Gender Disparity in Coaches' Chartered Flights at University of Iowa and Iowa State

Some good investigative reporting in Iowa led to this recent article about the gender imbalance in athletic department travel at University of Iowa and Iowa State. Both institutions benefit from wealthy donors who offer up their private planes for coaches to take on recruiting visits, to meetings, and for other work travel.  Yet these donations overwhelmingly favor the coaches of men's teams -- of UI's 54 donated charter flights in the last year, only 1 was to the coach of a woman's team. And it's not like the institutions use other funds to close this gap, paying for (non-donated) charter flights for men's teams coaches more often than charter flights for their coaches of women's team's.

I talked to the reporter for this story and shared some thoughts about the Title IX concerns raised by this disparity. I explained that the fact that the flights are donated does not absolve the university of the gender disparity that results from the donations. Because they benefit a university program, the donated flights are considered by law to be donations to the university. Though the donations themselves might be earmarked for a certain team or coach, the university is still responsible for the equal treatment of its men's and women's programs. If it uses donated money (or, as in this case, donated flights) to benefit only teams of one sex, it has to find other money to balance to provide the equivalent benefit to teams of the other sex.

There are two aspects of Title IX that may be implicated by this imbalance. First, one of the aspects of Title IX's requirement for equal treatment of men's and women's teams is the quality of the coaching they receive. A coach who takes charter flights does not have to spend time driving between Iowa City and the airports in either Cedar Rapids or Moline, factoring in extra time for the security line, waiting out layovers, enduring delays or any of the other time consuming aspects of commercial travel. This leaves the coach with more time and energy for coaching duties: he is more likely to make it back for practice, he can fit in more recruiting stops into a season, he can partake of more professional development opportunities. In short, that team gets more of their coach and thus, a higher-quality coach. A university that eases the path for men's coaches, but leaves up those obstacles for women's coaches, is treating its male athletes better than its female ones.

Second, the disparity is sex discrimination in the terms and conditions of coaches' employment. Because only men coach men's teams, men disproportionately benefit from the perk of taking charter flights. The challenges of commercial travel can create personal inconveniences as well as professional ones, and male coaches alone are spared from that grief. As a result, they may have an easier time making time for family or a personal life. Maybe, if women's coaches were paid more in base salary than men's coaches, there would be an argument that this disparity in chartered travel does not amount employment discrimination, but of course we know that is not case.

As the article notes, University of Iowa is currently under an OCR investigation into the athletic department's compliance with Title IX. Recruiting appears to be an area the agency is looking into, but no findings have yet been made.

Cuts at UNM Still Fall Short of Title IX Compliance

Earlier this year I posted about the University of New Mexico's decision to publish its consultant's report that, I thought, bent over backwards to reach the conclusion that cutting sports is necessary for Title IX compliance. Interestingly, however, the university's announcement today that it will cut two men's and two women's teams does not put the university into compliance.

The university will eliminate men's soccer and skiing, a total of 38 opportunities. This will bring the total number of men's opportunities from 319 to 280. On the women's side, the university will eliminate beach volleyball and skiing, a total of 25 opportunities. This will leave women with 218 opportunities, compared to the 243 they have now.  Women will therefore receive 43.8% of the athletic opportunities, but because women make up 54.9% of the undergraduate student body, the university is still a long ways off from proportionality.  In addition, by cutting two existing women's teams, the university has likely disqualified itself from compliance under either of the alternative tests. Cutting women's teams is the opposite of expanding opportunities for the underrepresented sex, the second compliance test. And it creates unmet interest and ability among the underrepresented sex, which demonstrates lack of compliance with the third test. 

The university's plan also calls for phasing out diving from the women’s swimming and diving program, significantly reducing men’s track and field participation slots, and increasing participation opportunities in some women’s programs. However, there is no way that these modest changes will close the proportionality gap. There are 5 divers on the swimming and diving team. And most of UNM's other female sport rosters already exceed the NCAA Division I average squad size. (One sport, women's soccer, has 40 players despite an NCAA average of 28!) The only two teams that don't exceed the average would reach the average by adding only 1 player to the roster. Thus, the university's roster management plan --- unless it plans to inflate rosters with opportunities that it won't legally be able to count under Title IX --- will probably involve a net loss of female athlete opportunities, rather than a gain. That means, the university would have to make up the proportionality gap by cutting over 100 men's opportunities, according to my math. Yet, the men's track team doesn't even have that many on the roster.

By cutting women's teams, UNM is making its compliance challenges worse, not better. This result is not consistent with its pointing at Title IX as a key factor in the decision to downsize its athletic programs in the first place.

