Court Dismisses Retaliation Case Against University of Hawaii

Last month, a federal court in Hawaii dismissed the Title IX lawsuit filed by former women's basketball coach Jim Bolla against the University of Hawaii. As we noted when we first blogged about this case in 2009, Bolla claimed that the athletic director terminated his contract in retaliation for the coach's demands for gender equity, while the university claimed that the decision was lawfully motivated by Bolla's abusive conduct towards his players.

But a judge granted the university's motion for summary judgment after determining that Bolla did not establish a prima facie case for retaliation under Title IX, which requires the plaintiff to demonstrate that he suffered some adverse employment action (here, termination) after engaging in protected activity, and that there is evidence to support that his termination was motivated by retaliation rather than a lawful, nondiscriminatory reason.

On the one hand, the court agreed that Bolla's claims to have discussed gender equity concerns with the athletic director (a claim that the university disputes as a matter of fact) sufficiently allege that he engaged in conduct that should be protected from retaliation. The court's reasoning on this point was significant, because it pointedly refused to import from First Amendment law the requirement that an employee be speaking in their personal capacity, rather than in their official capacity, for protection from retaliation to apply. Such an interpretation, which some courts have endorsed (erroneously, in my opinion) leaves coaches without protection from retaliation for just about anything they might say about Title IX as it applies to their team or their job, a position that the judge wisely recognized was inconsistent with the Supreme Court's holding in Jackson v. Birmingham Board of Education (ruling that Title IX prohibits retaliation against a coach who seeks to assert Title IX on behalf of his players).

On the other hand, the court acknowledged that the university articulated a "legitimate, nondiscriminatory reason" for terminating Bolla -- namely, the fact that he had kicked a player, which Bolla did not dispute other than to recharacterize it as "gently" tapping her "buttocks" with his foot. Moreover, Bolla failed to put forth sufficient evidence to demonstrate that the university's stated reason for firing him was actually pretext for an actual motive of silencing his advocacy for gender equity. Bolla attempted to demonstrate this pretext by arguing that it represented a departure from the University's typical way of dealing with coaches' misconduct; specifically, he pointed out that the football coach was not terminated after he publicly made an offensive remark in using the word "faggoty" to describe the pre-game ritual of an opposing team (an incident my co-blogger wrote about here). But the court did not consider the football coach's situation to be comparable enough to Bolla's to have warranted a similar response. The football coach did not physically assault any player; nor, said the court, was there evidence that any members of his own team took offense at his remark. Since Bolla did not provide any evidence that the football coach's comment -- though offensive and certainly painted UH in a negative light -- rose to the level of verbal abuse (let alone, physical abuse, for which Bolla was fired), the university's decision to treat the coaches differently was not evidence that it was actually hiding its true motive of retaliation against him.


Decision: Bolla v. University of Hawaii, 2010 WL 5388008 (D. Hi. Dec. 16, 2010).

Title IX Blogger Responds to Hawaii Coach's Use of Homophobic Slurs

A shout-out to my co-blogger Kris, who has an excellent essay at Inside Higher Ed on the fallout from the University of Hawaii football coach's use of "faggot" to belittle an opposing team. While not directly a Title IX matter, the coach's comments reflect the hegemonic masculinity in which athletic department culture -- in particular football culture, as Kris points out -- is deeply entrenched.

Flip-flops III: Hawaii and Arizona looking at sand volleyball

The whole point of calling it sand volleyball, instead of beach volleyball, was to, according to the NCAA, make the newly named emerging sport a little more appealing to places not so sunny and ocean-y. But two schools actively considering adding the sport are sunny and warm: University of Hawaii and University of Arizona.


Both schools are seeking to add participation opportunities for women but the economic crisis has been an impediment, they say. And most are envisioning a cheap fix with sand volleyball. It is hard to blame them given the economy. But it is also coming off as a little, well, cheap. At times, the glee over how cheap it is going to be (in part because sand volleyball will likely draw repeat participants from indoor volleyball) reads a little bit like lack of commitment to women's sports. While I realize that cheap is good right now, and that cheaply adding a team to become compliant is better than cutting any team, in none of the articles I have read about adding men's teams (which is still happening) has there been any mention of how great it is to provide opportunities at bargain basement prices.

Such a mentality makes me worry about how sand volleyball teams will be treated once they get established. Remember all you schools seeking to add opportunities, participation is only one aspect of Title IX compliance. Quality of experience (measured in numerous ways like access to trainers, coaching, facilities) counts, too. And some of those things are not as cheap as they may seem right now.

Fired University of Hawaii Basketball Coach Files Retaliation Suit

Via Helen at WHB I learned that Jim Bolla, the former women's basketball coach at the University of Hawaii, recently filed a lawsuit challenging his termination as unlawful retaliation under Title IX. UH fired Bolla for cause last week after investigating reports that he kicked a player and was verbally abusive towards them. Bolla maintains he was fired because he complained to the athletic director about a million dollar disparity in funding for men's and women's basketball. At the time of his complaint, his personnel file contained no negative documentation, but a month later, he was presented with notice of complaints against him, some of which were more than three years old. Under Bolla's five year tenure, his team produced a losing record of 64-80 and went 8-23 this year.

Bolla's case bears some similarities to other successful retaliation cases including Jaye Flood's against Florida Gulf Coast University (initially investigated for tugging a player's shirt, only evidence of negative performance appeared in her file after she complained about gender inequities) and Vickie Dugan, who in 1997 won a million dollar jury verdict against Oregon State after successfully arguing that her losing record was a result of the funding disparities about which she had complained. And though most of the high profile verdicts and settlements in Title IX retaliation cases were awarded to female plaintiffs, there is also precedent for success by male coaches of women's teams. It will be interesting to see if Bolla's case turns out similarly.

