OCR Complaint Filed Against University of Montana

It's reported this week that OCR will be investigating received a complaint filed earlier this year against the University of Montana, alleging sexual abuse and rape involving the football team. Details in the article are scarce, as the press received a redacted version of the complaint in order to protect the confidentiality of whomever filed it.

However, news out of Missoula over the last several months offers several clues as to the nature of the complaint and the likely scope of the investigation. The University of Montana football team was in the news last December, when three of its members were accused of using a date-rape drug to assault three women on campus. While one was eventually arrested and charged with rape, the University was criticized for its response, which included hiring a retired judge to conduct an independent investigation. Some saw as an unnecessary step, a delay tactic, and a public relations move. In any event, the judge's investigation eventually revealed nine cases of alleged sexual assault or attempted sexual assault involving students in the 16 months ending in December 2011. Many of these complaints were withdrawn by the victim or not pursued by the university.

Then, in February, a female student got a restraining order against the team's quarterback, and no charges were filed.

Last month, the University announced that it would not renew the contracts of its very successful head football coach Robin Pflugrad and the athletic director Jim O'Day. The University did not accuse either man of attempting to cover up a rape culture among the football team, but, reportedly, that is what many believe.

My guess is that OCR's investigation will shed some light on that very question.

Niagara cuts women's ice hockey

Found out, via Twitter, yesterday that Niagara University is cutting its women's ice hockey team because it is too expensive--and apparently underperforming. Apparently, after a strong start (the team made the Frozen Four only four years after its establishment), the team has not done well.
The school, which has (according to the latest Department of Education data) a 59% female undergrad population, has 53% of its athletic opportunities going to women. That is with hockey. Without hockey that statistic goes to 45%. The school has announced it will add women's track and field. Right now it looks like NU has cross country for both men and women. The addition of track and field for women means that there will be "new" opportunities for female student athletes, but that some of those are likely to be filled by current cross country runners--which is fine and legal and all.
It's just a little disappointing that to save costs, the university has decided to draw support from it's women's ice hockey team, but keep the men's team, and add what will likely be fewer opportunities overall because of the duplicate athletes (of which NU currently has none).

Michigan high school softball field controversy

The girls' softball team in Avondale, Michigan is embarrassed by the condition of their field. And the players and their supporters are wondering where the money earmarked for the facility's improvement have gone--as they stare at the newly renovated boys' baseball facility that has a dedicated field for the junior varsity team. And even as they ask questions about where the promised improvements are, many know nothing will happen in the immediate future. So the girls are working with administrators on an arrangement that would allow the softball team to share the JV team's field. (Not sure how they will deal with the differences in the field dimensions, but I would imagine they have a plan.)
Best line of the article:
At the very least, Avondale made a mistake in timing. After all, shortchanging a female team on the 40th anniversary of Title IX isn't the best way to win plaudits from equal opportunity advocates.

New volleyball coach at Quinnipiac

Apparently hedging some bets about whether the court will lift the injunction against the school cutting women's volleyball, Quinnipiac has hired an interim head coach for the program. As you might recall, coach Robin Lamott Sparks was fired and escorted off campus a couple of months ago for reasons that remain unspoken. Yes, there was the bad record--but bad records don't generally warrant security escorts.
Meanwhile, QU has been trying to cut the team, but has been prevented by an injunction that stemmed from the case that became famous for addressing the "is cheerleading a sport" question. QU has requested the injunction be lifted; that issue will be determined later this spring.
Meanwhile, the university has brought on board Kristopher Czaplinski who had been serving as an assistant coach at Post University. He has also been involved in Junior Olympic program.
Not quite sure how the university convinced him to give up an actual job for one that might be gone by the summer. It's possible he will get a shot even if the injunction is lifted. We shall see...

New York Times Examines Coach Salary Disparity in Basketball

Tonight, Baylor and Notre Dame will play for the NCAA championship in women's basketball, so the New York Times chose today to run an article about salary disparities between coaches of men's and women's teams. According to the article, the coaches of women’s college basketball teams are paid about one-half or one-third of the amount of the men’s basketball coach. There are a few exceptions, like Tennessee's Pat Summitt, whose $2.2 million annual salary is actually more than her men's team counterpart, and Geno Auriemma, who makes two-thirds of UConn men's team coach Jim Calhoun. But in most cases, men's basketball coaches (who are almost always men) are paid two- or three- times more than the coaches of women's teams, whether they are male or female.

