NCAA Reports on Status of Women

Commemorating the Title IX's 40th anniversary year, the NCAA published a report on the status of women in college athletics.  Authored by Amy Wilson, the report focuses on three areas: participation opportunities, resource allocation, and leadership opportunities. Regarding participation, the report provides current data on the exponential rise on women's college and high school opportunities in the last 40 years.  While women now have over 191,000 athletic opportunities at the college level, up from 64,000 30 years ago, women's opportunities amount to 43% of the total, despite the fact that women constitute a 54% majority of college undergraduates overall.  This graph from the report provides a nice visual aid to help refute any suggestion that women's lack of interest in sports is the reason for this gender gap.  Over 3 million women play high school sports, so a pool of potentially interested and qualified recruits would clearly support the addition of new collegiate opportunities for women.

The report also contains participation data broken down by division, and includes data on diversity as well.

In terms of  resource allocation, the report demonstrates that a gender gap persists in this area as well.  Universities in the Football Bowl Subdivision of Division I spend 2.5 times as much on men's sports than women's, and men's sports receive the lion's share of resources in other divisions as well.  In every division, women's share of resources was closer to equitable in schools without football. 

Lastly, in terms of leadership opportunity, the report confirms that the gender gap among college coaches still persists.  The only good news in this area is that at least this gap seems to be holding steady, rather than widening in recent years, according to data cited from Carpenter & Acosta's longitudinal study.
Women comprise 19%  of college athletic directors, up 3% from data collected 15 years ago.  The gap in leadership is even wider for minority women.



In all, the report shows progress but persistent gender inequality in college sports, confirming the pervasive view among Title IX advocates, that the law's 40th anniversary provides an opportunity not only to celebrate, but also to take stock of how much more remains to do.   

Evergreen answering second complaint

Erin is quoted in a recent article about Evergreen School District in Vancouver, Washington, which is going through a second review process in just over 5 years with OCR. At issue--again--is both equal treatment (namely facilities) and the distribution of opportunities.
Equal treatment claims are nothing new to us--as Erin notes. Especially prominent at the high school level has been the complaints regarding softball and baseball facilities--which often present a visible and obvious manifestation of unequal treatment. So the issues over what the baseball teams receive in the district versus what the softball teams receive are common.
Two things that struck me about this story:
One, as Erin notes in the article, is the pervasive ignorance around Title IX and its equal treatment is troubling. The lack of proactivity on the part of schools and simply waiting to be investigated before making any changes is not progress, in my mind. It does not demonstrate a commitment to equality. And it is a violation of the law for which there is little punishment beyond making the changes that bring a school into compliance--which isn't punishment at all.
Second, I was struck by the allegation that one school in the district removed the scoreboard at the baseball field rather than put one in at the softball field. While it could be because of financial reasons, a potential precedent of taking away from the boys to comply with the law is startling and reminiscent of the rhetoric around opportunities used by anti-IXers: that the law harms boys. It takes away their opportunities. And now it looks like the district is taking away from their overall experience by removing an amenity. Again, what actually occurred and what will come to bear after the negotiations between OCR and the district are complete remains unknown. But it demonstrates a lack of forethought and knowledge about the law on the part of administrators that girls and girls' sports have to answer for.

Journalists Expose Lack of Title IX Compliance in Bay Area Schools

A team of investigative reporters from the Bay Area NBC News affiliate reported this week that few area schools comply with Title IX's requirement that districts appoint a Title IX Coordinator to oversee compliance and receive and handle complaints about discrimination and harassment on the basis of sex.  It is one of the law's most simple and straightforward requirements, yet, school officials seem almost intent on ignoring it, as the results of the journalists' investigation reveal.   The news team sent this email to over 200 principals in California's Bay Area:


Most of the principals did not even respond.  And most of those who did had no idea.  

Here are some of the responses:

"We don't have a title ix coordinator"

"I think that would be me….???"

"I’m not sure who you would need to talk to."

"I have no idea who it is. Try labor relations they should know."

"i have no idea what title nine is, sorry."

"I need to know who I am talking to before I send that information."

In a follow up meeting with a spokesperson for one of the districts, the San Francisco Unified School District, the reporters found out the name and position of the district's Title IX Coordinator, but confirmed that her name and contact information does not appear in writing in any place accessible to someone with a grievance, as the law requires. 

A national nonprofit, Equal Rights Advocates, followed up on the news team's report by adding pressure on school districts to comply.  ERA sent 100 schools a request for confirmation that they have a Title IX Coordinator, and that the person as well as the procedures for filing harassment and discrimination complaints are published and available to the public.  I suspect that they plan to use any non-response as the basis of a complaint to the Department of Education. 

Grad student can proceed with lawsuit

The 2008 lawsuit former graduate student Monica Emeldi filed against the University of Oregon will be allowed to proceed after a full panel of the 9th Circuit Court of Appeals affirmed the 3-judge panel that also ruled in Emeldi's favor last spring. Both panels said that Emeldi who filed her lawsuit after she felt her adviser stepped down as her dissertation chair in retaliation for her complaints about gender bias in the department, should be allowed to pursue her case. The university believes the ruling, which they may decide to appeal to the Supreme Court, makes all professors vulnerable to lawsuits from disgruntled students and impedes on academic freedom. 

Amherst College responds

Students have been, it seems, emboldened by the national press their college has received over the climate on the Amherst College campus. They held a rally last Friday outside a Board of Trustees meeting. And the college is responding--publicly.
President Martin gave an interview to New England Public Radio yesterday morning. I was quite impressed by her statements. She gave a lot of credit to the students of Amherst College who have already been working on this issue. She referred to them as experts. She has hired an outside consultant to examine the policies around sexual assault and misconduct. She is bringing in outside counselors to the counseling center to specifically serve students who have been victims of sexual assault.
I was somewhat surprised by this. While I think it is a positive move, I am not quite sure why a college campus doesn't already have multiple staff members in their counseling center who are capable of working with students who experience sexual assault. This might be part of the issue around "climate," which the interviewer asked Martin about.
Policies can change, staff members can change--but how do you change a climate?
Friends and I had this discussion just last night in reference both to Amherst College and a recent article about the Boston University men's hockey team, which dismissed two players last season because of sexual assault allegations. An internal report found a "culture of entitlement" on the team which lead to the these assaults and was allowed to flourish because of lack of supervision or discipline by the coaching staff and university administration. BU has put several policies and practices in place in an attempt to change the culture.
But altering a culture, especially when it is so engrained, is difficult. According to the Globe article linked in the above paragraph, appealing to people's sense of right and wrong does not work. You have to tell them everyone else is doing it--whatever the it is. So in the case of a climate which fosters the sexual assault of women, do we tell people "hey, everyone else is NOT raping women--you shouldn't either"?

Will Amherst College change its culture?

