Justice Department Takes Up Anti-Gay Bully Case

Last summer we blogged about a peer harassment case filed against the Mohawk School District in upstate New York. The plaintiff, an openly-gay ninth grader named Jacob, claims that the district violated Title IX by failing to protect him from anti-gay bullying and harassment by his peers.

Recently, the Department of Justice filed for leave to intervene on Jacob's behalf. It plans to advance the argument that Title IX's prohibition against discrimination on the basis of sex extends to discrimination targeting a plaintiff for their failure to comply with gender stereotypes such as that which Jacob endured. This theory of Title IX has been applied by several courts in the past, but other courts (more often in employment rather than education cases) have ruled that gay plaintiffs are not protected by sex discrimination statute because they are targeted because of their sexual orientation rather than their sex.

While DoJ cannot dictate how courts interpret the laws it enforces, its interpretation is often more persuasive to courts than ordinary litigants'. Thus, the Obama administration's motion to intervene is a significant step toward universalizing a broader interpretation of Title IX that gives much-needed protection against bullying that targets LGBT students and those so perceived.

(Via Towleroad.)

NCAA happenings

The annual NCAA meeting concluded this weekend after a great deal of business was conducted--or at least it seemed that way from press coverage; I wasn't there. I just wanted to quickly mention two decisions.
The first is in regards to sand volleyball. Despite objections from many universities over the presence of sand volleyball on the list of emerging sports, the vote to remove it did not receive the necessary two-thirds majority.
And second, Division II is continuing its "Life in the Balance" initiative by cutting back the number of games for certain sports, starting practices later, and instituting a moratorium on games, practices, and any on-campus training for winter sports during the week between December 20-26. The initiative is, in part, a response to the fact that 30 percent of DII athletes leave without graduating.

Sand volleyball: In or out?

The NCAA, which is meeting in Atlanta, Georgia this week, is voting today on whether to keep sand volleyball (for women) or to nix it from the list of emerging sports.
When it was added I recall a little concern on my part on how it would be implemented and apparently others have similar concerns. The concerned/not concerned line has been largely based on geographic region, though cold-weather schools including Nebraska are in support of sand volleyball. But this is not necessarily surprising because Nebraska typically has a very strong indoor women's program. And this leads to other concerns that sand volleyball isn't presenting new opportunities but more formal off-season training for current indoor players.
The override vote is the result of objections from 63 NCAA schools. But a 2/3 majority (of whoever shows) is necessary to take sand volleyball off the list.

Former Texas A&M Diving Coach Files Retaliation Case

Kevin Wright, who was fired in September from his position as head coach of Texas A&M's diving team, has sued the university in state court, alleging he was terminated in retaliation for reporting concerns about gender discrimination in athletics. According to this article, which discusses the complaint, the precipitating incident occurred in the context of a 2008 investigation of the athletic department by the Office of Civil Rights. Wright had heard from one of his divers that the swim team coach, Steven Bultman, had asked a swimmer to lie to investigators in order to conceal the swim team's practice of assigning more female athletes to hotel rooms (4) than male athletes (2). Wright alleges that his email raising this to the attention of the athletic department -- along with subsequent emails addressing other gender equity concerns -- was met with "immediate hostility" which ultimately led to his termination the several months later.

Wright has filed suit under a Texas whistleblower protection statute that protects state employees. The article does not say whether the case includes a federal, Title IX retaliation claim as well, but on these facts it certainly could have. In the last few years, a number of coaches have won damage awards and settlements in similar retaliation cases.

Annual NCAA convention addresses arms race

The NCAA is holding its annual meeting this week down in warm, sunny Georgia--well it was supposed to b warm and sunny, anyway.
Of course more important things are on the agenda which should distract from the cold snap down south, including the athletics "arms race" which has many a university president, according to a recent report from the Knight Commission, very worried. And it's not just the small schools who are worried about where to find the money to remain competitive as the costs of recruiting, travel, and especially coaches' salaries are on the rise.
The arms race was on the agenda Tuesday where worries seemed to outweigh potential solutions such as some oversight entity that would (finally) mandate a uniform accounting system within athletic departments and perhaps even spending and salary guidelines across the board. But even the money-making schools have presidents who recognize that even successful programs will not continue indefinitely and are less-than-hopeful that viable solutions are forthcoming.
Also of concern, of course, is the more-than-likely cutting of teams that will occur if things are not reined in quickly. And with team cuts we get Title IX blame, according to Nancy Hogshead-Makar: "Undoubtedly Title IX will be seen as the cause of all the costs. This makes it very difficult for women to participate in athletics."

Student Whistleblower Loses Retaliation Case

A court in Arizona dismissed a Title IX case against the Gilbert Public Schools, in which the plaintiff argued she was retaliated against for reporting sexual comments by her coach. The plaintiff, Madison Power, was a sophomore on the basketball team when she reported to her parents and ultimately the school district that she had been made uncomfortable by the assistant coach when he made some comments of a sexual nature during a ride home from a tournament out of town. Based on this report, the school district decided not to hire the assistant coach for the subsequent school year.

Power alleges that she faced reprisal from the head coach, who was married to the terminated assistant coach, and other members of the basketball team. She alleges that the coach expressed anger about Power and defended her husband to other players. As a result of her report, she was demoted to junior varsity the following year, and that other members of the varsity team sought to punish her by tripping her, fouling her hard at practice, and calling her a bitch on a MySpace page.

But the court determined that Power's case does not constitute a violation of Title IX. The head coach was recused from tryouts and did not participate in the decision that assigned Power to junior varsity, so that allegation could not support a retaliation claim. The court also found that the the other students' behavior lacked requisite severity and did not deprive Power of educational opportunity. Moreover, the court found that the school district had responded appropriately when Power complained about the head coach an the harassing students, issuing warnings as the situation warranted.

Here, the plaintiff charged that was punished by her peers and her coach for reporting the sexual inappropriateness of her assistant coach. No student should face such reprisals. But in this case, the the school district's reasonable response to the situation insulated it from second-guessing by the court.

School District May Be Liable for Football Camp Harassment

A federal district court in California recently denied efforts of the Gustine (California) Unified School District to obtain summary judgment on Title IX claims stemming from peer harassment at a high school football camp. The plaintiff was a rising freshman at Gustine High School when he attended a three-day football camp coordinated by Gustine and another school. He alleges that while at camp, he was repeatedly subjected to physical and verbal abuse by upperclassmen. On the second day of camp, the upperclassmen held him down in the locker room, inserted a battery-operated air pump nozzle in his rectum, and then activated the pump for several seconds. Also, the harassers repeatedly called him homosexual epithets, grabbed him while he was in the shower, flashed and slapped him with their genitals, and pummelled him with pillow cases stuffed with equipment at a camp-sanctioned "pillow fight."

For the school district to be liable under Title IX, the plaintiff must establish that the harassment was severe and pervasive, motivated by his sex and gender, known to the school district, and met with the district's deliberate indifference. The court denied summary judgment to the school district because it determined that a jury could find these elements present in plaintiff's case. First, the fact that the plaintiff was sexually assaulted and -- although he endured camp -- later withdrew from school would support a jury's conclusion that the harassment was severe and pervasive. Second, though the school district argued that the harassment was motivated by the plaintiff's status as a freshman, the court determined that a jury could find that it was instead gender-motivated based on the homosexual epithets that accompanied the abuse. Third, even though the plaintiff did not report harassment during camp, the court reasoned that a jury could find that the camp's head coach had notice of the danger the upperclassmen posed because he had caught the same boys attempting to air pump assault on another victim, causing the coach to confiscate the air pump but take no further action against the perpetrators. Last, the court found that the district's response might constitute deliberate indifference in the eyes of the jury. After camp, an assistant coach discovered the assault on the plaintiff and reported it to the principal, who suspended the perpetrators from school. Notwithstanding this severe response, if the jury agrees that the head coach had notice during camp that the plaintiff was in danger, his failure to take action against the perpetrator at that time may satisfy the deliberate indifference standard.

This case sheds important light on the hazing that goes on in many athletic programs. In addition to laws in many states thatprotect students against hazing and bullying, Title IX applies when such misconduct is also sexual in nature. School districts wishing to protect their students from harassment and avoid liablity must train their coaches and teachers to recognize and respond to incidencts as sexual harassment and not dismiss it as horseplay or condone it as team hazing.

Decision: Roe v. Gustine Unified Sch. Dist., 2009 WL 5184688 (E.D. Cal. Dec. 22, 2009).