The article then examines factors that contribute to this disparity, which defies the general principal under Title IX that men's and women's teams receive comparable resources, including coaches of equal caliber, and the Equal Pay Act, which prohibits paying women less for equal work. One source of the disparity is third-party sources of income, like endorsements and speaker fees. Men's coaches are also able to capitalize on market forces that make their summer camps a profitable endeavor, while women's team's summer camps are generally recruiting tools that break even. The article also notes that unlike the coaches on the men's side, whose teams receive favorable treatment automatically, coaches of women's teams use their employment contract to secure amenities for their teams. This presumably cuts into their bargaining power to leverage higher salaries.

The article also provides some insight into law's limited ability to address disparities in head coach salaries. Title IX's limitation in this regard is that it is student-focused. The law requires equal treatment for men's and women's teams, which includes the quality of coaching each program receives. Quality of coaching is of course a function of the compensation available. But the overall market for salaries in women's sport generally allows universities to purchase a coach of comparable quality to head their women's teams, just at discount prices.

The Equal Pay Act is also implicated by salary disparities, but limited in its ability to address the problem. For one thing, as the article notes, third-party payments like endorsements are outside the scope of the Equal Pay Act. (I do think, however, that a case could be made for including booster club payments as part of the equal pay equation, by analogizing to Title IX, which requires school districts that accept funds raised by one team's boosters to still provide equal treatment to boys and girls teams.) Another limit is that the Equal Pay Act provides a remedy to women who are paid less than men for equal work -- it doesn't apply to male coaches of women's teams who may be paid less than male coaches of men's teams. And even where the Equal Pay Act does apply, universities can justify disparities in base pay by arguing that the male coach has more job responsibilities -- even if such additional job responsibilities are seemingly manufactured for that purpose, such as requiring the men's team coach to make 20 public appearances and the women's team coach15 (an example from the article). The Equal Pay Act also allows universities to justify paying male coaches more based when their team brings in more revenue, even though this disparity is due to to external market forces rather than the respective effort that each coach puts into the job.

Reversing the Trend of Declining Women Coaches

This article on ESPN.com addresses the dearth of female coaches in a way that appropriately puts the responsibility on colleges and universities to make sure that it is reaching out to a diverse pool of candidates as well as creating a working environment that is friendly and conducive to coaches of both sexes. I have just one complaint about an obvious omission. If you want to attract female coaches, you have to make sure that your institution is doing right by lesbians. No, I don't believe that all aspiring female coaches are gay -- of course that's not true. But some are. Many are. If you want to attract the largest possible pool of female applicants, you should also be asking the following questions, in addition to the advice about that the ESPN article provides about recruiting, mentoring, networking, and supporting female coaches.

• Does your institution have employment policies that are gay and lesbian friendly? For example, do you have a nondiscrimination policy that includes sexual orientation as a protected class, and do you offer domestic partner benefits?
• What has your department done to address the problem of negative recruiting? (Negative recruiting is the practice of mentioning another coach's perceived lesbianism to potential recruits and their families in an effort to gain a recruiting advantage over that coach.) Do you have a zero-tolerance policy for coaches who engage in negative recruiting, and have you stood up for coaches against whom negative recruiting has been used?
  
• What is the culture and climate of your athletic department? Are all coaches' partners and families welcome at events? Are gay and lesbian staff members as free as anyone else to talk openly about their partners and families?
  
• Do your media guides provide equal treatment to coaches' nontraditional families, or do they only mention coaches' opposite-sex spouses?
• Are recruiting materials using code words like "family friendly" or "Christian values" that may be signaling discomfort or exclusion of lesbian coaches?

See also, this article in New York Times about dwindling number of female head coaches in women's hockey. It too provides a comprehensive analysis of the problem, but fails to mention homophobia in sport as a contributing factor.

Professor Simson on Title IX, Athletics, Biological Differences, and Gender Inequality

Here is the abstract from Professor Rosalind Simson's article in the current issue of Denver University Sports & Entertainment Law Journal, "The Title IX Athletic Regulations and the Ideal of Gender-Free Society." The full article also posted on SSRN.

