Friday, June 27, 2014

USC announcement inspires complaint

Someone has challenged the University of Southern California's recently announced plan to provide four-year scholarships to football, and men's and women's basketball players. As Erin noted the other day, the disproportionate benefit to male student-athletes is likely a Title IX violation.
And a properly signed complaint (we don't know by whom at this point) to OCR is challenging the new policy and pointing out other Title IX violations at the school including: less pay for head and assistant coaches of women's sports; fewer women's coaches, fewer opportunities for female student-athletes, inequitable funding of women's sports; inequitable funding of recruiting. 
Differences in funding and salaries and positions do not always equal Title IX violations. If athletic departments can justify the differences and prove they are providing a similar quality of experience to men and women, this is enough. 
That being said, in addition to the likely problems with four-year scholarship distribution, the differential between average salaries between coaches of men's and women's teams at both the head and assistant coach level is startling. 
Head coach average salary:  $647,202 (M) $129,552 (W)
Asst coach average salary: $200,871(M)  $45,629 (W)

We don't know whether OCR will visit the LA campus to investigate. It's possible they will ask USC to do its own study and address the disparities and report back. 
I do believe they will have to explicitly address the scholarship issue and it would be nice if we could see some progress on salary equity. 

Tuesday, June 24, 2014

What are the Title IX Implications of USC's 4-Year Scholarship Plan?

On Monday, University of Southern California announced that it will offer four-year scholarships to all scholarship athletes in football, men's basketball, and women's basketball.  This modifies the university's existing practice of offering all scholarships on a one-year, renewable basis. 

Multi-year scholarships have only been permissible under NCAA rules since 2012.  The NCAA actually banned them in 1973 as a means to promote competitive equity by leveling the playing field for schools that cannot afford to take that kind of risk.  But concerns for athlete's welfare and education motivated the NCAA's change of heart, and reportedly, USC's as well.  An athlete with a four-year scholarship has "job security" if you will -- they cannot lose their scholarship status as long as they continue to follow team and NCAA rules. An athlete with a renewable scholarship has to worry every year that their coaches will replace them due to poor performance or injury -- leaving them to either figure out how to cover tuition or else drop out of school altogether.

Multi-year scholarships are thus quite beneficial to athletes.  But like any benefit, they must be allocated on a gender-equitable basis in order to comply with Title IX.   

Title IX regulations specifically address athletic financial aid at 34 C.F.R. 106.37(c).  This provision  requires that aggregate dollar amount allocated to athletes of sex be proportionate to the ratio of athletes of each sex -- i.e., if 50% of the athletes are female, they should receive 50% of the overall available athletic financial aid.  Yet this provision is likely unaffected by an inequitable distribution of multi-year scholarships versus one-year renewables. This is because a multi-year scholarship paid out over the term of years does not increase the allocation of athletic financial aid in a given year (one-fourth of a four-year scholarship and a one-year scholarship are the same in dollar amounts).

But elsewhere, at 34 C.F.R. 106.41(c), the Title IX regulations mandate that athletic opportunities receive equal treatment based on sex.  For example, under this provision, it would be unlawful to provide higher quality equipment or facilities to only men's sports. "Tiering" is still permissible -- a school does not need to provide the same benefits to all sports -- but there must be gender equity within the tiers themselves.

In my opinion, a school that provides four-year scholarships to 98 male athletes (85 football scholarships, 13 basketball) and 15 female athletes violates 106.41(c) -- the same way that it would violate Title IX to provide any other perq on this inequitable basis.  If this is hard to understand, imagine that USC provided laundry service to 15 female athletes and 98 male athletes -- a clear violation of equal treatment.  The "job security" aspect of a four-year scholarship relative to a one-year renewable is just another characteristic of how athletes are treated, similar to laundry service. Moreover, because the regulation says that the Department of Education will enforce this provision by considering a number of enumerated factors "among others," it is not relevant that 106.41(c) does not expressly mention multi-year scholarships a factor of equal treatment. 

Finally, it will not be sufficient for USC to justify its policy as only pertaining to revenue-producing sports.  In 1974, Congress considered an amendment to Title IX that would have exempt revenue-producing sports.  But the fact that this amendment failed to pass underscores the law's agnosticism when it comes to revenue.  Neither Congress, the courts nor the Department of Education have ever endorsed a double-standard for revenue and non-revenue sports.

It is good that schools are being responsive to concerns about athlete welfare and education.  But the law requires that they do so on a gender-equitable basis.

Friday, June 20, 2014

Clery Act expansion

Yesterday the Department of Education announced a new rule to the Clery Act. It includes the addition of national origin and gender identity to the definition of a hate crime. It adopts the FBI's definition of rape, which is often broader than that found in state law and does not consider gender as part of the definition.
Another change, one that should hopefully quiet the recent backlash centered around alleged violations of the rights of the accused, is a provision that allows both the accuser and accused to pick an adviser of his/her choice to attend campus hearings. The institution can still dictate how that adviser may be used and involved, but this means that theoretically both parties could have a lawyer present.
Ensuring greater confidentiality for victims who may be seeking help but do not want to go through campus or legal proceedings is also part of the new rule.
And finally, the new rule calls for broader reporting of campus violence. Stalking, domestic violence, and date-related assault. These were proposed as part of the government's commitment to making schools more accountable for campus climate and for greater transparency.

The new rule was published today in the Federal Register and public comments will be accepted until July 21.