Complaint against Lebanon temporarily suspended

A complaint brought anonymously against Lebanon High School in Oregon has been suspended for now while the school collects data on gender equity in its athletics department.
At issue in the original complaint filed in November 2009 was the facilities and benefits received by the baseball team versus the softball team. Part of the disparity is allegedly due to fundraising that occurs on behalf of the baseball team which, as many of us know, does not absolve a school from providing an equitable experience.
A self-assessment, though, will look at more than just baseball versus softball. It will be--hopefully--a comprehensive examination of the school's athletic department and the experiences and opportunities it provides to its student athletes.

1/11 Update: Here is a link to an article that gives the timeline and steps OCR is requiring of Lebanon in order to drop the complaint.

District Court Upholds Title IX and JMU Sports Cuts

Recently a federal district court in Virginia upheld both Title IX and James Madison University's 2006 decision to eliminate ten athletic teams -- a move that impacted more men's teams (7) than women's (3), but which corrected the underrepresentation of women in athletics relative to their percentage of the student body. The plaintiff, Equity in Athletics Inc., sued the University and the Department of Education seeking reinstatement of the teams and a ruling of Title IX's invalidity. This is the fourth litigation loss for EIA, which already failed to convince a district, appellate, and the Supreme Court to grant a preliminary injunction that would have temporarily reinstated the teams.

Now, the federal district court in Virginia has examined EIA's case "on the merits" (rather than under the "likelihood of success on the merits" standard that applies to preliminary injunctions) and has determined that the case should be dismissed. The court rejected EIA's arguments that the regulatory interpretation of Title IX that contains the proportionality standard (the "Policy Interpretation") is unconstitutional and procedurally invalid. Like all courts that have considered this argument in the past, the court emphasized that the proportionality is not a mandate, but rather, one of three compliance options, and affirmed that both Title IX and the Equal Protection Clause allow schools to take sex into account in order to correct existing discrimination. The court also refused to read Supreme Court's recent decision that curtailed certain race-conscious remedies in schools to suggest that it is unlawful to take sex into account when making a decision to eliminate teams. It reasoned athletic opportunities are different from other educational opportunities because they are traditionally and lawfully sex-segregated, which makes it impossible to measure equality without taking gender into consideration.

Some other arguments that the court rejected:

• that "reciprocal teams" (men's and women's swimming, for example) have a First Amendment right to be associated together, which is violated by Title IX policy because it allows schools to terminate only one (teams are neither intimate nor expressive organizations, to which such rights apply).

• that the only measure of equality should be whether opportunities are proportional to expressed interest of each sex (such a standard would not remediate discrimination against the underrepresented sex).
  

• that the Department of Education did not receive authority to implement Title IX when it was created to partially replace the Department of Health, Education and Welfare (it did).
  

• that the Policy Interpretation is invalid because it was not promulgated after a period of public notice and comment, and was not signed by the President (those procedural requirements only apply to "regulations," not policies that simply fill in the details of more broadly-worded regulatory standard).

• that JMU violated the Equal Protection Clause when it considered sex in making a decision to cut athletic teams (same reasons why the Policy Interpretation is constitutional).
  

• that JMU violated athletes' constitutional right to due process (no recognized property interest in athletic participation).
  

• that JMU's athletic opportunities after the cuts violate the Policy Interpretation, because men are now the underrepresented sex by 2% (the standard is "substantial" proportionality, not exact proportionality, and other courts have upheld a similar small disparity).

• that JMU shortchanged female athletes by ~12% in the distribution of scholarship dollars (EIA did not purport to have current female athletes among its members, so it did not have standing to raise this claim).
  

EIA appears to have plans to appeal this decision to the Fourth Circuit Court of Appeals, which has already determined EIA was not likely to succeed on the merits.

Decision is: Equity in Athletics, Inc., v. Dep't of Educ., 2009 WL 5149869 (W.D. Va. Dec. 30, 2009)

Settlement forthcoming in Canton case

After turning down a settlement deal earlier this year, it seems the Canton School District in Illinois has reached an agreement with the plaintiffs. But no one is saying what that deal is--at least not until January 20, 2010 when it will be announced at a school board meeting. The deal was scheduled to be revealed last week, but on the advice of a district lawyer, the board held the announcement.
As a reminder, here are a few of the allegations from the original complaint filed in May 2009:

• football and boys' basketball have better sound systems
• the band, cheerleaders and other spirit squads attend boys' games, but not girls
• district funding is not equitably distributed
• and that there are inequities in equipment and locker rooms.

Wisconsin School District Will Offer Girls Hockey

Earlier this year, high school freshman Morgan Hollowell and her father sued the Elmbrook School District in Wisconsin, challenging the district's decision to exclude girls from the hockey cooperative it is joining with another school district. Elmbrook officials cited low interest among girls as its reason for leaving them out of the plan.

It was recently reported in Athletic Business that in response to the pressure from the lawsuit, the school district has reversed its plan and will now enter into a similar cooperative for girls hockey. Though I could find no details about existing athletic opportunities in Elmbrook, unless athletic opportunities are roughly proportionate to the gender breakdown of the student body, under Title IX's three prong test, the district can't ignore unmet interest and ability among the underrepresented sex. While this aspect of the law would not require a school district to form a team when only a small number of girls (the article said 3) is interested in the sport, a different standard arguably applies when the decision isn't to form a team, but to join a cooperatives with other districts. It seems to me that the very fact Elmbrook was joining a cooperative suggests that there were not enough male hockey players at either or both of Elmbrook's high schools to field a team either. If the school district is going to accommodate boys' interests in that manner, it should similarly accommodate girls'.

Slippery Rock settles--again

The gender equity case against Slippery Rock University that started in 2006 and was reopened last spring when some felt SRU was not meeting the settlement's requirements has settled again. The university has promised to improve the softball stadium, commit $300,000 more than in the original settlement toward improving women's athletics, and provide Title IX training for athletes, coaches, and administrators in the athletic department.
The re-settlement brings up a few interesting issues. First, SRU president Dr. Robert Smith said that it was easy to sign the settlement because everyone was working toward the same goal. But I have my doubts about the level of sincerity in this statement. He defended the poor quality of the new softball seating and the layout of said stadium which blocked certain views of the field for fans noting that he didn't think Title IX applied to the quality of the fans' experience. True. But fans in the stands affects the quality of the athletes' experience and nice facilities in which fans can see the entire field of play help get fans in the stands. There seems to be an underlying assumption that female athletes play purely for the love of the sport; that they could play in an empty stadium and still love the game. And maybe they could; but everyone likes fans. Additionally, the alleged inferior quality of the softball stadium, as compared to the baseball facilities, illustrates the argument plaintiffs used to reopen the case: that SRU remains a little weak in its commitment to gender equity. I don't know how administrators can claim they created a first-class facility when it does not equal the quality of its first-class baseball facility. Such a statement would seem to indicate that there are different standards for the men and women.
And second, Dr. Smith discussed the university's adherence to Title IX noting that they have been in compliance with prong one for two years. Women receive 56 percent of the athletic opportunities; a percentage equal to their representation in the undergraduate student body. While we applaud this change since the 2006 settlement, it provides a good opportunity to reiterate that Title IX compliance is not only about number of opportunities. An institution might meeting that one requirement of Title IX but failing miserably in providing things like quality coaching, quality competition, access to facilities, etc. While SRU does not appear to be failing miserably, we were pleased to see them sign this new settlement and recommit themselves to gender equity in their athletic department.

We're sorry to see you go

It is with great amount of sadness that we report, to those who do not yet know, that the Women's Sports Foundation has decided to eliminate the It Takes a Team initiative to eliminate homophobia in sports. Run by Dr. Pat Griffin for the past five years, WSF cited budget woes as the reason behind the decision which will result in the end of the program at the end of January.
We at the Title IX Blog have been very grateful for the opportunity to see Dr. Griffin and the efforts of It Takes a Team in action. Its demise is a huge loss and certainly leaves a gap in the education of athletes and those involved in athletics around issues of sexuality and gender identity.
Dr. Griffin has posted about the cut on her blog--which she will keep writing. She does plan on continuing her work in some form. And we offer her any support we can in whatever her future plans are.

Spirit as Sport

Last week the New Mexico Activities Association member-institutions voted to make spirit (cheerleading and dance) a sport. Officials quoted in the news reports about the vote were pretty clear that the primary purpose of this change was to help schools attain compliance with Title IX's proportionality prong. For example, one high school official stated, "Cheer and dance at Silver High has about 50 students, and we can get these to be athletes. That would definitely help us with our participation numbers for girls." This quote seems to typify the officials' concerns -- not whether spirit activities really are (or can become) athletic in nature, only that they count as such. For another example, consider the official who, in acknowledging that unlike other sports, cheer currently has no competitions other than the state tournament, expressed only "hope" that the NMAA "can work on adding something like that in the mix."