It has been suggested that there is a somewhat underground culture of sexual misogyny at Amherst College in Massachusetts. An article on Jezebel last week discussed the issue of on-campus sexual assault, the seeming lack of support for alleged victims from "first responders", and how the underground, largely unacknowledged Greek system at Amherst has contributed to a dangerous sexual climate at the college.
One underground fraternity printed a t-shirt last year featuring a bikini-clad, woman hog-tied, with bruises on her body and roasting over a spit. According to the article, the administration held a meeting about the incident with fraternity members and other students which resulted in the fraternity having to issue an apology.
A recent story in the college's student paper was written by a former (she withdrew from the school) student who wrote of her experience being raped on campus and not receiving adequate help from college administrators. Other alleged victims have been coming forward complaining that administrators encourage them to forgive the men who assaulted them, or have discouraged them from moving forward with disciplinary action. One of the major offenders apparently is counseling services. I thought this was unusual. At my undergraduate institution the sexual assault organization, which offered counseling and advice negotiating the criminal and disciplinary process, was constantly criticized for being too sympathetic to female students who came to them reporting an assault.
The former student's report that she was denied even the possibility of changing dorms was very disturbing to read but also reminiscent of other cases we have written about where female students who was sexually assaulted and shushed by administration have tried to at least put physical distance between themselves and their assailants but have been turned down. These cases are Title IX cases and these stories are used as evidence that the college had prior knowledge about either a particular student's sexually violent behavior or a climate of sexual violence and took no steps to remedy it.
There are current and former students working to change the college's sexual assault policies (including that those found guilty of sexual assault receive a lesser punishment than students who steal another student's laptop!). Additionally there has to be something going on at Amherst that has so many students speaking out now--mostly anonymously--about their own experiences. Counseling services may require some alternations, but also a potential issue is the reporting and disciplinary systems. Are they up to snuff? Would they hold up if one of these students decided to file a lawsuit? Are these questions Amherst College is asking itself?
President Biddy Martin held a forum last weekend about the issues, allowing students to voice their concerns. The school has also issued formal statements, from Martin herself--whose convocation speech addressed the concept of sexual respect, as well as the Board of Trustees, all stating that these issues will be addressed.
I have a great amount of respect for Dr. Biddy Martin. I was quite pleased when she left Wisconsin and came to our Happy Valley. This is a problem she inherited. I hope she is very serious about her statements to change the culture at Amherst College.

University of Tennessee Defends Title IX Lawsuits by Women's Sports Employees

In recent weeks, the University of Tennessee has been sued twice by employees or former employees in athletics, who allege counts of sex discrimination and retaliation by a university with one of the strongest reputation for success in women's sports.

On September 27, Debbie Jennings, long-time sports information director, sued the university over various alleged instances of discrimination and retaliation.  Receiving the most attention in the media has been Jennings's claim that she was ousted from her position in retaliation for her opposition to the Athletic Director's decision to replace Pat Summitt as head coach of women's basketball, which Jennings viewed as an act of discrimination.  The lawsuit made waves the following week when she amended her complaint to include an affidavit from Summit that corroborated Jennings's claims that it was Athletic Director Dave Hart's decision that Summitt would no longer be coaching and that Summit was "upset" and "hurt" by his decision, though Summitt later apparently renounced her claim that she had been forced out.  Separately, however, Jennings's complaint also alleges that Hart discriminated against female employees in the recent merger of men's and women's athletic departments, letting go 12 women and 3 men as part of consolidation of jobs.  The combined athletic department's executive staff now has 7 men and 1 woman; while its senior administrative staff has 13 men and 2 women. 

A second lawsuit was recently filed by two employees and one former employee of the women's athletic department: Jenny Moshak, head athletic trainer; Heather Mason, strength and conditioning coach; and Collin Schlosser, former strength and conditioning coach (one of the three men let go in the merger). All allege that they were paid less than their counterpart employees in the men's athletic department, and they they were subject to retaliation for complaining internally about pay discrimination complaint (the university's rejection of which we blogged about last year).  In particular, Moshak claims that after the internal complaint, she was demoted and foreclosed from the opportunity to apply for the head trainer position in the merged department. 

Given the high profile nature of Tennessee women's sports, I predict this litigation will call much attention to the problem of persistent employment discrimination in college athletic departments.  

Girls' b-ball goes (more) prime time in Indiana

Two years ago this month, the lawsuit initially filed by a former girls' basketball coach in an Indiana high school was dismissed. It was appealed, and last January an appellate court found sufficient violations of both Title IX and the Equal Protections Clause in the way the state high school athletic association scheduled girls' and boys' basketball games. The boys received the "prime time" spots--weekends, while girls' games where scheduled on weeknights.
This week a consent decree was filed with the court, which states that over the next few years two more girls' games will be moved to prime time slots (each year). 

Former Employee Files Retaliation Suit Against Yale

A former security education coordinator has reportedly filed a lawsuit against Yale University, claiming that her position was terminated in retaliation for blowing the whistle internally on Yale's under-reporting of campus sexual assault.  Plaintiff Susan Burhans alleges that over a 10-year period, she observed that Yale was not devoting adequate resources to address the campus climate of sexual violence.  When she brought the issue to the attention of University administrators, she was ignored or criticized.  And when she allegedly notified a university vice president that Yale was underreporting cases of sexual misconduct, the administration blocked Burhans's new programs to promote a safe environment in compliance with Title IX.

Aspects of Burhans's complaint seem particularly plausible in light of the fact that Yale has since entered into a voluntary agreement with OCR to fix many of the problems Burhans allegedly complained about, including the underreporting. 

A university spokesperson is quoted as denying the charges of retaliation and vowing to vigorously defend the lawsuit. 

Gaps in the progress narrative, or Why I hate the "posts"

There are some among us who dislike the term post-feminist. For some it is because the term suggests that our feminist work here is done. Even when "here" is the US, that statement remains untrue. For some, post-feminist means a new brand of "we've brought the sexy back" feminism. Also, problematic. As are the other posts: post-racial and, for our purposes here, post-Title IX.
I have tried, when possible, to point out to users of the term that the work of Title IX is ongoing and certainly not "post." Post suggests that we reached a place of contentment, even if we may not have equity yet. Things are going along and will continue to do so and that change comes slowly and this is a process, etc., etc.
The problem with this is that progress is not self-perpetuating. It continues to require work. Also, progress is difficult to measure, and even the measurement tools we do employ often leave gaps in the progress narrative. Around the time of the 40th anniversary, I noted to a reporter that while there are many more opportunities for girls and women now than 40 years ago, that is only one marker of progress. In other words, what about equal treatment measures? It is fine to celebrate progress in one area, but not to forget about other areas in which we have not witnessed such growth.
Progress along a single axis is a problem when we discuss Title IX. The above example (opportunities versus treatment) is one that we have focused on. But there are others. Progress for whom? Progress for African-American girs? For Latinas? For girls from working class backgrounds? For queer athletes?

So what's this diatribe about? Well it appears that the dominant progress narrative in Title IX discourse (ever-growing opportunities) has encountered some resistance. The Sport, Health and Activity Research and Policy Center for Women and Girls (SHARP) at University of Michigan released a report this week, along with the Women's Sports Foundation, noting that opportunities for high school girls might not be growing as fast as we thought and offered the possibility that they might decline in coming years. Tracking the data from high schools has always been a challenge, as the report notes, because of the lack of mandatory reporting (which is required of colleges). But it appears that the economy is taking a disproportionate toll on girls' sports. Less growth, the cutting of sports programs in schools with greater numbers of female students, and the ongoing disparity in opportunities are all issues.
It shouldn't be surprising that the economy would affect sports at the high school levels. What's surprising is that we haven't really talked about the potential disproportionate effects things like cutting high school sports or implementing fees for sports has on girls. There seems to be a general failure to truly embrace intersectional thinking around Title IX. We know Title IX has benefited more white girls than any other race. We must suspect that it benefits more middle and upper class girls as well. But these issues don't seem to get raised enough--also, I believe, an effect of the proliferation of the "posts." With the threat of a "backward" trend on the horizon, will this change?

Former Student Sues Wesleyan Over Campus Rape

A former student of Wesleyan University in Connecticut filed suit yesterday, according to news reports, alleging that the University violated Title IX by failing to protect her from being locked in a room and raped at a party at the Beta Theta Pi fraternity, which allegedly had a known reputation as a "rape factory."  Wesleyan's response to her reporting of the rape was also indifferent, the complaint alleges, in several ways: the R.A. she reported it to the next day did not call university officials or the police; when the victim reported it to university officials the day after that, she was told she could go to the hospital, but received no offer of transportation or accompaniment; nor did they did not contact a rape counselor or offer any kind of services.

The complaint also suggests that the university failed to protect her from retaliatory harassment she experienced after having reported the incident.  In particular, there were protests outside her dormitory after the university revoked Beta's status the following year, and her identity became known.  The plaintiff eventually transferred to another college.  The assailant, a non-student guest of a Beta Theta Pi member, was convicted of assault and is serving a 15-month sentence. 