Florida Atlantic Accused of Fudging Athletic Participation Data

Florida Atlantic University inflated its female athletic participation data that it submits annually to the Department of Education. This report mislead the government and the public that the institution satisfied its Title IX obligation to provide equitable athletic opportunities by distributing them proportionate to the gender breakdown of the student body, when in fact this was not the case.

According to an article published today by the Palm Beach Post:

In 2016, women represented more than half of the Boca Raton school’s enrollment but only 31 percent of its athletes. The percentage was the lowest of all 127 schools participating in [Division I].

Just one year later, FAU claimed it had erased its female participation gap. It told the U.S. Department of Education in 2017 that 51 percent of its athletes were women.

Specifically, the Post noted that FAU overcounted female track athletes, reporting a team of 98 in 2017, which was more than double the number reported in 2016. The reported number was also considerably higher than the number of the roster, 43, and in the team photo, 38.  FAU reported a total of 222 female athletic opportunities for the combined total of indoor track, outdoor track, and cross country, which if accurate would have made it the largest women's track program in all of Division I.

For its part, FAU acknowledged the inaccuracy but called it accidental, and blamed an employee who no longer works at the university.

It's been a few years since we've seen a story like this one, but today's news suggests that the practice of reporting inflated data still occurs. It also underscores that the way we find out about these problems is when the media goes digging for the truth behind the numbers. 

Litigation Update in St. Cloud State Athletics Case

On Monday a federal court ruled on various preliminary motions aimed to limit the scope of ongoing litigation against Saint Cloud State University in Minnesota, which was sued by female athletes over its decision to eliminate two women’s teams in 2016.  The plaintiffs claim that even though the university cut four men’s teams at the same time, the elimination of women’s tennis and nordic skiing violate Title IX because the university failed and continues to fail to provide athletic opportunities in proportion to women’s enrollment.  Though Title IX provides alternatives to proportionality compliance, neither of them is satisfied when a university cuts viable teams of the underrepresented sex.  The lawsuit also challenges inequitable distribution of scholarship dollars and access to facilities and equipment.

One issue that the court addressed this week was the plaintiffs’ decision to pursue this litigation as a class action. The class action is an important litigation strategy to plaintiffs in Title IX athletics cases because without it, lawsuits are vulnerable to dismissal for lack of standing after the plaintiffs graduate.  Here, the court agreed to certify the class over some objections by the university, but it did modify the description of the class to ensure it wasn’t overly broad. Now, the class of plaintiffs include “all present, prospective, and future students at Saint Cloud State who are harmed by and want to end sex discrimination in the allocation of athletic opportunities, the allocation of athletic financial assistance, and the allocation of benefits provided to varsity athletes.” The italicized language was added by the court, which used as a model a similarly-defined class that was certified in the Quinnipiac case.  

More significantly, the court narrowed the scope of the plaintiff’s case by granting the university’s motion to dismiss the plaintiffs’ claims for money damages arising from the alleged discrimination in the allocation of athletic scholarships. Title IX is a spending clause statute, expressly requiring that universities refrain from sex discrimination as a condition for federal funding. Though the Court has permitted private lawsuits to seek money damages from institutions that violate Title IX, the plaintiffs in such cases must prove that the institution engaged in intentional discrimination.  Decisions that reflect official university policy are intentional, as are unofficial decisions that the university fails to remedy despite being on notice of the fact that they are discriminatory. Here, the court agreed with Saint Cloud State that the university’s allocation of athletic scholarships was not official university policy; nor did university officials have notice of the fact that the harm to plaintiffs resulting from the alleged discriminatory allocation.  This conclusion, which the court supports by citing a 2001 Eighth Circuit decision called Grandson v. University of Minnesota, is concerning to me (and I’ve criticized its application in other cases as well.). An athletic department is strategic and intentional about how many scholarships to offer. In this case especially, the plaintiffs allege that the disparity in scholarships results from the athletic department’s decision to include too few women’s sports in the tiers that receive full scholarship support.  The decision to tier one’s athletic offerings is surely an official decision, isn’t it? 

The court also granted the university’s motion to dismiss the plaintiffs’ Equal Protection claim on the grounds that the state has not waived its sovereign immunity to be sued for violations of the 14^th Amendment.

Lastly, the court addressed the scope of testimony of the plaintiff’s expert witness, Dr. Donna Lopiano. Lopiano, a former athletic director and advocate who currently serves as gender equity consultant. Here, the court agreed with the university’s argument that the law prohibits expert witnesses to testify about legal requirements or to provide legal conclusions.  Yet, the court ruled that Dr. Lopiano is permitted to testify about her own findings about the university’s compliance with equal opportunity, equal treatment, and scholarship provisions of Title IX, as well as Title IX compliance at other institutions. 