Speaking of hope, I hope NMAA plans to ensure that its cheerleading is sport in more than name only. Otherwise, its member institutions could still have legal trouble if they rely on proportionality to comply with Title IX, and rely on cheer participation to get acheive proportionality. The Office for Civil Rights does not defer to high schools or high school athletic associations' labels of what is a sport -- OCR actually compares whether the activity is being treated comparably to other athletic opportunities. For example, I recently read a decision letter issued by OCR following its investigation of Tukwila School District in Washington. OCR refused to count cheerleading as athletic opportunities, even though the Washington Interscholastic Activities Association allows its member institutions to offer cheerleading as a sport. OCR compared cheerleading program at Tukwila's Foster High School to athletic programs, and determined that cheer not comparable. Relevant differences included the fact that cheerleaders, but not athletes, had to pay ($600) to participate, cheerleading's mission statement focused on performance and spirit raising and did not mention competition, and the squad does not compete in league competition and has limited competitive opportunities.

Hopefully schools in New Mexico will see the NMAA's decision as an opportunity not just to change the label of cheerleading from activity to sport, but to ensure that cheerleading called sport actually functions and is treated like a sport. If schools don't, OCR will.

Sexual harassment in the digital age

I have to admit that the first time I heard of sexting (the sending of sexually suggestive--or explicit!--text messages) was on Glee a few weeks ago. The subject was treated with the amount of levity that is appropriate for the show, but apparently sexting is not always very gleeful for those involved.
In fact, it often leads to harassment and in two cases in the past year has resulted in the suicides of two teenage girls. The article linked above does a very good job of outlining the harassment involved and potential remedy under Title IX, including the criteria established by the Supreme Court in 1999.
The parents of one of girls is indeed suing the school for failure to remedy the harassment their daughter experienced after sending a text containing a nude photo of herself to her then boyfriend. The article out of a Cincinnati paper makes no mention of Title IX, though I assume the law is a factor given that the case was dismissed from state court in order to move it to federal court.
In this case, the school was made aware of the harassment, so it seems fairly straightforward--at least given when I have read of the case to this point. But in this digital age, I wonder both how much harassment is going on that officials never become aware of because they do not even have an opportunity to see it, (though previous harassment cases have indicated that some people fail to see what it happening right in front of them) and also whether we may see a sort of "they asked for it" defense when it comes to sexting. It may not be as blatant as in past times (and present!) when women who have been raped or assaulted have been subject to questions about their moral character, behavior, and sartorial choices, but I would not be surprised to see it emerge in cases of sexting when girls are sending messages and photos and thus assumed to be willing participants in the process.
And finally, does this new medium create more harassment and/or even greater under reporting of harassment?
I see many issues arising from such cases. It will be interesting to see both how schools and the courts address them.

Study Uses Title IX to Show Effect of Athletic Participation on Educational Attainment

Via Gregg Easterbrook's recent column at ESPN.com, which criticizes college athletics for failing to seriously incorporate an academic mission, I learned of this forthcoming article by Wharton School professor Betsey Stevenson (draft here), which studies the effect of athletic participation on educational and professional attainment. Stevenson uses the early years of Title IX to simulate a laboratory designed to test for the causal relationship between athletics and academics and avoid the problem of selection effects that is typical of such studies. (Selection effects means that the merely correlating athletic participation and educational attainment doesn't tell you whether one influences the other, or whether it just happens to be that the same kids who already do well in school are those who have the self-confidence, parental support, lifestyle, or whatever, that makes them select into sports.)

Between 1972 and 1978, the rates of girls' participation in high school athletics rose from 1-in-27 generally, to 1-in-4. She then measured other outcomes, such as college attendance and employment, for women who would have been in high school during that time. By comparing those outcomes to those for boys, whose athletic participation rates held constant during the same time, she demonstrated that athletic participation contributed to, rather than just merely correlated with, those outcomes. Specifically, she concludes that every 10% increase in girls' athletic participation lead to a 1% increase in college attendance, and a 1-2% increase in women's participation in the work force.

Stevenson's research, forthcoming in the Review of Economics and Statistics, thus provides support for continuing to expand athletic opportunities for girls as well as boys. It also supports Easterbrook's conclusion that college athletic departments should be promoting -- rather than undermining -- the benefits of sports participation in the classroom.

UNCC decides to add football

The trustees at the University of North Carolina Charlotte have decided to go forward with the plan to add a football team. The team will make its debut in 2013.
This is also a good time to mention that Hofstra University cut its team last week, shortly after Northeastern University announced it was cutting its team due to the expenses associated with the team and the inability to properly upgrade facilities.
And in the wake of these two announcements there was a fair amount of desperate "football is dying" talk.
But it seems UNCC has granted some people's holiday wishes and brought peace on earth to football-loving folks.
It will not be a cheap endeavor, however. The stadium will cost $40.5 million and the student body is slated to bear most of the financial burden with fees predicted to be raised by $320 over the course of the next few years. This number could go down, according to the Chancellor, if private donations increase. Of course, by this logic, they could also go up if donations go down. I mean they say the recession is over, but...
It was not an uncontroversial decision as you might imagine--especially because of the above-mentioned economic uncertainty. But it had many proponents as well.
The decision is not final final yet. It has to be approved by the Board of Governors in February.

Invitational in DC to focus on athletics and equity

We can tell there has been the proverbial changing of the guard in Washington in many ways including the upcoming and inaugural Title IX Holiday Invitational and Conference Classic. Part of its goal is to "celebrate the fact that the Nation’s Capitol is focusing on raising gender equity and program parity with national norms and best practices."
The conference part of the program is on Sunday, December 27. Registration for adults is $15 and only $2.50 for students with IDs. The conference is being facilitated by Phyllis Lerner, a Title IX educator and public policy expert.
The basketball tournament runs from the 28th until the 30th and features some of the best girls' basketball teams in their respective states.
According to the website, the goals of the conference and invitational are to :

Showcase: the academic and athletic accomplishments of our visiting state champions;
Increase: awareness of, interest in and access to the benefits of school based team sports from the elementary to post secondary level;
Educate: parents, players, coaches, administrators and legislators about the need for increased Title IX awareness and compliance.
Learn: about the tools and techniques used to attract and produce academic and athletic champions (national norms and best practices).
Empower: female student athletes, coaches and parents to advocate for program parity and Title IX compliance.

Article Examines Shortcomings in Title IX's Pregnancy Regulations

An article in the latest edition of the Indiana Law Review examines, criticizes, and offers suggestions for improvement to the regulatory provisions that ensure Title IX's protections extend to pregnant students. Author Kendra Fershee, a law professor at UND, first describes and provides historical context for the regulations' main components. First, they ensure pregnant students have the right to stay in school, which is important in light of the historical, pervasive practice of expelling pregnant students. They also provide that pregnant students have the right to choose whether to attend an alternative program during their pregnancy, a provision that counters the practice of hiding pregnant students away in alternative programs. Last, the regulations require that schools offer pregnant students an education equal in quality to that received by their peers, as many then-existing education programs for pregnant students had a limited focus on life skills.

Unfortunately, Professor Fershee explains, the generality and vagueness of the regulations contributes to lack of regulatory oversight and enforcements that allows pregnancy discrimination to persist. She argues that the Department of Education should strengthen the regulations in a number of ways. First, the regulations should provide a mechanism for gathering information about pregnancy in schools and schools' efforts to comply with Title IX. She suggests that thee regulations should require schools to keep and report statistics on the number of pregnant students, dropout rates, transfer rates to alternative programs, and graduation rates. She also recommends that the Department devise an fast-track process for investigating claims of pregnancy discrimination, which would promote enforcement by taking into account the temporary nature of the condition of pregnancy and discrimination resulting from it. Finally, Professor Fershee recommends that the Department conduct routine reviews of schools' policies, practices, that it publish and enforce educational standards to ensure the equity and quality of alternative programs, and that it provide guidelines to school officials on counseling pregnant students.

Citation: Kendra Fershee, Hollow Promises for Pregnant Students: How the Regulations Governing Title IX Fail to Prevent Pregnancy Discrimination in School, 43 Indiana L. Rev. 79 (2009).

Title IX in the comics

A few summers ago I spent some time hanging out in the archives at Radcliffe College looking at the papers from the Women's Equity Action League, a group that was instrumental in fighting for the passage and enforcement of Title IX in the 1970s and 80s.
I was surprised, but pleased, to see several Peanuts cartoons included in WEAL's files and on some of their educational materials on girls in sports. (I am ignoring here the likely copyright violations.)
Turns out Charles Schultz was a strong supporter of Title IX and girls in sport. And the latest collection of his strips illustrates (pun intended) that. It is a collection of the comics from 1973 thru 1974 and includes a very nice introduction by his friend Billie Jean King. Schultz and BJK bonded over Title IX and Schultz would even drop BJK's name in his strips from time to time. (It was a sign that they needed to touch base.)
So if you are a Peanuts fan, check it out.

