University of Tennessee-Martin Sued by Former Volleyball Coach

I read in USA Today that Amy Draper, formerly the head volleyball coach at the University of Tennessee-Martin, has filed a lawsuit challenging her termination as discriminatory and raising other violations of Title IX.

Draper's complaint, filed in federal district court, alleges that the University and athletic department officials violated Title IX and other law (including the U.S. Constitution's due process clause) when it terminated her contract without a hearing and in alleged retaliation for her challenges to gender discrimination within the department. She says she received inferior treatment relative to male coaches in the department and that her volleyball program received support that was inferior to the other teams. When she pointed out disparities in an email to the athletic director, she was told that if she continued to make allegations of gender discrimination, he would "bring the curtain down" on her. She was eventually fired before the end of her contract and without a hearing -- ostensibly for her team's "poor performance," in contrast to many male coaches whose employment continued despite never having a winning season.

Draper also alleges that the athletic department maintains a double standard with respect to coaching qualifications. The department has hired men to coach women's softball, volleyball (her replacement), and as an assistant women's basketball coach, notwithstanding their lack of experience playing in the sport that they coach. Yet it insists that female head coaches have college experience in the sport they are coaching. This double standard is common in college athletics, so it will be interesting to see how this particular allegation plays out in the litigation.

Spotlight on Summa v. Hofstra University

A while ago, we briefly noted an ongoing sexual harassment lawsuit against Hofstra University. We had only limited details to offer at that time, but we have since received a copy of the complaint filed by plaintiff Lauren Summa (thanks, reader!). We can now provide a more information about Summa's side of the story.

In 2006, Summa was hired as a student manager of the Hofstra University football team for a one year period that would include the primary fall season and the secondary spring season. Accompanying the team to away games, she was subjected to "relentless sexual harassment" by players on every bus trip. Players teased her for having a relationship with another player, including by creating a mocking webpage on facebook.com that Summa describes as "intentionally demeaning and sexist, implying that [she] was beastly, overweight, hypersexual, and overbearing." They suggested that she and her boyfriend have sex on the bus and made other offensive comments. On one trip, they barricaded her in the bathroom. On another trip, the coaches showed a movie that contained graphic sex scenes. This prompted players to jeer at Summa, and a particular scene depicting sex between a black man and a white women promoted one player to suggest to Summa that all "white women" like her want "black dicks." Summa, crying, asked the assistant coach to turn off the movie and when he did, players objected chanting "we want boobies" and ridiculed Summa even more.

Summa reported the movie incident to Coach Cohen (as she had the facebook incident). Cohen was irritated with Summa for complaining and tried to talk her out of reporting the incident to Campus Safety, arguing that it would bring negative attention to the football team. Summa followed through on her plan to report the incident, and was ultimately put in touch with the university's Equal Employment Officer, Maureen Murphy. Murphy said that she would arrange sensitivity training for the football team, but this did not happen. One of Summa's primary tormenters, Eric Taylor, was kicked off the team for reasons unrelated to harassment. Yet Taylor continued to torment Summa throughout the winter, accusing her of causing his dismissal from the team.

At the beginning of the spring season, Summa reported to work, only to find that Coach Cohen had hired a replacement for her. He told her that he presumed she was not interested in continuing with the position. Summa alleges that this presumption, contrary to custom and to her understanding with Cohen that she would work the whole year, was retaliation for complaining about harassment. The retaliation continued when Summa's offer to work for the University Relations Office was rescinded soon after Summa filed a complaint about the football incident with the state division of human rights.

Summa filed suit in federal district court, alleging that both the underlying harassment and the retaliation she experienced for reporting it violate both Title VII, Title IX, and New York's Human Rights Law. She seeks damages and an injunction against Hofstra's similar conduct in the future.

While we don't know if Hofstra will seek dismissal, attempt to settle, or proceed to trial, it should be factoring in the plaintiff-favoring trend in recently sexual harassment decisions involving college athletics -- including this case against the University of Colorado, this case against the University of North Carolina, and this case against the University of Washington, as well as the big jury verdicts in the retaliation cases against the athletic department at Fresno State.

NCAA Releases Figures on Salary Disparities in Coaching

USA Today reported last week that 2006 salary statistics recently released by the NCAA confirms that people men who coach men's sports earn more than people who coach women's sports. And among schools with big time football programs, they earn way more. The average salary for a Division I-A women's lacrosse head coach is $80,200, while head coaches of men's lacrosse in that same subdivision earn, on average, more than twice that amount -- $165,400. The gender gap was less pronounced among non-BCS subdivision Division I schools ($69,400 to $55,900 in DI-AA and $64,000 to $53,000 in Division I-AAA) but significant nonetheless.

The sidebar graphic itemized average salaries in other sports as well:

Sport	Men	Women
Gymnastics	$107,400	$91,700
Soccer	$93,900	$90,700
Tennis	$87,200	$71,300
Track	$62,100	$63,600

One explanation for the higher salaries among men's lacrosse coaches is the larger roster size for men's lacrosse teams. In fact, salary differentials are not unlawful if they are based on nondiscriminatory factors such as squad size. Yet it is clear that there is more than squad size driving up the relative salaries for men's lacrosse coaches. Because if the size of the salary was tightly correlated to the size of the team, we would see women's track coaches outearning men's track coaches by a similar order of magnitude (instead of only ~2% more). It's likely that other factors are entering into the equation, and it's hard to ignore the likelihood that sexist assumptions about the relative value of men's sports is coming into play.

Women's Wrestling in Demand at Colleges

Today's New York Times reports on the demand for college wrestling programs for women, driven in part by the inclusion of women's wrestling as an Olympic sport since 2004. The article notes that over 5,000 girls wrestled in high school in the 2006-07 school year, but that only eight colleges offer varsity-level women's wrestling teams, and that three of those eight have started in the last year.

Some of the new programs are being developed by small colleges that see women's wrestling as a way to increase revenue through tuition dollars of student-athletes who would probably have chosen a different college but for the existence of a wrestling program. The article then speculates as to why women's wrestling has not gained more traction with larger colleges. One thought: (you guessed it!) Title IX. Mike Moyer, executive director of the National Wrestling Coaches Association and a "critic of Title IX," asserts that colleges have limited resources, and because wrestling is a sport with a team roster of only 20-30 students, if a college is trying to increase the participation numbers of women to comply with the proportionality prong of Title IX, it would likely choose to support a sport like rowing, which can carry a roster of up to 60 people.

Terry Steiner, USA Wrestling’s women’s national coach, and Michael Burch, an assistant men’s wrestling coach at Brown, offer a different explanation: colleges not feeling entirely comfortable with having women play such a high-contact, injury-prone sport. Burch notes, “In general, there’s this resistance to the personification of women as aggressive....We’re O.K. with women who can work hard and hustle out on the field.” Wrestling, he adds, is “another step in the evolution of egalitarian thinking.”

Empirical Study on Gebser's Effect on Sexual Harassment Cases

In 1998, the Supreme Court held in Gebser v. Lago Vista School District that educational institutions could be liable for sexual harassment by its employees only when the institution responded with deliberate indifference to ongoing harassment about which it had actual notice. In the current issue of the Richmond Law Review, student author Justin Paget evaluates the claims of Gebser's critics that the Court's refusal to apply a vicarious liability standard foreclosed remedial options for victims of sexual harassment in an educational setting. Paget compares the the number of times lower courts granted schools' motions to dismiss sexual harassment claims in two one-year periods, one pre-Gebser and one post-Gebser period. He observes that the dismissal rate did not dramatically increase with the adoption of the actual notice/deliberate indifference standard: schools won 10 out of 25 (40%) of their motions to dismiss in 1997-1998 (pre-Gebser) and 15 out of 29 (51.7%) of their motions to dismiss in 2006-2007 (post-Gebser). While it's clear that Gebser has some affect on the likelihood of plaintiffs surviving summary judgment, Paget concludes that this data -- namely, that post-Gebser, plaintiffs still survived motions to dismiss 48% of the time -- challenges the critical assumption that Gebser had a serious affect on the outcome of sexual harassment cases.

Interesting observation, but I wonder if these results are potentially explained, at least to some extent, by Gebser's deterrent effect on potential plaintiffs who would have sued had the Court adopted a vicarious liability standard instead. Since these additional phantom plaintiffs would have also presumably lost at the pleading phase in the post-Gebser era, Paget's 51.7% victory rate for schools may be artificially low.