Portz v. St. Cloud State Univ., 2018 WL 1050405 (D. Minn. Feb. 26, 2018).

In Oregon School District, Girls Must Pay More to Play

Here's an interesting article that Oregon Public Broadcasting ran this week about the Beaverton school district charging girls more than boys for opportunities to participate in sports and other activities. A local woman first noticed gender disparities in utility charges, of all things, after she inquired about the school district's practice of billing her nonprofit, which runs after school programs on school grounds, for water and electricity. When she started looking into what other organizations the school district charges, she noticed a gender pattern: activities like cheer and dance, which primarily attract girls, were also being billed.

The utilities issue prompted her and other parents to ask questions about sports as well.  The school district charges athletes $225 to participate on a high school team, but the parents discovered that this fee is waived more often for boys than for girls. The parents also started looking into supplemental athletic activities like off-season camps, that are not part of the school's program but are offered by separate business run by the coaches.  These also charge for participation.  When the cost of these optional-but-not-really-if-you-want-to-make-the-team programs are added in, another disparity appears: Girls playing soccer at one of the district high schools were charged $450 total; boys paid $265, and an even greater difference exists between boys and girls playing basketball at the other high school.

The parents' advocacy has prompted the school district to pay closer attention to how coaches are running private, off-season camps. But the article did not indicate that school district officials were planning to regulate what coaches could charge in order to ensure equity between boys and girls participation costs or if they would offset the higher cost to girls in some other way. The parents advocating for equality liken the role of coach-run businesses to other third parties, like booster clubs, which Title IX does not recognize as an excuse for more favorable treatment granted to boys' teams. The article notes that this position is unpopular with parents in boys-team booster clubs, but it at least quotes a school district official acknowledging this is how Title IX works. OPB  has promised more reporting on this issue, so we will see what changes it leads to.  The parents seem dogged and resourceful and unlikely to give up. It also helps that the law is on their side.

OCR Finds State Agency Did Not Correctly Apply Title IX to Annual Reviews of Scholastic Athletic Programs

In Washington State, the state agency in charge of public schools (called the Office of the Superintendent of Public Instruction, OSPI) receives federal funding and administers some of that funding to local school districts.  As such, OSPI is required to comply with Title IX and may not aid or perpetuate discrimination by funding school districts who do not comply with Title IX. To that end, OSPI monitors the Title IX compliance of its school districts. Among other things, OSPI collects and reviews the self-evaluations that it requires school districts to annually conduct of its athletics programs' participation rates.

The Department of Education's Office for Civil Rights began an investigation into OSPI's Title IX monitoring process in 2011, after receiving hundreds of complaints about Title IX violations in Washington's public schools' athletics programs. This week OCR announced its conclusion that OSPI was not properly applying the three-part test when reviewing the school districts' self-evaluations of compliance.

The three-part test requires an athletic program subject to Title IX to either (1) ensure that percentage of athletic opportunities for each sex is substantially proportionate to the percentage of each sex in the student body; OR (2) that the program has a history and continuing practice of expanding opportunities for the underrepresented sex; OR (3) that the interests and abilities of the underrepresented sex are being met.

OCR did not find any problems with how the OSPI was applying parts 2 or 3, but it did find fault with the way it determined compliance with part 1. In particular, OSPI only found that schools failed to comply with this part if it would have taken more than 15-20 (depending on the size of the school) new opportunities for the underrepresented sex to bring the school into proportionality. In contrast, OCR has said that except when disproportionality is caused by natural fluctuations in enrollment, the only time a school does not have to be in exact proportionality is if the number of new opportunities needed to reach proportionality is smaller than the number needed for any new viable team. 

Given that there are lots of sports that can run with 15 or fewer students, it is not surprising that OCR found "some instances" where OSPI "perpetuated discrimination" prohibited by Title IX by permitting some school to pass the review when they should not have. OSPI is now obligated to modify its practice so that it applies the appropriate standard going forward, and is subject to monitoring by OCR to ensure it does so.

I thought this enforcement action was noteworthy because of its state-wide impact. In the past, complainants have tried to focuses OCR's attention on widespread noncompliance by filing dozens of complaints at once against school districts who do not appear to comply with the first part of the three part test. OCR has found grounds to dismiss these complaints without investigation or resolution, probably because of the practical limitations of actually conducting all of those simultaneous investigations. But if OCR keeps close track of how state agencies that distribute federal funding are applying Title IX, the agency can have still have state-wide impact. I wonder if we will see more these kinds of investigations initiated in other states.