Butte to Seek Resolution Agreement Over Softball Field

Regarding the pending Title IX complaint over softball fields in Butte, which Kris first blogged about last March, the school board recently voted to pursue a voluntary resolution with the Department of Education's Office for Civil Rights, in settlement of the matter.  The complaint was filed last year by two former assistant coaches, who alleged that the school district discriminated against girls by giving the softball team access to an inferior facility off the high school campus, while sinking over $1 million into a stadium renovation for use by boys' teams.   According to the press, the school district decided to seek a resolution agreement because it will provide officials with a "clear path" to compliance, without having to admit that any violation had occurred. 

Merrimack College adding women's sports

We won't lie. We're pretty excited to see another women's hockey team at the DI level. What's also nice is that the team is being added along with five other women's sports at Merrimack College, for a total of 80 new opportunities. The additions are part of the college's resolution agreement with the Department of Education's Office for Civil Rights, which settles a complaint about inequitable athletic opportunities for women.

Prompting this resolution agreement was OCR's finding that Merrimack was in violation of Title IX's requirement to maintain an equitable number of athletic opportunities, as measured by one of three prongs.  First, Merrimack's male students make up 52% of the population, yet receive 64% of athletic opportunities, so it could not claim compliance under the proportionality prong.  Second, prior to OCR's commencing its investigation, the last time Merrimack added a women's sport was in 1998, so it could not demonstrate a"history and continuing practice" of expanding opportunities for the underrepresented sex.  Third, Merrimack could not demonstrate that it was satisfying the interests and abilities of the underrepresented sex, especially in light of women's growing interest in club and intramural sports at Merrimack.  The 80 new opportunities that will result from the new teams, some of which were added while OCR's investigation was pending, will bring Merrimack into compliance under the proportionality prong.  The resolution agreement also details Merrimack's obligation to provide equal treatment in terms of scholarship dollars, facilities, and other resources.  

Specifically Merrimack will add five women's teams to compete in Division II: swimming and diving, water polo, track and field (actually added in 2010-11, during OCR's period of review), crew, and golf. It will also add women's ice hockey, to which Merrimack will commit the resources for a team to be ready to join the premier, Division I Hockey East conference in five years.  Merrimack otherwise competes in Division II, but has a men's hockey team that competes in Hockey East, so this will bring parity within Merrimack's top tier sports.

As fans of another Hockey East team, the Title IX Bloggers say: Welcome Merrimack. Bring it! 

Richmond Drops Men's Soccer and Track In Order To Add Men's Lacrosse

The University of Richmond recently announced plans to eliminate men's soccer and track, in order that it may elevate men's lacrosse to varsity status.  This article reports on a "contentious" forum last weekend, at which the University explained the decision and confirmed it as "final." 

While the University of Richmond seems to deserve much of the criticism it has received for this move -- in particularly, the fact that it had earlier announced that men's soccer and track were safe and later reneged on this -- it does appear, at least from the above-mentioned article, that the role Title IX played in the decision has been accurately conveyed.  This is refreshing, as universities frequently use Title IX as a scapegoat to take the blame for unpopular decisions to eliminate teams, even though noting in the law requires it and the agency that enforces Title IX calls it a "disfavored practice."

In Richmond's case, the message seems to be that Title IX requires that the university  maintain equitable number of opportunities for men and women, but that it was Richmond's choice to elevate lacrosse (a sport with some generous donors, apparently) at the expense of other men's sports.   Richmond considered the possibility of adding lacrosse and another women's sports, but ruled this out based not only on financial considerations, but a desire to keep the varsity student-athlete population at its current level -- which, the President noted, is high for schools with student demographics similar to Richmond's.  The President was also open about its decision to elevate lacrosse in the first place, noting that the relatively number of Division I teams who compete in lacrosse gives Richmond a good chance to be a competitive. 

In 2006 James Madison University sacrificed 10 athletic teams in order to devote more resources to football.  It didn't say this, however.  Instead, it said it was eliminating 10 teams in order to comply with Title IX.  This engendered anger, protests, and even litigation -- not directed at the university for playing favorites with one sport at the expense of so many others, but at Title IX, and women's sports.  Say what you want about Richmond -- as I said, it certainly seems to deserve some of the criticism its getting for how it rolled out this decision -- but to the extent it's avoiding the Title IX blame-game and taking responsibility for its own role in deciding what and how many sports to field, this is a refreshing change. 

Ithaca College adding sports

Ithaca College is in the (ongoing) process of adding sports for women. Sculling was recently added to the varsity roster but administrators are looking ahead and discussing what sports will be added in future years as the college works comply with prong two.
Despite the inaccuracies in this article (there are actually three ways--not two--to comply with the opportunities part of Title IX), it was a good example of the process (or at least one version of the process) that schools go through as they make decisions about adding teams.
In the case of IC, they are looking at costs of teams, potential athletes already on campus (largely found in existing club sports), and the potential successes of future teams.

Court Dismisses Claims in Bully-Suicide Case, Again

For the second time this year, a federal district court in Texas has dismissed claims against the Joshua Independent School District filed by the estate and family of Jon Carmichael, a former middle schooler who committed suicide in 2010 after enduring severe bullying at the hands of his peers.  As we noted back in January, the court dismissed the Title IX claims because the complaint did not contain enough detail to warrant a finding that the bullying was "because of sex."  However, the court gave the Carmichaels the opportunity to amend the complaint and try again.  Last week, the court ruled that even as amended, the complaint does not sufficiently warrant consideration under either Title IX.  It also dismissed, for the second time, the Carmichael's constitutional claims.  This is a most unfortunate decision.

Here is how the complaint describes the pinnacle of Jon's abuse:

A day or so before Jon's death, he was once again placed into a trash can. This time the acts of the bullies—all members of the middle school football team—escalated beyond just their regular assaults of Jon and now into a degrading sexual assault. Before they placed him in the trash can, they stripped him nude and tied him up. Then, they proceeded to parade a group of boys before him while calling him “fag”, “queer”, “homo[”], and “douche.” A number of students in the locker room observed this deplorable behavior. Jon was, of course, devastated by this assault that placed his emerging sense of manhood under direct public attack.

Even more shocking than the incident itself is the fact that Jon's fellow student, J.R., videotaped the attack and uploaded it to YouTube. Sometime later, a teacher who had learned of the incident and video directed J.R. to remove it from the website and destroy it. The teacher did not report the incident. It is highly unlikely that if a female student had been the object of such an attack, whether at the hands of male or female students, the incident would have been investigated and reported and the bullies would have been punished. Also, this was another instance where the coaches at Loftin, including Defendant Strickland, employed different customs, practices, and procedures when members of the football team were the perpetrators of an assault.

According to this court, "this single incident, amid numerous ones that contain no hint of gender-based animus, is not enough to state a facially plausible student-on-student harassment claim." The court makes much of the fact that plaintiffs do not allege that Jon was targeted because he was perceived by his harassers to be gay.  Thus, the words the bullies used during the trash can incident did not, to the court, mean anything related to Jon's gender or gender conformity. This represents an overly-narrow view of sex discrimination as applied in the context of bullying.  Especially with the added detail about football players perpetrating, and getting away with, the most severe incident, it is easy to see that bullying is being used a tool to police compliance with the dominant version of masculinity, which Jon Carmichael did not meet, and that makes it discrimination "on the basis of sex" protected under Title IX.

The court also disregards as speculation the plaintiff's claims that a female victim in the same circumstance would have been treated differently, which, in addition to the gender nonconformity theory, is another way of demonstrating that a bullying case involves discrimination on the basis of sex.  This seems unduly harsh.  I think the plaintiffs should have had the opportunity to convince a jury that this was, indeed true.  It seems reasonable, especially in light of  the alleged statement by school officials that "boys will be boys," that a gender double-standard was at play.  

