Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

DI Stipends Headed for Override

Christine Brennan doesn't mince words in her column in USA Today. The NCAA's new plan allowing Division I schools to pay full-scholarship athletes a $2000 cost-of-living stipend was "bad from the beginning, a ramshackle idea that saddled already-strapped athletic departments with another financial burden while also asking them to do something that appeared to be against the law." Brennan explains how the stipend proposal was hastily passed after it emerged from a working group lead by none other than disgraced Penn State President Graham Spanier. There is no indication that the NCAA took into consideration the financial implications on athletic departments that are desperate to cut costs in this economy, not add them -- as Brennan points out, only 22 universities out of the 331 in Division I actually have a profitable athletic program. Nor does it appear that the NCAA gave any consideration to the gender equity implications of this proposal; Brennan echoes our concern that limiting the eligibility to for the stipend to full-scholarship athletes creates an inherently inequitable situation because there are twice as many full-scholarship male athletes than female. (Citing AD Tom Osborne's objections along these lines, which we blogged about Tuesday, Brennan says, "When a crusty warrior such as Osborne has to teach the NCAA about the law [Title IX], it's downright embarrassing.")

The good news, Brennan reports, is that this plan appears to be headed for a rare override vote by the Division I membership, as 97 institutions have petitioned the NCAA to reconsider the stipend-authorizing legislation. Come January, the plan could be overhauled or even scrapped.

Mississippi High School Coach Sues District

Catherine Papagolos, former softball coach, filed suit against the Lafayette County School District in Mississippi, claiming that she was fired in retaliation for complaining about gender equity in her salary. Specifically, it is reported that she alleged she was fired after questioning why her salary was not comparable to that of the high school baseball coach.

While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.

Like We've Been Saying...

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Cal State students file harassment complaint

About a month ago I read about issues of harassment on the Cal State San Marco campus. At that time it seemed that groups of students were being targeted by a kind-of, sort-of campus publication whose purpose is hate-mongering. The publication called The Koala is actually a former Cal State San Diego publication that its founder (a CSUSD grad) has turned into a for-profit venture on several CSU campuses. It regularly, according to various reports, targets racial, ethnic, and sexual minorities as well.
A group of women and allies who did not enjoy the hostile content directed at women as a class (and some personal attacks against more outspoken women) and citing the publication's creation of a hostile and intimidating climate on campus, went to the administration seeking some redress. But they received none from the university. And so they filed a Title IX complain with OCR.
There continues to be pressure on the administration to take action against the publication including a petition at Change.org.

Title IX expert and adjunct professor of law, Wendy Murphy, is helping in the complaint process.

Division I Cost-of-Living Stipends Draw Objection from Faculty

When we blogged last month about the NCAA's vote to allow Division I institutions to provide athletes who receive full athletic scholarships with $2000 spending money stipends, we speculated that this proposal could exacerbate existing disparities in scholarship funds awarded to men and women, causing and contributing to member institutions' compliance problems under Title IX.

Reading a letter sent today to the NCAA from the Faculty Athletics Representatives, I came to understand why the problem is even worse from a Title IX perspective than I initially understood. The new rule only authorizes the cost-of-living stipends to athletes in so-called "head count" sports who receive full scholarships or the equivalent of a full scholarship when combined with other financial aid. Athletes in "equivalency sports" who receive receive partial athletics scholarships are not eligible for the stipend. While Division I allows up to 98 full scholarships in the men's head-count sports (football and men's baseball), there are only 47 possible female head count student-athletes (basketball, volleyball, gymnastics, and tennis). So there is no way an institution could fully fund its cost-of-living stipends and still comply with Title IX. FAR has requested that the NCAA amend the proposal to allow cost-of-living stipends in equivalency sports as well, which could theoretically allow institutions to spread smaller awards over more athletes in a way that could balance out the total dollars awarded overall.

We'll have to wait and see how NCAA responds to this proposal, and generally to the Title IX objections that have been raised.

More re-integration

Another school district in Alabama has opted to end its single-sex middle school classrooms.
Tallapoosa School District has said it will stop its single-sex program at the end of this year. This program had been in place for several years and, despite being legally required to, did not provide opt-outs for students/parents who did not want to be educated in single-sex classrooms.
The program began because of alleged hormone-induced behaviors that required disciplining.

Ann Arbor No Longer Plans to Exempt Football from Cuts

This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.

I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.

Massachusetts Adds Transgender Protection to Antidiscrimination Laws

In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.

Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.

Tennessee Rejects Equal Pay for Women's Athletics Officials

The Washington Post reports that the University of Tennessee recently rejected an internal complaint filed by three employees of women's athletics, arguing that their salaries were discriminatory because they were less than their counterparts in men's athletics. The employees held the positions of Athletics Director for Women’s Sports Medicine, Assistant Athletics Director for Women’s Strength and Conditioning, and the Associate Director for Women’s Strength and Conditioning, until the recent merger of men's and women's athletics at Tennessee.

The University of Tennessee's Office of Equity and Diversity denied their pay discrimination claims after determining that these positions in women's athletics were not comparable to the equivalent positions in men's athletics to justify equal pay. Specifically, the Office stated that due to the financial importance of football to the university, the sports medicine/strength & conditioning employees in men's athletics had a more important job because it mattered more financially that male athletes were healthy:

Football overwhelmingly is the top revenue-generating sport in Athletics and the sport that generates the most fan interest,” the report says. “If the University’s football team is successful, then the entire Athletics program reaps the monetary benefits. If the University’s football team is unsuccessful even partly because football injuries are not being prevented, diagnosed, treated and rehabilitated successfully, then the entire Athletics program suffers. “With no disrespect being intended to Ms. Moshak [Athletic Director for Women's Sports Medicine], Mr. McVeigh’s position [Director of Men's Sports Medicine] is more important to athletics because of his football-related responsibilities."