Some philosophers and political theorists have argued that to achieve a just society we must eliminate gender roles. Few would dispute that many of the reductions in the influence of gender over the last fifty or so years have increased justice in the U.S. Whether justice requires that our society become entirely gender-free, however, is more controversial. A common argument for retaining at least some gender roles is that some are natural consequences of biologically-determined average physical differences between the sexes. Athletics is one context in which people often make this argument. This article focuses on school athletics and the Title IX athletic regulations in order to gain insight into the implications of biological sex differences for the question of whether the creation of a gender-free society is a realistic and worthy ideal. Although Title IX has been hugely successful in increasing female participation on school sports teams, males today still dominate school athletics, and gender roles are still very operative in school sports. This article proposes a framework, based on the concept of equal opportunity, for understanding what it might reasonably mean for a society to be “gender free.” It then argues that overall equality of opportunity requires equality of athletic opportunity, and that, despite its successes, Title IX's failure to repudiate gender influences makes it unlikely that, in its current form, it will ever lead to equality of athletic opportunity. The article goes on to propose revisions of Title IX that would truly equalize opportunity in the school athletic arena. It thus suggests that the gender-free ideal is ultimately compatible with biologically determined average physical differences between the sexes.

Court Dismisses Case Challenging Title IX's Application to High School

Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.

The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.

To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.

Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)

Tite IX claim survives in sexual assault case

In Allentown, Pennsylvania a judge has a ruled that a Title IX claim against the school district can go forward. Judge Paul Diamond dismissed civil rights claims brought by five alleged victims of sexual assault by an older student at Central Elementary School, but has ruled that the Title IX claims of four of the victims--all boys--can proceed, calling the school's response to the alleged sexual assaults "wholly inadequate." This lawsuit began in 2006 with one boy coming forward to say he had been assaulted. Last year, four others joined the lawsuit. Lawyers for the boys say the school did not take enough measures to ensure the assaults stopped even after being made aware both of the initial assaults and the alleged perpetrator's own history with sexual assault and misconduct.

No evidence of discrimination in SC high school

About nine months ago, we wrote about a complaint filed in Kershaw County, South Carolina where parents of a high school cheerleader felt the team was not being treated equally. Also there was some financial sketchiness about where the cheerleading team's money had gone.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.

Ninth Circuit Reinstates Grad Student's Retaliation Case

Monica Emeldi, a graduate student in the University of Oregon's Department of Education, sued her institution under Title IX after the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. A federal district court had earlier granted summary judgment in favor of the university, but yesterday, an appellate panel of the Ninth Circuit Court of Appeals reversed that ruling and reinstated her case.

According the Ninth Circuit's analysis, Emeldi satisfied the basic elements of a retaliation case under Title IX, including that she engaged in "protected conduct" when she presented a memo to department officials summarizing graduate students' complaints about the department's bias towards male graduate students and failure to hire female faculty members. Soon thereafter, Horner, the chair of her dissertation committee resigned, a consequence that the court agreed was a consequence that a jury could find "materially adverse" that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination."

Last, the court determined that Emeldi presented sufficient evidence on which a jury could conclude that Horner's resignation was related to her complaint, including evidence of the proximity in time between Horner's resignation and Emeldi's complaint, that Horner knew about Emeldi's complaint, Horner's gender bias in other contexts, such as favoritism to male graduate students, that Horner resigned without helping Emeldi secure a replacement chair, that Horner had in the past praised Emeldi's work, which suggests that Horner did not resign for nondiscriminatory reasons that he claimed, and that Emeldi was unable to find a replacement chair even after asking fifteen other members of the department.

One judge, however, dissented from the majority's conclusion that Emeldi's case should have a chance to reach a jury, basing his objection primary on Emeldi's failure to provide corroborating evidence by other witnesses and relying instead on her own affidavits and testimony. The dissent concludes, "Title IX's worthy antidiscrimination objectives notwithstanding, to let Ms. Emeldi's claims go to a jury will serve only as a precedent-setting example of how little it takes to turn a failed supervisory relationship between a professor and his Ph.D. candidate into a federal case of gender discrimination."

Emeldi v. Univ. of Oregon, 2012 WL 933821 (9th Cir. Mar. 21, 2012).