New WSF Report Examines Gender Inequality in Coaching

Last week the Women's Sports Foundation issued a new report that examines gender inequality in the coaching profession. The report's authors surveyed over 2500 current and former coaches about their experiences and perceptions of the athletic departments in which they work, and revealed some surprising and some not-so-surprising results.

For example of of a not-so-surprising result, a significant minority of female head coaches (32%) perceive that men's teams other than football receive greater resources than women's teams. While football is certainly included in the Title IX analysis, separating it out for purposes of a survey paints an even more compelling picture of gender inequality. Yet, sadly, a third of female coaches also believed that they would put their jobs at risk if they spoke up about gender inequality.

The report also garnered data about how coaches view the equality in the terms of employment. A majority of coaches (male and female) agreed that it was easier for male coaches to get hired for high-level jobs, be awarded a multi-year contract, and successfully negotiate a raise.  Meanwhile more than 40% of female coaches reported that they had experienced gender discrimination in the workplace and a third perceived that administrators favored male coaches. Notably, the report also included some interesting comments about "reverse discrimination" -- the perception that being male is disadvantageous in the athletic department workplace. In fact, 40% of male coaches, compared to only 12% of female coaches, believed that they had not gotten a coaching job because of their gender. This is an interesting pair of statistics that I think says something about gender and entitlement. Women are unlikely to believe they were ever turned down for a coaching job because of their gender despite constituting only about 20% of college head coaches. One explanation for this is that they are not going after jobs in men's sports because they do not feel entitled to those jobs the way that men feel entitled to the coaching jobs in women's sports.

On the other hand, men have nearly all of the coaching jobs in men's sports and even a majority of the coaching jobs in women's sports, yet a significant percent of them still perceive that gender disadvantaged them in the hiring process. They made comments on the survey like, “I’m a white male and I can’t get the job because they have to hire a female or a minority. This is not right. The best candidate should be hired regardless of race or gender.” And, “I would do much better off professionally if I was a minority, handicapped, homosexual." They argue that "much less qualified" women "with less experience" are being hired instead of them.

Based on comments like these, one imagines the college coaching market flooded with applications from optimistic, overconfident women who are seeking jobs beyond their reach (and then managing to get hired for those jobs, no less.). There are a lot of gender stereotypes that pertain to hiring, but women being overconfident in their job applications is definitely not one of them.  I also have to wonder how many of these respondents are defining "experience" in a self-serving way, like assuming they receive equal "credit" for having a background in baseball instead of softball, or men's hockey instead of women's (despite the men's and women's sports having different rules).

Not surprisingly, therefore, the recommendations section of the report focuses primarily on the barriers to leadership that female coaches are confronting. For example, the report recommended that athletic departments conduct open searches by hiring committees to fill high-level vacancies, including head coach positions.  Departments should also have and follow policies that ensure job duties, evaluations, salaries, and other aspects of employment are handled without regard to gender. I also thought these two recommendations, aimed primarily at the NCAA, were particularly strong:

• National athletic governance associations should require member institutions to undertake a periodic certification program or other third-party peer review of the operation, processes and policies of its member institution athletic programs to ensure compliance with legal requirements and best practices, including the employment and compensation of coaches.

• National and conference athletic governance organizations should require that member institution athletic programs must establish policies that require a minimum number of qualified minority applicants to participate in finalist inperson interview pool for all coaching positions.

Department of Education Settles Athletics Complaint Against Erie Community College

On Tuesday the Department of Education's Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities.

OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex.  The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious.

 Nor did the college satisfy either of the two alternatives for compliance.  The second test measures a "history and continuing practice" of expanding opportunities for the underrepresented sex,  The most recent women's team to be added was lacrosse, ten years ago.  Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three women's teams, along with their male counterparts, for budgetary reasons.  For this reason, the college does not comply with the second test.  The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities.  The college could not satisfy this test either.  After dropping three women's sports, the women who participated in them remained interested in playing. Moreover, the college has a 'limited mechanism' for gathering information on women's interest, one that falls short of a formal process that women can use to request additional opportunities.

Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students' interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Erie's competitor schools.  Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test.  OCR will monitor the college's compliance.

This resolution agreement should serve as a reminder to all institutions that despite OCR's increased focus on Title IX's application to sexual assault, it is still enforcing Title IX's requirements for athletics.  It also reminds community colleges that they have the same compliance obligations as four year colleges.