With this statement, the University of Tennessee declares its true intentions in running an athletic department -- not, as its mission statement conveys, to enrich the education of student athletes, but to exploit the revenue-generating potential of certain sports. Aside from being hypocritical and morally void, this position also suggests that the University is (or was in the recent past prior to the merger) violating Title IX with respect to its athletes, as the law requires equal treatment when it comes to "medical and training facilities and services." And the law contains no exception for football or any sport because of its capacity to generate revenue.

Nor is it clear whether football's revenue justifies paying men's medical and training staff more. If this case made its way to the EEOC, the federal agency that enforces Title VII and the Equal Pay Act, it would consider whether the medical and training staff that McVeigh oversees is comparable in size to Moshak's. Yes, it may take more work to keep the football team healthy, but if you get a larger staff as a result, you can't use "football takes more work" as a justification for unequal pay. Another factor that the EEOC would consider is whether men's and women's athletics received equal opportunity to generate revenue. If the university allocated fewer resources to market and promote women's teams, it can't use the fact that men's teams bring in more revenue to justify pay disparities between men's and women's athletics.

The article does not suggest what's next for this case. Now that the university's decision is final, having been approved by the President on internal appeal, it will be interesting to see if the employees press their claims with the EEOC. And though its less likely, it would be even more interesting to see if someone presses the disparity in medical training as a violation of Title IX.

Coach Files Retaliation Suit Against Central Connecticut State

A former track and cross-country coach at Central Connecticut State University has filed a lawsuit claiming that the university decided not to renew her contract in retaliation for her efforts to secure equal treatment for her team. The plaintiff was hired by the university in 2006 on a one-year contract, which was renewed annually until it was terminated in 2010. According to her complaint, she successfully coached the women's track and cross-country team during that time, improving the team's record and engaging in successful recruiting efforts. Yet despite being promised equal treatment compared to the men's track team, her team allegedly received a much lower budget than the men's team, less access to facilities, and had problems securing transportation to away meets. The plaintiff also noted inequitable support from a "shared" assistant coach who spent his time helping the men's team and not the women's.

The plaintiff claims that when she raised these concerns to a university official with oversight responsibility over athletics, her complaints were mocked and not taken seriously. Rather than investigate her complaints, the compliance officer investigated the coach herself, while one athletic department official allegedly pressured an athlete to file complaints against her. She was also threatened with "disciplinary action" if she did not "ignore everything that was happening" and continue to press her complaints. Meanwhile, the plaintiff also noted ways in which she was afforded less respect than the male coaches, such as being left off the athletic department website (when newly-hired male coaches were added immediately) and misreporting the men's head coach's title as "Head Coach for Track" (instead of "Head Coach for Men's Track"). The plaintiff claims she was also singled out for budget reductions and the cancellation of one of her athlete's scholarships. She attributes to this hostility to the fact that the athletic department had supported the assistant track coach for her position and was disappointed that the university president had required them to hire a woman instead.

In 2010, an athletic department evaluation committee recommended the plaintiff for another contract renewal, noting the athletic and academic success of her team. But the athletic director did not renew her contract and instead combined the men's and women's track teams back together, as they had been before Webb was hired. The assistant coach who had sought the plaintiff's job was hired as the head coach of the unified team, notwithstanding the plaintiff's longer experience in coaching and coaching in Division I, as well as other superior coaching credentials.

On these facts, the plaintiff's complaint satisfies the elements to establish a prima facie case for retaliation under Title IX. She alleges that she complained about gender equity, and that she experienced adverse employment consequences including being terminated from her position. She also alleges facts that support the inference that those two things are causally connected, including that she was threatened with "discipline" if she did not drop her complaints. The university will likely defend this lawsuit by proffering "legitimate" reasons for terminating the plaintiff, perhaps by arguing that she did not meet performance expectations. She will then have to prove that the university's proffered reason is actually a pretext for retaliation. For example, if the university claims she was fired because her team was not competitive, the plaintiff could demonstrate this is a pretext by proving the allegations in her complaint that the university did not terminate the coaches of other men's teams that were not as successful as hers.

The plaintiff's complaint also includes counts of direct discrimination under Title IX, as well as comparable claims under state law. She seeks compensatory and other damages exceeding $2 million dollars, a number that is not out of bounds after verdicts and settlements in similar retaliation cases against Fresno State and Florida Gulf Coast University.

Recommendations for cuts in at Maryland

The recommendations for how many and which teams will be cut from UMD's athletic department came faster than we expected. And it seems like President Wallace Loh will make his decision, based on the committee's recommendations, sooner than he had planned as well. (He initially said he would decide by the end of the year.)
So, as expected, men's and women's swimming and diving is on the list. Six other teams join them: the entire men's track program (a total of three programs), women's water polo, and acrobatics and tumbling.
The last was particularly interesting. Maryland was the first institution to elevate its cheerleading team to varsity status, calling it competitive cheer. This seemed to be the watershed moment for competitive cheer, which now goes by several names depending on which governing body a team aligns itself with. I would imagine this is kind of a blow for competitive cheer. We predicted that competitive cheer would be embraced by many schools because administrators view it as a somewhat cheaper way to add opportunities for women. Does this move by Maryland signal that administrators are also going to see the sport as easy to drop when things get tight?
As the WaPo article notes, these decisions are not final. Loh must make them official. I imagine he will not draw things out and do it soon.