The court did not give the plaintiffs yet another chance to amend their complaint.  Instead, the next available step for the Carmichael family is to appeal the lower court's decision and seek to have an appellate court reinstate their case. That's the outcome I'm rooting for. 


Decision: Estate of Carmichael v. Galbraith, 2012 WL 4442413 (N.D. Tex. Sept. 26, 2012). 

Professor Grossman's Column on Single-Sex Education

Hofstra law professor Joanna Grossman's most recent column on Justia.com examines the ACLU's recent challenge to single-sex classes at a West Virginia middle school (a case we also blogged about) and its study of single-sex education in America, called "Teach Kids Not Stereotypes" (see prior posts here and here).  Grossman explains the Department of Education's 2006 regulations implementing the No Child Left Behind law permit public schools to use single-sex education only when doing so is "substantially related" either to "an overall established policy to provide diverse educational opportunities" or "to meet the particular, identified educational needs of its students."  The regulations also require that programs must be voluntary, and allow for a co-education alternative.  Yet, the ACLU's study, as well as the West Virginia case, suggest that schools are not taking these requirements seriously, since so many of them are based on the premise of questionable scientific validity that boys and girls are hard-wired to learn differently.  What's more, Professor Grossman points out, the Department of Education's enforcement of the regulatory requirements and limitations is inherently lax, as the regulations provide for school district's self-evaluation rather than periodic compliance checks by the agency.  Grossman concludes by echoing the ACLU's recommendation, "that the Department of Education should act swiftly to rescind the 2006 regulations that have led to a widespread misunderstanding of the requirements of the implementation of single-sex education in public schools, to reinstate the prior regulations, and to provide immediate and much-needed guidance making clear that programs based on sex-stereotyped instruction violate Title IX and the Constitution."

Florida School District Pays $250,000 to Settle Harassment/Retaliation Case

The Citrus County (Florida) School Board will pay $250,000 to settle sexual harassment and retaliation claims by former students.  This high dollar figure will probably not surprise readers who recall this case from earlier posts, such as this one describing the egregious sexual harassment and abuse student-athletes alleged against three male coaches of the girls' JV soccer team at Citrus High School, and this one describing school officials' absurd retaliatory acts of trying to kick one of the complainants and her sister out of school on false claims that she lived outside the district. 

The school district also agreed to write a letter of regret and provide Title IX training to district employees.  Yes, please, this district definitely needs some Title IX training.  

OCR Called to Investigate Title IX Violations by the South Carolina Department of Education and 20 School Districts

We've got our eye on a number of complaints reportedly filed with the U.S. Department of Education's Office for Civil Rights targeting sex discrimination in athletics in the state of South Carolina.  One complaint names the South Carolina Department of Education, while a separate round of complaints addresses particular disparities at 20 school districts in the state.  The media hasn't yet reported much detail about this, other than to note that OCR is in the early stages of intake with the earlier-filed SCDOE.

In June, OCR settled a Title IX complaint against the Spartanburg, South Carolina school district, in a manner requiring the district's Boiling Springs and Chesnee High School to change the manner in which they schedule double-header basketball games so that girls have equal opportunity to the prime time slot.  No word yet on whether similar allegations are included in the recent complaints.

Oregon parent pursues lawsuit

In July we wrote about Randy Anderson, a parent of a softball player in the Seaside School District in Oregon. He was challenging the lack of access the girls' softball team had to the city's new premier athletic facility. The school district later announced that they would indeed allow the softball team to use the field--along with the football, baseball, and soccer teams. But Anderson says access to the field is not the only issue and so he is pursuing the lawsuit against the district.
Anderson's lawyer wrote in a statement that there are issues "regarding practice and competitive facilities, locker rooms, training facilities, equipment and supplies, travel and transportation, coaches and coaching facilities, scheduling of games and practice times publicity, funding and equal athletic participation opportunities."
In other words--pretty much everything.
I am not sure how effective a lawsuit will be unless others in addition to Anderson (whose daughter will eventually graduate) join in. It might be helpful to file an OCR complaint. It would trigger an investigation, which can have the effect of making schools a little more (re)active.

Who will do the data?

We here at the Title IX Blog tend towards the qualitative in our own research, but we greatly appreciate the people in our lives who are more quantitatively minded. This is especially true of Linda Jean Carpenter and Vivian Acosta whose 35-year longitudinal study of Title IX and women's participation in intercollegiate athletics (as student-athletes, coaches, administrators, trainers/medical personnel) has been invaluable to our work and arguably to everyone who studies Title IX. And so we were a little dismayed to discover that Carpenter and Acosta may be done with data collection. We understand and agree with Carpenter who noted that 35 years is indeed a very long longitudinal study.
But, as also noted, tracking the trends remains crucial to understanding Title IX and sport culture more generally. And so we hope someone takes up where they left off. Smith College's Project for Women and Social Change currently funds the study. It would be great if Smith could take over data collection as well. Seems like a good opportunity for grad student and faculty collaboration.

Know Your Rights: Back to School Edition

First day of school (for some of us)!
There are plenty of Title IX in the classroom issues all year round, but today just a reminder about two: pregnant students and single-sex classrooms in public schools.
The latter made news in West Virginia last week when a parent challenged the single-sex classrooms at a local middle school and a federal court issued an injunction against the school.
The ACLU (which handled the West Virginia case) also issued a report this month about single-sex classrooms in public schools and the educational messages being sent in them including the teaching of "male-hood" and "female-hood" by telling boys to become the "warrior, protector, and provider" while the girls spend their time "writing, applying and doing make-up and hair, art."
The Feminist Majority Foundation released its report on single-sex education at the beginning of the summer and pointed out that the percentage of public schools with single-sex classrooms remains small, though the popularity of the trend is concerning. Especially helpful from the FMF report was the list of four major concerns and violations the organization found including1) weak justifications for single-sex education; 2) inequality among the classrooms as seen in student-teacher ratios and the perpetuation of gendered stereotypes; 3) lack of viable opt-outs and; 4) lack of evaluation methods to determine efficacy of single-sex classrooms.
Also, as we noted earlier in the summer, single-sex classrooms are not the only ways in which gender stereotypes are being perpetuated. Many single-sex activities exist in co-ed environments that can also be damaging. 
Regarding the treatment and rights of pregnant students, the National Women's Law Center has a comprehensive report available on their website.  In addition to the report, readers can find a toolkit, a wallet-sized card listing the rights of pregnant and parenting students, as well as a fact sheet for schools.
In the wake of the news about pregnancy testing of female students in a Louisiana charter school, we think the NWLC report and accompanying resources are both helpful and timely.

Poly Prep Must Defend Title IX Lawsuit for Sexual Abuse by Coach

In 2009, ten former students of Poly Prep Country Day School, a private high school in Brooklyn, sued the school under Title IX and other laws, claiming damages arising from having been sexually abused by the school's former football coach, Philip Foglietta, between the years 1966 and 1986. The plaintiffs allege that school officials knew of Foglietta's widespread abuse and worked to conceal it. Recently, a federal court in New York decided in the plaintiffs' favor on two preliminary questions arising out of the age of the underlying allegations.  

One of Poly Prep's defenses is that Title IX only applied to programs directly receiving federal funds in the years following the Supreme Court's 1984 decision in Grove City College v. Bell.  Grove City College was later supplanted by a congressional statute restoring institution-wide liability that went into effect in 1988.  As such, Poly Prep argued that the school cannot be liable under Title IX for alleged acts which occurred before 1988, because the federal funding Poly Prep received during this time -- funds to support scholarships and loans as well as construction and rehabilitation projects -- were not direct to the athletic program.  The court rejected this argument, however, finding evidence in the 1988 statute that Congress intended its application to be retroactive, including the Act's use of terms such as "restore" and "clarify."  A Second Circuit case from 1989 held similarly on the question of the 1988 statute's retroactivity, providing precedent for this court to follow.     


