male coach's capacity for revenue made the jobs dissimilar, such that the plaintiff failed in her burden of showing that she was paid less for substantially similar job.

Say what you will about Stanley (many think the court got it wrong, since the capacity for revenue is not in the coach's control, but a function of society's preferences for men's sports).  But regardless, I don't think Stanley settles the question as it relates to student compensation.  I have two reasons:

First, the proper reading of Stanley is a narrow one. The EEOC has, since that case, issued guidance that suggests revenue-generation can only be used as a defense to salary differential between male and female coaches when "the woman is not given the equivalent support to enable her to raise revenue."  I would argue that there are few women's teams that receive equivalent support to men's football.

Second, and by far the more important reason, is that Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches.  Importantly, that equal treatment mandate is the basis for my argument, above, that Title IX requires schools to match whatever benefit it extends to male students to female students as well.  Because no similar mandate applies to coaches, it is simply not relevant that courts have concluded that coaches can be paid dissimilarly on the grounds of revenue.  
I therefore think that schools cannot pay athletes of one sex and refuse to pay athletes of another sex -- even if the distinction they are making is the athlete's capacity for revenue. 

Thursday, March 27, 2014

What Effect Will the NLRB Decision Have on Title IX?

Yesterday a regional director of the National Labor Relations Board ruled that Northwestern University football players were "employees" within the meaning of the National Labor Relations Act, and, accordingly, have the right to elect a union to engage in collective bargaining on their behalf.  The decision focused on the ways in which football players are subject to the control of the university, which make them unlike other students at Northwestern and similar to employees in other contexts who are subject to their bosses' control.  The decision also examined the job-like time commitment football players make to their sport, and the nature of football players' scholarships, which, awarded entirely on the basis of "football prowess," operate like compensation -- another hallmark of the employer-employee relationship. 

Northwestern reportedly has plans to appeal the decision, which could be overturned if not by the full board of the NLRB, then by the federal courts (including, potentially, the Supreme Court).  If it is upheld, however, it would mean that football players at Northwestern as well as similar programs at other private institutions would be able to vote for union representation.  And even though a decision under the National Labor Relations Act does not apply directly to public employers, it is possible that state schools, to remain competitive for top players, would essentially match whatever benefits the private school players' unions have successfully bargained for.  The ripple effect from this decision, if it is upheld, is to potentially up-end the NCAA's amateurism paradigm throughout college athletics. 

What is the effect on Title IX from all of this?  I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.  Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women, accident and injury insurance coverage."  Two days ago, it would have clearly violated Title IX for Northwestern to have decided on its own to grant extended health coverage to some of its male athletes but none of its female athletes.  And there is nothing in yesterday's decision that changes that analysis under Title IX.  The fact that male athletes obtained the benefit through collective bargaining is beside the point; it does not absolve the university of having to ensure equal treatment under Title IX.  In similar fashion, universities can't absolve their obligation to provide equal treatment by pointing to other external forces, either, such as a booster club that only gives money to one sex.  The university's obligations under the NLRA apply in addition to its obligations under Title IX; the latter is not supplanted by the former.

This outcome will surely seem weird to many people, and for good reason, I think.  Surely Congress when it passed the NLRA (in 1935) and Title IX (in 1972) never imagined that an educational institution would be subject to both laws simultaneously with respect to its student athletes.  But that's the consequence of having one's cake and eating it too, by which I mean running a profit-seeking business enterprise while receiving federal support and non-profit status.  With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well, meaning, having to collectively bargain with employees, as well as pay minimum wage, workers' compensation, payroll taxes, and the like. If college athletic departments like Northwestern's insist on straddling the line, they will be subject to both laws.  Alternatively, they can choose one paradigm or the other, business or education. In the business paradigm, athletic departments would have no obligation to comply with Title IX, and would be subject only to the demands of the market in determining which athletes to compensate and how much.  But the price of that freedom is no more federal funding, and no tax-exempt status.  Alternatively, in the education paradigm, athletic departments would continue to benefit from federal funding and tax-exempt status.  But the price of this public support is no more running an athletic department as profit-seeking enterprise; athletics would truly have to be an extracurricular activity, not tantamount to a full-time job (an Ivy League, or Division III model of athletics).