Title IX and Penn State

In a two-part column at Justia.com (see here and here), Hofstra law professor Joanna Grossman and Pittsburgh law professor Debbie Brake examine whether Penn State is liable under Title IX for the sexual abuse committed by former Assistant Coach Jerry Sandusky, who used Penn State facilities to anally rape boys he associated with under the auspices of charity that Sandusky founded.

In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."

For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.

Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.

The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.

While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.

Remaining Idaho Complaint Closed with Voluntary Resolution Agreement

I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.

Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.

Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."

If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.

So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.

Pittsburgh School District Ends Single-Sex Classes

The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.

The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”

Women's Sports Foundation Reports on Participation Trends in High School Athletics

The Women's Sports Foundation has published a new report called “Progress Without Equity: The Provision of High School Athletic Opportunity in the United States, by Gender 1993-94 through 2005-06.” Using data from the Civil Rights Data Collection and the National Center for Education Statistics, the report authors, Professor Don Sabo from D'Youville College and Phil Veliz from SUNY Buffalo, examine gender differences in athletic opportunity in a sample of 24,370 public high schools across three school years, 1993-94, 1999-2000, and 2005-06. The authors measured the number of athletic participation opportunities, the number of teams, and the number of sports in the sample school districts during these years, and then controlled for a variety of factors about those schools including geographic region, level of resources, and whether urban, suburban or rural. As described in the report's abstract, its key findings include:

• While high schools gradually increased their allocations of athletic participation opportunities between 1993-94 and 2005-06, progress toward closing the gender gap slowed after 2000.

• Boys received a larger proportion of athletic participation opportunities than girls did for each school year in all communities (i.e., urban, suburban, town, and rural). The lowest percentages of athletic participation opportunities occurred in urban schools, whereas the highest percentages were issued in rural schools.

• Schools with greater economic resources provided more athletic participation opportunities for their students—both girls and boys—than their less fiscally sound counterparts.

• Girls were provided proportionately fewer athletic participation opportunities than boys during each school year and in all geographic regions (i.e., Northeast, Midwest, South and West.

To me, this report provides an answer to those who would curtail Title IX's enforcement at the high school level. By proving that girls' opportunities are still lagging and progress towards equality waning, this report should encourage regulators and lawmakers to strengthen Title IX's application to high school athletics such as by taking seriously those seeking OCR enforcement against continued disparities, and by passing legislation that would standardize participation data and make it available and easier to find for those seeking to file a complaint or a lawsuit.

Maryland athletics cutting teams

University of Maryland has some tough decisions to make. The department, which is required to be self-sustaining (no money from the general fund; it does receive student fees) is not. Facing major deficits, it now faces the task of cutting teams--many teams--up to 10 according to this WaPo article.
It looks like men's and women's swimming and diving are almost certain to be cut. The university president has formed a commission and asked for a study which will include recommendations for teams to be cut. But the swim teams have caught wind of the news already; so has Bob Groseth, the executive director of the College Swimming Coaches' Association. Some coaches and administrators within the swimming community have been none too happy with Title IX, blaming the law on the elimination of men's swim teams.
But Groseth, whatever he thinks about Title IX, makes this observation about swimming in DI:
As you see with all this conference [realignment], there is a growing number of athletic directors who are using athletic departments as a bottom-line business model — not as part of an overall education model.

He notes that swimming has grown at the DII and DIII levels, though.
And it's true. UMD is in a big-time conference (ACC) playing big-time sports and they now seem to have no choice but to make similar decisions as other big-time programs--cutting the so-called minor sports.
It's going to be a tough year for UMD athletics--at least morale-wise--as rumors swirl and campaigns begin to save sports.

New study on sexual harassment of youth

We all knew that grade 7 through 12 are not always pleasant times for kids.
We know about bullying and its severe effects.
But a new study by the American Association of University Women has revealed some pretty bleak statistics around the sexual harassment of both teenage boys and girls. Over 50 percent of girls surveyed reported experiencing sexual harassment and about 40 percent of boys self-reported harassment.
The survey of just under 2,000 students asked students only to report sexual harassment (defined as unwelcome jokes or comments, inappropriate touching, and sexual intimidation) within the last year (2010-11 academic year). It included harassment that happens in person and via other mediums (texts, social media, etc.).
The effects of such harassment are both physical and mental with many reporting headaches and stomach pain.
The AAUW undertook the study to bring attention to the issue of sexual harassment, which members do not want forgotten in the midst of the discussions about bullying.
The authors, or at least the NYT's portrayal of the authors, seem to make a stricter distinction between sexual harassment and bullying than I might. Sexual harassment is a form of bullying and so much bullying involves sexual harassment.
For example, the study found that 18 percent of both girls and boys report harassment based on perceived sexual orientation. This is also bullying. This is why, in some bullying cases, Title IX violations are cited.
And, of course, all sexual harassment in schools is subject to Title IX. Though we here at the blog believe that Title IX is quite underused in sexual harassment cases. It seems that the AAUW feels similarly, though T9 only got a brief mention in the article.