Poly Prep's other argument was that the plaintiffs' Title IX claims are barred by the statute of limitations because they are so old.   Title IX itself does not contain a statute of limitations.  Instead, courts apply the statute of limitations that governs similar actions under state law, which in New York is three years.  However, plaintiffs are not penalized for missing the deadline to file suit if the nature of the injury has been "fraudulently concealed."  It is possible that by concealing that they had knowledge of Foglietta's wrongdoing, Poly Prep officials made plaintiffs believe that they had no claim against the school.  To hold plaintiffs' claims as time barred would violate the reasoning of New York state courts' that "[a] defendant/wrongdoer cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense."  The burden will be on the plaintiffs to prove that the elements of fraud occurred, including that they relied on misrepresented or concealed information as the basis for not bring suit.  But for now, the plaintiffs Title IX claims (as well as a state law claims for negligence, which is also subject to the statute of limitations defense) remain a part of the case.


Also of note: in an earlier post about this litigation, we noted that the case raised the question of whether federal tax exempt status counted as a receiving federal funds for purposes of Title IX.  This argument no longer appears to be an issue in the case, having been supplanted by the discovery that Poly Prep received direct federal funds (for student loans, construction projects) during the time period in question.  The court also rejected it in a footnote, noting "Courts have held, however, that such status does not constitute federal financial assistance within the meaning of Title IX. See, e.g., Stewart v. New York Univ., 430 F.Supp. 1305, 1314 (S.D.N.Y.1976)."


Decision: Zimmerman v. Poly Prep Country Day School, 2012 WL 3683393 (E.D.N.Y, Aug. 28, 2012).

Social Justice Feminism Conference at University of Cincinnati

Allow me to plug an upcoming conference on Social Justice Feminism, sponsored by the Center for Race, Gender, and Social Justice at the University of Cincinnati School of Law.  From October 25 to October 27, panelists including advocates, activists, and scholars will discuss women’s movements, building community, and advocating for social justice in such areas as sex, citizenship, reproductive freedom, criminal justice, gender violence, food security, education, parenting, economic inequality, and more.  

A conference program can be found here.  

Legal Advocacy Groups Urge Department of Education to Investigate Penn State

The ACLU and the Women's Sports Foundations have urged the Department of Education to investigate whether Penn State's response to known incidents of sexual abuse by former assistant football coach Jerry Sandusky violated Title IX.  According to this article, the Department hasn't ruled out possibility of an investigation, and some experts think that an investigation seems likely.  If the findings of Penn State's internal investigation (known as the Freeh Report) are true, the situation at Penn State contains examples of what courts and the Department have already said constitutes "deliberate indifference" and the basis for institution liability under Title IX -- examples such as suppressing reports of assault by intimidation and allowing athletics to handle its own cases outside the university process, according to Professor Nancy Hogshead-Makar, quoted in the article.  It is also possible that the Department would investigate potential violations of the Clery Act, which requires universities to disclose information crime on campus.  Yet Title IX gives the Department more leverage, since it has the theoretical power to revoke all of Penn State's hundreds of millions of dollars in federal funding.  As the article points out, a Title IX investigation could also inspire private litigation by victims, who could bring a claim for damages under the law.

For a related, earlier post, see this summary of  Professors Joanna Grossman and Debbie Brake's Title IX analysis of the Penn State case for the website Justia.com.

Federal Court Enjoins Nonvoluntary Single-Sex Classes in West Virginia

A federal district court in West Virginia recently ordered an injunction against single-sex classes at Van Devender Middle School in Parkersburg, West Virginia (for an earlier post about the lawsuit, filed by the ACLU on behalf of a parent, see here).  The court determined that the program at Van Deventer violated the requirement in Title IX's regulations that single-sex programs be "completely voluntary."  This requirement is not satisfied, the court said, when parents can opt out of a program that presumes to otherwise place their child in segregated classes.  Rather, schools must allow parents must affirmatively opt in to such programs to satisfy this provision of the regulations. The court explained:

[B]ecause single-sex classes are, by their very nature, a gender classification, it makes perfect sense to require the parent or guardian's clear and affirmative assent. While a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, presuming that parents or guardians have enrolled their child in a single-sex class completely voluntarily because they failed to opt out would undermine the purpose of Title IX to prevent discrimination based on gender. 

The court also noted that the fact that parents were not notified of the opt-out until a few days before the beginning of the school year also suggests that parents did not have a real opportunity to volunteer for single-sex classes.

For now the court did not reach the question, raised in the ACLU's complaint, of whether even a voluntary program of single-sex education such Van Devender's would be unlawful under the Equal Protection Clause.  If litigation continues, however, the court would likely address that issue. 

Decision: Doe v. Wood County Bd. of Educ., 2012 WL 3731518 (S.D. W. Va. Aug. 29, 2012).

Cheer Coach's Lawsuit Survives Motion to Dismiss

We blogged last year about Debbie Greenwell's lawsuit against the University of Alabama.  Greenwell had been the university's highly successful cheerleading coach until she was terminated from her position for reasons that she alleges are retaliatory for efforts to advocate for equal treatment for her student athletes -- a violation of Title IX.  Among other claims, she also alleges that she was paid less than male coaches with comparable credentials and job duties, in violation of the federal Equal Pay Act.  The federal district court recently denied the University of Alabama's motion to dismiss the retaliation and equal pay claims after determining that Greenwell's complaint stated plausible claims for violations of the respective laws.  Plaintiffs do not face a high evidentiary burden to survive a motion to dismiss, so the court did not need to analyze the facts of Greenwell's allegations in much detail.  However, if the university next files a motion for summary judgment, the court will have to determine whether there is evidence in the record to support Greenwell's case, namely, whether her salary was demonstrably lower than that of an appropriate male comparitor (for the equal pay claim) and whether there some evidence of a causal nexus between her advocacy for students and the university's decision to terminate her from the head coach position.  As I noted in the earlier blog post about this case, the fact that several years passed in between will make this harder to prove.

Decision: Greenwell v. Trustees of the University of Alabama, 2012 WL 3637768 (N.D. Ala. Aug. 22, 2012). 

Grand Jury Won't Press Charges Against Xavier Student Expelled for Sexual Assault

The University of Montana, which we blogged about earlier today, was not the only university in the news this week in a story involving athletes and sexual assault.  A grand jury in Ohio decided not to file charges against Dezmin Wells, a former Xavier student and basketball player who had been expelled for sexual assault.  This decision raised questions about whether Xavier should reinstate the player, which the university has declined to do. In a press release, the university defended the disciplinary procedure that it used to determine Wells's expulsion as compliant with Title IX requirements on how universities' should respond to sexual assault.  The "preponderance of evidence" standard that universities must use in student disciplinary cases is actually stricter than the "probable cause" standard a grand jury uses to decide whether charges should be pressed, so University's decision is in some sense inconsistent with the grand jury's.  On the other hand, the University pointed out that the rules of evidence also differ -- that due to evidentiary rules designed to protect defendants in criminal cases, the grand jury might not have been able to hear all of the evidence than the university conduct board did.  Of course,  both the conduct board and the grand jury's proceedings are confidential, so we're not likely to find out exactly what that evidence could have been.

University of Montana Imposes Online Training to Prevent Sexual Assault

As readers well know, the Department of Justice is currently investigating the University of Montana on charges that it failed to respond appropriately and prevent numerous incidents sexual assault in recent years, including the possibility that the University covered up or downplayed claims by women that they were raped or otherwise assaulted by members of the football team.  Not surprisingly, the University is trying to change the campus climate of assault, as well as its reputation for indifference.  Inside Higher Ed reported today on one such effort: new plans by the University to require students to participate in an online training in sexual assault awareness and prevention, as a condition for course registration in the spring.  The training, which is 20 minute tutorial, which includes videos and a comprehension quiz, was developed by a committee that included faculty.  