Pregnancy Discirmination Lawsuit Filed in New Mexico

Last week the ACLU filed a federal lawsuit on behalf of an eighth-grade student at Wingate Elementary School in Fort Wingate, New Mexico, for discriminating against the plaintiff, Shantelle Hicks, on the basis of her pregnancy in violation of Title IX and constitutional law. According to the complaint, school officials initially told Shantelle. that she could no longer attend school after she told them she was pregnant. They encouraged her to enroll in an alternative high school with a program for pregnant teens. However, when Shantelle asserted her right to remain in school -- Title IX regulations allow students to enroll in special programs for pregnant students, but only on a voluntary basis--school officials endeavored to drive her out by humiliation. At an assembly of the entire middle school, school officials announced Shantelle's pregnancy, which had been private matter until then.

The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.

Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.

Staurowsky Cheers NCAA's New Title IX Compliance Guide

Recently, the NCAA published Equity and Title IX in Intercollegiate Athletics: A Practical Guide --- available here and now permanently added to our blog's resource links. The authors of this guide are attorneys Janet Judge and Tim O'Brien.

As Professor Ellen Staurowsky humorously notes in a column at College Sports Business News, this is what sports fans are waiting for in March -- the opportunity to pour not over brackets, but over a step-by-step compliance guide addressing all three prongs, the entire laundry list, pregnancy, harassment, retaliation, and equal pay. Well, she admits, announcement of this new compliance manual probably did not invoke spontaneous applause, but it is something worth cheering about. As Staurowsky explains,

This generation of young professionals coming soon to an athletic department near you as future employees will not have the latitude as their predecessors once did to wave off responsibility to affirmatively comply with Title IX... The hand of the ticking clock of Title IX compliance has struck the hour of “no more excuses”.

Staurowsky encourages college athletic departments not to deterred from tackling their compliance responsibilities, now clearly laid out before them, by claiming other priorities or lack of funds. Indeed, she surmises, an internal review of Title IX compliance might be "the opportunity to devise and adopt financially sustainable college sport budgets responsive to those enduring problems associated with the financial arms race." It's the Title IX-avoidance mentality that creates the bad spending habits that eventually, after costly litigation, result in "facial cutting of programs that did not result in an interruption in the spending patterns that created problems to begin with but were traumatic nonetheless." By getting out ahead of Title IX compliance, schools can implement balanced priorities that take women's and men's athletics into account and do right by student-athletes for whose sake college sports exist in the first place.

More coaches in PA?

Parents of student-athletes on the girls' cross-country and softball teams have gone to the Daniel Boone School Board (in Pennsylvania) asking why their teams do not have assistant coaches. The boys' baseball team has an assistant coach. Worried about the safety of the members, parents are asking for funds to pay for assistant coaches for these teams and wondering if the lack of assistants currently is a Title IX violation.
We cannot say based on the information in this brief article. Do other girls' teams have assistant coaches? How many of the boys' teams have assistant coaches?
These are the things the school board--and the parents--will want to investigate when the issue comes up next at a board meeting.
I found this situation interesting in light of the recent trend in complaints where schools are being cited for multiple violations at once. This is a very specific complaint. I surmise that parents felt the absence of assistant coaches is an issue that needs remedying and sought a legal and persuasive way to remedy it--and they found Title IX.

Sexual Harassment Roundup

Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.

As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).

Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).

A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).

OCR still watching Darien

A quick search of this blog for Darien High School will reveal the many issues the Darien School District has had complying with Title IX in both the areas of equal opportunity and equal treatment (facilities, practice times, etc.). Three complaints in the past six years have resulted in some changes for the better. But not everything is settled and OCR has said Darien still has work to do. The gymnastics team still lacks the appropriate facilities. And the swim team is still having issues with practice times at the local YMCA. (Though the pool at the Y is under construction and apparently, post-renovations, all should be good though there is still a lot of discussion about "pool inequities.")
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.

Complaints Filed Against Five Wisconsin Districts

Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.

OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."

Settlement Ends Harassment Investigation Against Minnesota School District

This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.

Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:

• Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
• Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
• Enhance and improve its training of faculty, staff and students on sex-based harassment;
• Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
• Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
• Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
• Improve its system for maintaining records of investigations and responding to allegations of harassment;
• Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
• Submit annual compliance reports to the departments.