Student Argues Against Title VII's Application in Title IX Sexual Harassment Cases

In an interesting Comment in the Maryland Law Review, student Michael Buchwald argues that, owing to statutory differences and contextual differences between education and employment, it is inappropriate to import Title VII's "severe and pervasive" standard for employer liability to harassment cases in the education setting. Buchwald makes the case that Title IX requires educational institutions to "take a more proactive approach in identifying and prohibiting sexually harassing conduct" than Title VII requires of employers. Moreover, such proactivity is warranted "because of the trust and natural imbalance of power that exists in the teacher-student [and coach-athlete] relationship." He points out that relaxing the burden in this way "will not overly expose educational institutions to liability" because educational institutions would still only be liable for their own failure to act appropriately in response to notice of ongoing harassment.

Citation: Michael Buchwald, Sexual Harassment in Education and College Athletics: A Case for Why Title IX Sexual Harassment Jurisprudence Should Develop Independently of Title VII, 67 Maryland Law Review 627 (2008).

AAUW Report Debunks "Boy Crisis"

The American Association of University Women released this study on Tuesday about gender differences in educational achievement. The study, titled Where the Girls Are: The Facts About Gender Equity in Education, examines girls' and boys' performances on national standardized tests and other academic indicators. Its conclusions largely debunk the "boy crisis" we've been hearing so much about. Here are some of its major points:

• Like girls' test scores, boys' scores are on the rise, a fact that by itself challenges the misperception that girls' academic success is coming about boys' expense.
  

• Though college students of nontraditional age are predominately female, men and women who enroll in college right of out high school are doing so at relatively equal rates.

• Differences in race and family income correlate significantly with disparities in test scores, while test score differentials between boys and girls vary with race, family income, and subject matter. For example, the general claim that girls outperform boys on standardized reading test is only significant with respect to white students. Boys outperformed girls on the math and verbal sections of the SAT, but this advantage is concentrated largely among students of lower income.
  

• When gender is viewed in isolation of other factors, the gaps that do exist are small and long-standing. For example, while girls do better on standardized reading tests, this has been the case since the test was first administered in 1971! And for the last 30 years, that gap has either narrowed or stayed the same. Moreover, this advantage favoring girls is limited to standardized reading tests, as boys enjoy a slight edge on standardized math tests and on both sections of the SAT.
  

The absence of evidence that boys are suffering across the board, and the existence of large discrepancies by race and family income, show that recent efforts at educational reform in the form of single-sex classrooms is misdirected. Single-sex education is problematic not only because it unnecessarily imposes gender segregation that perpetuates stereotypes about appropriate interests and behaviors among boys and girls, but also because it diverts support and attention from the African-American, Hispanic, and low-income children whose education actually is at risk.

Via the New York Times and the National Women's Law Center blog.

FGCU Files A Lawsuit of Its Own

The National Law Journal has this account of Florida Gulf Coast University's efforts to enjoin former general counsel Wendy Morris from releasing information about the university that it claims is protected by the attorney-client privilege. Morris, we've noted, filed suit against FGCU in April, claiming that she was discharged in retaliation for encouraging the President to investigate allegations of Title IX violations within the university.

Experts interviewed by the Journal say FGCU's case is weak because the Florida Bar Rules of Professional Conduct contain an exception to the attorney-client privilege rule for lawyers who are suing their former employers or need to defend themselves. To qualify for the exception, Morris need only show that the information she's revealed in her complaint or other public sources is "germane to her suit" -- as opposed to extraneous information whose only purpose of to embarrass FGCU.

I've read Morris's complaint, and while all it says should embarrass FGCU, it's certainly germane to her retaliation suit.

What people are saying: Arizona State

Even as classes wind down and students head back from whence they came [unless you're on the softball team in which case you're headed back to campus to host a Super Regional (congratulations!)], the discussion at Arizona State over the recent athletic department cuts heats up.

The inevitable back and forth has begun. Unlike other institutions (ahem, JMU), ASU is not blaming Title IX for the cuts. As I said a week ago, school administrators have cited budget reasons for the cuts. And in keeping with federal law, ASU cut sports in a way that did not further disadvantage women. And some people see this (though this article cites equity as distribution of scholarships only). But others are talking vaguely about "interpretation." An interpretation that at least one guy thinks has become a "de facto quota system." Well no. ASU does is not in compliance with prong 1--which is what I assume he is referring to with the quota system comment. That means when a school chooses to comply with prong 2 or 3 (we're not sure which ASU cites) it cannot cut a viable women's team because it would result in (prong 2) not expanding the women's program or (prong 3) not meeting the interests and abilities of the underrepresented sex.
There is also evident a certain amount of fear about the future as the percentage of women attending college continues to grow. The "predicament of athletic directors...becomes ever more impossible" allegedly.
This sentiment and also this short piece, that initially seems to express support, indicates some problems in people's thinking. Erin's post yesterday about accounting practices addresses one of the issues briefly brought up: cost of adding women's teams. Athletic director Mark Brand noted to a reporter that the addition of women's soccer in 1996 and women's water polo in 2002 brought the department into compliance but "hurt the department economically" according to the article. Anyone want to guess the costs associated with recruiting and keeping an ASU football player versus a female soccer player? Or the costs of their respective facilities?
The commercial mindset (so intertwined with the patriarchal one) results in the idea that it's a "predicament" when women want to actually get their share of the resources of (some of which they pay for through tuition and fees) and benefits from an educational institution.
So when a male wrestler asks if not cutting a women's team is "a Title IX thing"? You can say, yes--it's also known as fairness. Isn't that one of things athletes are allegedly learning through sports--the concept of fair play?

NCAA Releases Report on Athletic Department Profitability

The Chronicle of Higher Education reported last week that the NCAA has released a report on the finances of college athletic departments. The report is notable because it is the first time the NCAA has broken out "allocated" revenue (money the department gets from the institution itself) from "generated" revenue (money that it gets from outside sources, such as ticket sales and private donations) in reporting on the profitability of athletics. Past NCAA reports as well as government data fail to make this crucial distinction, and this fuzzy accounting has obscured the true cost of college athletics.

When you don't count institutional subsidies as revenue, only 17 out of 300 Division I program (5%) were profitable during the 2004-2006 period that was the scope of the study. 16 of these programs were in the Football Bowl Subdivision (formerly, DI-A). Moreover, DI institutions' expenditures rose an average of 23%, outpacing the increase in revenue, which rose 16%.

Why is this important and what does this have to do with Title IX? The new report is important because it begins to dismantle the common misperception that college athletics can generate "profit" for the institution, which is to blame for the epidemic of profit-seeking that has unmoored college athletics from its educational mission. Among other problems the commercial mentality has caused (commodification of athletes, low graduation rates, etc.) it has also incited an arms race of spending on state of the art facilities and other amenities that are designed more to help recruiting than to contribute to a meaningful student-athlete experience.

To be sure, some of this spending trickles down to sports that do not operate in profit-seeking mode, a category that includes nearly all women's sports. The Chronicle gives some examples "state of the art facilities for sports that have no chance of recouping the costs of those structures" like softball, swimming, and soccer. This statement illustrates the problem with the commercial mentality of sport and why it is bad for women. The ability to "recoup costs" is inconsistent with not-for-profit, educationally sponsored athletics. This irrelevant consideration also results in a spending bias against sports that happen not to appeal to the public, which, unfortunately includes nearly all women's sports. The so-called profit sports still receive the lions share of the money. And the minority of funds that do wind up in "state of the art softball fields" are usually blamed as the sole source of economic strain that causes universities to cut teams, a burden borne largely by men's teams (but only because women are underrepresented in the first place). This situation creates backlash against Title IX and women's sports and alienates women's sports from its natural allies in men's sports like wrestling.

I have no optimism that colleges will change their paradigms out of concerns for the educational mission of sport. But rational administrators, confronted with the reality of the low likelihood of turning a profit, should think twice before entering into or sustaining a commercial mentality. Athletic departments need to accept their role in not-for-profit education, and spend accordingly --in a manner proportional to the value of sports to the students themselves, sacrificing "state of the art" in select sports in order to more equitably support a wider array of student-centered athletic opportunities.

Retaliation Cases Make Page 1 of USA Today

Tuesday's edition of USA Today raised the public profile of several retaliation cases we've followed extensively on the blog. The primary piece focused on the Fresno State plaintiffs -- Lindy Vivas, Diane Milutinovich, and Stacy Johnson-Klein -- whose lawsuits generated multi-million dollar verdicts and settlements in the past year. The article calls the Fresno State cases "part of a series of lawsuits that have landed before courts since the U.S. Supreme Court ruled in 2005 that whistle-blowers who allege retaliation in Title IX cases can sue for monetary damages." Along with other, similar cases "from Hawaii to Florida" they "reflect the ongoing tension over the law that bans sex discrimination at schools receiving federal funds."