This first-of-its-kind intervention reportedly has some concerned about the fairness of requiring all students to participate in training to curtail a problem caused by only a few.  Of course, the university has no way to identify in advance who might be involved in a sexual assault, either as a victim, a perpetrator, an accomplice, or a bystander with the ability to protect someone else.  Based on the high risk of sexual assault in college generally, and the rash of assaults at Montana in particular, it seems reasonable to address the climate of assault with an intervention aimed at the community at large.  

The reporter asked me about the relationship between this new requirement aimed at preventing sexual assault, and the Title IX investigation that is currently underway.   Certainly the steps Montana takes today have no bearing on the question of whether school officials violated the law in the past by ignoring or suppressing reports of campus rape.  But to the extent that the Department of Justice would require Montana to make changes aimed at preventing future assaults, the steps it has already taken to this end will likely count in its favor.   More significantly, however, from a legal standpoint, is that the University is vulnerable to liability for future assaults if it does not take steps now to address the problem about which it is aware.  To avoid being "deliberately indifferent" -- one of the elements to Title IX liability for sexual harassment and assault -- it must take steps reasonably calculated to protect students from assault.  Even though this online tutorial is a new idea and as-yet-untested, it would surely seem to qualify under the 'reasonably calculated' standard.  For one thing, trainings are already an accepted method of harassment prevention in the workplace context.  For another, it was developed by professors with expertise in this area, who presumably consulted scientific research on the efficacy of online trainings to change community norms in other contexts.  Most importantly, it seems a vast improvement on the usual "sign here to acknowledge that you've read this policy" approach many institutions use as a way of bringing students' rights and responsibilities to their attention.  Certainly the training alone will not absolve Montana from liability in future cases where the university could have done more to protect a student from a particular risk of assault.  But this intervention seems to be persuasive evidence that the university is not indifferent to the general risk to students that comes from a campus climate that seems to tolerate assault. 

Complaint Filed Against Wisconsin School District

Parents in New Berlin, Wisconsin filed a complaint with the Office for Civil Rights last week alleging that inferior facilities for female athletes, as well as other inequities in athletics at Eisenhower High School, violate Title IX.  Primarily, the parents complain that the pool facility used by the girls' swim and dive team is deteriorating, while the boys' team swims at a better facility located at another school in the district.  The district recently funded an upgrade to the football facility of comparable cost to what it would take to renovate the pool, and provides a state-of-the-art facility to the boys wrestling team.

According to this article, the parents filed a similar complaint against the New Berlin school district last year, which resulted in an agreement by the district to conduct an audit of the swim facility and to replace certain equipment in order to ensure gender equity.  Parents say this second complaint was necessary because the school district has not honored the terms of that agreement. The complaint also alleges that the school district has been stonewalling the pool upgrade project by proposing more expensive renovations than necessary, banking on the fact that the community would balk at the high price tag. 

Other inequities alleged include inequitable locker room space and a booster club structure that gives an advantage to the "Friday night lights" sports of football and boys basketball. 


The Office for Civil Rights will now decided whether to investigate the complaint.

ACLU Challenges Single Sex Classes in West Virginia Schools

Yesterday, the ACLU filed a lawsuit against Wood County Board of Education in West Virginia, challenging its sex-segregated education at Van Devender Middle School.  The lead plaintiff is a parent whose children are adversely affected by the gender stereotyping at that school. According to the complaint, classrooms and teaching methods reflect gross generalizations of questionable validity, such as that boys learn best in cool, bright rooms where they can move around.  The girls' classrooms at Van Devender, in contrast, are warm and dimly lit, and students must remain seated and always inside during instructional periods, compared to the boys who sometimes have class outside.  For one of the plaintiff's daughters, who has attention deficit disorder, the stereotypes about girls' quiet learning styles are hard to endure. Another is visually impaired and has greater difficulty seeing in the dim lighting of the girls' classroom.

The ACLU's legal argument is that the segregated classes at Van Devender violate the Constitution's Equal Protection Clause, which requires sex-based classifications to be substantially related to an exceedingly persuasive government objective and not rooted in broad generalizations.  It also argues that the school violates Title IX and its implementing regulations.  The Department of Education's regulations require that single-sex programs must be voluntary and offer an equivalent co-ed alternative, which Wood County does not, and that they must either be intended to "improve educational achievement" through "diverse educational opportunities" or be motivated by "particular, identified educational needs."  The ACLU argues that the pseudoscience underlying Wood County Board of Education's pedagogical choices do not satisfy either test.  

The ACLU seeks an injunction against the continuation of single-sex classes at Van Devender.

Pregnancy tests in Louisiana charter school

We have heard stories of pregnant high schools girls being discouraged--sometimes subtly, sometimes not--from continuing to attend their schools when their pregnancies are revealed. Some administrators believe these girls are a bad influence or that pregnancy is somehow contagious or--more nefariously and illegally!--that they should be punished. Alternative schools, GED programs, or just a recommendation to go away now and maybe come back later have all been proposed.
Still it was somewhat surprising to hear about a public charter school in Louisiana that not only kicks pregnant students out of its school, but mandates pregnancy tests for any girl they feel might be pregnant. (Refusal to take the test results in being banned from attending classes.)
The ACLU got wind of the test-and-expel policy and sent a letter informing the Delhi Charter School that their actions were discriminatory and illegal.
The school is planning to change its policy but apparently didn't even know that what it was doing was illegal. A Louisiana Board of Education spokesperson said he didn't know how rules around pregnancy applied to charter schools. Isn't that the board of ed's job?
This is what has been most troubling about this story. It seems that the schools that engage in pressure tactics (attend another school, penalties for pregnancy-related absences, encourage the GED route) probably know they cannot legally mandate the girl to leave. And while these actions are just as problematic (often because girls do not know their rights), the fact that people running a school--or a state education board--remain ignorant not just of federal law, but of the ways their beliefs about gender manifest in discriminatory policies and actions is discouraging.
Thank goodness for the anonymous community member who contacted the ACLU in the first place. No one at this chapter of the ACLU--despite the consistent number of calls it receives regarding the rights of pregnant girls--had never heard of mandatory pregnancy tests.

Quinnipiac ruling upheld

The 2nd US Circuit Court of Appeals upheld the decision issued by federal Judge Stefan Underhill in 2010 which stated the Quinnipiac University could not count  competitive cheerleading as a sport for Title IX compliance purposes.
The decision is not surprising, though QU officials are, obviously, disappointed. They have committed themselves to the continued support of all their female student-athletes including those who play volleyball and those who participate in acrobatics and tumbling--the sport that competitive cheering became--despite its current non-sport status. QU has elected to go with acrobatic and tumbling and join the national association that governs this activity over participation in stunt--the other version of competitive cheer that is run by Varsity Sports, which oversees a host of different cheerleading activities.
Of note is that even though QU was ordered to keep its volleyball team, it did not retain its coach. Robin Sparks, who was part of the lawsuit against the school, was fired last spring.

Call for Papers: Title IX and Transgender Rights

An editor at the The Wisconsin Journal of Law, Gender & Society has asked us to post this call for proposals for its 2013 Symposium, "Transcending Gender Lines: Title IX and Transgender Rights" scheduled for February 2013:

The 1972 Education Amendment prohibiting sex-discrimination in federally funded education programs, Title IX, has reached its 40th anniversary this year. We are seeking original scholarship, from both scholars and practitioners, addressing the current state of Title IX application in relation to the rights of transgender individuals.

 Ideally, proposals would highlight:

• An analysis of the effectiveness of current Title IX implementation in prohibiting sex-discrimination of transgender individuals.
• Recommendations as to how Title IX implementation could be improved to address issues particular to the needs of transgender individuals.