If schools choose the latter paradigm, the irony will be that yesterday's decision will not result in any actual players unions being formed.  But the lengths to which college athletics will have to reform itself in order to avoid them is just as game-changing. 

Monday, March 24, 2014

NYT Editorial Addresses "Pay for Play" and Title IX

Over the weekend, the New York Times published an editorial addressing the role of Title IX in the debate about amateurism in college sports.  The editorial board argues that athletic directors exaggerate when they claim that Title IX makes it impossible to allow athletes to receive compensation. The law's requirement to distribute financial aid to athletes in a manner proportionate to gender would not put college athletic departments out of business -- it would just cause them to adapt to a new business model that in which less money is available for "overhead."   It may not be possible, the editorial suggests, for schools to continue to pay the head football coach the highest salaries in higher education, if athletes are also receiving some form of compensation.  It also points out that the NCAA could permit athletes to negotiate their own licensing agreements without any Title IX consequences whatsoever, since the money would be flowing to athletes directly and not the institution.

These are good points, I think. While we've criticized the NCAA membership for ignoring the effect on Title IX compliance of proposals to compensate athletes (such as when they allowed schools to pay stipends to only those athletes in head-count sports and not equivalency sports), I agree that it's also not fair to let them argue "Title IX won't let us" as an excuse not to consider fairness reforms.

Of course, my opinion is that playing sports in college shouldn't be tantamount to a professional responsibility in the first place, and that the ROI on athletic department expenditures should be measured in educational values, not profits. But until we live in that alternative universe, it makes sense to both insist that athlete compensation comply with Title IX and, at the same time, not accept Title IX as an excuse to preserve status quo. 

Friday, March 21, 2014

Yearbook discrimination

Every spring a handful of stories emerge about high school students who want to do things that school districts feel are gender inappropriate: go to prom with a same-sex date, wear attire to prom that is perceived as gender non-conforming, run for homecoming king or queen in a non-biologically matching sex, wear the "feminine" or "masculine" attire for a yearbook photo. Some of these cases invoke Title IX, others do not, or do not make it that far.
The latest of these stories is the censorship of a gay male student's story--one that was solicited by the yearbook staff--in the yearbook.
In Arkansas, Taylor Ellis, a junior at Sheridan High School, wrote one of 7 profiles that would be shared in the school yearbook. He came out a year ago and his profile was (ironically) about how accepted he had been by the community in that time. But the school district feels it is "too personal" and has told the yearbook it will not be allowed to publish any of the 7 profiles. They clearly see that they cannot target Ellis's profile, but that does not mean the decision has been without controversy. Yearbook staffers are upset at the censorship, as are other students, and now the Human Rights Campaign has gotten involved in trying to pressure state officials to intervene.
The school district seems to be holding fast. The school superintendent issued that following statement earlier in the week:
We must make decisions that lead in the proper direction for all of our students and for our community. We must not make decisions based on demands by any special interest group.
The seven profiles will not be published in the yearbook.
Not sure who the "special interest group" is here. The yearbook? The students?  Ellis is not standing by himself here. He has the support of the larger community.
The tactic of "punishing everyone" that we seen with schools that cancel all extracurricular student clubs so that they do not have to allow a gay-straight alliance to meet, for example, is not working. If administrators hope that peer pressure will compel LGBT groups and students to skulk away they are 1) not in touch with shifting cultural tides and 2) very misguided and uncompassionate educators.

Monday, March 17, 2014

Expelled Student's Case Against Xavier Survives Motion to Dismiss

A male basketball player who sued Xavier University after he was expelled for sexual assault prevailed recently in a preliminary ruling when a federal district court denied Xavier's motion to dismiss his Title IX claim.  Dezmine Wells, whose case we have blogged about before,  alleges that he was expelled based on false accusation of rape by his female resident advisor.  He claims that the university failed to conduct a fair and adequate hearing because it had recently been under investigation by the OCR for two other cases in which the university failed to adequately respond to female students' charges of sexual assault, and is presently bound by a resolution agreement with the agency to improve its policies and procedures for handling such cases.  Wells believes that, as a result of this negative attention, Xavier used him as a "scapegoat" to distance itself from its earlier lapses. 