Interesting start to stipends

Who was going to pull the trigger first, we wondered, when we heard about the NCAA's approval of living stipends for DI student-athletes.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.

OCR Drops All Idaho Complaints But One

The Office for Civil Rights will reportedly drop the complaints against 77 of the 78 Idaho school districts cited in the mass-complaint filed over the summer. Only the Meridian School District, the largest in the state, remains subject to OCR investigation for claims that it violated Title IX by failing to provide an equitable number of athletic opportunities for boys and girls.

There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.

Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.

As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.

NCAA releases participation numbers

The numbers of student-athletes participating in NCAA championship sports has increased again this year. As has been the case for over a decade, there are more women's teams than men's teams. And has been the case since--well, since the inception of the NCAA--there are more male student-athletes than female: 252,946 men to 191,131 women.
Though some men's intercollegiate sports teams have been cut--wrestling has suffered the most losses--there has been a net gain of 510 men's teams since 1988. And women's opportunities have grown tremendously in that time as well with a net gain of 2,703 teams.
We were glad to see more opportunities, though somewhat surprised given the constant news we see about cash-strapped athletic departments.

Feminists Address Feminists on the Other Side of the Single-Sex Education Debate

Rebecca Bigler and Lise Eliot are right when they point out that "feminists tend to be of two minds about single-sex schooling." In my experience, such discussions between these groups of feminists -- whether personal or playing out in the New York Times -- reflect an uneasy awareness of this divide, with both sides often choosing to address the common "enemy" in programs that take single-sex education too far, rather than address the conflicting positions between them. Of all the discourse over single-sex education that has spewed forth these last few months, Bigler and Eliot's piece in Slate notable for actually taking issue with the feminist variety of single-sex education -- the pro-woman Smith and Wellesley type. This respectful, measured, and evidence-based column makes the case that sex-segregated classrooms promote sex stereotypes that are the basis for bias and privilege. It delivers a persuasive argument that feminists would do more to promote gender equality by working together to end sex-segregated schools and enhancing co-education. It's worth a read.

Badminton Proves Popular Addition in Deer Valley, Arizona

Girls' badminton, the newest sport offered by the Deer Valley Unified School District in Phoenix, Arizona, easily filled up at the district's five high schools, providing new athletes with a sport and demonstrating once again the "if you build it, they will come" relationship between Title IX, opportunity, and interest.

Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.

With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.

NCAA Division I Votes to Increase Athletes Financial Aid

Last week, the NCAA Division I Board of Directors voted to allow conferences to increase athletic scholarships by $2,000 so that athletes can have spending money. With this plan, the NCAA acknowledges that student-athletes have little time to work due to the professional-like demands on their time. To many, athletes' uncompensated labor seems like exploitation, especially when universities reap revenue, and a small handful, actual profit, from that labor. While I am sympathetic to the argument about exploited labor, I'm disappointed that the remedy isn't instead to reduce the professional-like demands on student-athletes time. That, of course, would require putting an end to the commercialization of college sports and returning it to its truly amateur status. This new policy seems to suggest that ship has sailed.

But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.

Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).

But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.

Washington High School Receives Complaint About Fields

A group of parents have reportedly complained to the administration of Castle Rock High School, in Washington, about the unequal treatment received by the girls soccer team, which plays on a field without lights while the football team plays in a comfortable, lighted stadium that it does not share with other teams. As a result, girls' games are sometimes called early due to darkness, which reduces their playing time in a way that football players never experience -- sometimes J.V. games have been shorted to as little is 32 minutes, instead of the usual 80. (The boys' soccer team does not use the stadium either, but their season is in the spring so they don't have the darkness problem.) Adding insult to injury, they claim, is the fact that while their games are called for darkness, the football stadium is sitting unused, because their game schedule does not conflict with high school football practice and game times.

To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.

Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.

Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.

Women's College in Virginia Has Policy to Expel Transgender Students

Hollins University, a private, women's college in Virginia, is in the news this week for its policy to expel transgender students who "self-identify" as male and have taken one of the following steps towards transitioning to the male sex: "1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male, or 3) changes her name legally with the intent of identifying herself as a man." This is an unfortunate policy because it denies compassion and withholds tolerance to students who may need them most. Instead, it places transgender students in difficult position of having to choose to either uproot themselves from their education and community, or else suppress and deny their deeply-felt identify.

Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).

The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."

As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 U.S.C. 1681(a)(1) ("in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.

I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.

"Room for Debate" over Single Sex Education

Single-sex education remains in the public discourse, in the wake of the much-discussed article in Science that calls into question the presumed benefit of single-sex classrooms, and the news of Vermilion Parish's decision to curtail through 2016 single-sex classes at its middle school in settlement of its litigation with the ACLU. The New York Times "Room for Debate" series addresses single-sex education today by including columns from all angles on the debate -- from those most critical of single-sex education as a misguided placebo for the performance gap in public education, like Galen Sherwin (ACLU attorney),Verna Williams (University of Cincinnati law professor) and Richard Fabes (child development professor at Arizona State), to the more moderate positions like Rosemary Salomone (St. John's law professor) who supports more limited use of single sex education, to the stronger proponents of single-sex education like Jane Dammen McAuliffe (President of Bryn Mawr), Leonard Sax (author) and Christine Hoff Summers (author).