Topics could include: judicial decisions opening the door for Title IX’s application to transgender individuals, the current scope of Title IX’s application to harassment of transgender individuals (including sexual harassment, bullying at schools, on athletic teams, and online, sexual abuse); the effectiveness of measures state and local governments have enacted to protect the transgender rights under Title IX. Interested parties should send an abstract to WJLGS.Symposium@gmail.com by October 15, 2012. Those selected for the Symposium will be notified by November 2012. The Journal’s Symposium issue will be published in Fall 2013.

Questions may be addressed to Symposium Editor Jill Parikh at jparikh@wisc.edu.

Oregon father proceeds with lawsuit

We noted last month that Randy Anderson, the father of a softball player at Oregon's Seaside High School, was planning on filing a lawsuit because no girls' team was slated to play at the new sports complex, which seems to have been designed around the needs/parameters of boys' sports, i.e. baseball.
Well it appears that Anderson's almost actions inspired a reconsideration of how the field was to be used. A recent announcement about the events the field would host included girls' varsity softball.
But Anderson still plans of pursuing action against the school for gender discrimination that violates Title IX. Though the article cited above refers to Anderson's intended action as lawsuit-based, it would make more sense if it was a complaint filed with OCR since the gender inequities Anderson wants remedied (coaching, facilities, transportation, equipment) seem to affect girls' athletics generally and not specifically the softball team on which Anderson's daughter plays (thus giving him standing in a lawsuit). But we shall see what course of action(s) are taken by both Anderson and the school district in the coming weeks and months.

OCR's Enforcement Highlights from the Last Two Years

The Department of Education's Office for Civil Rights released its biennial report on Title IX enforcement for the last two years.  True to the title, the report focuses on enforcement "highlights" -- and there were many: the 2010 Dear Colleague Letter about athletics, which rescinded the 2005 Clarification that allowed compliance to be measured by an interest survey; the April 2011 DCL on sexual violence; the 2010 DCL on peer harassment; and a number of investigations and resolutions into inequalities in athletics, harassment, and other areas. The report also touted the newly-expanded Civil Rights Data Collection, which now surveys all school districts for information relevant to Title IX compliance in various areas. These are all positive steps in the ongoing effort to ensure that the promise of Title IX is fully realized, it is is nice to have them summarized together in one place. 

One limitation of the report, however, is its purely retrospective and descriptive nature.  Nowhere does the agency evaluate its enforcement over the past two years or analyze how to improve enforcement going forward.   This seems like a missed opportunity in light of some major questions raised by the report.  For example, how does OCR plan on defending and enforcing the 2011 DCL, which has been criticized by civil libertarians for endorsing the preponderance standard in campus grievance proceedings?  What does OCR plan to do with the damning data revealed by the CRDC, such as that 35% of responding school districts have proportionality gaps >10 percentage points?   And the biggest question of all, to me, which actually (sadly) relates to nothing in the report:  What does the agency plans to do rein in the runaway train of single-sex education, and ensure that the single-sex programs that exist are actually in compliance with the Title IX regulations?   OCR must surely be pondering these questions as well; it would have been nice to have a little transparent self-analysis about them to round out the description of its enforcement achievements for the last two years.

Student Note Addresses Title IX, Transgender Discrimination, and Women's Colleges

Recent Harvard Law graduate Katherine Kraschel's Note in the Harvard Journal of Law and Gender argues that women's colleges need not worry that admitting transgender students would compromise their ability to remain single-sex.  She explains:

Title IX provides for affirmative action not only for women, but also for the non-advantaged gender, and transgender individuals are most certainly members of a disadvantaged gender. Title IX case law, such as Miles and the cases that follow, shows that despite the dichotomous conception of gender when it was enacted in the 1970s, Title IX can embrace the notion of discrimination not only against the non-advantaged gender, but against the non-advantaged genders. While this is not well-settled law, if women's colleges strive to “be at the forefront of [transgender equality], not sort of catching up to the rest of the world,” the logical step is to end reliance upon Title IX and embrace an inclusive conception of Title IX's anti-discriminatory charge.

For more, see Katherine Kraschel, Trans-Cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion, 35 Harv. J. L. & Gender 463, 483 (2012)

Title IX Olympics?

Several U.S. newspapers have been running this article, referring to the London Games as "the Title IX Olympics" -- a reference to the record participation by women worldwide.  It's a laudable milestone that this is the first Olympics to which every country has sent at least one woman, and that countries like Russia, along with the U.S., have more female athletes in their delegations than male. But to credit Title IX for this is of course taking things a bit too far.  Title IX is, after all, U.S. law and has absolutely nothing to do with Saudi Arabia's or Russia's notions of gender equality.  It is also a misleading reference because Title IX is an education law, not a sports law.  The U.S. Olympic Committee and all of the various U.S. national governing bodies of sport are created and governed by a different law, the Ted Stevens Amateur Sports Act.  Unlike Title IX, this statute provides no legal recourse against national governing bodies that provide more resources and opportunities to male athletes -- an issue that vexes women's sports advocates who push for equal treatment among men's and women's national teams and development programs in various Olympic sports.  Outside the U.S., the ongoing Games have exposed high-profile examples of resource inequality from other countries as well as imbedded in the structure of the Games, such as the fact that these "Title IX Olympics" offer about 30 fewer events for women (see also this, but see, this). 

I'm thrilled that athletes like U.S. swimmer Dana Vollmer are crediting Title IX for creating opportunities for them to compete in high school and college. But the media's overuse of the Title IX mantra glosses over some of the real remaining obstacles to gender equality in sport, in the U.S. and around the world.

(It's also possible that I'm just angry to see the Title IX label attached to these Olympics, the first in 20 years where there is no women's softball being played -- softball being the poster-sport for Title IX in this blogger's opinion.) 

*It does have a nondiscrimination provision, but it only prohibits acts of individual discrimination based on sex and other protected characteristics, not a requirement to equal treatment by an NGB.

Premier Field in Seaside Will Include Girls' Softball

Last week we blogged about the lawsuit threatened by a father in Seaside, Oregon, challenging the school district's omission of girls' softball from its arrangement to use the premier municipal athletic complex for high school football and baseball.  

This week, school officials announced that Broadway Field would be available to a broader number of high school teams, including the girls softball team, in upcoming seasons.  However, Randy Anderson has vowed to press his lawsuit anyway.  According to this article, he believes there are other Title IX inequities that still have not been addressed. 

STEM and stigma

Around the 40th anniversary, the White House announced a commitment to increasing the presence of women in STEM fields.
This, of course, drew criticism (because the number of women receiving degrees is--overall--higher than men) and fear that the White House was working on imposing another one of those "Title IX quota systems."
I cannot speak to what potential Title IX regulations specific to STEM may or may not accomplish--because they do not exist. And, right now, I am far less concerned with getting X number of women into mechanical engineering. Because the numbers people pull out--about how women dominate the health care field, earn over three quarters of Masters degrees in education, and 82 percent of undergraduate degrees in Public Administration and Social Services--they end.
What do I mean? Well they only tell us the degrees people are selecting into and earning. One, we don't know how many people get jobs in these fields after receiving a degree, which is perhaps a secondary consideration of mine at the moment.
My larger concern is how selection into and retention within certain fields occurs--which is all about culture. Additionally, these issues have economic effects.
Yes, there are a lot of women in social services. Most of the positions within this field are considering caretaking ones--social worker, therapist, aid worker, counselor. Many are in the non-profit sector. Most are low-paying. There are many such people in the area I live in. Of all the people I know in these positions, one is a man. Why? Because, one, there is a stigma around men in caring professions. And two, they do not pay well. Again, a man's earnings are tied to dominant beliefs about masculinity--yes, even in our so-called post-feminist era.
Men in caring professions like social work or K-12 education are often more easily pushed toward administrative positions: center directors, principals, etc.
A similar stigma applies within the health professions. The difference is that, currently, earning potential in these fields is much higher. But I am not aware of a culture that exists among, for example, nurses that discourages men from getting and/or keeping positions. Often men are praised for doing "this kind of work." This is not the case in higher education (women may earn more PhDs but they are less likely to get tenure) or in STEM fields.
Increasing the number of women in these fields will not necessarily lead to a change in culture within or outside of them. The solution to the problem, as we are so fond of saying in women's studies, is NOT "add women and stir."