The court determined that Wells's allegations under Title IX were adequate to allow his case to proceed to the discovery phase.  In key part, the opinion reads:
Plaintiff's Complaint puts Defendants on adequate notice that he contends they have had a pattern of decision-making that has ultimately resulted in an alleged false outcome that he was guilty of rape. Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen. His Complaint, however, recounts Defendants having rushed to judgment, having failed to train [] members [of the disciplinary hearing board], having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.
The court also allowed Wells's case to proceed on a second Title IX  theory: that the university violated Wells's rights under Title IX because it was "deliberately indifferent" to the defects in his hearing, about which the university had actual notice. Regardless of what the facts in this case turn out to be, this aspect of Wells's claim is, in my opinion, based on a misinterpretation of Title IX case law. The actual notice/deliberate indifferent test is the test courts use for institutional liability when the underlying discrimination is not caused directly by the institution.  It is only properly used in cases where the plaintiff has been the victim of harassment and assault at the hands of a student, employee, or some other relevant third party, and alleges that the university should have but didn't intervene. It is confusing and unnecessary to use a deliberate indifference theory in a case like this one, where the alleged discrimination was committed directly by the university.

The court also refused to dismiss Wells's claim of libel at this preliminary stage.

Wells v. Xavier Univ., 2014 WL 972172 (S.D. Ohio Mar. 12, 2014).

Thursday, March 13, 2014

Title IX and Female Athletes' Preference for Male Coaches

University of Pittsburgh law professor Deborah Brake recently published a thought-provoking scholarly article (free download) examining the relationship between Title IX and a generalizable preference among female athletes for male coaches, which has been demonstrated by various studies. This preference, Professor Brake argues, contributes to the decline in coaching opportunities for women, who are presently a minority among college coaches of women's teams. More broadly, the preference exposes the ways in which sex discrimination, in its subtlety and complexity, operates counter to the paradigm of discrimination that is recognized by law. For one, the bias is "within group" (i.e. exerted against women by other women) and "bottom-up" (exerted by those with less power on those with more). For another, it is a product of social forces that mediate women's agentic choices and preferences.  Finally, it is a preference rooted in the intersection of sexism and anti-gay bias, and in this way, exposes the limits of discrimination law's one-dimensional, uni-lateral paradigm.  By exposing counter-paradigmatic examples, Professor Brake argues, we can challenge discrimination law to become more responsive, and identify extralegal strategies for dealing with complexities of gender bias in and beyond the context of athletics.

Article citation:  Deborah Brake, Discrimination Inward and Upward: Lessons on Law and Social Inequality from the Troubling Case of Women Coaches, 2 Indiana Journal of Law & Social Inequality 1 (2014). 

Wednesday, March 12, 2014

Sexual Assault Problem at Patrick Henry College Is Outside the Scope of Title IX

Patrick Henry College, in Purcellville, Virginia, is in some ways no different from the dozens of colleges and universities whose shortcomings in dealing with sexual assault have come to light of late. A recent issue of the New Republic profiled the details of one particularly emblematic incident that took place at the evangelical Christian college nicknamed "God's Harvard."  The Patrick Henry College story will sound familiar to those who are following the snowballing number of cases in which university officials are alleged to have botched their response to a reported sexual assault.  There, a female student named Claire was discovered by a student security guard after escaping from the car of a male student who had just raped her. The security guard's report made its way to the dean of students, who called Claire in for a meeting. Claire reportedly presented her story to the dean, who told her nothing could be done to address the alleged assault due to the absence of "proof."  Instead, Claire herself was in trouble for violating the college's alcohol policy. The alleged assailant was punished only for an alcohol infraction and "gross negligence for the concern of another" in not making sure Claire got back safely to her dorm.  The emotional impact on Claire forced her to leave Patrick Henry, while her alleged assailant continued his education. Worse, Claire's story appears to be part of a pattern of similar incidents involving indifference to assault by Patrick Henry College officials. 

