No, Santa Monica College, That's Not How Title IX Works.

Santa Monica College just added men's soccer.  OK, that by itself isn't a Title IX story, although when you take into consideration that women already only receive 43% of athletic opportunities despite constituting 52% of the student body, such a decision to widen that gap rather than narrow it certainly raises questions about the college's prudence and good judgment.   

Rather, the specific Title IX angle here is that SMC actually justified the decision to add men's soccer as somehow required, or at least blessed, by Title IX's prong three.  According to this article, SMC's VP of Student Affairs says that "SMC is in compliance with Title IX because men’s soccer has been the most requested sport by incoming students during the application process."

Um, no.  Title IX does not let you demonstrate compliance by showing that you added you added "the most requested sport by incoming students."  Prong three is an alternative to showing that athletic opportunities are proportionately distributed.  It requires that you to respond to unmet interest of the underrepresented sex, not the sex that already receives a majority of athletic opportunities.  Moreover, I'm not sure that SMC's prong three analysis of women's interest, which consisted of "looking over" the "incoming student application data" would satisfy prong three if OCR was looking over their shoulder.  While it may be the case that admissions data demonstrates no interest beyond the women's sports that are already offered at SMC, the prong three inquiry is actually much broader than that, and for good reason.   If you are only surveying the school's incoming students, you are only hearing from the ones who applied notwithstanding the lack of athletic opportunities.  You wouldn't hear from the women who would have applied IF you had a golf team (for example).  That is why OCR requires a prong three analysis that takes into account things like the popularity of sports at the high schools from which your student body is drawn.

Before I close, let me just shed some skepticism on the claim that all women's interests are satisfied by SMC's existing opportunities. Look at the rate of high school participation compared to college opportunities.  You don't think there's likely some unmet interest among women, as well as men?    

SMC, if you need some clarification on Prong 3, you're in luck because OCR has written one -- it's been around since 1996.

More on SHARP conference

Erin mentioned briefly that she attended the Title IX conference at the University of Michigan last week. Here is more coverage of the event and the issues discussed. We were happy to see that discussion on ways to remedy racial discrimination in athletics were often at the forefront.
Also of note for parents, coaches, students, and activists out there: the Women's Sports Foundation is collecting your pictures of inequities. Nancy Hogshead-Makar announced that people should "send photographs of physical inequities between boys’ and men’s athletics versus girls’ and women’s in facilities, equipment, uniforms and travel to TitleIXphotos@womenssportsfoundation.org."
I have a feeling people at WSF are going to be looking at a lot of photos of softball and baseball fields! (And maybe some not-so-nice locker rooms.)

Brandi Chastain witnesses backlash

Erin has been doing a great job noting all the 40th anniversary coverage that has been going on nationally. They haven't all been happy, happy, rah-rah events, however.
Former USWNT player, Brandi Chastain, was participating in one such event last week. The California Assembly was marking the anniversary by honoring Chastain and others. The event was conducted in the form of a resolution (my guess was that it was simply a resolution to honor Title IX). An assemblyman, Chris Norby, used the opportunity to decry the ways Title IX has been interpreted. (One of my all-time favorite excuses: we like the law, we just don't like the way it has been put into effect.) It was his right, of course, as a member of a legislative body passing a resolution. Takes a fair amount of...something...to speak out in front of one of the most celebrated female athletes of the modern era, who is also a noted advocate for girls and women in sports.
Chastain wanted to offer a rebuttal of some sort. Alas it was not her right to do so because the event was not a public hearing.
Fortunately other legislators defended the legislation and offered examples of the why they provide their support and of continuing inequities.

Boys Excluded from Field Hockey Teams

Yesterday we posted about a girl playing on a boys team, so today we'll discuss a couple of stories about cross-over participation of the other variety.  Keeling Pilaro was recently excluded from the Southampton (NY) High School girls' field hockey team, on which he had played for two years, by the Suffolk County high school athletics governing body, Section XI.  Its policy allows boys to play on girls' teams unless doing so creates "significant adverse effect upon the opportunity of females to participate successfully."  It appears that Pilaro, who grew up playing field hockey in Ireland, was deemed too good to be allowed to continue to play with girls. According to ESPN, he posted a "team-high 10 goals -- not dominant by any means, but good enough to earn All-Conference recognition."  Many are objecting to the decision to exclude Pilaro, who is a small guy at 4'9" and 82 pounds -- and even opposing players and coaches have supported his right to play.