Florida High School Reinstates Coach After Retaliation

In June, school officials at Jensen Beach High School in Martin County, Florida, terminated girls' lacrosse coach Michele Ruth, who had advocated for her team's access to the district's best athletic facility, the stadium built for the football team, but which is otherwise used during the spring lacrosse season. This week it was reported that the school district agreed to a settlement with Ruth to keep her from filing a lawsuit. As part of the settlement, Ruth is reinstated to her coaching position, and the girls lacrosse team will have their home games in the stadium. The settlement agreement (available here) also provides that the district will reimburse Ruth's attorneys, including Linda Correia and the law firm Public Justice.

Reportedly, the district had claimed that it terminated Ruth for coaching without shoes, in violation of a school policy necessitated by the dangerous condition of the field used for lacrosse, due to the presence of "glass and nails and snakes." Two problems with this explanation probably influenced the district's decision to settle rather than face a jury: first, the coach's shoes only became an issue after she raised the Title IX implications of the athletic director's decision to exclude the lacrosse team from the stadium, and thus appear to be pretextual. Second, the unsafe conditions of the field, which the district would have to emphasize as part of its defense, not only underscore Ruth's request to play in the stadium, but raise separate questions of liability, including under Title IX.

One local columnist is calling Ruth a role model to her students for having the "courage and conviction to stand her ground."

Former Coach Settles Claim for Retaliation Over Scheduling Complaint

By personal correspondence from a source close to the case, I've learned that former girls' basketball coach Amber Parker has settled her lawsuit against the Franklin County (Indiana) Community School District, in which she claimed she was retaliated against for filing a lawsuit against the Indiana High School Athletic Association to challenge the inequitable scheduling of girls' basketball games. The district will pay Parker $28,500 to drop the retaliation suit that alleges the district failed to renew her teaching and coaching contracts to punish Parker for her advocacy for equity in scheduling. My correspondent suggests that Parker was seeking comparatively modest compensatory damages, which suggests that the district was willing to pay a premium to keep the case from a jury.

Parker's lawsuit against the IHSAA, which has been handed off to another plaintiff in light of Parker's relocation to another state, is not affected by the settlement. Recall that a district court determined that the IHSAA did not violate Title IX by scheduling girls basketball games for fewer Friday night games, and that decision is on appeal to the Seventh Circuit Court of Appeals.

School District to Renovate Softball Fields

The Kennett Consolidated School District in Chester County, Pennsylvania, will improve its girls' softball field, having voted this week to retain a contractor to design and conduct the renovation, at an estimated cost of $30,000. Reportedly, the boys' baseball fields have better playing surfaces, dugouts, and a scoreboard, and the school board wants to bring the girls' fields to the same level in order to comply with Title IX.

No Investigations into Oregon Complaints

The Department of Education has announced that it will not conduct investigations into the complaints filed against 60 school districts in June.

No reasons for this decision appear in any news report available at this time. My understanding, however, is that OCR dropped the complaints because they did not contain evidence to support allegations that the districts were violating all three prongs of the three-part test, as is required for a Title IX violation to occur. Specifically, OCR required more evidence to support allegations that the districts were in violation of the third prong, which measures whether school districts have satisfied all unmet interest of the underrepresented sex. Generally, the complaint based allegations of unmet interest on the fact that districts offered fewer girls' sports than are sanctioned by the Oregon State Activities Association.

Under normal circumstances, I think that basing a prong three allegation on evidence that schools don't offer girls' sports that are popular in the state, as evidenced by their recognition by the state athletic association, is a viable one. Remember, the complainant isn't required to prove that a violation exists -- that's OCR's job -- just give the agency a reasonable basis for conducting an investigation. Moreover, the Oregon complainant isn't the first to rely on state athletic association's list of sanctioned sports to support allegations of prong three violations; the National Women's Law Center did so when it filed 12 complaints against schools across the country earlier this year, and those complaints have not been dismissed. Perhaps when faced with the prospect of a single regional office having to investigate 100 schools at once, OCR is requiring more of complainants than it ordinary would?

Study Suggests Single-Sex Education Does More Harm than Good

Even as Kris pointed out that single-sex education is on the rise, a review article in the journal Science that was reported widely on yesterday (see, e.g., here, here, and here) casts doubt on claims that separating students by sex makes them better learners. But evidence does suggest that the practice promotes gender stereotyping and sexism. For instance, the review cites a recent comparative study of two preschool classrooms, which found that the classroom where the teacher used gender-specific language to address the children quickly produced greater tendency among the students, when compared to a classroom where no gender-specific language was used, to exclude children of the opposite sex and to rely on gender stereotypes. The study also references a Department of Education report found little overall difference in academic outcomes between children in single-sex schools versus those in coed schools. Factors other than sex, such as economic factors and parent involvement, are more likely to influence academic success.

The study's authors, who include psychologists, education specialists, and a neuroscientist who studies gender, have created a American Council for Coeducation Schooling, and are using their findings as the basis of a political movement to urge the Department of Education to rescind the regulations that allow for single-sex education, which were promulgated after the 2002 No Child Left Behind law authorize single-sex education in elementary and secondary schools as an exception to Title IX's general prohibition on sex discrimination. As we have pointed out on this blog in the past, many school districts (see, e.g.) appear to be implementing single-sex education in a broad, coercive, and groundless manner that is not authorized by the regulations.

Given the Secretary of Education's record support of single-sex classrooms such as those in his home city of Chicago, it will be interesting to see whether he is open-minded to reform and keeps in mind President Obama's professed commitment to evidence-based policymaking.