While stories about college administrators brushing rape allegations under the rug are, unfortunately, no longer rare, there is one unique aspect of the situation at Patrick Henry College.  The college intentionally declines all federal funding so that it is not obligated to compromise its Christian values by compliance with civil rights laws. As a result, Patrick Henry is one of a handful of private colleges (Grove City College is another) that operate entirely outside the realm of discrimination laws like Title IX and the Clery Act, which require compliance as a condition of federal funding.  This means that, unlike female students at places like UConn, Occidental, UNC, and Northwestern (to name just a few) that are seeking to hold their institutions accountable for indifferent to or misreporting of assault, Patrick Henry students like Claire have no institutional recourse under federal law. In the New Republic article, attorney Brett Sokolow, president of the National Center for Higher Education Risk Management, questions how well students understand the consequences of choosing a college that goes out of its way to avoid compliance obligations under Title IX.  He says that female students "need to know that going in," due to the potential consequences of this absence of legal accountability.  While schools like UConn, Occidental, and UNC may have a similar sexual assault problem now, they are all cleaning up their acts because they know the government is watching.  Patrick Henry students have no such assurance. 

Tuesday, March 11, 2014

Denison University Faces Investigation of Athletics Inequity

Denison University in Granville, Ohio, is reportedly under investigation by the Department of Education's Office for Civil Rights, which received a complaint alleging that the university inequitably allocates athletic opportunities in violation of Title IX.  Denison, which competes in the NCAA's Division III, has about 2300 undergraduate students, 57% of whom are female.  Yet it provides far more athletic opportunities to male students: 329 compared to 241 for women, or about 58%.

The complaint alleges that Denison fails to comply with any one of the three tests available to educational institutions to demonstrate equity in the number of athletic opportunities for students of each sex.  First, Denison does not offer opportunities proportionate to enrollment, as demonstrated by the statistical disparity noted above. According to the complaint, Denison would need 90 additional athletic opportunities for women in order to comply with the proportionality test. The second option for demonstrating compliance is to show a history and continuing practice of expanding opportunities for the underrepresented sex, but this is also unavailable to Denison, which according to public data has not grown the size of its women's athletic program in the last 10 years.  Finally, Denison could demonstrate compliance by showing that despite its meager offerings, it is still satisfying the interests and abilities of the female student body.  The complaint, however, alleges that Denison likely falls short under this measure as well, given that there are women's sports sanctioned by Division III that Denison does not offer, and there is no reason to assume that women at Denison are less interested in those sports than the female students at other schools in the university's competitive region.

If OCR's investigation leads the agency to conclude that Denison is in violation of Title IX, it will likely require the university to agree to remedy the violation by assessing the athletic interests of its female students and adding opportunities accordingly. 

Saturday, March 08, 2014

High School Coach's Haircut Policy Violates Title IX

The Court of Appeals for the Seventh Circuit recently ruled that a high school coach's policy of requiring the boys' basketball team to wear very short hair constituted sex discrimination in violation of the Constitution's Equal Protection Clause as well as Title IX.  The plaintiffs, the Haydens, are parents of a high school junior in Greensburg, Indiana, who wants to but cannot join the basketball team due to the length of his hair.  According to the coach, basketball players must wear their hair above the ears, in order to promote team unity and to "project a clean-cut image."  The boys' track coach imposes a similar requirement, though other boys' teams do not.  The parents sued, arguing that the hair cut policy impairs a liberty interest protected by the Constitution's due process clause, and that it constitutes sex discrimination because the school does not impose the same requirement on girls' teams. 

A lower court ruled in favor of the school, but on appeal, the court determined that the policy constituted impermissible sex discrimination.  In doing so, the court's analysis borrowed from Title VII cases that have considered dress code and appearance requirements in the context of employment.  There, courts have upheld dress codes that treat employees differently on the basis of sex, but only when they impose equivalent burdens on both male and female employees.  In one well-known case, for example, a court upheld a casino's requirement that female bartenders wear makeup, because it considered that requirement in the context of a larger, comprehensive dress code policy that imposed different burdens on male employees that the court saw as comparable.

In similar fashion, the Seventh Circuit reasoned that without evidence that the school imposed comparable burdens on any of the female teams -- a burden that was the school's to produce -- the coach's haircut policy discriminated on the basis of sex.  Not because the school didn't impose the same requirement on female athletes, but because the record did not reflect evidence that the school imposed any requirements on them that would be comparably burdensome.  As part of this analysis, it was relevant to the court that the coach's policy was not simply a ban on "extreme" hair styles of the "Age of Aquarius, Tiny Tim" variety but instead required players to keep their hair above the ears.  Because of the policy's departure from mainstream style norms, the court saw the policy as burdensome on the male students affected by it. 