Title IX Covers Sexual Orientation Discrimination, Court in Pepperdine Case Rules

Two female athletes are suing Pepperdine University over discrimination they experienced as athletes on the basketball team. They allege that the head coach and other athletic department employees singled them out for unfair treatment because they suspected that the plaintiffs were lesbians and in a relationship with each other, and when they complained about mistreatment, they were forced off the team and lost their scholarships. The athletes sued the university under Title IX and other state laws. And while their case was initially dismissed, the athletes received permission to amend their complaint, and when they did, Pepperdine again moved to dismiss. This time, however, the court denied the university's motion, which means that the plaintiffs can continue to litigate the case and begin preparing for trial.

The court's decision is significant for how it treated Pepperdine's argument that the plaintiffs cannot sustain a claim under Title IX because the statute does not cover discrimination on the basis of sexual orientation. Specifically, the court refused to consider sexual orientation discrimination a separate category of discrimination, but rather, viewed it as a subset of sex discrimination. The court reached this conclusion in two separate ways --  first, by viewing sexual orientation discrimination as a type of gender stereotype discrimination, and second by considering it a matter of  "straightforward" sex discrimination.     

The gender stereotype theory of sex discrimination comes from a 1989 Supreme Court decision, Price Waterhouse v. Hopkins, which applied Title VII's ban on a sex discrimination to a case involving an employer's discrimination against female employee for not behaving sufficiently feminine in the office. Since then, courts have accepted that sex discrimination statutes like Title VII and Title IX protect gays and lesbians (and others) from discrimination when the discrimination against them is not directed at their sexual orientation per se, but at how they dress or publicly express themselves (a woman who dresses too masculine, for example). But courts have rarely extended this idea to its logical end and concluded that that all sexual orientation discrimination is sex discrimination because heterosexuality is a gender stereotype. Notably, however, the decision in this case does exactly that. The court determined that the plaintiffs stated a cause of action under Title IX because they alleged that the coaches and others targeted them for mistreatment because of their perception that the plaintiffs' dating and relationship choices did not conform to feminine stereotypes. ("If the women’s basketball staff in this case had a negative view of lesbians based on lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination."). This part of the decision is groundbreaking in its recognition that same-sex sexual orientation is itself a form a gender nonconformity that is protected under Title IX, a conclusion that renders Title IX applicable to all claims of sexual orientation discrimination by gay and lesbian plaintiffs.  

The court also provided a second reason why the plaintiffs' case is actionable under Title IX, separate from the gender nonconformity theory. According to the court, "If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination."  This second rationale supports the same groundbreaking conclusion that all sexual orientation discrimination is a form of sex discrimination under Title IX.  

Last July, the Equal Employment Opportunity Commission, the agency that enforces Title VII, made a similar ruling about the relationship between sexual orientation discrimination and sex discrimination. The court in this case cited that decision favorably. These two decisions together are perhaps a sign of early momentum towards an interpretation of sex discrimination laws that would make the need for separate laws prohibiting discrimination based on sexual orientation unnecessary.

Decision: Videckis v. Pepperdine Univ., 2015 WL 8769974 (C.D. Cal. Dec. 14, 2015). 

Former Iowa Athletics Administrator Files Retaliation Suit

Jane Meyer, a former senior associate athletic director, sued the University of Iowa last week, alleging that she was demoted in retaliation for complaining about the termination of the field hockey coach in 2014.  The coach, Tracy Griesbaum, is Meyer's partner.  As we have noted already on the blog, Griesbaum was fired last year after some of her players complained that she was verbally abusive, but Griesbaum and her supporters say that her termination reflects a double standard that punishes female coaches for behavior that is tolerated and even expected in men's sports. The Office for Civil Rights is currently investigating whether Griesbaum's termination violates Title IX.

Meyer, meanwhile, who had worked in Iowa's athletics department since 2001,was transferred out of the department and reassigned to a job in facilities the very day after she presented the Athletic Director with a written complaint challenging the discrimination against female coaches and other women in the department.  The university claims that her transfer was necessary to avoid a conflict that Meyer would have in the event that Griesbaum sued the Athletic Department (which hasn't happened yet).   

In addition to challenging the alleged retaliatory demotion, Meyer's lawsuit also alleges that she was the victim of sex discrimination while she worked for the department when she was passed over for promotion to deputy director despite her qualifications for the job.  She also alleges that she was paid substantially less than male administrators with comparable jobs.   