Single-sex classes growing at MN middle school

Must be the new school year, because we seem to be reading more and more stories about public schools experimenting with single-sex classrooms.
In Minnesota, Battle Creek Middle School experiments with single-sex classrooms began over five years ago with the number of single-sex options growing to the point where, this year, most of students' classroom time is segregated by gender. Previous incarnations of single-sex classrooms had students segregated for half the day and mixed the other half; but teachers reported an increase in disciplinary issues and lack of attention due to the desire of the students to socialize and have "party time" when they were reintegrated.
This situation--as well as the one in Indianapolis that I wrote about the other day is curious--is there much less socializing among just girls or just boys? Why is it only "party time" when boys and girls are present?
The article is fairly responsible in its coverage noting that no research to date has confirmed the value of single-sex education. It also notes the problem of perpetuating stereotypes, but then, unfortunately, includes line like this based on information from sources:
Teachers said they notice gender differences and tweak lessons accordingly. For example, boys tend to be more competitive and crave physical activity, they said, while girls are more organized.
Makes one worry about what teachers have learned about the research and what exactly they are doing with these so-called well-organized girls and competitive and physically active boys.
Also, no information on whether there are mixed gender options. Lack of such options could be a problem.

Boosters pay extra for coaches

The football boosters at Mercer Island High School in Washington want to offer the football coach a little extra money for his off-season duties. Realizing last spring though that they could not do so without violating Title IX, they got together with the parents' club of the gymnastics team to offer a similar deal to the gymnastics coach. The amount of the extra pay will be different; a discrepancy explained by the difference in the size of the respective programs. A seemingly good explanation.
Kudos to the people at MIHS for recognizing the potential booster-induced disparity.
It could be, as one administrator noted, a slippery slope given that most coaches do work in the so-called off-season.
Also a possible issue (not mentioned in the article) is that the outside salary will benefit more boys than girls because the football team is bigger. Also it looks like the gymnastic coach's off-season duties include helping the cheerleaders--which seems like a separate job--especially since he is not allowed to work with his own team members in the off-season, per the state association's rules. (Not sure exactly how the football coach is getting around this. One of the boosters said that there is no "select season" in football, which I'm pretty sure is wrong. Why would every other sport have a season and not football?)
The issue of booster clubs in high schools, and what they are and are not allowed to do, is gaining visibility. And schools are likely to have to continue to juggle the desires of boosters to support the most popular sports and the equitable distribution of amenities, facilities, equipment, and perks. The case at MIHS, though, seems far less contentious than others we have read about.

Article Critiques Massachusetts's Anti-Bullying Statute

New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.

According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.

She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."

Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).

National Women's Law Center Hosts Title IX Webinar

The National Women's Law Center is hosting a free webinar called Rally for Girls' Sports: A Guide to Title IX for Parents, Coaches, and School Officials. NWLC attorney and Title IX expert Neena Chaudhry will "teach the basics, such as how schools can comply with Title IX and tips for recognizing Title IX violations in sports programs. All parents, coaches, school officials, and students who want to level the playing field are welcome."

Sign up here and participate online, Thursday, September 22 at 3:00 pm.

Women's Baseball League Reenacted in Wisconsin

Not a Title IX story per se, but someone just sent me an article in the Milwaukee Journal-Sentinel about historical reenactments of the All-American Girls' Baseball League that is too cool not to post. Yesterday, a group called the World War II Girls Baseball Living History League staged a game between the Kenosha Comets and Rockford Peaches in authentic uniforms and using the rules and equipment of the day. What a cool project -- makes me wish I lived in Illinois or Wisconsin!

Sexual Harassment Round-up

Here is a round-up of recent judicial decisions in Title IX sexual harassment cases. These summaries were prepared at my direction and supervision by Western New England law student Shiona Heru.

• The First Circuit Court of Appeals addressed important questions regarding the actual notice requirement of a Title IX claim when they affirmed a lower court’s decision to dismiss a hostile environment harassment claim filed by the mother of a six-year-old special education student against Puerto Rico for alleged sexual abuse by a bus driver. According to the record, the mother reported the abuse to a special education teacher who in turn referred the mother to a social worker. The mother claimed that the social worker “did not do anything” and that she tried to meet with the principal several times before removing her son from school and filing a lawsuit. The appellate court dismissed the mother’s claim because she failed to allege that the principal had actual knowledge of the sexual abuse and had the authority to enforce corrective measures against the alleged harasser on behalf of the school department.. The court rejected that the principal had “, constructive knowledge” sufficient to satisfy the notice requirement by virtue of the mother’s unsuccessful attempts to contact the principal. The court emphasized that a plaintiff cannot establish institutional liability through allegations that a school employee did not inform someone with the proper authority to take corrective action. Perhaps more importantly, the plaintiff has to prove that the funding recipient not only has control over the service provided and the environment in which the harassment occurs, but also that the appropriate person has actual knowledge of the harassment. In this case, the plaintiff is free to pursue her local law claims in Puerto Rico. Santiago v. Puerto Rico, 2011 WL 3689000 (1st Cir. Jul. 27, 2011).