Other, related pieces provide a timeline of events at Fresno State, a focused piece on the discrimination Lindy Vivas experienced at Fresno State, a separate article about Johnson-Klein's trial and astounding jury verdict, and an interview with Karen Moe Humphreys, the former Berkeley swim coach whose retaliation case settled for $3.5 million, and an article about a gender equity complaint against the University of Southern California that has been under investigation for 10 years.

[thanks, D.C.]

Henin and Sorenstam Retiring

Tennis star Justine Henin and golf star Annika Sorenstam both recently announced their retirements. The story was covered today on National Public Radio's Morning Edition, with the commentary that although the sports of tennis and golf will miss these two athletes, the advent and success of Title IX has ensured that there is no dearth of exceptional women athletes coming up through the ranks in these two sports (or a host of other sports, I would add).

NYT Profiles Women's Football

Women play football. If you didn't know that, read yesterday's New York Times.

In fact, there are more than 80 tackle football teams for women, all across the country. Many are affiliated with either the Independent Women's Football League or the National Women's Football Association.

The Times article profiles Jennifer Blum, who has played for the IWFL's New York Sharks since the team's inception in 2000. Blum is a New Jersey attorney, a former American Gladiator, and a 2002 alumna of Western New England College School of Law (how I wish that last fact had made it into the article!) As a kid, she fought and won a lawsuit to be able to play on the boys' all star community soccer team. Blum and her teammates seem aware of their role model status, working with the NFL's New York Giants to offer football clinics for girls. Blum's teammate, QB Karen Mulligan says they are "letting younger girls know this is something they can do."

And indeed, girls legally can play football -- though, technically, Title IX exempts schools from letting girls go out for boys teams in contact sports. But there are judicial decisions that rely on the Constitution's Equal Protection Clause to require community and other publically-sponsored football programs to let girls try out for boys' teams. Moreover, under Title IX, a school that does not offer athletic opportunities to girls in proportion to their enrollment (and most don't) can't easily turn down a request from female athletes to start a new team when there is sufficient interest and ability among the students and a reasonable likelihood of competition. The reasonable likelihood of competition would be an obstacle at first, but once the idea catches on in a few places, schools can no longer use that as an excuse. This scenario doesn't seem far fetched to me, as girls' lacrosse and hockey -- both nonexistent here in New England fifteen years ago when I was in high school -- seem to have followed this very pattern.

Could football be next? For those who hope it is, it certainly helps that there are women like Blum who are playing football, sharing their love of the game with girls, and receiving coverage in the New York Times. Now if only we could watch the Sharks play on ESPN...

[thanks, Sam!]

Arizona State budget issues lead to cuts

In an effort to fully fund and support its student-athletes and sports teams, ASU has decided to cut three sports: men's tennis, wrestling, and swimming. ASU had been carrying 22 sports--quite a few for a big-time DI program. Now they are down to 20 (they are keeping men's diving which had been combined with the swim team). The decision seemed swift and firm--probably a good thing in stemming backlash--though signs indicate that an uproar is inevitable. The VP of Athletics decided that cutting teams was preferable to taking away bits and pieces from all teams. No one has ruled out the possibility of the cut teams raising enough money for endowments but in an effort to be fair to student-athletes and give them an opportunity to transfer, the department opted to announce the cuts before fundraising began.
No one at ASU has mentioned Title IX. And rightly so. But members of the local wrestling community have already spoken out and blamed Title IX.
Said one wrestling booster who was particularly irate because he had hoped that ASU would never use Title IX as an excuse to cut wrestling (they haven't, by the way), "all these schools have a book on how to drop sports."
I wonder if that book includes instructions on how to deal with all the anti-Title IX backlash.

Vaughn Joins Lawsuit Against FGCU

It is only our good taste that keeps us from keeping a little thermometer icon in the corner and raising the mercury every time someone files a gender discrimination lawsuit or complaint against Florida Gulf Coast University.

The Trial Lawyers for Public Justice announced yesterday that former women's golf coach Holly Vaughn has joined Jaye Flood's pending lawsuit against FGCU. Like Flood, Vaughn alleges that she was retaliated against for pointing out athletic department's favoritism of men's sports and male coaches. Vaughn complained about such disparities in such things as office space, the autonomy to select assistant coaches, and the option to accept more duties in exchange for full time status. According to the complaint, Athletic Director Carl McAloose told her, "If you don’t like it here, you can get the hell out." Then, after Vaughn assisted former Interim Athletic Director Merrily Dean Baker gather and present evidence of systemic discrimination within the department, she received a negative performance evaluation, whose baselessness was corroborated by an external investigation. The conditions of her employment forced Vaughn to resign last fall.

Between this lawsuit, that of former general counsel Wendy Morris, and a grievance by former assistant softball coach Gina Ramacci, the tally in our imaginary thermometer is at four. Do I hear five?

The media support that Title IX doesn't really need

We comment on quite a few editorials that invoke Title IX. And we let, believe it or not, many just go by with a sigh and a shrug.
But our very patient colleagues at the John Curley Center for Sports Journalism at Penn State have poured through three years worth (2002-2005) of editorials on Title IX in a recent study on how writers discuss and frame the law and its application.
The findings should not surprise anyone who is paying any attention. Despite the liberal rhetoric, despite what looks like support for gender equity, many editorialists continue to frame Title IX as beneficial to women and girls (that's the "support" part) but detrimental to men and boys. And as the study's authors state, such "faulty assumptions" will have long-term (and I would argue short-term as well) effects on the viability of the law.

NYT on Girls and Sports Injuries

The New York Times magazine devoted its main story this week to the rate of injuries for girls playing sports such as soccer, and how the injury rate is startlingly higher than that of boys. It's a long and interesting article that offers a lot to discuss, and this blog post is just a starting point for discussion of the piece and the issues that it raises.

The article focused largely on high school girls playing soccer, and how the rate of serious knee injuries is about five times than of boys. The article explains some of this differential through the biological changes that occur when girls go through puberty, such as ligaments becoming looser in order to afford the body more flexibility, which in turn leads to knee and ankle injuries at higher rates than for boys, whose ligaments are more rigid, which helps keep muscles and bones in place. There also seems to be a growing concern over these injuries as the number of girls and women playing high school and college sports has increased dramatically in the last 35 years since Title IX has been in effect.

Overall, I thought the message of the article was a good one -- if girls are engaged in sports that boys have traditionally played, and the play of those sports requires movements and motions that are perhaps geared toward the way boys' bodies often develop, then we should be aware of the potential for higher injury risk to girls and take preventative measures, such as specific warm-up exercises that have been helpful to strengthen the knees and improve form, to try to reduce risk of injury.

My concerns about the article relate to its premise that people are either blindly pushing for girls to play sports to "even the playing field" with boys, without regard to potential injury risks (described in the article as "hard-liners"), or they are concerned about girls' health and want attention drawn to the disparity in injury rates. What about having it both ways? There are many of us who would like to see more encouragement, support and opportunity for girls and women to play sports, AND who would like to see more health research regarding injury rates and better ideas to prevent those injuries.

The second concern is related to the tone of the piece. The cover art, of a girl with a bandaged head being bonked on the head with a soccer ball, with the words "Hurt Girls" above it, seems to diminish the female athletes, and at the same time not give a second thought to boys who suffer serious injuries in sports. I am a firm believer that health research ought to take gender into account, when appropriate, to analyze problems and develop potential solutions, and we shouldn't just lump knee injuries for boys and girls into the same category when there's evidence that the problem ought to be treated differently. However, the article seemed to be editorializing as to whether it was appropriate for girls to play "rough" sports where they might get hurt, whereas we accept the idea that boys "play rough" and that their injuries are just part of the game (another NYT article discusses the knee injuries of professional football players, and how it's just the price that athletes pay for being able to play the game they love).

Coeur d'Alene High Schools Violate Title IX

Last fall we noted that OCR had reopened an investigation against the Coeur d'Alene (Idaho) school district after an anonymous complainant came forward with new evidence to support a previously dismissed claim of Title IX violations in athletics. We said, "the administrators in Coeur d'Alene seem confident this new information will not alter the initial finding of compliance."