Meyer's lawsuit was filed in state court. Notably, Iowa's employment discrimination law expressly covers discrimination on the basis of sexual orientation.  Meyer reportedly seeks reinstatement to her former position, back pay to account for sex discrimination related to her salary, and an external review of the department's demotion and hiring decisions.

LAS-ELC "Fair Play" Video

In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IX's application to K-12 athletic programs. It also helps them understand their rights under California's Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX.

For more on LAS-ELC's "Fair Play" initiative, see here.

OCR and Fayetteville State Enter Resolution Agreement over Athletics Complaint

The Department of Education's Office for Civil Rights has reportedly entered into a resolution agreement with Fayetteville State University in North Carolina, resolving a Title IX complaint that alleged inequitable treatment of women's sports.  The complaint was filed by the parent of a former softball player whose chief concern was a disparity in access to the trainer and other medical care. The resolution agreement requires FSU to assess compliance with Title IX's requirement for equal treatment regarding equipment and supplies, scheduling for games and practices, travel and per diem allowance,opportunities for coaching and academic tutoring, assignment and compensation of coaches and tutors, provision of locker rooms, practice and competitive facilities, provision of medical and training facilities and services, provision of housing and dining facilities, and publicity. The university has a 2018 deadline to correct disparities revealed by the assessment. 

   
The complainant was pleased about the agreement but was also quoted as questioning why university officials "weren't making decisions [about compliance] all along?"  It seems she shares my frustration for this weak, generic version of Title IX enforcement that lets universities get away with avoiding compliance until a resolution agreement occurs.  Title IX regulations about equal treatment have been on the books since 1975. The time to "start" the process of compliance was forty years ago.

Also, the resolution agreement apparently does not address the disparity in the number of athletic opportunities for male and female students, at least, no mention of that appears in the article linked above.  This omission is noteworthy because according to public data, FSU's student body is 67% female, but women receive only 69 out of the university's 179 athletic opportunities -- under 39%.

Former Softball Player Sues St. Joseph's University Over Hazing

This month, St. Joseph's University suspended its softball team with three games left in the season in response to reports that the team engaged in hazing practices to initiate new players.  Now the university faces a lawsuit filed by one of the players who claimed that she was the victim of sexual harassment as part of that hazing, that university officials knew about and failed to adequately respond.

The complaint describes a seven-day period during the plaintiff's freshman season that was kicked off by intimidating letters with weird sexual content.  The plaintiff was required to engage in simulated sex and watch others do the same.  Her teammates required new players to answer questions about her sexual experiences, drink alcohol, and answer to demeaning nicknames.  However, the administration discovered and curtailed the hazing, though it did not initiate a formal investigation or disciplinary process.  Subsequently, during the plaintiff's sophomore season, the hazing ritual resumed again, with upperclass players insisting that they were "picking up where it was left off," so the same rituals began again. 

The plaintiff alleges that the university violated Title IX, among other legal obligations. The standard for institutional liability under Title IX first requires that the plaintiff endure serious harassment of a sexual nature. This excludes from the court's consideration allegations related to alcohol pressure and non-sexual nicknames -- including the allegation that coach called her one that was, while not sexual, pretty demeaning and gross.  Next, the plaintiff must prove that the university had actual notice and responded with deliberate indifference.  Here, the plaintiff must rely on the hazing she endured freshman year of providing notice to the university that the team would continue its behavior in subsequent seasons. The university responded to the freshman year hazing by shutting it down, so the plaintiff must convince the court that more was required to avoid committing deliberate indifference.  Unfortunately for the plaintiffs, many courts interpret deliberate indifference very narrowly to exclude just about anything north of nothing.  So the plaintiff will have to convince the court that what little the administration did to the team in her freshman season was tantamount to nothing.  The university would seemingly not be liable for the sophomore season hazing, since it has seemed to responded swiftly and strongly by suspending the team. 

For other recent stories about universities getting tough about hazing, see here (Stanford band) and here (Western Kentucky swim team).

OCR's Latest Report to the President, the Secretary of Education, and Congress

This week the Department of Education's Office for Civil Rights released its latest biannual report to the President, Secretary of Education, and Congress summarizing its work in fiscal years 2013 and 2014.  The report addressed OCR's efforts to enforce not only Title IX, but also Title VI (race and national origin discrimination), the Rehabilitation Act (disability discrimination) and other civil rights laws applicable to education.  According to the report, the agency received almost 20,000 complaints in that two-year period, 27% of which addressed sex discrimination. In contrast, disability discrimination takes up almost half of OCR's docket.

Athletics. Complaints about athletics constitute the overwhelming majority of the agency's Title IX-related work, notwithstanding the rising number of sexual assault and harassment complaints that we've seen in recent years.