Elsewhere, it was reported that eighth grader Matthew Bozdech was denied a waiver from the Missouri State High School Athletics Association's policy that excludes boys from girls teams, which he had sought in order to play field hockey on the newly formed girls team at Eureka High School.   Bozdech has been playing field hockey for several years, and enjoys the camaraderie with his female teammates.

What does Title IX say about this?  Contrary to suggestions in both stories, Title IX is not necessarily violated by a school that allows girls to try out for boys' teams (football, say) but denies the same right to boys playing on girls' teams.  For one reason, when it comes to contact sports, Title IX allows but does not require schools to allow cross-over participation.  There are some quirky definitions of contact sport out there -- basketball is listed as a contact sport in the Title IX regulations -- so it's arguable field hockey shares this status as well.  More importantly, Title IX regulations recognize that girls' athletic opportunities have "historically been limited," which justifies their crossover participation in a way that does not apply to boys, who usually have and have always had more athletic opportunities overall. 

Yet, I will throw out a Title IX argument in favor of Keeling Pilaro's case.  Courts have held that once a school allows cross-over participation in situations where it is not required by Title IX, it may not then discriminate against that cross-over player on the basis of sex.  I would argue that Section XI has elected to allow Pilaro to play even though Title IX does not require it to do so. Therefore, it may not single him out for differential treatment based on sex. Clearly it has done so, as no girls are subject to the possibility of losing eligibility for being too good at the game.  Only Pilaro, because of his sex, faces the dilemma of playing well or playing at all.

Moreover, if I were in charge, I would opt to move the cross-over participation regulations out of the stone ages by (1) eliminating the contact sport exemption, which is blatantly rooted in sex stereotypes, and (2) requiring schools to allow cross-over participation to both sexes unless doing so would take away an actual opportunity from the underrepresented sex. Under this formulation, only two questions would be relevant in the two cases described above: (1) do girls have fewer athletic opportunities than boys at Eureka and Southampton high schools? and (2) does letting a boy play on the field hockey team reduce those opportunities even further?  If girls are underrepresented in athletics at those schools, but the field hockey team has a "no cut" policy and would take any additional girl who wants to play (and be able to provide meaningful playing time to that girl), then having a boy on the team does not reduce opportunities for girls, and should be allowed.  In their current form, the Title IX regulations unnecessarily limit cross-over participation and deny to both sexes the benefits that come when boys and girls are allowed to play together.  As long as boys' participation does not exacerbate existing inequalities in participation, girls' sports don't need protection from boys.  Good players of either sex raise the level of the game, and playing with boys helps cultivate respect for female athleticism.  We ought to get over our antiquated squeamishness about mixed-sex athletics and let the boys play.

Private School Forfeits Championship to Avoid Playing Against a Girl

This week in Arizona, a fundamentalist Catholic high school called "Our Lady of Sorrows" (indeed!) forfeited the high school championship game rather than face Mesa Preparatory Academy and its female second-baseman, Paige Sultzbach.  According to its press release, this decision was an extension of their religious beliefs:

Our school aims to instill in our boys a profound respect for women and girls. Teaching our boys to treat ladies with deference, we choose not to place them in an athletic competition where proper boundaries can only be respected with difficulty.

Sadly, OLS's "respect" and "deference" for Sultzbach means denying her and her team exactly that -- the opportunity to play for the championship.  This instance of discrimination, however, may be outside the scope of the laws that usually govern high school sports.  OLS is a private school, not subject to the U.S. Constitution's Equal Protection Clause, under which public entities must give girls an equal right to tryout and play sports.

Nor does Sultzbach likely have a claim against her own school, Mesa Prep.  It was reported that during the regular season, Sultzbach benched herself in games against OLS, to avoid a forfeit for her team. Thus it would appear that she's being discriminated against by Mesa Prep's decision to play against OLS -- except that her school is private also, and likely outside the reach of Title IX, which only applies to schools that receive federal funds.  (While Title IX would not require a school to let a girl onto a boys baseball team in the first place, due to its status as a "contact sport," the law clearly requires schools that do accept a girl onto boys' teams to treat her equally, which would, I argue, include not subjecting her to the unique pressure of having to opt out in order for her teammates to have competition).  Similarly beyond the scope of nondiscrimination law is the conference both schools play in, the Arizona Charter Athletic Conference, which "provides competitive athletic competition for charter schools, home school organizations & parochial schools in Arizona."  

Sultzbach and her parents are all reportedly upset by this decision, but unfortunately they would not appear to have legal recourse.  Instead their situation must serve as a cautionary tale for others about the consequences of opting out of civil rights protection by one's choice of where to attend school.  