Turns out the administrators were wrong. The Coeur d'Alene Press reported Friday that OCR has determined that the district violates the Title IX requirement that schools provide an equitable number of athletic opportunities to boys and girls, as measured by one of three prongs. The district is not eligible for compliance under the first prong, substantial proportionality, because the percentage of athletic opportunities for girls (39%) is much less than the percentage of female students (48.4%). The district did not satisfy the second prong, which requires a history and continuing practice of expanding athletic opportunities for girls, as the last time a girls' sport was added in CDA, someone named Carter was president. Last, the district failed the third prong because both high schools in the district turned away girls from the volleyball program in sufficient numbers to have fielded another, competitive team. Under prong three, when girls are underrepresented in athletics and when the school has not been proactive about adding girls sports, the school is obligated to ensure that there are at least as many opportunities for all the girls who are interested and able to play competitive sports. The disappointed volleyball players prove that the district had not done so.

OCR's report also contained a finding that the district does not provide adequate support to the girls' swim teams at CDA and Lake City High Schools.

The district has until May to voluntarily comply. The article notes that one of the high schools has already added another volleyball team, so the district is perhaps taking steps in the right direction.

[thanks, H.]

McCain gets another "fact" wrong

Not much attention is being paid to John McCain's campaign these days. But occasionally we get to hear about some misinformation the Republican candidate for president has been perpetuating, usually involving some confusion over Iran versus Iraq. But this time he's really done it:
The U.S. Department of Education under President Clinton took liberties in interpreting the law and without debate determined that universities must fund men's and women's sports programs in proportion to the ratio of male to female students, or else lose federal funding for any part of the university including financial aid. In doing so, the adverse consequence of this interpretation unfortunately has been that many schools have adopted policies of strictly equal funding for male and female athletic programs. Unfortunately, many popular athletic programs have been cut because the overall amount of funding available for athletics programs will not sustain identical men's and women's programs in every sport.
This wasn't even an on-the-spot response at a news conference. USA Today writers posed the same questions to each of the remaining candidates. I guess, as I have pointed out so many times before, if sports writers across the country cannot accurately explain Title IX, it shouldn't be expected that the guy who wants to be the next leader of the country can either.
I would really like to ask McCain to list all the athletic programs that equally fund their men's and women's athletic programs. Most athletic programs do not even obtain a 50/50 split let alone a proportional one, which, technically, is okay because THAT'S NOT WHAT TITLE IX CALLS FOR nor has that ever been the interpretation under any presidential administration.
What the other candidates had to say: Obama supports the High School Sports Information Collection Act, does not support the survey policy, and believes the growing number of complaints filed with OCR is indicative of ongoing sex discrimination. Clinton's answer was a little more nebulous. She supports the continued enforcement of Title IX and disagrees with the survey policy.

PA whistleblower revealed

A few weeks ago I wrote about the then-anonymous Title IX complaint against Central Bucks School District in Pennsylvania. The superintendent, Robert Laws, was somewhat confused over who would do this and why.
Well all has been revealed. Robert Landau filed the complaint alleging inequities in facilities, practice and game scheduling. Landau is not a parent of an athlete or a former athlete in the district. He is not a coach, teacher, or administrator. He doesn't even live in the district. He is just a man who believes that women's and girls' sports, of which he is a fan, should get equitable treatment. Last year he filed complaints in two other PA school districts.
Landau began his activism in 1994 when his favorite girls' basketball team, Cheltenham, played their championship game in the high school when the boys' game was played in an arena. He got a court to issue an injunction against the boys' game and the district gave in after only three hours and agreed to hold the girls' game in the same location.
And he has been a fan and advocate ever since.

OCR has met with district representatives who have until July to file a report that will be used to evaluate their compliance.

OCR Investigation Clears Scotts Valley

In December we noted that the Office for Civil Rights was investigating alleged Title IX violations at Scotts Valley Unified School District in California. An anonymous person had complained that the high school was violating Title IX by providing female athletes, including softball players, with inferior equipment, facilities, scheduling and coaching.

Yesterday, OCR released an investigation report in which it concluded that Scotts Valley was not in violation of Title IX. According to the Mercury News, the report acknowledged "individual instances of disparities favoring males or females within the athletic program" but determined that on the whole, they "do not show a pattern of disparities or 'second class status' for either gender." For instance, "while some teams had more or better equipment and supplies, and some sports used more athlete-owned equipment, these differences were not based on the sex of the athletes. While more boys teams had full sets of uniforms than girls teams, more girls teams had warm-ups and bags than boys teams."

Regarding a separate claim that Scotts Valley should have added a freshman girls soccer team, OCR concluded that, since there was no "reasonable expectation of competition within the normal competitive region," the school did not run afoul of prong three, which measures compliance by the absence of unmet interest on the part of the underrepresented sex. It also apparently noted that the high school has a history of (in the reporter's words) "supporting expansion of athletic opportunities for girls' teams by approving new sports when there were enough students to support a [competitive] team." I'm not sure if this means that OCR found the high school to alternatively comply with prong two, which measures compliance by a history and continuing practice of expanding opportunities for the underrepresented sex. If so, this seems like a pretty watered down version of prong two, which I always understood to require schools to take a more active role in developing new opportunities that just waiting to be asked by an already-existing team.

Researchers Find Rampant Peer Harassment

The New York Times reported last week that more than a third of middle- and high-school students may be victims of sexual harassment by their classmates, according to a new study in the journal Sex Roles. The researchers also determined that sexual harassment takes an even stronger "emotional toll" on students than bullying -- a more visible and frequently-occurring form of peer abuse. Girls and "sexual minorities" -- openly gay students or those perceived to be gay -- are particularly susceptible harassment and its adverse health effects.

Title IX Sex Abuse Trial Underway in Texas

A Title IX trial commenced today in the federal district court for the Western District of Texas. The plaintiff is a former student at Bowie High School in Austin. He is suing the high school, the Austin School District, and a former color guard instructor named James Johnston, alleging that during the 2003-04 school year, Johnston made "made offensive physical contact" with him at the school and other locations, and that school district officials failed to protect him from this risk of which they should have been aware. According to the Austin Statesman-American, the school district defends that it was not aware of the student's accusations. Thus, the focus of the trial should be one who within the district knew what about Johnston and when.

See also the Houston Chronicle's coverage here.

Conference in India: Save the Girl Child

Last week, India's Ministry of Health and Family Welfare convened a national conference to "Save the Girl Child." Among the topics addressed at the conference were equal educational opportunities for girls and boys, promoting the physical and mental health of girls, and curbing the practice of sex-selective abortion (which is illegal in India, but practiced by some in order to abort female fetuses).

On the topic of promoting educational opportunities for girls, the conference organizers discussed a new government program, Dhan Laxmi, that aims to pay families who fulfill certain benchmarks for their daughters -- including getting the recommended course of childhood immunizations, completing a high school education and holding off on marriage until at least the age of 18.

Female Wrestlers' Discrimination Claim Dismissed for Lack of Notice

Now that last week's decision in the U.C. Davis wrestling case is available online, I can offer the fuller analysis I promised.

The background, briefly, is this: In 2000, U.C. Davis decided that women would no longer be eligible to participate on the wrestling team. The female wrestlers sued, alleging discrimination by the athletic department in the overall treatment of women's athletics (in terms of scholarships, access to facilities, coaching, etc.) and failing to effectively accommodate female students with an equitable number of opportunities to participate in athletics (the three-prong test). Last year, the unequal treatment claim was dismissed as untimely in an application of the Supreme Court's controversial Ledbetter standard.

Last week, the district court dismissed the remaining ineffective accommodation claim because "plaintiffs have not alleged they gave defendant notice and an opportunity to remedy any purported systemic non-compliance with Title IX." The district court relied on a 1998 Supreme Court decision, Gebser v. Lago Vista School District, which emphasized that an institution could not be liable to a private plaintiff for money damages unless it had notice of the discrimination the plaintiff faced, and an opportunity to fix the problem.

Gebser was, of course, a sexual harassment case, and its applicability in athletics context is questionable. If a plaintiff is harassed by a teacher or another student, the discriminatory conduct that can attributed to the institution itself (and thus, subject to Title IX) is its failure to take appropriate steps to protect the plaintiff and prevent the harassment from continuing. It makes sense to emphasize the notice requirement in that context, since an institution can't reasonably be expected to prevent someone else's harassing behavior if it doesn't know about it.

In the athletics cases, however, plaintiffs are alleging discriminatory conduct in the form of institutional decisions to configure its athletics program in a certain way. It doesn't make sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions.

The district court cited one other case that applies Gebser's notice requirement against Title IX plaintiffs in the athletics context. That decision is Grandson v. University of Minnesota, 272 F.3d 568 (8th Cir. 2001). But from what I can tell, that is the only other one. I hope the plaintiffs appeal this decision. Perhaps we'll see a circuit split.