The older generation

I saw this piece from WBUR, one of Boston's NPR affiliates, and thought I would post it as a kind of tribute to all the older athletic women in my life with whom I have had the privilege and pleasure of cycling, and playing softball, tennis, and golf with and as well as just hangin' with.

And because when I was at the Gay Games in Chicago a few years ago I watched some of the 60+ women's b-ball tournament and was really inspired. So I think more people should know that older women are active and actively creating their own sporting opportunities. Many may not have benefited directly from Title IX, but they certainly are advocating on their own and others' behalf in the spirit of Title IX.

Harassment cases roundup

Here is a roundup of recent judicial decisions in Title IX harassment cases:

• Dominican College in Blauvelt, New York, was unsuccessful in its motion to dismiss a claim alleging that the College's response to charges that one of its students had raped another student, the plaintiff's daughter, who later committed suicide, violated Title IX. The court held that a jury could find that the College's decision to defer the matter entirely to police constituted "deliberate indifference" for liability under Title IX. McGrath v. Dominican College, 2009 WL 4249122 (S.D.N.Y. Nov. 25, 2009).

• A federal judge in South Carolina dismissed a plaintiff's claim against Charleston College that it failed to protect her from sexual harassment by a professor. Specifically, there were no allegations suggesting that college officials knew about the harassment while it was going on, or that they knew about any past incidents of harassment committed by the professor. Once the college found out about the harassment, it took action against the professor, immediately conducting an investigation and eventually disharging him from his tenured position. Ray v. Bowers, 2009 WL 4111576 (D.S.C. Nov. 23, 2009).

• A plaintiff's complaint based on a high school gym teacher's harassment of cheerleader, survived the Clarksville Montgomery County School System's motion to dismiss. The judge held that the plaintiff sufficiently alleged that the principal had adequate notice of the teacher's inappropriate relationship with another cheerleader, and his failure to respond to that incident put the plaintiff at risk. Doe v. Farmer, 2009 WL 3768906 (M.D. Tenn. Nov. 9, 2009).

• A male student, who had been sanctioned after the university found he had sexually assaulted a female student, sued the University, arguing that the disciplinary procedures and sactions were discriminatory on the basis of sex under Title IX. A federal court dismissed this claim, holding that the plaintiff's did not allege that the university's investigation or sanction were motivated by bias against the plaintiff on the basis of his sex. Doe v. University of the South, 2009 WL 3297288 (E.D. Tenn., Oct. 10, 2009).

Mesa Coach Wins Damages in Retaliation Case

A jury in San Diego Superior Court found that Mesa Community College retaliated against former basketball coach when it terminated her position for speaking out against inequities in women's athletics, in violation of Title IX. Lorri Sulpizio's complaints had triggered an investigation by the Office for Civil Rights, which lead to an agreement by the college to remedy disparities in support and resources between men's and women's teams.

However, the jury did not find that the college discriminated against her directly on the basis of sex and sexual orientation, as she had alleged. This is not entirely surprising to me, given how hard it is for discrimination plaintiffs to successfully prove that an employer was motivated by bias. I did not witness the trial, but I am guessing the jury heard evidence that athletic director Dave Evans fired Sulpizio and her partner Cathy Bass, an assistant coach, soon after having been identified in a local news story as domestic partners. But the timing alone does not demonstrate that Evans acted with bias. The jury may have also may have heard testimony that suggested Evans had in the past asked questions and made derogatory statements about the sexual orientation of Sulpizio, given that these allegations are contained in the complaint as well. However, the jury could have found this evidence insufficient to support a conclusion that Evans was biased at the moment he fired his lesbian coaches. I think that the jury's finding that the college retaliated but did not directly discriminate against Sulpizio suggests that a retaliatory mindset may be an easier one to prove, given that it is response to the plaintiff's demonstrable conduct, i.e., complaining, whereas direct discrimination requires a link between the response and the plaintiff's membership in a particular group.

The jury awarded her $28,000 in damages. Attorneys fees and costs are not included in this award. While this award seems paltry in comparison to the million dollar jury verdicts in retaliation cases against Fresno State in recent years, the difference does not so much reflect a lesser culpability of Mesa than it does the degree of economic harm to Sulpizio that the retaliation caused; $28,000 is the equivalent of a year of Sulpizio's salary.

ESPN Profiles Case of Pregnancy Discrimination in High School Sports

Via Womenstake (among other blogs) I learned that ESPN recently profiled a case of discrimination against a pregnant high school athlete in an episode of Outside the Lines. Mackenzie McCollum was a star setter on her high school volleyball team in Fort Worth, Texas, until. But when the school officials learned that Mackenzie is pregnant (from the parent of a teammate in whom Mackenzie had confided), they refused to let her play until she secured clearance from a doctor, citing a district policy. Her coach subsequently informed her team that she was pregnant, in violation of student privacy law. After Mackenzie produced a doctor's note clearing her to play, her coach was forced to let her back on the team, but he cut her playing time in half. Mackenzie and her mother believe that the district selectively applied the policy, and that the coach outed her reduced her playing time, in discrimination against her and in attempt to shame her because of her pregnancy.

Mackenzie's mother filed a complaint with the Department of Education's Office for Civil Rights, charging the Fort Worth school district with violating Title IX. An investigation is now underway. Mackenzie is also represented by the National Center for Women's Rights, who via its Womenstake blog add to the story that Mackenzie's missed playing not only caused her emotional anguish, but reduced her opportunity to impress college recruiters and compete for scholarships. NWLC also points out that discrimination against pregnant students (not just athletes) is common, and few people realize that it is prohibited by Title IX. In fact, it seems to me that the only time there is public pressure to comply with this aspect of the law is when ESPN runs an OTL special on it!

Helpfully, the National Women's Law Center has a resource page with guidance for schools and students on how to accommodate, protect, and nurture students who are pregnant or parenting. The NCAA has also addressed the issue of pregnant student-athletes, and produced these additional resources found here.

Deford addresses cheerleading

When someone I rarely see says, when I sit down for a catching-up chat, "I heard something about Title IX recently," and ponders where he heard it, it means that I probably should have posted about Frank Deford's commentary last week on Morning Edition. Deford took up cheerleading as sport and its effects on Title IX. It did not seem to have a particular angle; it was not inspired (it seems) by any one events nor did he really say anything we have not heard before on this issue. But it obviously reaches more people than when the issues are presented in stories that we read on a regular basis such as the recent kerfluffle in Florida.
So in case you are keeping track of the pros and antis, Deford seems to be against counting cheerleading as a sport. Here is his commentary.

Fundraising at Issue in Complaint Against Oregon School District

The Office for Civil Rights is currently investigating an anonymous complaint against the Lebanon (Oregon) Community School District for sex discrimination in its athletics program. District officials told the local press that the complaint addresses the fact that the softball team does not have an all-weather batting facility like the baseball team, and that the boys' baseball team, but not the softball team, travels to Arizona for spring break. The district also stated that the baseball team "built its own batting cage" and "raised money on their own to take the trip" -- suggesting that it might be considering this a defense to Title IX liability. However, the source of funding will not likely absolve the district of obligations to provide equitable resources to girls and boys. Unless the trips or the facilities are entirely private and not part of the school athletics program (i.e., it just happens to be the case that the 2o guys on the same flight to Phoenix happen to also play for Lebanon High) then any funds raised by "the team" (read: the team's booster club) is considered a donation to the school. And while schools can accept donations and even use them for earmarked purposes, opportunities and resources still have to be equal. The school can either use other funds for equivalent perks for girls, or else decline the earmarked donation.

This seemingly harsh result is put in context by the fact that the baseball team can successfully raise funds because it is privileged to enjoy the support of parents and the community. Title IX does not require parents and communities to embrace girls' sports and help the softball team raise funds. But it does require that schools receiving federal funds do not reflect society's disparate preferences.

Is collegiate football dying?