• A high school student’s Title IX claim against a school district in Pennsylvania survived a motion for summary judgment when the lower court determined found that a jury could find that a teacher conditioned the plaintiff’s ability to pass a driving test on her submission to his unwelcome sexual harassment advances. (We had earlier blogged about the case surviving a motion to dismiss.) The court also determined that there was sufficient evidence to warrant the conclusion that an appropriate school official had notice of prior violations by the teacher and the school district responded with deliberate indifference by pressuring the student to change her story, failing to prevent the teacher from contacting the student, assigning his wife as the student’s substitute teacher and publicly displaying support for the teacher’s innocence. Additionally, some of the 14th Amendment claims survived a prior motion to dismiss and were retained under Section 1983 which was enacted to provide a private remedy for violation of federal law. Even though a state is not subject to suit under section 1983, a state officer can be sued in his official capacity. This means that although punitive damages cannot be awarded against a municipality, the municipality can be held jointly and severally liable and ultimately be held liable through section 1983. E.N. v. Susquehanna Tp. School Dist., 2011 WL 3608544 (M.D. Penn., July 05, 2011).

• A district court in Pennsylvania dismissed a high school student’s claim that North Allegheny School District officials permitted student-on-student harassment and failed to remedy a sexually hostile environment where the plaintiff was raped by a classmate in the school parking lot during school hours. Taking a narrow view of the requirement that school officials have actual notice of harassment – a view that conflicts with other courts’, see, e.g., Williams v. University of Georgia (institutional liability could be premised on university’s failure to respond to actual notice of football player’s sexual assault at a prior institution)-- the district court determined that notice of two prior incidents of sexual assaults filed by other high school students against the harasser did not constitute actual notice of sexual harassment of the plaintiff. Once school officials were aware of the assault, they took immediate action, thus insulating themselves from institutional liability for peer harassment under Title IX. Additionally, though the court dismissed the plaintiff’s claims for failing to sufficiently allege notice and deliberate indifference, it did emphasize that the harasser’s the repeated requests throughout their high school education that the plaintiff perform sexual acts upon him could qualify as sexual harassment. The fact that the plaintiff had consented to sex acts with the harasser in the past does not necessary preclude a jury from finding that the solicitation of those acts is “unwelcome.” Doe ex rel. Doe v. North Allegheny School Dist., 2011 WL 3667279 (W.D. Penn., Aug. 22, 2011).
  
  

Indianapolis high school imposes strict segregation

Since the case in Vermillion Parish (LA) was settled last year (disallowing single-sex classrooms), there has been a spot open for the public school that could execute the strictest form of sex-segregation.
Looks like Arlington Community High School in Indianapolis has taken that spot. And most people are happy about it. But that could also be an impression created by the story I read which took a generally positive tone. It also failed to note that this so-called nationwide research that shows single-sex education is better is somewhat specious.
But there certainly are students and administrators and teachers who like that there seems to be more participation and engagement in the classroom and less drama in the hallways. Yes--everything is segregated: hallways, buses, the cafeteria. The move to such strict segregation came after the principal felt that, given the extreme underperformance of his school, he had nothing to lose by implementing the segregation. Spending less time disciplining students in and out of the classroom certainly would seem to free up some time and space for more learning. But is this the best way to do this? What are the consequences? And are we really assuming that all boys and all girls are going to get along thus freeing the school from conflict? And, of course, the underlying racial stereotypes (the majority of ACHS pupils are students of color) are problematic.
A short news piece from Ms. magazine about the school and the new policy does mention this aspect; which is good because few media outlets do when discussing any of the single-sex education cases.

Another interesting aspect: the school's lack of success actually means it will be one of four high schools in Indianapolis that the state will take over from the school district next year. That may put an end to the segregation--or not. Assuming no one(s) challenge it before then.

NCAA Adopts Policy for Including Transgender Athletes

The NCAA has approved a policy to govern athletics participation by transgender athletes who have transitioned to another sex. The new rule, which takes immediate effect, allows a transgender athlete who has transitioned from male to female to participate in women's sports after one year of hormone treatment that includes female hormones (estrogen) and agents that suppress the effects of male hormones in the body (testosterone blockers). The rule also clarifies that athletes who transition from female to male by taking testosterone are not eligible for women's sports, but may receive a therapeutic use exception* and be eligible for men's sports. A transgender athlete who transitions socially but not physically is still eligible for the sport that matches their birth sex. For example, Kye Allums plays women's basketball for George Washington, even though he goes by "he" as has not undergone any physical transition that involves testosterone.

The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.

*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.

Resolution Agreement Reached at Adrian College

An anonymous reader mailed me a copy of a Resolution Agreement between the Department of Education Office for Civil Rights, and Adrian College in Michigan. In 2008, we blogged about ongoing investigation into a complaint against the college stemming from among other things the college's failure to include a women's locker room in its newly constructed "Multi-Purpose Stadium." (see here and here). Apparently, the inequities between men and women's sports at Adrian College were significant, as the college has agreed to remedies in every area covered by Title IX's athletic regulations. Specifically, the college has agree to:

• Evaluate its intercollegiate athletics program "to identify one or ore women's sport team to add in the 2012-2013 academic year."
• Develop a written replacement schedule for equipment and supplies, including uniforms, which will ensure equity by gender.
• Increase the number of competitive events for softball and women's tennis.
• Ensure that women's softball is not the only team stuck with 6 am indoor practices, but that that burden is shared by men's teams as well.
• Ensure that the head coach for men's and women's track splits his time equally between the teams, and to hire an assistant coach for women's track.
• Improve hiring practices to attract more qualified coaches to the women's program, including by increasing compensation and other conditions of employment to make the job more attractive to qualified applicants.
• Construct a new locker room for women in the Multi-Purpose Stadium.
• Renovate existing women's locker rooms in other facilities.
  