Decision is: Mansourian v. Board of Regents of the University of California at Davis, 2008 WL 1860031 (E.D. Cal. Apr. 23, 2008).

Alhambra High School Softball Team Celebrates New Field

Four years ago, softball players at Alhambra (California) High School sued the Alhambra School District, challenging the disparity between their crappy softball field and the boys' new $900,000 baseball complex as a violation Title IX. After two years of litigation, the District settled, agreeing to construct a two new softball fields with "the same amenities and maintenance as the baseball fields" available to the boys.

On Tuesday, the softball team finally played their first game on the new field. The original plaintiffs, their lawyers, and school officials were all in attendance for a special ceremony to open the new field. KABC in Los Angeles covered the story on the evening news.

According to their lawyers at the California Women's Law Center and the Legal Aid Society-Employment Law Center, Cruz v. Alhambra School District was the first high school Title IX case in California.

New Study: Co-Ed Classrooms Benefit All Students

A new study conducted by Prof. Analia Schlosser at Tel Aviv University concludes that co-ed classrooms benefit both girls and boys by improving the classroom environment and the academic achievement of students.

Schlosser, an economist from the Eitan Berglas School of Economics at Tel Aviv University, found that "both boys and girls do better when there are more girls in the class.” She investigated girls and boys in mixed-sex classrooms in the elementary, middle, and high-school grades of the Israeli school system.

Schlosser was inspired to conduct her study after the U.S. Department of Education amended its regulations to allow for more single-sex educational options that would not (in the view of the administration) run afoul of the purpose of Title IX. Schlosser's ultimate conclusion? Boys and girls may learn differently, but American parents should think twice before moving their children to sex-segregated schools.

Male coaches feel "discrimination"

Women's Hoops Blog links to this article about the larger implications of the search for a head women's basketball coach at University of South Carolina. The writer turns it into a battle of the sexes--a battle that men are allegedly losing because they comprise less than 50 percent of the head coaches of women's intercollegiate basketball teams and because there seems to be a trend toward hiring women for head coaching positions over more allegedly experienced male coaches.
Cry me a river. I'm sorry. I promised I would try to hold back the snarkiness but this is just ridiculous. And that Pat Summitt thinks that men should be fighting against the discrimination women faced for so many years is more than disappointing. How much longer does the winningest coach in collegiate basketball have to kowtow to the establishment? It's almost somewhat ironic given that she makes the point that should be at the forefront of this issue: “A lot of consideration should obviously be given — if abilities are equal — to women because we don’t have the same considerations if we apply for a men’s job. So, our only avenue in the women’s game, as women, is to try and put ourselves into position to be head coaches.”
What never gets questioned is the rhetoric around "equal abilities" and the "best candidate" as if these are somehow objective standards not at all influenced by our beliefs around gender, sexuality, and the meaning of sport.
USC AD Eric Hyman talks about his desire to hire a woman but that sometimes qualifications hold him back:
“All things being equal, I would want to hire a woman,” Hyman says. “All things being equal, I would want to hire a minority. All things being equal, I would hire a South Carolina graduate. I’ve always been that way.”
Hyman pauses and adds the proverbial “but.” He says he does not want to hire a minority who is less qualified than a woman, or a woman who is less qualified than a man.
“Maybe it’s not the politically correct thing to do, but it’s principles over politics,” he says.
The problem is that all things are not equal--and they never have been. These qualifications that everyone seems to think are standardized are difficult to obtain when all things--very few things in fact--are not equal.
And I wonder about this notion that principles supersede politics. Your principles should be informing your politics. And if your principles are based around the notion of winning the game at all costs then of course things like gender and racial equity look like mere "politics."

West Virginia Parents Sue for Gender Equity

Parents in Mercer County, West Virginia have filed a lawsuit in federal district court against the Board of Education, alleging that inferior athletic opportunities for female students at Princeton Senior High School violate Title IX. The Bluefield Daily Telegraph reports that the complaint cites discrimination in the distribution of equipment and facilities like pitching machines and batting cages, uniforms, travel, access to coaching staff, and "other specific complaints." One example noted in the article is that boys' uniforms -- and in the case of football, even shoes -- are provided by the school, but softball and volleyball players must pay or fundraise for all or some of their gear -- including the tape to mark the volleyball court.

Coach Jackson Fights On

After the Supreme Court confirmed in 2005 that Title IX prohibits retaliation against a coach who advocates for gender equity on behalf of his team, the defendant in that case, the Birmingham Board of Education, eventually settled with the plaintiff, former girls basketball coach Roderick Jackson. However, according to Coach Jackson, the Board has not been living up to its obligations under the settlement agreement. The Birmingham News reports that Jackson filed a motion in federal district court last week asking the judge to find the Board in contempt.

Jackson argues that, contrary to the Board's promise in the settlement agreement, female athletes at Jackson-Olin High School (and likely, other schools in the district) are still receiving inferior athletic opportunities, as measured by things like transportation, uniforms, and access to facilities.

The settlement agreement also obligated the Board to produce a Title IX compliance report. But Jackson maintains that the report is incomplete for failing to compare the financial resources provided to girls and boys sports. (The district's excuse, that it doesn't keep track of donations by "outside sources," sounds suspiciously like the "booster club made me do it" excuse we've heard many times before.) The report was also flawed, says Jackson, for only comparing the numbers of sports offered to boys and girls -- a meaningless statistic in terms of Title IX compliance -- rather than the number of athletic opportunities offered to each sex. Moreover, since Jackson-Olin High School does not satisfy that aspect of Title IX by statistical proportionality (55% of the student population is female, but receive only 36% of athletic opportunities) the report should have explained whether the district is in alternatively in compliance under one of the other two prongs.

Last, the article reports that while the settlement agreement required the Board to reinstate Jackson as head coach, Jackson is currently not serving in that position. Jackson claims this is a result of ongoing discrimination against female athletes and retaliation against him. Jackson reportedly resigned around the time of the settlement, out of concerns that his litigation was a distraction to his team. He rescinded his resignation 8 days later, and even though the Board hadn't acted on it, it refused to rehire Jackson back for the remainder of the season. Nor was he rehired for the position when it was posted for the following school year. Instead, the Board hired a football coach who some players and parents say was "treated them disrespectfully, had little basketball knowledge, and made football his priority."

Different fight for season change

In Nevada, a father of a high school soccer player has filed a suit attempting to prevent the Nevada Interscholastic Activities Association from moving girls' soccer from the winter to the fall. Only the southern half of the state has girls' soccer in this non-traditional season and the NIAA has wanted to change this for some time now in order to create a state championship in which all schools can compete.
But this father has alleged the move would be a violation of Title IX because it would mean reducing the number of sports available to girls in the winter season. And the school board seems to think this is a legitimate concern.
But if the districts in which soccer is played in the winter have not created an equitable number of opportunities for girls, switching seasons is not going to matter. It is number of opportunities--not how many exist in each season or whether the same girl can play more than one sport. The parent of the soccer player seems to be motivated by the latter. His daughter plays both soccer and volleyball--both traditional fall sports. She would have to choose if soccer moved. But the overall number of opportunities would not change assuming all teams were able to attract enough players to remain viable.
Furthermore, as we have seen in Michigan most infamously, but elsewhere, courts have viewed the scheduling of girls' sports in non-traditional seasons to be a violation of Title IX. The parents and other concerned folks in Nevada who see it the other way around will have trouble making their case should it become a legal battle.

UC Davis Wrestling Lawsuit Dismissed

Until I can find a copy of the decision to read, UC Davis's press release is going to have to do...

A federal judge has ruled in favor of the University of California, Davis, in a Title IX case filed by four women who wanted to be on the intercollegiate wrestling team.

In an order issued Wednesday in Sacramento, the court held that the plaintiffs in Mansourian v. Regents of the University of California failed to give the campus notice that they were making an allegation against the entire women's intercollegiate athletic program. The plaintiffs had changed the focus of their lawsuit to allege Title IX violations in the overall program after the court dismissed their claims pertaining to the wrestling team last October, finding them to be untimely.

A prior post on the Mansourian case is here.

NYC Schools Contemplate Fall Season for Girls' Soccer

In New York City's Public School Athletic League, girls' soccer is a spring sport. But parents, coaches, and gender equity advocates are urging the League to move the sport to the fall, the season it is played in the rest of the state. They have already complained to the Office for Civil Rights, and according to this article, a lawsuit may be looming.