Well if you listen to the commentary that has come with the announcement that Northeastern University has cut its football program you would think we were back in the early 1900s when football almost died a quick death due to concerns over morality and mortality.
The story on NESN (New England Sports Network) keeps running over and over. It starts with footage of Doug Flutie's Hail Mary pass 25 years ago when he was Boston College's quarterback and then shows footage of NU's women's hockey team (probably one of the few times women's ice hockey makes it to NESN) where the network found NU AD Peter Robie who made the announcement last week. But the whole story is framed around Boston football and how Boston University cut its football team (years and years ago) and now Northeastern is "following suit."
It is unfortunate when any sport gets cut--as we have noted time and time again. But the loss of NU football is not an augury or comment on the state of football. After all, as the NESN story noted, BU has done just fine since cutting its program. (I heard the other day that it offers the 2nd-most expensive undergraduate education in the country. So the lack of a football program has not hurt enrollment.)
When the story first broke, and before the panic attack, I looked at NU's numbers. The school has a 50/50 male/female undergraduate ratio and women receive 47 percent of athletic opportunities. So Title IX was not a factor in the cuts. It was truly a money issue, primarily over the cost of renovating facilities that would attract quality players in order to become competitive again.
But what I did notice was that with football gone, NU would--if it chooses to comply with prong one--be able to add a men's sport. They have women's swimming and diving already. They could add men's swimming and diving which is generally considered a lower cost sport (they already have the pool after all!). And at a time when many eastern schools are cutting men's swimming, it might make NU a popular destination. (Note that I do not know several important factors that would influence such a decision including the current state of the swimming facilities or what kind of competition exists in NU's conference or geographic area.)
In other words, the loss of NU's football program will sting for a little bit, but like BU did, NU will move on and likely improve the overall strength of its athletic department. And football is nowhere near dying.

PA Whistleblower Profiled in NY Times

Yesterday's New York Times contained a profile of Robert Landau, a Pennsylvania man who has been filing Title IX complaints -- more than 30 -- against local school districts since his own daughter was a student athlete in 1989. We wrote about Landau last year, when it was revealed that he was the anonymous complainant who had instigated an Office for Civil Rights investigation of Central Bucks School District for discriminating against girls' teams in areas of publicity, scheduling, and equipment. The Times article notes that over the years, Landau has tackled those issues and others, including equity in the number of athletic opportunities, venue of championship games, and deployment of the school mascot. One of the things that makes Landau remarkable is that his own children are grown; his efforts are on behalf of other people's children in communities other than his own. He acknowledges that as an outsider, he is better situated to blow the whistle on gender discrimination because the threat of reprisal and backlash against students can deter them and their parents from doing the same. He is also better situated than established advocacy groups to use a more aggressive, blitzkrieg approach, since organizations must be concerned about building relationships with repeat players and might have to prioritize instances of discrimination in a wider region.

Landau may be a bombastic nudnik, but he is playing an important role in the fight for gender equality in Pennsylvania athletics. There are other rogue enforcers like Landau out there, but hopefully the Times' choice to profile Landau will inspire a few more.

Not a lot of movement in Ohio

Here's an update on the softball field situation at Chillicothe High School in Ohio. I blogged about the letter sent by the ACLU on behalf of a parent to the school district which complained about the sub par conditions of the practice and playing fields of the CHS softball team.
Not too much is happening, apparently. There's a meeting later this month to discuss the situation and the superintendent says he is working on it, and is hopeful there will be a temporary solution by the time the spring season rolls around.
In other words, not much is happening. (And I have doubts about whether anything will happen by spring given the tone I am reading in the superintendent's comments.) And I usually do not bother to report on articles which really tell me very little, except this one I found blog-worthy for two reasons.
First, the above mentioned lack of movement. It seems the ACLU's letter to the district did not shake them that much. Perhaps if someone files an OCR complaint which would subject the entire athletic program to an investigation that would get them moving. They should be grateful it is only the softball team that is complaining right now.
Second, the article spent very little time on the actual softball issues. When the writer started talking about the comparisons to the baseball facilities which have themselves been erratic due to construction, he never went back to the issues with the softball fields. It became an article about renovations to other facilities including all the football repairs that need to be done. In other words, it became a discussion, in some ways, of the economy and lack of funds but it was also about how the boys' facilities would cost a lot of repair/renovate. This kind of framework makes me wonder just how much is going to be done to improve the girls' softball field come April. Hope I am wrong.

Softball coach takes on football

Usually when we hear about a complaint filed by or on behalf of softball players, said complaint usually compares the treatment softball receives or the facilities it has access to as compared to baseball. But a recent complaint, initially filed anonymously and then admitted to by the softball coach at Theodore High School in Mobile County Alabama, compares the treatment the team get to that of the football team. Perfectly legitimate of course and we have been somewhat concerned by all the softball versus baseball references because that, of course, is not how Title IX compliance is measured.
Coach Tyler Murray seems to be a brave person to take on football in Alabama but her version of the facts is pretty compelling. OCR has already done its site visitation so a report is likely forthcoming.
Murray says that her team does not have access to the same kinds of facilities as the football team nor have they received the same portion of donations to the athletic department. The weights her team (and others worked out on) were removed from the weight room they used. They spent most of their season working out in hallways and the shower area. She alleges that 40 percent of the equipment was damaged because of the move which resulted in some of the pieces being put outside where they rusted. And when her players tried to use the weight room the football team uses, they were kicked out, she said.
After the complaint was filed, the high school converted an art room into a weight room.
Murray also noted that football coaches get paid more than other coaches. The response to this complaint was that this is a nationwide trend. Not exactly a compelling retort.
Her issues have been with her athletic director who, not coincidentally, is also the football coach. He will not comment on the complaint, only saying that he is in compliance. Murray said she had accepted that she and her team gets less, but that her tipping point was when what she had began being taken away from her.
Interestingly, the quotations from the superintendent's statement refers to the law as "Title Nine." This worries me a little. But I am looking forward to hearing what OCR found during its September visit.

DII field hockey team in NC cut

It's never good news when I pull out my calculator and head to the Department of Education's Equity in Athletics Data Analysis Cutting Tool. And this time it's bad news for Catawba College in North Carolina. According to a very brief piece in USA Today, the school has cut women's field hockey--effective immediately. It was the school's oldest women's sport.
It apparently has good reasons. The home team's field is grass which is not as desirable as the turf most other schools are playing on these days. That makes scheduling home games more difficult. Installation of turf would cost an estimated half a million dollars. Also, it appears that field hockey is not very popular in the region. There are not even enough teams in the area to comprise a conference.
Good reasons. But Catawba has a little problem with the numbers. Women comprise just over half of the undergraduate population at the school (52 percent). But they receive only 34 percent of the athletic opportunities. With the cutting of field hockey this percentage drops to 30. It is entirely possible that there are plans to add a women's sport immediately--but that was not mentioned in the articles I saw. It is also possible that the school has been adding women's sports continually and thus has a history of expanding its women's program. But this seems doubtful if women still only receive 30+ percent of the opportunities.
None of the coverage mentions players' reactions. But if they are pissed, which I imagine they are, they might consider calling a lawyer.

Illinois high school lawsuit ongoing

In Canton, IL a lawsuit brought by two parents alleging inequities between the girls' sports program and the boys' program remains unsettled. Mediation had been ongoing but the school board rejected this week the proposed settlement and thus litigation remains pending with a trial scheduled for May 2010.
According to a source the proposed terms included moving some girls' basketball games and practices to an off-site gym (which I assume is a better facility though this facility is never explained) and designate girls' locker rooms at this site as well. Eventually all girls' games would be played at the site.
Samuel Schiller, lawyer for the two parents, said he did not know why the board turned down the settlement. The superintendent only said they did not feel it was in the best interest of the district or the two girls. [Well it's actually supposed to be in the best interest of the girls' program generally--not just the two girls (and their parents) who sparked the lawsuit.]
Schiller was also, as we mentioned in a previous post about the Canton lawsuit, the lawyer for a similar case in Lewiston, IL. As Schiller mentions about Canton's refusal to accept the terms of mediation, continuing mediation and preparation for trial will only cost the district more money. It was recently revealed that the Lewiston case cost the district $102,000. The district tax levy was raised to cover the costs of that lawsuit (which ended in a settlement).
The school board is not set to take up the Canton lawsuit anytime soon. We may be into 2010 before we hear more about this case.