The consent decree will remain in place for five years.

Castle Rock Update

We've been following the situation in Castle Rock, Washington (see prior posts here and here), where parents have been advocating for equal rights for girls teams to use the high school's lighted stadium,which has so far been reserved for the priority use by the football team. After initial complaints to the school board failed, one parent filed a complaint with OCR, alleging that it violates Title IX to exclude girls soccer from the stadium.

A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).

The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.

Quinnipiac seeks to lift volleyball injunction

When Quinnipiac University tried to cut its women's volleyball team several years ago, it lead to the now famous and controversial case about cheerleading. (If you're not quite sure how that happened, click on the Quinnipiac tag.)
Early on in those proceedings volleyball asked for and received an injunction which prevented the university from cutting the team. That injunction is still in place while QU gets its proverbial house in order--i.e. they achieve compliance. Believing that are so, the university filed with the court in December of 2011. A hearing is scheduled for June 11.
But those watching QU closely say the university has not changed its ways. Sandra Staub of the Connecticut ACLU does not believe the university  has made any "meaningful improvement in the allotment of athletic opportunities for women at Quinnipiac." Additionally, QU is facing more legal proceedings regarding equal treatment. Staub argues that the school has some issues in the areas of facilities and coaching, among other unnamed items.
Clearly the university wants to replace the volleyball team. It has already fired the head coach. But whether they will have to seek out a new head coach remains to be seen.

Kansas in compliance

But there is still no men's swimming and diving team, much to the disappointment of Ron Neugent, an alum who filed a Title IX complaint in 2009 stating that male student-athletes were underrepresented based on the percentages of male and female undergraduates at the school.
Neugent argued that men were being discriminated against because they had proportionally fewer opportunities in athletics.
His goal was to get the university to add sports for men. But the university--agreeing that it would work on the situation but not admitting non-compliance--opted to achieve proportionality by looking more closely at team rosters and adding and subtracting roster spots.
And having done so, administrators recently filed paperwork stating that the school was in compliance.
Neugent, though, wanted Kansas to add, as mentioned, men's swimming and diving as well as men's tennis. But that seems like a lot of roster spots and KU was not grossly out of proportion. In 2007, two years before the complaint was filed, the university was told it had achieved substantial proportionality when it had a 1.8 percent gap. It seems that adding two men's teams would have required the addition of at least one women's team, which is always great--but expensive.
It also seems that Neugent was concerned not just with equity, but with his alma mater's position in a competition called the Director's Cup. The competition rewards a school for its success across 10 different men's and women's sports. Adding those two men's sports would help KU's standing in that competition.
But, as of now, KU has opted to closely monitor the numbers.

OCR Rejects 900 Complaints About California High Schools

Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.

Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.

Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.

As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."

Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."

Softball field issues in Butte

In an attempt to remedy an "inadequate" softball field used the by high school girls' softball team in Butte, Montana, two of the team's former assistant coaches. This story caught my attention because it was confusing and curious in multiple ways.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields. 
When more information/clarifications emerge, we'll be sure to post them.

Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

Standards of journalism and the Title IX blame game

Ebuz and I often discuss the need for greater awareness of the intricacies of Title IX--or even just the basic facts--that are free from common misconceptions. We wish, for example, that Title IX training for athletic department administrators happened before violations occurred.
We also wish, somewhat in vain, that the media would become better informed on Title IX issues before reporters and columnists printed stories about the law.
But headlines like "How Title IX Hurts Female Athletes" fail to surprise us anymore. What is somewhat surprising is when such a headline--actually this exact headline--is found on The Atlantic's web site.
And I am sure--based on the numerous angry comments--that The Atlantic is regretting running this piece by two women: a journalist and a cross-country coach. The logic is faulty throughout. Most egregious is when the authors say that Title IX has exposed more girls to sexual assault by male coaches.
There are the old arguments about ACL injuries and concussions. An argument based in--thank you Michael Messner--soft essentialism. (There's a decent amount of hard essentialism in here, too.) Because there is no mention about the general danger of competitive athletics and the injuries suffered by boys--like all those undiagnosed concussions. Or the way boys experience pressure to compete despite injury.
Attempts by the writers to get facts by experts to back up their points fail:

For female players, the gravest consequence of having male coaches has been an increased risk of sexual abuse. Pediatrician Ken Feldman, the recently retired medical director of the Children's Protection Program at Seattle Children's Hospital, says that although there is no formal tracking of sexual abuse by coaches per se, "girls will be more victimized than boys."