If the League is smart, it will not wait to be sued to change the season for girls' soccer. Federal courts have already ruled that nontraditional seasons can violate Title IX, if one sex is singled out for the less advantageous season. Soccer in the spring causes problems for female athletes. In addition to precluding them from participating in the state tournament, it also makes it harder for the athletes to get year-round play, a necessity for elite players seeking to develop their skills to the college level. Many development programs run in the spring to avoid conflict with and to supplement the high school season. For NYC girls, these two opportunities overlap, taxing their schedules and their bodies during the spring and leaving them with limited soccer options in the fall. Since the League schedules boys' soccer in the fall, in sync with the rest of the state, it seems this disadvantage is borne only by female athletes.

Resistance to Title IX's application here would be both futile and costly. The Michigan interscholastic athletic association litigated for years to keep girls' basketball in the spring and 5 other girls' sports in nontraditional seasons. In the end, it not only lost, but had to pay $7.4 million to the plaintiffs' attorneys. Hopefully the Public School Athletic League will avoid taking a similar approach.

Degrees of separation: Title IX and Lorena Ochoa

Lorena Ochoa is hot, hot, hot right now just having won her fourth LPGA title in as many attempts.

But is she is product of Title IX? ESPN commentator Cindy Brunson believes so, or at least lead us to believe so when she compared Ochoa's post-Title IX accomplishments to Mickey Wright's record-setting four straight record that Ochoa tied this past weekend.

This anti liberal media* commentator finds the invocation of Title IX ridiculous in this situation because Title IX is about collegiate sports, he writes, and because Ochoa, like Wright, left college to turn professional after only two years of intercollegiate golf.

Hello, strange bedfellow.

Well I am not exactly on board with his argument. One could make a feasible argument that Ochoa benefited from the support, financial and otherwise, offered to women's golf even in just her two years of playing. Additionally he clearly does not consider how even a narrowly tailored piece of legislation can have a larger cultural impact. Might Lorena Ochoa be just as good an athlete if Title IX had never come about? Certainly. But would the coverage (even as limited as it is these days) of her successes been there without a culture--created, in part, by Title IX--that is gaining a certain amount of respect and interest in women's sport? Maybe not.

But I do have some issues with Title IX being invoked every time a female athlete does something great or record-setting. (I haven't seen any Title IX invocations post Danika Patrick's win this past weekend, thankfully.)

One, Title IX is a fairly nuanced piece of legislation--its legislative and judicial history is anyway. Such invocations erase that history and the present struggles.

Two, success in sports is more than just gender. What kind of class background does Ochoa come from? How has her race factored into her career? We love to talk about Tiger Woods's race and ethnicity but somehow when we talk about Ochoa all that gets mentioned in her gender.

These were not the arguments, of course, proffered by the conservative commentator.





*When ESPN became a bastion of "liberal media" I am not quite sure.

Danica Patrick Wins Indy Japan 300

Danica Patrick, a race car driver in a field overwhelmingly dominated by men, won the Indy Japan 300 on Sunday, becoming the first woman to ever win an Indy car race. The NY Times reports that Patrick had been a popular figure on the racing scene since she placed fourth at the Indy 500 in 2005, but that this victory had put to rest doubts that she could actually win a major race. After her victory, she commented, “this reaches outside racing. This is about finding something you love to do, and following through with it.”

Of course, Patrick is not the only woman involved in car racing. Less than 24 hours after Patrick's win, driver Simona De Silvestro, the only woman in a 23-car field, earned her first win in the Champ Car developmental series.

Another female racer, Sarah Fisher, commented on Patrick's success at the Indy Japan 300: “Today marks the celebration for all of us who have chipped away at the barriers that many women have faced in fields that are dominated by men.”

Another Lawsuit Filed Against FGCU

Florida Gulf Coast University is getting used to federal court. Yesterday it was named in yet another sex discrimination lawsuit, this one brought by former general counsel Wendy Morris, who was terminated last July.

Morris's complaint alleges that she was retaliated against by the former interim president, Richard Pegnetter for urging the University to take seriously the charges of sex discrimination raised by emerita Athletic Director Merrily Dean Baker. Rather than include Morris in the University's official response to the letter -- a response that included calling Baker's claims "unsubstantiated" before conducting any internal investigation into the veracity of her claims -- Pegnetter ensured that Morris could not even obtain a copy of the letter. After urging Pegnetter to retain an independent expert to conduct a Title IX investigation and to allow her office to assist efforts to find and correct Title IX problems, Pegnetter responded by announcing Morris's suspension in a mass email (Morris found out about the suspension from someone who forwarded the email to her). Morris then informed the Trustees of her suspicions that Pegnetter was attempting to cover up Title IX problems, including his decision to suspend her. This was a violation of a gag order that Pegnetter imposed on Morris earlier that year, in response and retaliation for her advice to the Athletics Department that it could not lawfully fire volleyball coach Jaye Flood based on the present contents of her file. (We've blogged about Morris's warnings to Assistant AD Kathy Peterson in prior posts about Flood's separate lawsuit.)

Morris was terminated soon after communicating with the Trustees.

In addition to back pay, she is seeking to ensure that the University forgo any federal funding conditioned on Title IX compliance, as well as a court order that the University comply with Title IX.

We Support Fair Pay

Today, our friends at National Women's Law Center are asking bloggers to help raise awareness about the Lilly Ledbetter Fair Pay Act, which is currently pending in the Senate and is possibly up for a vote in the near future.

As the AAUW recently reported, women still only earn 69 to 80 cents on the dollar for comparable work as men. On our blog, we've written about salary disparities affecting female coaches, teachers, professors, and others employed in the education sector.

The Lilly Ledbetter Fair Pay Act (formerly the Fair Pay Restoration Act) would help ensure that the courts remain open to plaintiffs with pay discrimination claims. Last year, the Supreme Court ruled in a case called Ledbetter v. Goodyear Tire that pay discrimination plaintiffs must file suit within 18o days of the employer's initial decision upon the discriminatory salary in question. But because it understandably takes plaintiffs a couple of pay cycles -- often more than 180 days -- to realize their pay is unfair relative to that of men in similar positions, it may be too late to pursue a legal remedy once they do. The Fair Pay Restoration Act would restore what many lower courts had believed to be the law prior to the Ledbetter decision -- that each discriminatory paycheck creates a new 180 day window for the plaintiff to bring her claim. As such, it would eliminate the rigid and unnecessary obstacle to plaintiffs' claims that currently gives incentives to employers to conceal discriminatory pay policies for the statutory period and quickly immunizes them from suit.

Please urge your Senators to support the Fair Pay Restoration Act. All you have to do visit the NWLC's website -- it's quick, it's easy, and it's important.

Horseplay or Sexual Harassment?

Under Title IX, schools must take reasonable steps to students from sexual harassment by other students. When applying this standard, courts are sometimes called upon to distinguish sexual harassment from other form of bullying, teasing, roughhousing, or horseplay that aren't motivated by the sex or gender characteristics of the victim. A federal district court in Illinois recently had to make this call with respect to a practice called "sac stabbing" (getting hit in the testicles) which was inflicted on the plaintiff, a 12-year-old boy, by his teammates and peers, on an ongoing basis and with the apparent knowledge of the coach and other authority figures. The abuse exacerbated an existing medical condition, causing the plaintiff to require surgery. Even that didn't stop the abuse -- post-surgical incidents of sac stabbing popped the plaintiff's stitches.

In denying the school's motion to dismiss, the court concluded that sac stabbing in this case was sexual harassment actionable under Title IX because the facts supported a conclusion that the school's failure to protect the plaintiff from ongoing abuse was rooted in gender stereotypes. According to the complaint, the school allowed the abuse to continue based on the stereotypical perception that he was "not man enough" and that the school “essentially told [plaintiff] to toughen up and stop acting like a little girl,” to “stick up for himself.”

This decision underscores that there are a variety of ways peer harassment may contains the requisite sexual component to fall under Title IX's protection. Some focus on the abuser's motivation -- such as harassment or bullying motivated by sexual desire, the gender nonconformity of the victim, or the victim's sex directly -- while other's focus on the school's response. Regardless whether the underlying harassment is sexual harassment or asexual horseplay, a school must extend boys the same protection against harassment as it does girls; it cannot use stereotyped notions of masculinity to justify indifference to an ongoing problem.

Decision is: Doe v. Brimfield Grade School, 2008 WL 1722225 (C.D. Ill. Apr. 10, 2008)

URI makes cuts

As anticipated, the University of Rhode Island has been forced to cut teams to compensate for a large university-wide budget deficit. In addition to women's gymnastics which had already been told this would its last season, the university's athletic department has said it will also be eliminating women's field hockey, men's tennis, and men's swimming and diving. Also women's lacrosse will not be elevated to varsity status as had been promised when gymnastics was cut earlier in the year. Title IX expert Janet Judge helped the university as it made its final decision regarding which programs would be cut. Before the cuts URI maintained substantial proportionality. And even with the elimination of gymnastics they were not going to be too far away from that, especially given the plan to elevate lacrosse. I didn't crunch any numbers myself but I assume that Judge did and that these cuts have been made in such a way as to maintain proportionality.