A dissenting judge disagreed that the haircut policy constituted sex discrimination, emphasizing that different treatment is not necessarily discrimination.  For example, he pointed out that a girls' softball team might wear shorts while a boys' baseball team wears pants.  All student-athletes at this high school are bound by a general policy that prohibits players from wearing their hair in a way that could pose problems for "health and sanitation," mohawk styles, or any styles that include "insignias, numbers, initials, or extremes in differing lengths."  In addition, the athletic department's policy delegates to each coach the authority to determine "the acceptable length of hair for a particular sport."  In this context, the dissenting judge viewed the boys' basketball coach's policy as just one variation on a comparable set of burdens that applies to male and female athletes alike.  In the end, though, this reasoning did not prevail.  The lower court is under orders to apply a remedy consistent with the appellate court's opinion.  Barring the unlikely intervention of the Supreme Court, the remedy that should issue is an injunction against the hair cut policy. 

This isn't the first time Title IX has been used to challenge requirements related to a student's appearance -- prom attire cases come to mind as examples of that sort.  But in terms of the statute's application to an athletic team's uniform hair style requirement, I believe this case is unique.  It will be interesting to see if this case paves the way for similar challenges to come forward in the future. 

Friday, March 07, 2014

Sexual Assault Lawsuit Filed Against Boise State

A female student at Boise State University has filed suit in state court, alleging that the university violated Title IX and other Idaho laws when her track coach allegedly brushed off her report of having been sexually assaulted by a male teammate.  The plaintiff, sophomore Megan Opatz, alleged in particular that she reported the assault to her coach, J.W. Hardy, and asked for his assistance, but he "refused to take any action and told her 'could not help.'"  Her complaint also alleges that prior to her assault, the same assailant assaulted another female student on the team.  This too had been reported to Coach Hardy, who allegedly did nothing.  Opatz's complaint attributes this indifference to athletic department policy of protecting the reputation of athletes and the athletic department.

The damages potentially available to Opatz if she successfully proves her case include damages arising from the coach's indifference to the first student's reported assault, as well has his indifference to her own.  That means, she can recover money for the physical, emotional, and other economic damages arising from the assault as well as its aftermath.  To the latter category, it is relevant that Opatz alleges that her assailant was free to continue to torment her, further compounding the emotional harm to which a damages award could apply.        

Monday, March 03, 2014

Lawsuit Seeks Injunction of Campus SaVE Act

A lawsuit filed last week in the federal district court in Washington, D.C., seeks to enjoin the Campus Sexual Violence Elimination Act ("Campus SaVE") from taking effect as scheduled on Friday, March 7.  Campus SaVE (see sec. 304), passed last year as part of the reauthorization of the Violence Against Women Act, amends the Clery Act to require universities to report information about a broader category of sexual violence, as well as their processes for preventing sexual violence and addressing instances when they occur.  Campus SaVE requires those process be "prompt, fair and impartial" but stops short of requiring universities to evaluate cases using a preponderance of evidence standard.  The lawsuit argues that this omission violates students' rights by allowing universities to use a higher burden of proof that is less likely to find a student responsible for assault.  Since a preponderance standard is used in other types of disciplinary proceedings, including those involving animus based on race or disability, the plaintiff argues SaVE violates the Constitution's Equal Protection clause by failing to protect sex discrimination as strongly as other types of discrimination. 

The lawsuit also targets Campus SaVE for requiring universities to define consent according to state law.  Depending on the state, this could incorporate a definition of consent that turns on whether the assault that was forcible, rather than just unwelcome.  Since other types of harassment are defined by unwelcomeness, the plaintiff makes a similar Equal Protection argument here as well. 

The plaintiff is a University of Virginia student who claims that the university mishandled her report of having been drugged and raped by another student.  The Department of Education along with the Department of Health and Human Services are presently investigating the university.  She is seeking an injunction to ensure that the agencies do not apply Campus SaVE's "watered down standards" to her case.