No studies. No data. But girls will be victimized more. Based on what evidence?
Yes, please, let's interrogate things like injury rates and types, the decline of female coaches and the absence of female coaches in men's sports, and the secrecy around sexual abuse of both boys and girls by coaches. But saying "Title IX did this" is not an interrogation. And it is not helpful in understanding the complexities behind such situations.

You know what hurts female athletes?
Misconceptions about them, their experiences, and how they came to be.
Misinformed coverage by media outlets.

I am disappointed in The Atlantic. I hope they more carefully vet what gets published under their moniker in the future.

The feminist fable and soft essentialism

The Title IX Blog is a huge fan of Dr. Michael Messner. Messner is the type of academic I certainly strive to emulate. His work is impressive and thought-provoking, practical and accessible.
And in the June 2011 issue of the Sociology of Sport Journal Messner had an article that made me say "damn, I wish I had written that"--of course I would have had to think of it first. (It also had a handy chart!)
In the piece "Gender Ideologies, Youth Sports, and the Production of Soft Essentialism," Messner uses his research on the gender ideologies he observed in youth sports, providing a theoretical context in which to understand these constructions. He calls it soft essentialism.
Soft essentialism is a gender ideology based on the perceived experiences of the professional class (though it functions hegemonically) in the United States in this era of "post-feminism." It is marked by a belief in choice--for girls and women, but leaves unexamined the possibility of choice for boys and men. It is, as Messner notes, a triumph for liberal feminism which has advocated for individual success through access to options/venues/professions from which women have been historically barred. Title IX, of course, is a product of liberal feminism.
While supportive of access to sport opportunities for women and girls, Messner writes of the problems with the "triumphant feminist tale" in women's sport history (p. 152). First--and this is something I try to explain to my students all the time--progress is not linear. The idea that "things" are better now than they were at some unnamed point in the past is too easy and not supported by history. This problematic teleology also erases differences in class, race, ability, age, geography and various other markers that greatly affect a girl's access to opportunities and "choices" generally.
Finally one of the most interesting paradigm-shifting points Messner makes is that soft essentialism leaves boys and men unmarked. Girls can choose to do sports or become mothers or work or wear heels and dresses or get married. Despite shifts in the construction of masculinity, boys are still largely deprived of the same level of flexibility (noting again that very few women have such flexibility when we take into account age, race, and class).
How does this relate to Title IX? The argument that anti-IXers proffer is often rooted in soft essentialism. Opportunities for girls--which they can choose or not--take away, the argument goes, opportunities for boys. Sports for boys are viewed as less of a choice and more innate--something they are "naturally" drawn to. Both girls and boys suffer when society interprets gender roles in this way. Boys are not allowed to be "flexible choosers." We have seen this before when people speak out against Title IX's alleged quota system. They note that girls like to do many different things (like band and drama and chorus and yearbook and newspaper and community service) while boys mostly just like sports. And, on the other side of the gender binary, when girls "choose" to do something else, this is seen as an unrestricted, freely made choice reflecting some kind of innate interest level.
Messner, in the conclusion, brings up the idea of integrating sport, noting its potential benefits and downsides and pointing to other research on the issue. I believe that in order for this to happen we need to value all versions of sport--in practice not just in theory--from recreational to professional. The competitive model of sport (in combination with hegemonic gender ideologies) that is most prevalent in our culture right now presents, I believe, the biggest obstacle to integration.

Research on attitudes toward girls' participation

A recently published (June 2011) research note on  attitudes toward participation opportunities for girls in sports found that high school students are generally supportive of providing sport opportunities for girls. The research, done by Marni Brown, Erin Ruel, and Stephanie Medley-Rath and published in the Sociology of Sport Journal, examined the attitudes of high school sophomores all over the country. They found that girls are significantly more supportive than boys with competitive male athletes being even less supportive. Racial minorities (with the exception of Latinos) demonstrated greater support for opportunities for girls than did their white peers. When they examined attitudes using socioeconomic class as a variable, the researchers found that as class status increased, support decreased. And lest we think that the northeast is most liberal enclave of all, the study found that support of opportunities for girls by northeasterners was not significantly different than that of southerners.
But again, and in contrast to similar studies of younger students, there was a finding of general support among all demographic groups. The authors speculate that one possible reason for this support is both age and the effects of Title IX in increasing opportunities for girls.