Title IX dads

In what is being called a love letter to Title IX, writer, editor and father Mark Schmitt penned his tribute to Title IX, his daughter, Little League and social change last week in a very nice column about the legislation in his magazine The American Prospect.
The people at Bitch magazine found Schmitt's piece compelling and blogged about it and Title IX more generally. Anna Clark included excerpts from the American Prospect piece in which we see Schmitt, an admitted sport outsider, appreciate the effects of the social change that occured in the 1970s: his daughter is now a catcher on her Little League team. This point of view--the outsider--is particularly interesting, and somewhat unique, in the discourse on girls' sports and the role of fathers. Clark cites some of this research as well: that fathers with sport-playing daughters can be vehicles for support of girls' sports. (A view I have certain issues with--but we'll save that for another time.)
What is interesting is that Schmitt identifies not as a Little League Dad but as a Title IX Dad. Title IX dads seem to understand the social change aspect of the legislation and see the broader issues. Sport dads who support Title IX are probably a little more narrow in their vision of the legislation. They see what it does for their individual daughters. We should not forget the father in Nevada who made Title IX claims when the high school athletic association attempted to move girls' soccer to its traditional season (fall) which would have put his own daughter in the awkward position of having to choose between soccer and volleyball. He was not a Title IX dad. [Not all sport dads are like this, of course.]
Clark gives us a shout-out to us and for that we are thankful. [She thinks we're fascinating--well the blog at least!] But we wouldn't be the responsible bloggers we strive to be if we didn't make one little correction to Clark's connection between Title IX and Little League. The Little League lawsuit was not a direct result of the passage of Title IX because Little League, Inc is not subject to Title IX. Certainly the passage and the lawsuit were part of the overall climate that engendered more support of girls' and women's access to sport in the 1970s.
And the women of NOW--who were integral in the lawsuit--were actually not the first to make the connection between Title IX and sports. Women's sports advocates saw the possibilities the legislation offered for increasing funding of and opportunities in women's sports in educational institutions almost immediately.

Lapchick weighs in on new NCAA president

In a recent issue of Sport Business Journal (which, unfortunately, is only available to subscribers), Dr. Richard Lapchick, who is notable for his many reports on gender and racial diversity in sport and the experiences of collegiate student athletes, has an editorial about the passing of NCAA president Myles Brand and who should take the reins.
Lapchick calls for what he believed Brand would seek in a pool of candidates for his replacement: diversity. Because the essay is not widely available, I am going to excerpt pieces of it here.

This is not to say that I hope that the NCAA will choose an African-American, Hispanic, Asian or American Indian president, or a female one, but I hope it will include the best pool of candidates, including people of color and women.
This would be a tribute to Myles Brand and an important statement to our student athletes on campus, and especially to the student athletes of color in revenue-producing sports.
[...]
The racial composition of conference and athletic department leaders does not reflect the diversity of our student athletes. In addition to having this process be inclusive from start to finish, we also encourage those on college campuses to hold open hiring practices for coaches, athletic directors and other important positions in college sport. The current racial makeup of those positions of leadership tells a one-sided story (see chart). Thus, a diverse pool of candidates for the new NCAA president would be extremely important.

Lapchick also endorses someone for the position, though. He believes Bernard Franklin, currently the executive vice-president of the NCAA is an excellent candidate to take over and continue Myles Brand's vision. Franklin is notable for being the go-to person in the organization on the NCAA's Native American mascot policies.
Other than Lapchick's endorsement of Franklin, I myself have not heard many other rumblings about potential or desirable candidates.

[many thanks for JB for sending me the editorial]

Fresno State Settles With Former Assistant Track Coach

We blogged earlier this year about Ramona Pagel's case against Fresno State, in which she claimed that the athletic department failed to renew her contract and passed her over for promotion to head coach because she advocated for equal treatment for female athletes.

Last week, this litigation reportedly settled for $300,000. Fresno State admits no culpability but stated that it settled to avoid more lengthy and costly litigation. This statement refers, of course, to the five other lawsuits filed by former female coaches and employees of the athletic department, for which Fresno State has had to pay more than $16 million.

OCR to Investigate Whether University of Kansas Athletics Discriminates Against Men

According to CollegeSwimming.com, the Department of Education's Office for Civil Rights will investigate a complaint filed against the University of Kansas last month, alleging that the University's failure to offer a men's swimming and diving team violates Title IX. The complaint, filed by an alumnus who also swam in the 1980 Olympics, specifically alleges that the University violates all three prongs of the three prong test: that men are disproportionately underrepresented in the athletic participation opportunities; that the university does not have a history and continuing practice of expanding athletic opportunities for the underrepresented sex because the last men's sport added at Kansas was golf, 73 years ago; and that there is unmet interest and ability among the underrepresented sex, as demonstrated in part by a petition to bring back men's swimming & diving.

According to data submitted by the University and publicly available on the Department of Education's website, Kansas is a rare example of a university at which men are statistically underrepresented in athletics. The gender breakdown of the student body is very close to 50/50. Yet men receive only 46% of the athletic opportunities. Even though Kansas has a large-roster football team, it only offers a limited number of additional opportunities to men, in sports of track, golf, baseball and basketball. Women have opportunities in basketball, track, golf rowing, soccer, softball, swimming and diving, tennis and volleyball. Two issues will confront OCR in investigating whether this disparity violates the proportionality prong. First, whether Kansas is accurately counting athletic opportunities, as sometimes schools engage in roster management techniques that end up counting less-than-genuine opportunities or engage in tricks like adding students onto the roster after their official numbers are turned in. Assuming that Kansas's reported numbers are accurate, OCR will then have to figure out whether a 4 percentage point disparity is close enough for "substantial proportionality" required by the test. There is no bright-line test, but OCR has in the past accepted that five percentage point difference between the percentage of female students and the percentage of female student athletes still constituted substantial proportionality. The fact that this case involves underrepresented male athletes should itself make no difference to OCR's decision to rely on that particular benchmark.

The other interesting issue OCR's resolution of this complaint would have to address is whether failing to add a team in 73 years is tantamount to failing to add opportunities for men. Generally, football program rosters have been steadily increasing, and this could constitute evidence of a history and continuing practice of expanding opportunities for the underrepresented sex. Moreover, if men became the underrepresented sex at Kansas only recently, OCR may determine that this prong does not (or not yet?) apply.

In sum, OCR has the opportunity to address many questions about the three-prong test that have only been theoretical possibilities; namely, how the three-prong test applies when the balance of opportunities tips towards women.

Jury Finds for UW in Rape Case

Here is an update to yesterday's post about the trial against University of Washington regarding its handling of a student's rape charges against a football player. While jurors apparently viewed the UW's conduct as constituting deliberate indifference, they did not agree that the plaintiff satisfied another element for institutional liability under Title IX for peer harassment. According to the Seattle Times:

Jurors said they found for the UW, by a 10-2 vote, based on narrow legal ground, determining that the plaintiff's educational opportunities had not been sufficiently harmed by the university's handling of her complaint. She remained in school, kept a high grade-point average, and graduated.

When asked Thursday how the UW handled the case, one juror said: "You want a quote? Piss poorly."

The article doesn't say what evidence the plaintiff put forth to demonstrate that her educational opportunities had been harmed. Presumably, given the sentiments of the jury (the article says they tried to read a statement excoriating the university, but the judge wouldn't let them) even if she had made a modest showing they would have accepted it as satisfying the element for liability. They could have then factored it their perception of only minor harm to their calculation of damages.

More Universities Add Competitive Cheer... I Mean, "Team Stunt and Gymnastics"

A recent article in Athletic Business profiles the apparent trend in college sports -- competitive teams in an activity formerly(?) known as cheerleading, now, at least in some circles, team stunt and gymnastics. Competitive cheer is nothing like sideline cheer, or the predominantly sideline cheerleaders who perform a competitive routine once a year at Nationals. Competitive cheer teams compete against each other in structured meets over the course of a season. AB describes it this way:

Team and individual stats will be compiled during four compulsory stunting rounds, followed by each team's uniquely choreographed final routine judged for its degree of difficulty and the ability of its performers to "hit" their skills passes and limit their "bobbles."

"It's like floor routine in gymnastics but with 20 people on the floor — all synchronized," [University of Oregon Head Coach Felecia] Mulkey says. "It has some stunts in it that may look like cheerleading, but without any of the cheerleading stuff."

Six universities have competitive cheer teams: University of Maryland, University of Oregon (they are the ones who call it team stunt and gymnastics), Baylor, Fairmont State, Morgan State, and Quinnipiac. The NCAA does not currently offer a championship in competitive cheer, but cheer proponents hope to change that. If four more institutions create varsity programs, then NCAA could recognize it as an emerging sport as early as August 2011. As an emerging sport, it would then have 10 years add 40 varsity programs at NCAA member institutions for the NCAA to stage a championship.