OCR does not break down its data on athletics complaints to tell us how many came from college versus K-12, but it is probably the case that a vast majority of these complaints challenged athletic disparities at the high school level.  Nor does OCR provide an easy way to compare this data over time.  However, for some context, it is worth noting that the OCR's last report covered a four year period of time (2009-2012) and reported half as many athletics complaints (1,264). The current report provides a number of examples of athletics-related enforcement, including a resolution agreement that it reached with Southeastern Louisiana University in 2014, in which the university agreed to do a better job assessing interests and abilities under prong three and provide women's teams with access to facilities of comparable quality to their men's teams.  It also noted several resolutions with public school districts such as Indianapolis Public Schools. Unfortunately, the report did not provide any insight into OCR's handling of "mass complaints" filed against multiple school districts in a single state, which probably constitute a vast majority of the OCR's 3,609 figure.

Sexual Violence. OCR reported to have resolved 90 complaints involving sexual violence at the K-12 and college level during 2013-14. 25 of those resolutions were by voluntary resolution agreement, which is the agency's preferred way of handling findings of noncompliance.  While most of the illustrative examples OCR describes involve colleges and universities (Tufts and Montana, for example), the agency also took enforcement action against at least one K-12 school district for its failure to prevent and respond to sexual violence and harassment.  

LGBT Discrimination. OCR's report described having resolved two cases, one against a California school district, and another against an unnamed college, in ways that ensured transgender students' rights to be protected from harassment and be allowed to access facilities according to their gender identities.  To my knowledge, this is the first time OCR's report has described Title IX enforcement of this nature. The agency also described more generally a resolution agreement that required a charter school to conduct "age-appropriate student education on sexual harassment and non-conformity with gender stereotypes." 

OCR also briefly noted Title IX enforcement efforts related to pregnancy discrimination and retaliation claims.

Should Western Kentucky's Women's Swim Team Have Been Suspended?

Last week Western Kentucky University announced the suspension of its swimming and diving program for five year after a Title IX investigation revealed widespread incidents of hazing, harassment, and sexual assault.  The investigation was reportedly prompted by a police report filed by one of the swim team members, alleging numerous examples of criminal and otherwise reprehensible conduct.  For example, the complainant reported that another of his male teammates sexually assaulted a female teammate who was unconscious, while others watched. He also reported that one of his male teammates had once placed in a chokehold for as long as he could stand it, causing him injury.  When the police searched the house where swim team members lived and held parties, they found photographs of teammates who had passed out from drinking, arranged in nude or semi-nude sexual positions and, in some cases, having been written on with racist and homophobic language.

As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, men's and women's alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes' participation is impaired -- by virtue of being held accountable for other athletes' misconduct  -- in a way that no male athletes' participation is impaired.

It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers.  Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.

Court Dismisses Title IX Count Against Pepperdine

In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians.  Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim.  (The court refused to dismiss the plaintiffs' claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.)

The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX.  Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. 

As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans.  So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation.  I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.

Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).

Utica College Selective Deploys Title IX Excuse

The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on   April Fools Day.  This year's issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette."

I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision.  To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard.  I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams.  Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense.  The statute has enough haters already. 

Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports.  That's a 17 percentage point disparity and among the most egregious I've seen in present day.  If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.

NYC Public Schools Violate Title IX With Athletic Offerings

The Department of Education's Office for Civil Rights announced this week that it has entered into an agreement obligating the New York City public schools to come into compliance after finding that the country's largest school system violated Title IX by depriving athletic opportunities to girls.  OCR had been investigating the school system in response to a 2010 complaint filed by the National Women's Law Center.

OCR found that the New York City Department of Education could not satisfy any one of the prongs in the familiar three-part test for measuring equity in the distribution of athletic opportunities.  The test allows schools to demonstrate compliance with evidence of either (a)  a distribution of opportunities proportionate to the percentage of students of each sex; (b) history and continuing program expansion for the underrepresented sex (here, girls); or (c) providing enough athletic opportunities to satisfy the interests of the underrepresented sex.

In examining the first prong, OCR found that NYC public high schools would have had to provided 3682 additional female athletic opportunities to achieve proportionality.  The second prong was also out of reach, as it was actually the over-represented sex that benefited more from program expansion, netting 125 more boys' teams that girls' teams over the time period under investigation. The Department also denied more requests to add girls' teams than boys' over the relevant period.