Castle Rock issues in front of school board

After some delays, the concerns of parents of Castle Rock High School student-athletes in Washington will be addressed by the school board in the next week and a half. 
As we have written about before, parents of girls on the soccer team asked for and were denied access to the football field (which has lights) for games that were being cut short due to darkness. The superintendent attempted to address the concerns, but parents were not entirely pleased with her recommendations, including additional training in gender equity issues for the school's athletic director. Some involved believe that training would not work for AD Neil Williamson because he knew that his decision was discriminatory. Some also feel that the recommendation for an athletic advisory committee would just add an additional level of bureaucracy they would have to negotiate.
Additionally, in a non-Title IX issue, parents requested that the original unlit field be made handicapped accessible. But apparently the accommodations are less than ideal. A portable accessible bathroom is in a grassy area that those in wheelchairs would find difficult, if  not impossible, to traverse.
While the school board has implied that some girls' soccer games will be scheduled in the football field, it seems that the discord created over the way the situation has been handled may have longer-lasting effects.
If, when the board issues its decision on the matter(s), parents are displeased with the resolution, the district will likely find itself a party in a lawsuit which, if previous cases are any indication, will likely reveal additional inequities. 

USC equestrians to receive locker room

A gender equity consultant hired by the University of Southern California found that the university must remedy an equal treatment disparity. Apparently, a problem about which the athletic department has been well aware will be fixed soon(ish--dependent on funding). The equestrian team is getting a locker room right next to its practice facility. There is a "lounge" there currently but no showers or lockers. As part of the new facility, which is expected to cost just under half a million dollars, a tack room will be added where students can store saddles.
No information on the above linked article about why USC hired a gender equity consultant or if s/he found anything else of note.
What I found interesting was that the team, which won the national championships in 2005, has grown since that time. The team now averages around 40 riders (and there will be 40 lockers in the new facility). The year it won the championship it had around 25 members. This roster growth offers come insight into how the school is demonstrating compliance with Title IX's equal opportunity provision. Good to see that as they add roster spots, they are also paying attention to the quality of the opportunities provided.

Article Proposes Scrutiny for Schools' Prong One Compliance by Contraction

In a new article in the DePaul Journal of Sports Law and Contemporary Problems, three authors propose that OCR should strictly scrutinize schools' decisions to comply with prong one by cutting men's teams. As the authors explain:

The first prong of the Title IX compliance test is currently abused and should not serve as a safe harbor for institutions unwilling to fund additional female participation opportunities. Strict scrutiny review of all Title IX compliance grievances would better protect educational student-athlete experiences. A “2011 Clarification” implementing this standard would hold financially capable schools responsible for meeting the viable athletics interests of all students rather than cutting educational opportunities to divert funds for football and basketball. The option of reaching Title IX compliance through reduction of men's non-revenue generating athletic programs should be used only as a last resort by athletic departments that truly cannot afford them. Under this standard, if male student-athletes' opportunities are cut, they can file a Title IX grievance requiring the university to prove the action furthers the compelling interest of increasing female opportunities and that no less restrictive means exist. The use of strict scrutiny in a Title IX setting would not always prove fatal to compliance measures because legitimate cuts would survive the standard. Instead, the use of a strict scrutiny standard for Title IX would provide much needed protection against the use of illegitimate and unnecessary means under the guise of remedying past discrimination.

My understanding is that under the authors' proposed standard, a university's decision to cut an inexpensive men's sport like track would not survive "strict scrutiny," because it doesn't free up any money to re-allocate to address existing disparities in women's sports. That would leave universities seeking to comply with the proportionality prong with the choice of either adding women's teams, or cutting back on the doesn't-generate-as-much-revenue-as-you-probably-think sports of football and basketball. Option A would be good for women's sports. Option B would still be bad for the men's teams that would be targeted instead, but the scrutiny on those sports could help curb rampant commercialism and arms-race spending in big-time college sports. It's an interesting thought.