More on the Butler Resolution

I just wanted to write again about OCR's recent resolution with Butler University to draw additional focus on the agreement's provisions regarding scholarships.  As we noted in our earlier post,  women at Butler receive disproportionately fewer athletic opportunities than men, and OCR has required Butler to either justify that under prong three, or else come up with a plan to add more opportunities for women.  At the same time, those women who do enjoy athletic opportunity at Butler receive proportionately more scholarship dollars than men.  This violates the Title IX regulation regarding financial aid, which requires the scholarship dollars to be distributed proportionate to athletes of each sex.  OCR's resolution agreement is asking for remediation on that issue, which means raising (or redistributing) scholarship dollars for men. 

I've heard some concern that this requirement seems to suggest that OCR expects universities who short-change women in the number of athletic opportunities to short-change them with scholarship dollars as well.  Notably,  OCR itself has in the past presented a flexible interpretation of the scholarship requirement that accepts disparities between the percentage of scholarship dollars for each sex and the percentage of athletes of each sex, as long as those disparities are for "nondiscriminatory reasons."  In a 1998 Dear Colleague letter, OCR writes that such "disparities might also be explained, for example, by legitimate efforts undertaken to comply with Title IX requirements, such as participation requirements."  I think this interpretation should provide schools like Butler some flexibility to award female athletes proportionately more scholarship dollars as a way of building women's participation.  It will be interesting to see whether OCR takes this flexibility into account when monitoring Butler's ongoing effort to comply with both the participation and scholarship aspects of Title IX.  

More Good 40th Anniversary Press, Events

I'm posting this from Ann Arbor, Michigan, where boxer Laila Ali kicked off the SHARP Title IX at 40 conference at the University of Michigan, with a keynote speech about the importance of athletic opportunities for women and girls.  For coverage of the speech, see here and here.

Also, ESPN-W has more good 40th anniversary coverage today, including a list of "Nine Ways for You to Celebrate Title IX" and this essay by Risa Isard  called "An Everyday Athlete is Still an Athlete." This essay struck a personal chord with me due to the frequency I get asked, "oh, you write about Title IX -- were you an athlete?"  I hate this question because it seems to equate "athlete" to "student-athlete" and suggests that an athlete identity is something an adult cannot have in the present tense -- an objectionable premise to me and my hockey and softball teammates and my fellow runners and cyclists.  

Elsewhere in the media, Olympic and World Cut soccer player Tiffeny Millbret celebrates the 40th by reflecting in her local paper on the impact Title IX had on her life -- another good read.      

From what I'm hearing here in Michigan, there's more good 40th anniversary coverage yet to come!

Court Won’t Dismiss Retaliation Case Against Ball State

Kathleen Bull, former women’s tennis coach at Ball State, sued the university under Title IX and other laws, alleging that her employment contract was terminated because of her outspoken advocacy for gender equity.  The university claimed that she was in fact fired because she had asked students to lie to athletic department officials about a practice that exceeded NCAA limit on weekly practice hours.    

Last week, the court denied Ball State’s effort to have the case dismissed without a trial, on summary judgment.  (Earlier, the court dismissed similar claims against individual university officials, in contrast to claims against the institution itself at issue in this most recent ruling.) On the Title IX claim, the court determined that Bull’s raised sufficient evidence that the university's stated reason for firing her was actually a pretext for retaliation such that a jury should have the opportunity to ultimately decide whether retaliation occurred.  

The trickiest requirement for retaliation plaintiffs is to show a causal connection between the adverse consequence (here, getting fired) and the protected conduct (here, advocating for gender equity, which Bull satisfied by filing a complaint with OCR).  The court explained that plaintiffs can use three types of circumstantial evidence to establish that relationship: 

(1) suspicious timing, ambiguous statements, and behavior toward other employees from which an inference of retaliatory intent may be drawn; (2) evidence that similarly situated employees received systematically better treatment; and (3) evidence that the plaintiff did not deserve the adverse employment action and that the employer's stated reason is a mere pretext for retaliation. 

Bull's evidence goes to the third of these options.  She argues that she did not deserve to be fired for asking students to help her cover up the NCAA rule violation, because other coaches engaging in similar conduct were treated with more leniency. Specifically, she points to the case of another coach at Ball State who lied to NCAA investigators.  Though not an identical infraction, that coach's infraction was, in the court's determination, of "similar seriousness" to Bull's.  Yet, that coach was given a letter of reprimand rather than fired.  This creates a sufficient inference that Bull was not really fired for lying, but for retaliatory reasons instead.  Barring settlement prior to trial, the jury will have a chance to decide whether that was indeed the case.