Finally, the Department could not satisfy the third prong, as it was unable to demonstrate that it even examined the interest level of its female students at all, let alone by any of the methods that OCR considers like surveys or participation data in non-scholastic athletics.  Moreover, the fact that the Department had denied requests from school principals seeking to add girls teams in sports like volleyball, softball, basketball, soccer, tennis, cross-country, bowling, golf, and swimming served to indicate unmet interest.

In response to this findings of noncompliance, the Department has now entered into an agreement obligating them to assess female students' athletic interests by multiple means including but not limited to surveys, and to add teams as appropriate in response to evidence of unmet interest. It must also develop a procedure by which students can formally request the addition of teams and provide Title IX training to athletic directors.

Litigation Roundup

Two separate Title IX lawsuits have been filed recently, one challenging disparities in athletic opportunities at a high school, while the other alleges a college mishandled her complaint of having been raped by a fellow student.

• A parent in Englewood, Tennessee, is suing the McMinn County Board of Education on behalf of his daughter, a freshman at McMinn Central High School who participates in softball and volleyball.  He alleges that disparities in the athletic opportunities for girls violate Title IX. In particular, he alleges that the softball team has to pay itself for field maintenance and equipment, amenities that are provided to boys' teams from the school budget.  Also, the school does not provide the softball team with a lighted field, which limits the team's scheduling options for practices and games. The complaint also notes that the boys' baseball team is provided superior quality locker rooms, dugouts, field house, storage facility, playing surface, and warm up and practice areas. The lawsuit seeks an injunction against continued discrimination and damages to compensate the plaintiff for out-of-pocket expenses and other costs. 

• A former student is suing the West Virginia School of Osteopathic Medicine, claiming that she was forced to withdraw after she reported to school officials that she had been raped by a fellow student at an off-campus party.  She alleges that school officials responded to her report by advising her to leave school, since they could not guarantee her safety. Additionally, she claims that they did not administer a drug test, leaving her on her own to discover that her assailant had drugged her with diazepam, that they failed to protect her from further contact with him, that they threatened to sue her if she spoke out, and that they breached her confidentiality. Moreover, she alleges that she experienced a sexually hostile environment after a school employee who was dating the alleged, disclosed details of the incident to the campus community.  Her complaint demands damages to compensate her for emotional distress and other costs, as well as an injunction that would require the school to do a better job responding to victims in the future by implementing drug tests and protecting them from harassment and retaliation.

And in another story, a Title IX lawsuit was partially dismissed.

• The Bibb County School District in Georgia prevailed in dismissing part of a student's Title IX claim seeking damages for a 2012 rape she suffered at the hands of a gang of fellow students who had orchestrated a plan to attack her in a school restroom.  The student alleged that two prior instances of gang rape at the school, one in 2008 and another in 2002, should have put the school on notice of the threat, one of the required elements for institutional liability to attach in cases of sexual harassment and sexual violence among peers. But the court ruled that the two earlier gang rapes could not serve as notice because they were sufficiently different, having been conducted by different gangs than the one that raped the plaintiff. In imposing this requirement for gang-specific notice, the court rejected plaintiff's argument that the school's notice of a gang rape problem in general should suffice.  The plaintiff's other argument, that the school also responded to her own rape with deliberate indifference, continues to be litigated.  The remaining claim could potentially result in damages attributable to the school's indifferent response, which itself could have been the source of some independent emotional distress. However, the dismissed claim was likely considerably more valuable to the plaintiff, as it would have made the school liable for damages arising from the rape itself.   Doe v. Bibb County Sch. Dist., 2015 WL 403320 (M.D. Ga.  Jan. 28, 2015).

OCR to Investigate University of Minnesota Athletics

The Department of Education's Office for Civil Rights will investigate a Title IX complaint directed at the University of Minnesota athletics department, according to an article in the local press yesterday. The complaint alleges that the department does not provide comparable facilities to women's programs, as evidenced by the women's cross-country and track teams' exclusion from a proposed $190 million athletic "village" that will provide facilities for football and men's and women's basketball.  The running sports, which account for almost half of the opportunities offered in women's athletics, will actually be losing their existing track to make way for the new village.  The team, along with its men's team counterpart, may even be relocated to a facility four miles away in St. Paul.

OCR's investigation would presumably focus on the overall treatment of men's and women's athletic programs in comparison to each other. At first blush, it seems problematic that the new facility will benefit a far greater number of male than female athletes and that its construction seems to be disrupting a far greater number of female athletes than male (running sports account for 227 opportunities for women and 145 for men). Depending on the level of quality of the facilities for other women's sports, however, it's theoretically possible for OCR to determine that the programs receive equal treatment in the aggregate.  We shall see what the investigation reveals.