Increasingly, College Housing Offers Gender Neutral Option

The Baltimore Sun reported yesterday on the increasing number of gender-neutral housing options being offered by colleges and universities. The article focuses on pilot programs underway and in the works at Goucher College, UMBC, and University of Maryland College Park, while noting that around 25 colleges (UConn among them, we've previously noted) offer students a coed living experience.

Proponents of such programs explain that some students are as comfortable, if not more so, living with members of the opposite sex, so making them choose same-sex apartment-mates seems like an "artificial barrier." Coed housing options also makes good business sense for colleges that compete with an off-campus housing market, where coed living among students is common. Last, the coed alternative is a compassionate accommodation for transgendered students, for whom living in a dorm or apartment designated for one sex or the other could be an uncomfortable (or controversial) experience.

Yet while many colleges and universities prohibit coed living, some actually require it -- for married students, that is. Last week a gay couple sued the University of Hawaii after their application to live in married student housing was denied. It's clear that many universities still order their students living arrangements around the outmoded assumptions that men and women living separately before marriage and in opposite-sex couples after marriage. The coed housing movement is helping to change this rigid, heteronormative paradigm.

Criticism of outgoing athletic director

Outgoing University of Hawaii athletic director Herman Frazier has been receiving some criticism for his commitment (or lack thereof) to gender equity during his five-year tenure.
We have heard about some gender equity issues at Hawaii because of track coach Carmyn James's now-dropped Title IX lawsuit. This article does not mention James or suggest that Frazier, who was bought out of his contract, was let go because of James's speaking out publicly. [His firing appears to be a result of his inability to negotiate a new contract with the football coach. I will refrain from remarking on how this reflects on the university's priorities.]
But it does highlight what was apparently Frazier's blind eye regarding gender equity in his department. According to a civil rights lawyer, who was herself a UH athlete, Frazier frequently received complaints from athletes about not just gender issues but racial discrimination, homophobia, and sexual harassment.
The interim AD, Carl Clapp, will not disparage Frazier and believes he did a good job with gender equity, as compared with other schools. Hopefully the new AD will not base UH's gender equity on other institutions, given the overall lack of true commitment to Title IX compliance, but on the situation at hand in Hawaii.

University of Hawaii Coach Drops Title IX Suit

In September we noted that University of Hawaii head women's track coach, Carmyn James, filed a lawsuit against the University alleging Title IX violations in funding and number of opportunities for female athletes and differential treatment for female coaches.

But on Sunday, the Honolulu Advertiser reported that James has dropped her suit "after positive and productive meetings" with the Athletic Director Herman Frazier and Associate Athletic Director Carl Clapp that have given her "great faith that our administrative staff will do the right thing."

James's lawsuit, it seems, created sufficient leverage to motivate the athletic department to improve along gender equity lines. But what I don't quite understand is why she agreed to drop the lawsuit on the department's informal promise to change its ways, rather than insist on a settlement agreement that would have bound the University to a more specific plan. I'm guessing that James actually had a lot of bargaining power, given that she is represented by Dan Siegel, the attorney who represented all three plaintiffs in the recent litigation against Hawaii's conference rival, Fresno State. I suppose, though, that since James is still coaching for Hawaii she is in a good position to judge for herself whether Frazier and Clapp are making good on their word; if not, she can certainly re-file.

Chronicle Follows Up on Hawaii Lawsuit Story

We posted recently about track coach Carmyn James's lawsuit against the University of Hawaii. The Chronicle of Higher Education covers the story here (subscription req'd) and quotes this humble blogger briefly near the end.

Track Coach Sues University of Hawaii

Carmyn James, head women's track and field coach at the University of Hawaii, filed a Title IX lawsuit against the university this week. She alleges that the UH discriminates against women's athletics by providing male students more opportunities and by underfunding women's teams (something we've blogged about before). She cites disparities between the terms of her employment and those of her male counterparts, and also charges that the Athletic Director, Herman Frazier, retaliated against her for advocating for gender equity.

By one account, James's decision to file suit "crystallized while attending the Aug. 30 UH dinner celebrating 35 years of Title IX and Hawai'i Congresswoman Patsy Mink's contributions to the landmark equality in education amendment that carries her name." She was inspired by the event to, in her words, "take this final option that was left and try and create a positive change within the department."

University of Hawaii Fundraises for Women's Scholarships

The University of Hawaii has invited Jackie Joyner-Kersee to kickoff an upcoming fundraiser to raise $500,000 for endowed scholarships for female athletes.

Are there Title IX implications here? Under OCR's policy for booster clubs and private fundraising, universities can't use private funds to give either sex benefits or advantages that are denied to the other sex.

However, there is little risk of that happening in Hawaii. I checked out UH's athletic scholarship distribution, and women currently receive 43% of the $3.5 million athletic scholarship budget, though they receive 50% of athletic opportunities and make up 55% of the student body. Under Title IX's scholarship regulations, Hawaii's women should receive around 50% of the scholarship dollars, and a greater percentage if/when the school increases athletic opportunities for women to come into compliance with prong one.

Which means that regardless of how this fundraiser turns out, the university should be planning to increase women's athletic scholarships by $230,000 annually. UH's fundraiser and its coordination with Joyner-Kersee is a commendable plan for progress toward this goal, but since a $500,000 endowment can't possibly generate that kind of money every year, I think the university will still have to use athletic department funds to come into compliance.