Decision is: Bull v. Bd. of Trustees of Ball State Univ., 2012 WL 1564061 (S.D. Ind. May 2, 2012).

Dempsey Profiled in Sports Illustrated Article about Title IX Fathers

Just a brief post to supplement my earlier post summarizing some of the Title IX 40th Anniversary coverage that has been in the news lately.   This article, also from the recent Sports Illustrated issue that is devoted to Title IX, describes the role that fathers have played as key advocates for Title IX and gender equity in athletics.  Through their own experiences with sport, many fathers have come to understand why athletic participation is so important, and as a result are motivated to ensure that their daughters receive the same opportunities as they did. 

The article profiles one such father, Herb Dempsey, whom the author dubs "the mother of all Title IX fathers." Herb has filed more than 1000 complaints with OCR challenging inequities in high school athletics in his home state of Washington and elsewhere.   He became an advocate in his retirement, inspired by the memories of  the disparate treatment his daughter's volleyball team received when she was in high school years earlier.  Now Herb challenges gender equity on behalf of the next generation of female athletes, including his middle-school aged granddaughter.

Good for Sports Illustrated for taking note of such a devoted Title IX advocate as Herb, and for bringing attention to the role of male allies, who stand along with women to end sex discrimination in athletics and elsewhere in education.  

Sexual Harassment Roundup

Here are summaries of some recent Title IX sexual harassment cases making their way through the courts:

The 11th Circuit Court of Appeals affirmed a decision dismissing a case against a school district deriving from a female teacher's sexual harassment and abuse of a 13-year old male student.  The court determined that the Principal did not have notice of the ongoing harassment nor other signs that the student was at risk.  The Principal, Whatley, did know of past complaints against the teacher, Elizabeth Gaddy, that she had crossed boundaries with students by sending them text messages, but the court rejected that this was sufficient notice of potential sexual misconduct.  The court also summarized all of the other things that the Principal knew about, before determining that that the plaintiffs did not satisfy the notice requirement for a harassment case under Title IX:

Whatley knew about complaints from teachers and parents that Gaddy was constantly sending O.K.K. [the student-victim in this case], and other students, text messages. He knew that Gaddy bought Christmas gifts for O.K.K. that J.F.K. [the victim's parent, the plaintiff] thought were inappropriately expensive, and that Gaddy took O.K.K. home in her car against J.F.K.'s wishes. He knew that Gaddy had been shopping for a baseball uniform despite having no sons. He knew that Gaddy and O.K.K. had been seen sharing a towel at a pool party and spending time alone inside the house, and later sharing a blanket with their legs touching on Gaddy's sofa. He also knew that Smith thought that Gaddy was too fond of O.K.K. and that another student's parent worried that Gaddy was “possessive” of O.K.K. by not letting any other girl “like” O.K.K. but her daughter. He knew that several parents, including those of cheerleaders, were complaining of Gaddy's excessive involvement in their children's lives and that Gaddy called some female students inappropriate and offensive names. He also knew that O.K.K.'s parents wanted Gaddy to stay away from him, although they told him they did not believe anything was going on between O.K.K. and Gaddy. It appears clear to this court that Whatley knew Gaddy's conduct was inappropriate, devoid of professionalism, and reeked of immaturity; however, despite this, her known conduct was not of the same type of conduct of a sexual nature.

Thus, it seems that in the 11th Circuit, the bar for actual notice is quite high, even in cases  involving harassment by teachers as opposed to fellow students.  J.F.K. v. Troup County Sch. Dist. 2012 WL 1538370 (11th Cir. May 3, 2012). 

Elsewhere, a federal court denied a school district's motion to dismiss a case involving claims of sexual harassment by a high school teacher.  The court agreed that a genuine issue of material fact existed as to whether the school district was on notice that a particular teacher posed a risk of harm to students, including the plaintiff, whom the teacher locked in the computer lab and attempted to touch in a sexual manner.  Earlier in the school year, the principal received a report that the teacher had touched another student's leg inappropriately, and responded to this report by reporting the matter to Child Protective Services, which did not take further action.   The Principal did not initiate an internal investigation, other than to keep a closer eye on the teacher in question.  Then, the Principal went on leave, without sharing his suspicions of the teacher with anyone else.  The incident computer lab incident involving the plaintiff occurred during this time. On these allegations, the court determined that a jury could find that the school district had sufficient notice to which it failed to adequately respond, so the court refused to dismiss the case and will instead let it proceed to trial.  C.B. v. Tibbetts, 2012 WL 1448308 (D. Ind. Apr. 26, 2012).