The "emergence" of competitive cheer is supported by those who note the sport's popularity. Obstacles, however, include the fact that many universities are not in the economic position to add new teams, and AB also notes expressed concern about the sport's high injury rate. The article does not delve into another concern that competitive cheer programs raise, which is that athletic departments are adding them not to respond to interest and ability of their female student population, but as a cheap and easy way to achieve compliance with Title IX's proportionality prong. For one thing, cheer enjoys popularity as a co-ed sport. Kate Torgovnick's Cheer makes the point that in some non-varsity cheer programs (competitive-sideline hybrids) the co-ed squads are at the top of the cheer hierarchy. If the sport was truly being added in response to interest among the student body, it would include opportunities for men. Limiting the sport to women, on the other hand, suggests that adding cheer so they don't have to add other women's sports. Another reason for concern is that some schools (I'm thinking of Quinnipiac) propose cheer squads that have both larger rosters and smaller budgets than any other women's teams. That too suggests the possibility that a school's primary motive is to pad their numbers rather than offer meaningful athletic opportunities. Hopefully these points do not sound like criticism directed at competitive cheer. Rather, I think that they are concerns the sport, and the rest of women's athletics, should keep in mind as competitive cheer continues to gain ground.

h/t Jeff

UW Rape Case Goes to Trial

A jury will soon decide whether the University of Washington violated Title IX in its handling of claims that a football player had raped another student, his former girlfriend. As we have noted in a prior post, the victim, identified in court proceedings only as S.S., argues that university officials failed to encourage or inform S.S. of her rights to the university judicial disciplinary process so that the case could instead be handled by the athletic department. The athletic department, in turn failed to investigate her case because the perpetrator's status as a football player, suppressed the case to avoid negative publicity, and penalized him with community service and counseling rather than suspending him from games. Last year, the court of appeals in Washington agreed that these facts, if proven, would constitute deliberate indifference for which the university is liable under Title IX.

The case has tried before a jury in King County, Washington. The jury received the case yesterday and is deliberating today. At stake are damages up to $800,000.

(Via Ombuds Blog.)

Court Dismisses Retaliation Case Against National Geographic

A federal district court recently threw out Title IX claims against National Geographic Society after determining that it did did not retaliate against against the plaintiff, who had been the director of the NGS-affiliated entity that operated the National Geography Bee in North Dakota. This decision caught my eye at first because of the unusual (for Title IX) defendant. Usually Title IX cases proceed against universities, school districts, and other educational entities whose connection to federal funding is obvious. Interestingly, Title IX's applicability to NGS was not in dispute or even explained in this case. It must either be the case that NGS (or the NGS Education Foundation) itself receives federal funds, or that its practice of operating the Geography Bee through an alliance with a local educational institution (in this case, Minot State University) was in the court's mind a sufficient connection to federal funds.

The court's decision itself also warrants some analysis. The plaintiff, Eric Clausen, argued that he had complained that the National Geography Bee was biased against girls in North Dakota, pointing out that boys win 90% of the time. He further alleged that he was forced to resign as a result of his complaints. Yet the court found that he did not state a claim for retaliation because Clausen's complaints about the geography bee's bias was not itself discrimination under Title IX ("The Court finds as a matter of law that an alleged failure by females to win the national geography bee as often as males neither establishes nor supports a Title IX violation. Title IX neither guarantees nor suggests that females must win as often as males."). Thus, his complaints were not "protected activity" as required to establish a retaliation claim.

The court was right that Title IX's focus is on equal opportunity, rather than equal outcomes, and that the law does not "guarantee that females must win as often as males." However, there are two reasons why I think it concluded too quickly that Clausen did not engage in protected activity. First, retaliation law only requires that the plaintiff have a reasonable belief that the conduct or practice they are challenging constitutes unlawful discrimination. Thus, even though the court may be correct that the Geography Bee did not violate Title IX, the right question is whether Clausen reasonably believed that a 80-percentage-point gender gap in Geography Bee winners might be the result of unlawful discrimination.

This brings me to my second criticism of the court's conclusion that Clausen did not engage in protected activity. I think Clausen could have reasonably believed that the Geography Bee was unlawfully biased. Title IX's prohibition is not limited to intentional discrimination; the law also forbids practices that have an unintended discriminatory effect on a particular sex. For example, New York state used to award scholarships to high school students based on their SAT scores, a practice that unintentionally awarded more scholarship dollars to male students. A federal court ruled that this was discriminatory under Title IX, because there were other criteria the state could use that would provide as good or better measure of academic merit and would have a less discriminatory impact on female students. Sharif v. N.Y. State Educ. Dept., 709 F. Supp. 345 (S.D.N.Y. 1989). Viewed as a possible case of disparate impact discrimination, it seems much more likely that Clausen's complaints about the National Geography Bee's tendency to favor male students were rooted in his reasonable belief that it reflected unlawful discrimination. Sometimes test questions -- either because of their content or their format -- unintentionally favor a particular group, and an extreme disparity reflected in the test results is usually the first sign to the testing entity of a potential bias. An employee who points this out and asks the testing entity to correct or at least examine the test for potential bias ought to be protected from reprisal.

Unfortunately for Clausen, even if he successfully appealed the court's conclusion that he engaged in protected activity, he would also have to surmount the court's conclusion that he did not sufficiently allege that he was forced to resign because of his advocacy for gender equity. Apparently there was evidence that he resigned for other reasons relating to business decisions made by the entity that he directed. I leave it to Clausen's lawyer to figure that one out.

Decision: Clausen v. National Geographic Society, Inc., 2009 WL 3271355 (D.N.D. Oct. 10, 2009).

Connecticut Boy Calls State Field Hockey Policy Into Question

The Hartford Courant recently profiled a middle school field hockey player in Avon, Connecticut, named Blake Armistead. Though he has been allowed to play on the girls' team in middle school, the Connecticut Interscholastic Athletic Conference does not allow boys to play on high school teams. So Blake, who learned the sport in his native Australia, a country where many boys and men play field hockey, is going to have to give it up. The CIAC justifies the policy with arguments about gender equity; if its rules allowed Blake to play, boys would take away opportunities for girls, who are already underrepresented. Others quoted in the article question the safety of allowing boys and girls to play together.

The legal status of policies excluding boys from girls' sport has been covered in prior posts (see here and here). It would likely be upheld under Title IX's regulations governing separate teams, but Title IX is not the only source of nondiscrimination law applicable to this situation. In 1979, the Supreme Judicial Court in Massachusetts, for example, struck down a similar exclusionary policy for violating the state constitution's equal protection clause. The court's analysis addressed many of the same objections raised in Blake's case. The court was not persuaded by arguments about safety, because a policy excluding boys for safety reasons is based on generalizations about boys, and is not narrowly tailored to address safety concerns. Some boys are large and may pose a safety threat, but then again, so are some girls. Sex is not a perfect proxy for size; if you want to exclude people whose size poses a safety risk, exclude people based on size, not sex (see also a related prior post here).

The court in Massachusetts also rejected the argument that the policy was justified to preserve athletic opportunities for girls. Schools and conferences can figure out for themselves how to avoid discriminating against male field hockey players on the basis of their sex, and simultaneously offer balanced athletic opportunities for girls and boys. For example, if so many boys wanted to play field hockey that girls are losing out, the appropriate response is to add or reallocate athletic opportunities so that there are enough opportunities in field hockey to accommodate both sexes.

Interestingly, the Hartford Courant article points out that in Massachusetts, the number of boys playing field hockey is extremely low: 26 out of ~8000 players. Perhaps due to the low numbers, or perhaps because people have gotten used to it, the presence of male field hockey players is not very controversial any more. The article does not say whether Blake and family plan to challenge the CIAC's policy, but if they did, it would be interesting to see whether the reasoning of the Massachusetts court, or the experience of the CIAC's Massachusetts counterpart over the last 30 years, holds any sway.

U.S. Commission on Civil Rights to Look at Admissions, Athletics

InsideHigherEd.com reports today that the U.S. Commission on Civil Rights has commenced an "inquiry" into admissions standards that may be favoring male applicants who are increasingly underrepresented in the student bodies of many liberal arts colleges. The article suggests that the Commission (which does not have enforcement authority, only the power to make recommendations) may be using concern for female students as cover its real target, Title IX's application to men's sports. Colleges would not need to rely on discriminatory admissions standards if they could only attract more male applicants; they could do this by offering more athletic opportunities for them, but they are, sadly, hamstrung by Title IX.

This line of thinking is logically flawed, factually inaccurate, and steeped in stereotypes. First, no one is forcing colleges to lower their academic standards for male applicants. There is certainly no mandate that colleges admit men and women in equal numbers, just as there is no requirement that their student bodies are proportionate to the nation's racial demographics (imagine the uproar if that were so!) Colleges are afforded at least as much flexibility to consider sex in admissions as to consider race (the plus factor approach) and within constitutional limits, it is up to school how to incorporate academic standards and diversity into admissions decisions.

Second, Title IX is not the reason schools can't add men's sports -- the fact that men still have more athletic opportunities than women, both in absolute and relative terms, is the reason why schools can't add men's sports. Third, at least some colleges are adding men's sports -- we've blogged about it, see here, here, and here, e.g.! -- so even taking it out of the context of admissions, the suggestion that Title IX is preventing schools from expanding their men's athletic programs doesn't withstand scrutiny.