ASU case under radar

Not too long ago we came across this post at the Huffington Post about a Title IX case at Arizona State University that we had never heard of despite its not-so-pleasant similarities to the case at University of Colorado. Ariela Migdal, in a piece about sexual assault and the campus climate, briefly mentions a case brought by a now former ASU student against the university but provides no details. The link to the ACLU, which has filed an amicus brief in the case, says more.
The woman was raped in her dorm room by a football player that the university had expelled because he was a "serial sexual harasser." But they re-admitted him and let him back in the dorms shortly after with no system in place to monitor his actions.
And that is all we have been able to find out about this case which began in 2003.
How ASU has saved itself from all the negative publicity other schools in similar situations have been subjected (or subjected themselves!) to is a mystery.
If we find out more about this one, we'll be sure to report on it.

Pittsburgh Teachers Win $1.2 Million in Pay Discrimination Case

Last week a federal jury awarded $1.2 million to 12 female teachers who had sued their employer, the Elizabeth Forward School District, for discriminating against them on the basis of sex and age. The jury agreed that the plaintiffs were hired at the lowest pay grade even though they had experience from other school districts, resulting in a salary discrepancy between the plaintiffs and other comparably experienced teachers who were younger and/or male.

This was not a Title IX case; instead they chose to pursuing relief under the other federal statutes that address discrimination in the particular context of employment, including the Equal Pay Act, Title VII, and the Age Discrimination in Employment Act. They also sued under Pennsylvania's general antidiscrimination law. Last year, the District lost its effort to dismiss plaintiffs' case on summary judgment. It had argued that younger and/or male teachers were offered hiring starting salaries because they "filled a particular need," but the court noted that the District couldn't back up this generalized explanation with any specific examples of hiring decisions in which "need" was used to justify a higher salary. That district court decision paved the way for jury trial, which resulted in the $1.2 million verdict.

There's no word yet on whether the district will appeal. But it has not had much success doing so in the past. A jury awarded a $204,000 verdict in a similar case in 2005, and the district's appeal was unsuccessful. The district ended up paying about $666,000 to the plaintiffs once attorneys fees and costs were added in.

Case is: Defurio v. Elizabeth Forward School Dist., No. 05-1227 (W.D. Pa.).
Summary judgment decision is at 2007 WL 2752176 (Sept. 19, 2007).

Confusion in Bucks County

The Superintendent of the Central Bucks County School District doesn't quite understand what exactly OCR is seeking in its investigation of the district's athletic departments*.
An anonymous complaint was filed and OCR is collecting information. A representative will be meeting with the superintendent next week in an effort to resolve the complaint which centers on publicity, equipment, and scheduling.
The superintendent, who only recently found out there was a complaint filed thinking instead that the district was undergoing a routine audit process, does not seem to have a great awareness of Title IX which is disappointing given he is a high-level administrator. His confusion over the process is understandable but this statement indicates that he does not even know what Title IX is all about:
“I got the sense that a lot of it had to do with gender equity, because a lot of the questions they asked us were related to how many girls sports, how many boys sports.”
It's also unfortunate that a superintendent does not know what is happening in his own district. Asked for the publicity material he said: "They wanted all our publicity of programs. We don’t even control (game day) programs. Our parent/booster clubs do all that. They asked me how much is spent on publicity, and I said zero. … This has been very strange.”
I find it a little strange as well but for very different reasons.

*Note that this article contains a large mistake about the three-prong test at the very end. The author--who has written extensively about the Title IX issues in Pennsylvania--writes that the third prong contains 11 components.

FGCU Softball Coach Quickly Reinstated

We posted earlier this week about Florida Gulf Coast University's decision on Monday to suspend softball coach Dave Deiros after his player, Roz Tyre, complained that he grabbed her and yelled at her in a threatening manner.

On Wednesday, it was announced that Deiros had been reinstated, despite the Athletic Director's acknowledgment that "placing your hand on a student-athlete’s chest protector is not acceptable behavior."

While Deiros may be back on the job, there's reason to believe that we haven't heard the last of this incident.

First, as News-Press editorialist Deron Snyder points out, FGCU is currently defending a discrimination lawsuit brought by fired volleyball coach Jaye Flood. When Flood was accused of inappropriate contact with student -- tugging her shirt in a game -- she was investigated for five months. The fact that Deiros, a man, was quickly reinstated under similar circumstances, helps Flood make her case that the department was retaliating against her for challenging sex discrimination within the department. Snyder puts it better: "Flood’s sexual harassment case looked like a lay-up beforehand; now it looks like a two-hand slam dunk."

Second, under Title IX, universities may be liable for sexual harassment by a coach, but only if it has notice that there's a problem. Thanks to Tyre, FGCU can consider itself on notice. If Deiros ever touches Tyre or any other player again (and since there seems to be no end in sight to FGCU's sex discrimination woes, lets say this is more likely than not), FGCU is going to have a difficulty defending a Title IX suit.

New CEO for WSF

The Women's Sports Foundation has named a new CEO. Karen Durkin who has been with the NHL most recently and the LPGA prior to that will take over the position from Donna Lopiano who resigned last summer.

Correcting the misinformation

It seems to be my purpose in life, or at least on this blog, to find all the bits of misinformation perpetuated by sport writers about Title IX, become quite irate and then correct them on this blog and often in a letter to the writer and/or editor.
Sometimes they seem very little especially when the intent clearly is not malicious (though there are plenty of those cases too). But the misinformation is presented so matter-of-factly that it is clear the writers have no idea that they are just plain wrong and that they are adding to the considerable backlash.
A few weeks ago [I lost the link, sorry] a writer in Indiana expressed sympathy for boys' volleyball which gets little recognition because it is not a sport sanctioned by the Indiana High School Athletics Association. He encouraged IHSAA to add the sport but noted that the obstacle has been Title IX which mandates state athletic associations sanction the same number of boys' and girls' sports. Well not quite. Title IX's mandate for equity doesn't directly affect athletic associations--it affects the schools that belong. IHSAA has likely not sanctioned boys' volleyball because its member schools probably already have compliance problems in the area of equitable opportunities.
And then today I read a feature on a wrestler from University of New Hampshire who won a national title at the National Collegiate Wrestling Association championships. Good for him. Not so good was the writer who failed to correct the UNH coach who said that the level of competition is pretty intense at these championships because they are comprised of club teams that are former DI programs cut by Title IX. It was said in passing and was incorporated into the story in the same manner. And it is completely false as we have discussed here too many times already. It's budget and interest. And we know this is true at UNH. By the time Ebuz and I got to UNH wrestling was already a club sport, but we did go through a round of cuts that were all about the budget. UNH has since undergone another set of cuts that are again due to budget shortfalls and budget priorities that the administration will not alter. They aren't crying that Title IX forced their hand in the same way JMU has but maybe they should inform their wrestling coach about why wrestling was really cut.

ACLU Wants Greene County Segregation Plan

The ACLU is invoking a state open records law to request a copy of the plan to segregate schools by sex that Greene County, Georgia, abandoned last month. Because the county indicated that it would go forward with this or a similar plan in the future, the organization is concerned that the county is relying on stereotypes and "questionable 'brain science' theories that suggest that boys and girls should be treated radically differently." The ACLU points out that there is no scientific consensus that single-sex education is beneficial to students, something recognized even by the Department of Education, whose regulatory change in 2006 paved the way for single-sex public education.

I'm glad that the ACLU is requesting the plan. If, as they suspect, it contains a demonstrably false or questionable scientific premise (or no premise at all), it will raise awareness about the absence of critical thinking around this issue.

More trouble at FGCU

Yesterday, Florida Gulf Coast University reportedly suspended Dave Deiros, head softball coach, after a player charged him with assaulting her at Saturday's practice. The player, catcher Roz Tyre, filed a complaint with the campus police claiming that Deiros twice grabbed her chest protector and shook her. Tyre did not talk to the press, but according to her complaint, a verbal dispute began when she asked for permission to sit out a throwing drill due to injury:

I proceeded to go over and talk to him, where he approached me and grabbed me with both hands in a tight grip by my chest protector, in line with the sides of my breasts....I told him to let go of me now, and pushed his shoulders in my defense....He came back and grabbed me in the same manner a second time. I again told him to let go of me and to get his hands off me....I no longer felt it was a situation of coach to athlete, but man to woman.