In another case, a court denied a plaintiff a preliminary injunction ordering the defendant school district to transfer her to a different high school outside of the school district, which the plaintiff was seeking as a response to sexual harassment and assault by other students she had suffered in her present school. The court determined that the plaintiff failed to demonstrate a likelihood of success on the merits of her case because school officials had responded to incidents about which they were made aware.  In particular, after learning that the plaintiff had been sexually assaulted by other students on two occasions in the past (a year prior, and a year-and-a-half prior, respectively) district officials responded by taking immediate steps to ensure the student's present safety, including making sure that the student did not have classes with either perpetrator.  Five months after this report, school officials worked with the plaintiff's parents to file a formal grievance with the school district's Title IX officer. That triggered an investigation in which both alleged perpetrators, along with other potential witnesses, were interviewed. The investigation did not produce sufficient evidence to warrant expelling either student.  But the district did provide or offer numerous other accommodations to the plaintiff, including counseling and that a school employee "shadow" the plaintiff to address her concerns for safety, were offered to the plaintiff.  Emphasizing that the law does not require school districts to  provide a particular response, just a reasonable one, the court denied the plaintiff's request for a preliminary injunction requiring the school to transfer her out of district. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2012 WL 1521060 (S.D.N.Y. Apr. 30, 2012). 

Butler University Resolves OCR Compliance Review

The Department of Education announced this week that it has entered into a resolution agreement with Butler University, which had been the subject of a compliance review by the Office for Civil Rights.  A compliance review is different in than the typical investigation that we usually write about here, in that it is initiated by the agency rather than triggered by a complaint.  According to its website, OCR initiates compliance reviews in order to "target resources on compliance problems that appear particularly acute."  I'm guessing that Butler's extreme disparity in proportionality -- a 23 percentage point difference between the percentage of female undergrads (59.5) and the percentage of athletic opportunities for women (36.5) -- is what appeared "particularly acute."  While proportionality is not the only way to measure compliance, such a low percentage of female athletic opportunities certainly raises suspicion about whether sufficient progress is being made to satisfy prong 2, and the likelihood of unmet interest in violation of prong 3.

The resolution agreement requires Butler to demonstrate by Sept. 1 that it is accommodating effectively the interests and abilities of female students. Or, if they are unable to demonstrate that, they must submit a detailed plan to increase athletic participation opportunities for women over the next three academic years.

How often does OCR initiate compliance reviews like this on its own?  According to its 2009 Annual Report to Congress, OCR initiated 1 compliance review related to Title IX athletics issues in FY 2007 and 16 in FY 2008.  This is a pretty small percentage of OCR's Title IX enforcement work, given that it receives hundreds of Title IX complaints every year.  As far as I'm concerned, OCR shouldn't have to do this; universities are already on notice of what Title IX requires, and that includes being able to demonstrate that interests and abilities are being satisfied (unless of course, they satisfy proportionality, as few do).  But until schools like Butler get the message that monitoring Title IX compliance is an active and ongoing endeavor, OCR should be doing more compliance reviews, not less.

Title IX Coverage Ramps Up in Anniversary Year

It's hard to keep up with all the Title IX news this spring.  Title IX's 40th anniversary is in June, and the media is ramping up its coverage of our favorite statute.  So far, most of what I've seen has a sports/athletics angle, much of it celebrating women's accomplishments in sports in the last 40 years.  While many of these retrospective pieces are not "news" per se, the fact of so much coverage surely is, so I want to make sure to acknowledge them here on the blog.  Here is some of the recent coverage of Title IX's 40th that I've seen:

• Sports Illustrated has a special 40th anniversary issue, including
• Ann Killion comments on the cultural change evoked by Title IX. 
• Beverly Oden comments on the impact of Title IX on women's lives.
• Holly Anderson praises Pat Summitt, Title IX, for gaining respect for women's sports. 
• And SI counts down the "top forty" female athletes.
• At Huffington Post, Judy Patrick summarizes the success of Title IX in athletics and the classroom.
• ESPNW profiles Birch Bayh, the Senator who sponsored the Title IX bill.  
• ESPNW profiles lacrosse coach Pat Genovese, 
• ESPNW demystifies Title IX with "Five Myths About Title IX."
• The Boston Globe celebrates Title IX's 40th.
• Helena Independent Record reports on how local athletes reflect on Title IX. 
• Daily Texan carries this article on Title IX's effect on women's college golf. 