Fourth, the idea that colleges need to solve their admissions problem by adding sports for men operates from the annoyingly premise that it is more important to satisfy the athletic interests of men who are not, apparently, otherwise bound for college than it is to satisfy the women who are already there -- women are interested in sports too, and women have fewer athletic opportunities even though there are more of them in college!

Last, it sells men short; it suggests that they need to be tricked into applying to college by an admissions brochure with a lot of pictures of guys playing sports. To again use the race as an analogy, imagine the outrage if a government office expressed sympathy with colleges seeking to boost their racial diversity by adding athletic opportunities for minorities. Some would argue that such a plan exploits the minority student athletes and stigmatizes the minority student population in general by suggesting they otherwise would not be college bound. Some would argue that such a strategy provides clear evidence of the school's intent to promote athletics above academics. Others would argue that it's unfair to the white kids to limit their opportunities. All would be a little bit right.

It will be interesting to see what the Commission's inquiry reveals. Hopefully, it will steer clear of the misinformation and stereotypes discussed here.

UPDATE 11/3/09: More from today's Inside Higher Ed here; and Women's Sports Blog has a good take on it here.

Early talk of retaliation in firing of tennis coach

Last week, Ball State University in Indiana fired its women's tennis coach. Kathy Bull was in her 22nd year as head coach of the team. The firing, according to the athletic department, is the result of NCAA violations. Ball State, until earlier this month, had been on NCAA probation due to a textbook scandal several years ago. In their two-year probation period they self-reported 27 secondary violations. Two of those concerned women's tennis. But if these are the violations in question, we do not know.
One would think that such an abrupt firing in mid-season would be the result of more than two secondary infractions. (By way of comparison, the football team had 5 secondary violations during the same probation period.)
The surprise announcement has a few people thinking retaliation.
Bull had told Ball State's student newspaper that the university was under investigation for gender equity violations.
And this editorial questions whether her firing has anything to do with her complaints about Title IX violations and gender equity within athletics.
The gender equity complaints are still under investigation and Bull has not commented on her firing let alone whether she will pursue a wrongful termination lawsuit.

In case you didn't believe us...

...it's true that most athletic departments do not make money and many are not even breaking even these days. The NCAA released the results of a study this week that looked at the numbers from 2004-2008. In DI, the Football Bowl Subdivision (FBS) consists of 119 schools. Only 15 reported a profit in 2008.
This was not surprising, but I have to say I was shocked (even though I shouldn't have been) by these numbers:
Median salary of FBS football coach: $1.095 million
Median salary of FBS men's b-ball coach: $822,000
Median salary of FBS women's b-ball coach: $277,000

Lax growing in popularity

Hilbert College in New York will be adding men's and women's lacrosse next year, reflecting a trend--a couple actually. First lacrosse is at or near the top of the list of fastest-growing sports at both the high school and collegiate level and for both men and women. Second, even in the lousy economy, DIII schools are adding sports. It's smart move for a school that does not offer scholarships and is looking to draw more (tuition-paying) students. Lacrosse has historically been an eastern US sport and I am sure Hilbert will not have to recruit very far at all to put together competitive teams.

Women's wrestling coming to Texas

High school wrestling in Texas may not be as big as football but 7,000 high schoolers compete in the sport. But there are no intercollegiate wrestling programs in the state.
Wayland Baptist University in Plainview is changing that. The university will add men's and women's wrestling in 2010 and hopes to be a trend setter in terms of the presence of the sport in Texas colleges and universities.
Interestingly, this article about the additions makes little to-do about how it will most definitely be a trend setter in women's wrestling. Although we have seen other institutions add and consider adding women's wrestling which seems to be a sport on the rise (though the NCAA still has not listed it as an emerging sport!), there are still only 13 intercollegiate women's programs.
I found it somewhat appropriate that a Texas institution is instituting one of the first 20 programs nationwide given the issues the state has had with female wrestlers in the past. [See the excellent documentary Girl Wrestler for more on that.]

Settlement Ends Title IX Suit Against FHSAA

The controversy in Florida that resulted when the state's athletic association that proposed a cost-saving schedule reduction for every sport except football and cheer was largely resolved over the summer, when the FHSAA rescinded the proposal in response to a lawsuit. Parents had sued the FSHAA arguing that that the proposal violated Title IX because it disproportionately affected girls' athletic opportunities. Exempting cheerleading along with football did not ensure that the cuts would equally affect girls' and boys' athletic opportunities, they argued, because even putting aside the issue of whether cheerleading counts as an athletic opportunity, football offers far more more athletic opportunities to boys than cheerleading does for girls.

After the proposal was rescinded, the parents continued to press the court for an injunction that would prevent FHSAA from making a similar decision again in the future. Yesterday, however, the plaintiffs announced that they would drop that lawsuit as part of a settlement under which FHSAA agreed to give advance notice to the plaintiffs' attorney, Professor Nancy Hogshead-Makar of Florida Coastal School of Law, before attempting to reinstate any of the rescinded the policy. FHSAA also agreed to pay the plaintiffs' attorneys fees and to conduct Title IX training for its members.

Fields of discontent in Ohio

A parent has notified the ACLU which has sent a letter to the Chillicoth school district saying that they may be in violation of Title IX due to the discrepancies between the high school's softball and baseball fields. Which are the facilities in question remains a confusion because the baseball team's usual field has been out of commission for several years during building facilities renovations. In that time they have had access to two different off-campus sites. The softball team, however, does not have an on-campus field and their off-campus facility is sub par according to the letter and the complaining parent. They apparently don't even have bases when they practice which seems odd but the lack of proper dugouts and fencing are also problems and the team does not have the authority to maintain the field themselves.
No complaint has been filed with OCR yet and the school district has not formally responded.

Also apparently, according to the story linked above, a softball/baseball facilities complaint has just been filed with OCR regarding a Toledo school district.

New Research Addresses Discrimination in Ticket Prices

A new report by researchers at the Wellesley Centers for Women examines the gender gap in ticket prices for Division I college basketball. Significantly, the report explains that ticket prices are set by athletic departments' own judgments of the value of women's sports, rather than by market forces. As the abstract states, "This distinction is critical because previous research shows that lower-priced events are perceived as lower quality and less worth watching or attending." In other words, athletic departments are creating, not responding to, lower demand and attendance for women's sports.

Quinnipiac v-ball not a sure thing

During the midst of court proceedings last spring, Quinnipiac University in Connecticut reinstated women's volleyball under pressure about their Title IX compliance and some questions about doctored rosters.

But the university went ahead with its original plan of adding competitive cheerleading. And with the high turnout for that "team," the university is claiming they are well in compliance now--overcompliant in fact, says the president. This all means that volleyball is not safe from being re-cut. He is pitting sports against academics saying that the money from cutting teams can be used to find 5 full-time professors. There's nothing that says you cannot prioritize academics. But what happens is that sports get pitted against each other as they started to last spring when some of the arguments we heard in court pitted the cheerleaders against the volleyball players.
And despite the fact that we were happy that volleyball got reinstated (and a little miffed at the way men's sports were dropped in a miscontextualized zero-sum game explanation), we here at the Title IX Blog were eager to see how a court would treat competitive cheer in a Title IX case.
We still may get that opportunity. Litigation is technically still ongoing and if volleyball does get re-dropped, we may see another lawsuit about the validity of counting cheerleading toward Title IX compliance.

Alaskan softball players cite inequities

Can't believe Sarah Palin who, during her vice-presidential campaign, espoused the benefits of Title IX, let her home town get away with inequitable treatment of female student-athletes.
But the Mat-Su School District, which includes the town of Wasilla, is facing a lawsuit brought by two softball players (and their parents). The facts, at this early stage, remain somewhat ambiguous but apparently some of the issues brought up in the filing are ones school officials have heard before. The issue of fields does not appear to the prominent one, or at least as prominent in most of the other cases about softball. Wasilla High School's field underwent renovations this past summer. There is some dispute over whether softball has access to an on-campus practice field like the baseball team does.
It seems that funding is the major issue here with the complainants saying that boys' teams receive greater funding than girls' teams. This is not an automatic violation, of course, but it goes on to say that softball has to pay for its own equipment and supplies. If boys' teams are provided these things by the school there is the potential for some trouble. But my guess after reading about economic woes and booster clubs stepping up, is that boys' team may also have to find their own equipment and supplies but that they have booster clubs that raise the money for them. But as we know by now, successful boys' booster clubs do not negate a school's Title IX responsibilities.