• Renovate the women's softball facility to allow for night play, concessions, changing areas, and spectator viewing.
  
• Assign the same number of "equivalently qualified" medical and training staff to men's and women's games.
• Provide equivalent publicity ("e.g., media coverage, statistics maintenance, attendance at games, and other services") to men's and women's teams.
• Provide recruitment funds to men's and women's teams "in proportion to each gender's participation rate in the athletics program" and, as needed, to the women's program at a greater rate in order to make up for the "significant" underrepresentation of women in the athletics program.
• Adhere to various reporting and monitoring requirements with respect to these promises.

OCR will continue to monitor the agreement until it determines that the College has fulfilled its terms.

Franklin Pierce adds sports

Knowing the state of the economy, the fiscal state of higher education, and--having attended school in New Hampshire--the fiscal issues faced by NH schools, we were a little surprised to read that Franklin Pierce University has announced it is adding several sports.
No word on how these sports will be financed but it appears that the university has every intention of adding women's ice hockey (it already has a men's ice hockey team), men's and women's track and field, sprint football. It will also reinstate men's cross country (previously cut in 2003 for unstated reasons).
Interesting. Especially interesting is sprint football--which I had never heard of. Turns out it's the same as regular intercollegiate football. But all players have to weigh less than 172 pounds.
Reading further though it appears that the differences go beyond body weight. There is no pre-season. There will be no athletic scholarships. And the roster will be kept at 65 players. Also, FPU will not be investing right away in a stadium. Administrators are making arrangements with local schools over use of their facilities. In its inaugural season--scheduled for 2012--they will play a reduced schedule.
I really can't think of a more responsible plan to add football (regardless of how much the players weigh!).
Again, no word on where the funds for these additions will come from. FPU is a private school, but still...

Jury Awards $26,500 to Male Student Accused of Rape

Last week, a federal jury in Tennessee returned a jury verdict and award of $26,500 in favor of a male college student who had been accused of rape. The student, using the pseudonym John Doe, sued the University of the South in Sewanee, Tennessee, charging that the university's failure to follow its published procedures in handing of the accusation against him constituted a breach of contract and negligence, violated Title IX, and unlawfully damaged his reputation. The jury concluded that the university was negligent, but reportedly found it to be 53% at fault, compared to Doe's 47%. The damages award constitutes tuition paid for the year that Doe did not finish.

The case began on August 29, 2008, when Doe had sex in his dorm room with a female student. Later that day, the female student reported to college officials that she had been raped. Three weeks later, Doe received notice of the charges from the university and was told to report to a hearing the following day. There, he was found responsible for sexual assault, for failing to recognize that the victim was too impaired from drugs or alcohol to provide consent. The university gave him a choice between two sanctions: a one-semester sanction, with the assault remaining on his record, or withdrawal from school, with the option to reapply later with an expunged record. Doe withdrew, and did not reapply.

Instead, he filed a lawsuit against the university, seeking up to $5 million in damages. In 2009, the judge dismissed Doe's claims that the university's actions against him violated Title IX, concluding that Doe's complaints did not include sufficient allegations to support a finding that the university was motivated by sex bias or negative assumptions about the male sex. Doe v. University of the South, 687 F.Supp.2d 744 (E.D.Tenn.2009). Later, the court dismissed Doe's claims of intentional infliction of emotional distress, but cleared the way for his negligence and breach of contract claims to go to trial.

At the trial, which concluded last week, the jurors heard evidence in support of Doe's charges that the university failed to comply with its own procedures, including providing timely notice of the charges, conducting an appropriate and thorough investigation, cutting off proceedings when there’s insufficient evidence to support the charges, allowing Doe to bring a lawyer to the hearing, and considering all of the relevant evidence, including evidence favorable to Doe (like the accuser's use of prescription medication, which could have affected Doe's perception of her ability to consent). The jury concluded that the university's conduct in this case constituted negligence (though not breach of contract) and returned a modest damages award meant to compensate Doe for actual damages in lost tuition, not for claimed damage to his reputation and future earning potential.

In today's issue of Inside Higher Ed, experts speculate on the effect of this decision, believed to be the first of its kind, on other universities going forward. Everyone seems to agree that this case is a reminder that universities have legal responsibilities to both accusers and accused when handling sexual assault cases, and that ignoring the rights of the accused can result in legal liability. Of course, universities can be liable under Title IX for failing to protect the rights of the accuser. Earlier this year, the Department of Education has clarified and promoted awareness about universities' obligation under Title IX to those who report sexual assault. Universities were reminded of their obligation to publish and follow grievance procedures for sexual assault, to investigate claims even if the police are involved, and to not impose a higher burden of proof on the victim than what the legal system normally requires of plaintiffs in civil cases. Importantly, however, nothing about this recent case in Tennessee suggests that universities are in a double-bind situation and forced to respect either one student's rights or the other's. None of the procedures the university was accused of violating in John Doe's case would have, if followed, put the university at risk of violating the Title IX rights of the accuser. While Title IX requires universities to take accuser's claims seriously, the law anticipates and expects that the university will provide a fair hearing that does not curtail the procedural rights of accused.

Sexual Harassment Roundup

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

• The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

• A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

• A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

• A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).