So much media agrees -- Title IX is worth celebrating! There's still a long way to go, and not everyone is on board with the positive message (see, e.g.).  But it's great to see so much positive coverage in the media.  Title IX has only lasted this long due to overwhelming public support.  I think that the 40th anniversary coverage can only help as the law gears up to tackle the remaining challenges ahead. 

Firing of Transgender Student-Teacher Raises Title IX Concern

A Wilmington (Ohio) College senior student-teaching at area Hillsboro High School was dismissed in January on his second day of placement.  Recently, however, the Wilmington News Journal raised questions about the role of discrimination in that decision.  The student-teacher believes he was dismissed because he is transgender, appearing and identifying as male though assigned a female sex at birth.  School district officials cited vague concerns about a breach of ethics to explain the termination, having taken issue with the student-teacher's decision to explain his identify to the class, as a means of putting questions and rumors to rest.

The article quotes a Department of Education spokesman explaining that Title IX's prohibition on sex discrimination includes discrimination on the basis of gender nonconformity.  It also notes that the EEOC, the federal agency that enforces Title VII, the law that prohibits sex and other forms of discrimination in the workplace, recently interpreted sex discrimination to include discrimination against transgender individuals.  However, the student told the reporter that he is not planning to file a complaint against the school district.   But even though it looks like the school district won't be made to answer for this decision in court, the school district ought to take this opportunity to reexamine and recommit to its nondiscrimination policy, to avoid legal trouble in the future. 

Update in Montana Case

Here is an update on the complaint filed against the University of Montana charging that it has violated Title IX by failing to properly handle numerous incidents of sexual violence against female students, including many involving members of the football team.  The complaint was filed with the Department of Education's Office for Civil Rights, as we noted in a previous post.  This week it was announced that the Department of Justice will be conducting an investigation. As reported by Reuters,

The Justice Department probe will examine the inner workings of the university's public safety office, the Missoula Police Department and the Missoula County Attorney's Office.

Additionally, the department will review whether the university is complying with federal laws specifically barring sex discrimination, defined as including sexual assault and sexual harassment, in education programs, officials said.

The Department of Justice has wider jurisdiction than the Department of Education, which allows it to conduct a more comprehensive investigation that is not limited to the University, but to local law enforcement as well.  Such a comprehensive investigation, which as far as I know is unprecedented for addressing campus sexual violence, seems warranted in this case due to the arguably widespread incidents of rape in the community and on campus. The police received 80 reports of rape in the last three years, and 11 incidents involving students have come to light.  Investigating both the university and the local police together will provide unique insight into how those two entities handle related and overlapping jurisdiction when it comes to protecting students and disciplining offenders. 

Schlafly tries to side with OU

The University of Oregon is asking a federal court of appeals to overturn the ruling by a ninth circuit three-judge panel that said a former doctoral student's Title IX case against the university was worthy of a trial.
We have blogged about this case here--so I won't recap all the details.
It is not surprising that UO has asked for the panel's ruling to be overturned.
What is slightly more so--to us and to the university I think--is that the Eagle Forum, an organization headed by noted conservative Phyllis Schlafly, is trying to join in the case on the side of the university. Overturning Title IX because, they argue, it discriminates against men, has long been on the Eagle Forum's agenda.
But the university is now caught in a little predicament. Eagle Forum wants Title IX in front of the Supreme Court for an opportunity to be overturned or weakened by the conservative-leaning court. But the university doesn't want Title IX overturned--they just want this case to be re-framed: as one of academic freedom.
I don't quite buy that--especially because this incident at Appalachian State has been on my mind and given the lengths professors who teach perceived controversial material are taking to protect themselves from student allegations these days. This looks like a retaliation case. That is what the Ninth Circuit Panel saw. It should go to trial. 

NCAA Provides Model Policy to Prevent Athlete-Coach Relationships

The NCAA has come out with a very clear position on sexual relationships between coaches and student-athletes.  They are wrong.  They are a serious problem.  And they must be "unambiguously and effectively prohibit[ed] to ensure that sport programs offer a safe and empowering experience for all student-athletes."

This week, the NCAA is sending to its members a publication called "Staying in Bounds: A Model Policy to Prevent Inappropriate Relationships between Student-Athletes and Athletic Department Personnel," which is co-authored by law professor Deborah Brake and author/journalist/athlete Mariah Burton Nelson.