Thursday, June 19, 2014

Investigation Opened at James Madison University

The Department of Education recently opened an investigation into allegations that James Madison University violated Title IX by failing to adequately punish three male students found responsible for sexual assault. The university has reportedly subjected the three to a ban from campus that kicks in after their graduation, raising serious questions about with it has satisfied its obligation under Title IX to take reasonable steps aimed at preventing the reoccurence of sexual assault.

In January of this year, the victim reported that the three male students took advantage of her intoxication while they were all away together for spring break the year before.  They videoed themselves groping her and trying to take off her bathing suit and then later circulated the video -- which reportedly shows the victim saying "this isn't okay; this isn't a good idea" -- around campus. A judicial officer found the men responsible and, as punishment, prohibited them from taking part in commencement or returning to campus as alums.  Yet, they were able to obtain their degrees.   The victim, meanwhile, has withdrawn from the university.

Thursday, June 05, 2014

Girls' Charter School Wins Preliminary Injunction to Remain Open for Now

A case being litigated in a federal district court in Delaware is raising interesting questions about Title IX's application to charter schools.  Last November, the Delaware Department of Education decided not to renew the charter for Reach Academy for Girls, which would have the effect of closing the state's only public single-sex school for girls.  Reach students sued the state, arguing that the school's closure amounted to a violation of Title IX and the Constitution's Equal Protection Clause, because the state continues to charter, and thus fund, the all-boys Prestige Academy.  This imbalance is further underscored by the fact that Delaware law now prohibits issuing new charters to single-sex schools; only existing charter schools may continue to apply for renewal. So for the plaintiffs, Reach is their only opportunity for single-sex education. 

In January, the court issued a preliminary decision that denied the state's motion to dismiss and issued a preliminary injunction. But the time constraints of enrollment had required the court to make that decision quickly, so it promised to provide fuller explanation in a later opinion, which it issued recently. The court's recent opinion reaches the same conclusion regarding the plaintiff's likelihood of success on the merits, a key factor to obtaining a preliminary injunction, but reveals more of its reasoning regarding Title IX's application to charter schools. 

The regulations that interpret the statute contain the following provisions that relate to charter schools:
(c) Schools. (1) General Standard. Except as provided in paragraph (c)(2) of this section, a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must provide students of the excluded sex a substantially equal single-sex school or coeducation school. 
(2) Exception. A nonvocational public charter school that is a single-school educational agency under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.
See 34 C.F.R. 106.34(c).

So, the regulation requires a funding recipient that operates a school for one sex to also operate a "substantially equal" single-sex or coeducational schools for members of the other sex.  But it exempts nonvocational charter schools from that requirement.  The Delaware DOE relied on the exception provision as the basis for its argument that Title IX does not apply to its decisions relating to the issuing of charters.  But the court disagreed, reasoning that the exception provision applies only to the charter school itself.  The exception means that Prestige Academy, for example, does not have to also operate as a school for girls.  The state of Delaware, on the other hand, is still required to comply with (c)(1), the "General Standard" provision that requires "substantially equal" coed or single sex alternatives.

But does Delaware violate that provision simply by failing to provide an all-girls charter school?  After all, the court pointed out, the requirement is to provide a substantially equal single sex school or coeducational school to students of the excluded sex.  The regulation does not require both, and thus seems to contemplate that coed alternatives could be "substantially equal" and thus compliant with the Title IX regulations.  That question is not addressed at this preliminary stage of the litigation.

It's a question that might not be necessary, to address, however, given that the plaintiff's other argument was that Delaware's failure to charter an all-girls school violates the Equal Protection Clause.  The court's Equal Protection Clause analysis is not bound by the particularities of the Title IX regulations.  It could ultimately conclude that the state's offering a single-sex school for boys but not for girls is unlawful, regardless of whether the coeducational alternatives are just as good.  Because even if the coed alternatives are deemed just as good, they are still different from a single-sex environment.  Which means that the boys of Delaware who want a single sex experience can have one, but not the girls.  The court's preliminary Equal Protection analysis suggests that the plaintiffs are likely to prevail on arguments along these lines.

Finally, the court seems to address the point I was most worried about when I blogged about this case back in January, which is the fact that Delaware dropped Reach Academy for a reason -- it had financial problems and its students did not do well on statewide tests.  I argued that renewing the charter of a "failing" girls school is not an alternative to discrimination, because it still perpetuates separate-but-unequal. However, the court points out that Reach seems to be pulling itself together. Its facilities and enrollment have improved, and it is no longer on probationary status with the state. The court concludes its opinion by suggesting, "Now may be a particularly auspicious moment for Reach to turn its academic performance around. At minimum, another year of operations will provide additional data that should enable all interested parties to make an accurate assessment of Reach's program and competency."

So Reach will continue to operate, at least for now.  Litigation is likely to continue as the state can theoretically appeal or seek to dismiss the case on other grounds, while the plaintiff can move for an injunction of permanent nature. 

Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 2445804 (D. Del. May 30, 2014).

Wednesday, June 04, 2014

Settlement over softball fields

A class action lawsuit filed just over a year ago in Batavia, New York has been settled. Filed by parents of softball players over the poor conditions of the softball field, the school district--which claims that improvements to the softball field were included in the list of capital projects before the lawsuit was even filed--will complete renovations by next spring. The improvements include permanent dugouts, a scoreboard, and outfield fencing.