Deiros's suspension is just the latest chapter in FGCU athletic department's ongoing sex discrimination saga. Last summer, former AD Merrily Dean Baker accused the athletic department of violating Title IX by, among other things, supporting a hostile, intimidating atmosphere for female coaches. Then, last fall, FGCU suspended and then fired then-assistant coach Gina Ramacci after investigating (but failing to corroborate) charges that she had an an inappropriate relationship with a player. Ramacci is challenging her termination as discriminatory on the basis of her perceived sexual orientation. FGCU also suspended, and later terminated former head volleyball coach Jaye Flood, who has been accused of having a relationship with a student, as well as tugging on a player's shirt during a game. But she claims that the investigation and subsequent termination was really retaliation for supporting Dean Baker's report. Another former coach, Holly Vaughn, also received negative performance evaluations after supporting those charges, and since resigned. If there is, as Dean Baker says, a hostile, intimidating environment for coaches in the athletic department, perhaps this provides some context for the hostile, intimidating environment for female athletes as well.

URI considering cuts

The University of Rhode Island decided recently to cut women's gymnastics citing the decrease in the the sport's popularity in the region. At that time it promised to add women's lacrosse in 2009. But recent budget issues (every university department is being required to scale back)have made that addition nearly impossible and it seems like cutting other sports is under serious consideration.
University administrators are considering a variety of options, however, and note that cutting teams is not something they want to do but that eliminating $800,000 of the budget will be difficult without cuts even if they can come up with a plan to increase revenues. They have also said they will be consulting a Title IX expert regarding cuts.
But right now, even after cutting women's gymnastics, URI looks pretty safe. With or without gymnastics they are firmly within 5% proportionality.
Hopefully this will mean that when the decisions as to which teams to cut are made we won't be hearing a lot of "because of Title IX, URI has cut men's....." We shall see.

Retaliation Case Against Clark College May Proceed to Trial

Last week, the Washington state court of appeals reversed a lower court decision that had granted a summary judgment victory to Clark College (Vancouver, WA) in its litigation with former women's basketball coach, Trev Kiser. In 2002, Clark College terminated Kiser's contract. Kiser sued under Title IX and a state law, alleging that he was terminated in retaliation for complaining about the disparities between men's and women's basketball programs that related to the quality of officiating, budget, travel arrangements, and the athletic director's hostility towards the women's team. The College argued that Kiser was fired for mismanaging team funds, including possibly pocketing some of the team's per diem money and indisputably receiving reimbursement for gas he didn't pay for. A trial judge granted the College's motion for summary judgment, and Kiser appealed.

The appellate court reversed the trial court and reinstated Kiser's case. At issue on appeal was the nature and sufficiency of evidence a retaliation plaintiff needs to proffer to avoid losing at summary judgment. For an employer to win an employment discrimination case on summary judgment, it must provide conclusive and uncontroverted evidence of its nondiscriminatory explanation for firing the plaintiff. The appellate court determined that Kiser provided enough evidence to cast doubt on the College's explanation that it fired him for mismanaging funds. In particular, Kiser alleged, and the College did not deny, that the athletic director threatened Kiser with losing his job if he didn't refrain from making Title IX allegations. "This threat presents direct evidence of a nexus between the retaliatory motive and the employment decision sufficient to suggest that the College's stated reasons for termination were pretextual," said the court. This is enough to prevent the College from winning on a summary judgment. A trial is necessary to resolve the disputed questions about Clark's allegedly retaliatory motive.

Decision: Kiser v. Clark College, 2008 WL 788685 (Wash. App. Div., March 25, 2008).

Student Letter Defends Title IX

As Title IX fans, we admire people who challenge the ignorant and sexist rhetoric that is often used to demonize the law and women's equality in athletics. As professors, we love it even more when the people mounting that challenge are students. So we give a Title IX Blog tip o' the hat to Notre Dame sophomore John Witty (who, a google search reveals, hails from Iowa, one of our favorite states) for penning the following letter to his student paper.

When I started reading Greg Yatarola's column, "The tyranny of Title IX," it was April 2nd, 2008, but when I looked up from my paper it was 1950. The world had gone black and white, Notre Dame hadn't admitted women, and apparently, people cared about wrestling.

The fact that Yatarola feels that wrestling should be priority No. 1 for the University, which frankly has more important things to worry about, isn't the worst part. Even worse is the fact that he discounted every athlete, coach, staffer, or fan of women's athletics at Notre Dame and beyond. From his sweeping claims that men are physically superior, to his inappropriate and unnecessary drop-in comment about women athletes being "comfort women," Yatarola is the exact kind of person that Title IX responds to.

There are some who agree and some who disagree with Title IX, so let me try to put it into phrasing that Yatarola might understand - Title IX is a disgrace. It's an absolute injustice, for no other reason than it is a relatively small attempt to apologize and make up for the massively one-sided, unfair, and unequal past treatment of women in the collegiate atmosphere. Its embarrassing existence is a painful reminder that our society actually had to write into law something that should have been a given in the first place - women deserve equal and just treatment. Yes there are flaws present in the implementation of Title IX, but since then, our female athletes have been able to pursue professional careers in sports, Muffet McGraw and Randy Waldrum (among others) have built nationally-ranked and recognized programs, and women's athletics has grown exponentially, and this is just at Notre Dame.

It may be just my opinion, but if all we lost for this growth was a dead-weight wrestling program 16 years ago, I'd say we're doing just fine. And Greg, if you're hard up for some tough, hard-nosed, and "hopelessly working-class" competition, tune in Sunday to ESPN to see the coach with the most wins, male or female, in college basketball. Her name is Pat Summit and she's coaching the Tennessee Lady Volunteers. And to think, she wouldn't have 7 national championships and all those wins - if only Notre Dame kept a wrestling program.

While I wholeheartedly applaud Mr. Witty's takedown of the sexism imbued in the prior letter, I do want to make clear my belief that wrestling and Title IX are not and need not be mutually exclusive. In fact, Title IX supporters and wrestlers should be allies. We have a common enemy in the historic and continuing practice on the part of university athletic departments to grow and increase spending for certain, privileged men's sports at the expense of both women's sports and other men's sports.

Checking in with Billie Jean

Cokie Roberts has an interview with Billie Jean King in this weekend's USA Weekend magazine. They talk about the state of women's sports, Hillary Clinton, history and the future. Remember, the Sports Museum of America opens next month in Manhattan. One wing is dedicated to housing the Billie Jean King International Women's Sports Center.

In somewhat related news: softball player Jessica Mendoza has been elected the new president of the Women's Sports Foundation and will take office in 2009--after her participation in the 2008 Summer Games.

The not so implausible joke

April Fool's Day came and went here at the Title IX blog. At least I thought it had until I started reading this article in the University of Buffalo student newspaper about officially changing the women's team nicknames to the Lady Bulls after years of just being the Bulls. I was aghast and I did not recognize the joke right away because, frankly, so little surprises me these days about the efforts some people go to to keep women's sports in an inferior position. And the (concocted) reasoning the "article" attributed to administrators about a separate identity and greater recognition and honor and protection from being deemed too masculine are not at all unusual. They have been proffered for years as a rationale for the Lady nickname.
What finally tipped me off? The "fact" that a fan group had proposed--and the administration accepted--simply calling them the Cows, because, after all, that's what Lady Bulls are.
And now that a wave of relief has washed over me I think it's a pretty funny article and it shows that there are people out there who get just how ridiculous this practice is. Phew.

Discrimination hurts

And the hurt is going to be felt most acutely by the Michigan High School Athletic Association which was recently ordered to pay the legal fees associated with its decade plus-long battle against a group of parents who, among other things, asked that girls' sports be played in their correct seasons. A federal judge has ordered the association to pay $7.4 million in attorney fees, most of which will go to lawyer Kristen Galles who represented what became Communities for Equity.
I do not want to belittle the concerns that the judgment will potentially bankrupt the organization (depending on what kind of payment agreement Galles and MHSAA reach) which will ultimately hurt student-athletes. But readers should not forget that MHSAA had the chance to work out a settlement that would have exempted them from attorney fees. It chose to continue the 12-year battle (which cost them over $10 million) saying that it had enough money to keep fighting. They have caused a significant amount of hurt themselves in perpetuating discrimination.
It will be interesting to see one, what comes of this particular situation, and two whether this judgment has an effect on the thoughts and actions of groups that keep fighting losing battles (a court ruled against MHSAA as early as 2001) to maintain their discriminatory practices.