Off the bat, the authors make clear that they are talking about all romantic, sexual, or "amorous" relationships between coaches (or other athletic department staff) and student-athletes, even if they are professed to be consensual.  As the authors explain, there is a significant power differential between student-athletes and coaches (and athletic directors, and training staff), who spend intense and intimate time together.  As such, coaches who cross that line necessarily abuse that power, and their actions constitute sexual abuse.  It makes no difference that both parties are technically adults.

As a legal matter, many sexual relationships between coaches and athletes violate antidiscrimination laws such as Title IX, exposing schools to the risk of liability.  The power and influence coaches have over their athletes may suggest the absence of consent, which is an element of sexual harassment under the law.  And even in cases where the relationship appears "welcome," the university could be at risk of liability under Title IX due to the negative effect the relationship is likely to have on the other members of the team.  The authors suggest that prohibiting all sexual relationships between coaches and student-athletes is a prudent step to managing the risk of liability.

But even setting aside concerns for liability, banning athlete-coach relationships is necessary as a matter of professional ethics.  Other professions prohibit relationships between adults where a power difference obscures consent, such as the ethic that prohibits doctors and therapists from having sexual relationships with their patients.  Still others guard against relationships that are detrimental to the moral of a group and its trust in those with power, as in the cases of judges bound by ethics to avoid the "appearance of impropriety" including sexual relations with those who appear before them, and members of the clergy who regard it unethical to have sexual relationships with a parishioner.

With these considerations in mind, the authors make the following recommendations to  NCAA member institutions:

• Institutions should have free-standing policies addressing amorous relationships and not leave it to be covered by a general policy on sexual harassment.
• The athletics department should have its own policy on amorous relationships, rather than assume coverage under a university's general policy on relationships between staff and students.
• The policy adopted should prohibit sexual or romantic relationships between all coaches and athletes, not just coaches and the athletes on their team.
• The policy should not create an exception for coaches who are married to an athlete.
• The ban should continue for at least two years after the athlete/coach relationship has ended.
• The policy should prohibit retaliation against anyone who reports a violation.  
• The policy should provide for enforcement and discipline for coaches who violate it.
• The athletics department should educate coaches, staff, and student-athletes about the policy. 

As the authors note, many view coach-athlete relationships as harmless and benign. For that reason, there is likely to be some initial resistance to the model policy.  This publication is the first step toward challenging society's complacency on this issue, and I'm hopeful the policy recommendations it contains will ultimately be embraced widely. Kudos to the NCAA for taking a strong stand against this demonstrated threat to athlete well-being and to the authors for presenting shedding such clear light on the issue. 

Sometimes you have to look beyond Title IX

We have been writing a lot lately about Title IX and sexual harassment and sexual assault. We noted that when judicial boards/courts consider sexual assault there is a different standard of proof than what is demanded by criminal courts.
Well, in Missouri last week, a state appeals court ruled that plaintiffs can now use the state's Human Rights Act to sue schools when sex discrimination is alleged. The ruling is in the wake of a lawsuit brought by parents of a boy who claims who was repeatedly assaulted by another male student in an elementary school. Plaintiffs lawyers are pleased because the Missouri Human Rights Act does not require, as Title IX does, for the schools to exhibit "deliberate indifference" to the situation. The HRA, which has been used in cases of sex discrimination in work places, only states that the defendant--in this case, the school district--knew or should have known about the discrimination/harassment.
It seems that the school district might appeal the ruling.
There's an interesting parallel here to the ways in which female students who wanted access to contact sports (exempted from Title IX) the federal law to their own state's Equal Rights Amendments in order to gain access.

OCR letter engenders changes

Inside Higher Ed has a piece about the changes that have occurred within the judicial bodies at various institutions in the wake of OCR's 2011 Dear Colleague Letter reminding schools of their need for Title IX compliance in regards to sexual assault and harassment.
The article specifically focuses on the honor court at the University of North Carolina (Chapel Hill) which recently decided to remove sexual assault cases from their docket. Those on the honor court, comprised entirely of students, could have been trained to specifically to handle sexual assault cases and remain in compliance with Title IX, but they opted to develop a new system for students seeking redress after alleged sexual assaults. Those involved hope that a new system will better serve the needs of victims, noting that the current honor court is likely seen as discouraging victims from coming forward.
The article also notes other schools that have adjusted their judicial boards, some of which contain faculty and staff members in addition to students. The goal, of course, is to develop a system from addressing claims of sexual assault that takes into consideration the climate and history of the institution as well as the needs of the parties involved.