Article is: Jesse M. Rappole, Thomas A. Baker III, and Kevin K. Byon, Exposing the Shell Game: The Need for a Narrowly Tailored Approach to Title IX, 8 DePaul Journal of Sports Law and Social Problems 1 (2011).

$1.35 Million Settlement Ends UC Davis Litigation

Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.

The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.

Retaliation Case Against Florida School District Survives Motion to Dismiss

In Florida, a federal district court judge has denied the Citrus County School Board's motion to dismiss claims filed by students who allege they were retaliated against after one of them reported that she was "offended and uncomfortable" by sexual behavior of their soccer coaches. As we noted in an earlier post, the case began when a female high school soccer player named Stacey Bigge and her teammate known in the complaint as A.M. reported to their parents that they were uncomfortable with their coaches' tendencies to make sexual comments, which included remakes about players' physicality and genitalia, and that on one occasion, a coach pulled down a player's pants. After their parents reported this conduct to school district officials, the coaches became threatening and intimidating to Stacey and A.M., interrogating them in front of their teammates and threatening to disband the team because of what they did. Eventually, the players quit to avoid this hostility. Later, Stacey and her sister Kathryn Bigge were ordered to be transferred to another high school after the coaches then told the school officials that the Bigges lived outside the district. This transfer order was rescinded after the Bigges' father supplied proof of residency.

Both Bigge sisters sued Citrus County School Board, alleging that the threat to transfer them to another high school was retaliation for Stacey's complaints about the coaches' harassing conduct. The school board argued that Kathryn Bigge's claim for damages on this retaliation theory should be dismissed because she was not the person who engaged in the requisite "protected conduct" by complaining about the coaches' behavior, her sister was. But the court rejected this argument, applying the Supreme Court's recent decision in an employment law case that a whistleblower's fiance could challenge the retaliation directed at him in response to the whistleblower's complaint about sex discrimination on the job. The judge concluded that the threats against Kathryn were actionable on a theory of retaliation because it was "reasonable to infer that the School Board’s threat to transfer Kathryn Bigge to another school district (a threat that was allegedly made in direct response to the Plaintiffs’ complaints) would dissuade her father and sister from making any further charges of discrimination and/or retaliation."

The case is scheduled for a jury trial in February 2013.

Single-Sex Education Will Not "Save" Black and Latino Boys, Professor Argues

In an opinion piece on the Education Week blog, NYU Professor Pedro Noguera argues that coeducation single-sex education is not the solution to problem that young men of color experience lower graduation rates and other disparities in educational outcomes. Noguera points out that there is no scientific research supporting claims that separating young men into separate schools or classrooms is the best way to meet their needs. To be sure, there are single-sex schools that boast higher-than-average graduation rates for African-American and Latino boys, but Noguera suggests that what is most likely making them successful are characteristics other than their single sex design -- characteristics like strong teachers-student relationships, personalized learning environments, and a peer culture that values academics and character. In support of this suggestion, Noguera points out that co-ed schools like Thurgood Marshall Academy in Harlem have achieved success by developing these characteristics. School districts that adopt single-sex education as a single magic bullet to the problems facing young men of color are poised not only to fail the students they are trying to help, but to project harmful gender stereotypes onto boys and girls alike. Noguera urges schools to focus on solutions that provide "positive learning environments that meet the needs of the children they serve."

High School Athletes Win Title IX Trial

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

Dallas School District Takes Only Boys on Field Trip to the Movies

As reported here, the Dallas Independent School District is getting flack for its decision to take 5000 students, only boys, to the movies to see the film "Red Tails." Due to the high cost of such an outing -- $57,000 to rent buses and purchase tickets -- it wasn't feasible to include girls as well. So the school district's solution was to leave the girls behind, assuming, most likely, that girls would not be interested in a movie about the Tuskegee Airmen who fought in World War II.

If you're wondering, yes, this violates Title IX. As one expert put it:

"This sort of blatant gender discrimination is actually quite shocking in 2012."

Indeed. I hope the stakeholders in Dallas ISD are holding school district officials accountable for their poor judgment.

What's happening at Yale?

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Sexual Harassment Roundup

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)