Title IX Legal Scholarship Update

In the current issue of the BYU Education Law Journal, author Patrick J. McAndrews proposes a strategy for universities' compliance with Title IX without cutting men's teams.  Specifically, his three-part strategy includes long-term planning, roster management aimed at football, and aggressive surveying of students interest in order to demonstrate compliance with prong three.  Though this last point does not seem to take into account that the Department of Education's 2005 Clarification, allowing surveys to serve as the sole evidence for compliance with prong three, has since been repealed, the other suggestions are worthy of consideration.

Additionally, two articles in the current Sports Lawyers Journal are related to Title IX.  Author Andrew Weissler critiques the application of the three-part test to interscholastic athletics, and advocates for OCR developing a different interpretation of the effective accommodation regulation that takes the special circumstances of high schools into account.  In another piece, Ephraim Glatt argues that courts should not defer to OCR's 2008 Letter that provides guidance on what counts as an athletic opportunity for purposes of Title IX. He argues that factors such as athleticism and injury rates counsel in favor of counting competitive cheer as a sport for Title IX. 

Patrick J. McAndrews, Keeping Score: How Universities Can Comply With Title IX Without Cutting Men's Teams, 2012 BYU Educ. JL 111 (2012). 


Andrew J. Weissler, Unasked Questions: Applying Title IX's Effective Accommodation Mandate to Interscholastic Athletics, 19 Sports Law. J. 71 (2012).


Ephraim Glatt, Defining "Sport" Under Title IX: Cheerleading, Biediger v. Quinnipiac University, and the Proper Scope of Agency Deference, 19 Sports Law. J. 297 (2012).

Washington Post Covers Title IX and Campus Rape

Title IX's application to campus sexual assault was in the news this weekend, as the Washington Post profiled colleges' and universities' response to accusations of rape in the wake of the Department of Education's 2011 Dear Colleague Letter (DCL) which clarified schools' obligation under Title IX to investigate charges and effectively discipline those responsible.  Most of the article focused on the letter's requirement that schools use the "preponderance of evidence" standard to evaluate the case against the accused, rather than the more onerous "beyond a reasonable doubt" standard that is reserved for criminal matters where sanctions such as prison sentences are at stake. The article frames a controversy about the burden of proof by telling two stories.  In one, a rape victim is vindicated by her university's judicial process after the police refused to press charges, as they often do, due to the difficulty in satisfying the criminal burden of proof in matters that, typically have only two witnesses, the victim and the accused.  In another story, a male student was railroaded through a university "kangaroo court" after being accused of rape by a woman with whom he'd had consensual sex.  Police later brought charges against her for filing false charges, but not before the accused was expelled from school after university officials refused to hear his side.

While not denying that false reporting (a) happens, (b) is wrong, and (c) should be guarded against in the disciplinary process, I think the article creates a false linkage between what happened to that falsely accused student and the DCL.  It sounds like the university failed to investigate thoroughly and to give equal treatment to both sides, as Title IX and the DCL require. Blaming the preponderance standard in that case is like blaming the level playing field for a game you lose due to bad call from a biased referee. It's not fair to use that story to anchor the suggestion of opposition to the DCL, given that it doesn't appear the DCL was followed in that case. 

Maryland cuts comeptitive cheer

The first DI school to raise the issue of cheerleading as a sport, Maryland decided last week to cut the team now known as acrobatic and tumbling or acro for short. The acro team is one of 8 varsity teams being cut at Maryland which is suffering from huge budget deficits.
In 2003 UMD made its cheer team a varsity sport, believing other schools would follow quickly. Others schools have followed (only 5 in DI though), but obstacles remain.
At the forefront is the "is it a sport" question. Sure--if it's treated like a sport. In other words (and in the context of intercollegiate athletics): does it exist solely to be a sport (and not a support system from other sports)?; is the team and the athletes provided the same level of support in all program areas as other existing sports? Meeting such conditions would clear the way for OCR to offer approval and thus make it count for Title IX which is what most schools are looking for: a cheap sport to even the numbers. (Though, as I have said before, I don't think a sport the highest rate of catastrophic injury will necessarily be cheap.)
But the NCAA is another obstacle. The activity formerly known as competitive cheer isn't recognized as a sport by the organization. So they won't count it yet--or sponsor a championship for it.
And the schism in the cheer community between acro and its competitor--stunt--makes NCAA approval an interesting prospect/process.
Check out the recent issue of TIME for more on the issue and to see Erin's quote.