Testimony about equitable treatment

There have been quite a lot of personal testimonials about individuals' experiences with Title IX in the months preceding and since the 40th anniversary.
I wanted to share a piece of this one by Jennifer Imsande because it was not just about how sports generally benefited her (in career or schooling or relationships or life lessons--themes of many other testimonials). Imsande talks about the specific benefits Title IX afforded her as an athlete in pursuit of athletic success.
I've only ever experienced sport as both possible and accessible. My high school canceled classes when my basketball team went to the state tournament. In college I received expert coaching and flew on airplanes to get to meets — where, if my Achilles tendon started acting up, I could use the team massage therapist or trainer. 

These are examples of the equal treatment Title IX mandates. We have been on kind of an equal treatment push during this anniversary coverage because we want people to realize that Title IX is not just about opportunities but about the quality of the opportunity. More and more complaints and/or lawsuits have focused on equal treatment measures (in addition to those mentioned by Imsande there are issues like uniform and equipment quality and age--and who pays for it; quality of competitive experience; quality of coaching; access to facilities--and the quality of facilities).
Obviously the issue of opportunities is still one that needs attention. But the experience of the girls and women who are receiving opportunities needs to be assessed as well.

Sexual Harassment Roundup

The courts have issued a lot of sexual harassment decisions over the summer, and I admit I've fallen a bit behind.  Here is my first attempt to catch up. 

The Seventh Circuit affirmed a lower court ruling (which we also blogged about) dismissing a student-employee's case against Southern Illinois University stemming from an emeritus professor's sexual harassment of a male student.  While the lower court had a hard time seeing the harassment -- which consisted of ongoing sexually demeaning comments and touching -- as "because of sex" to qualify for protection under Titles IX or VII, the appellate court did not address that issue in its opinion.  Instead, it determined that the school's not-unreasonable response to the plaintiff's complaints of harassment, which included banning the professor from campus and  involving the university police, warranted dismissal of plaintiff's case.  Milliken v. Southern Illinois Univ., 2012 WL 2764971 (7th Cir. July 10, 2012).

A federal district court in New York rejected that students' teasing of a male high school student with Asperger's syndrome was motivated by the victim's sex.  Even though the harassment consisted in part of anti-gay slurs, those comments did not sufficiently convey animus towards the plaintiff's gender.  But the court did allow the plaintiff's case to move forward on his claim that the harassment related to his disability rendered the school district liable under the Rehabilitation Act.  Using a similar analysis to that of Title IX harassment, the court agreed that the plaintiff sufficiently alleged that school officials responded with the requisite 'deliberate indifference' because they did not respond to numerous reports of harassment filed by the plaintiff's parents.  Preston v. Hilton Cent. Sch. Dist., 2012 WL 2829452 (W.D.N.Y. July 10, 2012).

In a similar case, a student with a condition called hereditary multiple exostoses sued his school district over peer harassment he sustained throughout elementary and middle school.  Even though some of this teasing involved sexual innuendo, the court decided that it was not sufficiently motivated by the victim's sex to warrant protection under Title IX.  However, the court left open the possibility that the plaintiff could add allegations to make clear that the harassment occurred because he was gender-nonconforming in some way.   Similarly, the court also rejected the plaintiff's case under the theory of disability discrimination, finding insufficient allegations that incidents of harassment were motivated by the plaintiff's disability, given that only one reported instance of harassment involved mockery of the plaintiff's bone disorder.  Hoffman v. Saginaw Public Schools, 2012 WL 2450805 (E.D. Mich. June 27, 2012).

A federal district court in Arizona dismissed a case involving a freshman female student's allegation of sexual assault by a senior boy.  The plaintiff alleged that school officials had notice of the threat harm because the principal, who happened to be the accused's father, knew that his son had committed an earlier act of rape against another girl.   The court rejected that this constituted knowledge of a specific threat to the plaintiff, however.  Doe v. Round Valley Unified Sch. Dist., 2012 WL 2064382 (D. Ariz. June 7, 2012).

Finally, for this roundup at least, comes a decision from a federal district court in Ohio that allows a Title IX sexual harassment case to proceed to trial.  The plaintiffs are suing on behalf of their daughter Jessica, a senior in high school who committed suicide in 2008 after her naked picture was circulated among her classmates via text message (Jessica's suicide received national attention).  The court agreed that this incident and its aftermath, which included name-calling of a sexual nature, constituted harassment because of sex.  Furthermore, the complaint alleged that school officials had actual notice of the harassment based on a combination of Jessica's report to a teacher that generally referenced harassment, though not the specific details, as well as an interview Jessica later recorded for a local television station about the dangers of sexting, though her face and voice were obscured.  Based on these allegations, a jury could find that school officials knew enough about what was happening to warrant stepping in to protect Jessica.  The case will move forward on the Title IX claim, and the court will also allow the plaintiffs to pursue individual liability under 42 U.S.C. 1983 and the Constitution's Equal Protection Clause.  Logan v. Sycamore County Bd. of Educ., 2012 WL 2011037 (S.D. Ohio June 5, 2012).

Oregon Dad Challenges Softball Team's Exclusion from Premier Field

The Oregonian reports that parent Randy Anderson has filed an intent to sue the Seaside School District to challenge a disparity in athletic fields.  The city recently constructed a state-of-the-art athletic complex, which includes an astroturf football field and baseball field for the high school boys' teams to play on.  In contrast, the Seaside High School girls' softball team, on which Anderson's daughter plays, uses an 11-year-old former baseball field that was constructed on a wetland and prone to flooding.  Anderson says about the new "million dollar field" that "everyone and their brother can play on it -- except the girls."  Moreover, the remedy he is seeking is very modest -- he says the city could install a portable pitching mound and move the bases to allow the field to be used for both baseball and softball.  Hopefully, the school district and the city will agree that that's a much easier solution than litigating what appears to be a strong case. 

The case against Seaside isn't the only softball-related dispute in the news these days.   Here's a similar story about a former coach challenging disparities between softball and baseball facilities used  by the Homewood-Flossmoor School District in Illinois.  The article makes the point that while this disparity is the only one mentioned in the complaint, other schools in the area have similar problems resulting from what appears to be a trend in constructing stadium-like facilities for baseball provide far more amenities to the boys who play there than are available at even the very good softball fields that exist for girls.

Column Describes OCR Enforcement of Title IX to Prevent Sexual Violence in Schools

Professor Joanna Grossman's latest column at Justicia.com looks at recent efforts by the Department of Education's Office for Civil Rights to enforce Title IX's requirement that schools address sexual violence as part of their obligation not to discriminate based on sex. In addition to having issued a Dear Colleague Letter in April 2011 that explains how school and college officials should respond to charges of sexual violence on campus, the agency has recently adjudicated an enforcement action against a school district that failed to properly investigate a student's report of sexual assault.  Professor Grossman described the case, called "Student v. Henderson Independent School District" as precipitating from a student's sexual assault by another student in the band room at Henderson (Texas) High School.  Though the student reported it to the assistant band director, no action was taken by the school until she reported it again, two days later, to another school official.  That official called the police, who upon investigation, determined that the incident was criminal in nature. Based on that conclusion, the school district took no further action to investigate the matter, and disciplined both students for committing acts of "lewdness" in violation of school policy.

Grossman characterizes the school's response as containing a "classic, but unacceptable error: it deferred to the police to investigate the allegation, and based its disciplinary action on the police findings alone."  She then explains how OCR used this error as the basis for determining that the school district violated Title IX, reasoning that because Title IX -- as part of civil law -- uses the "preponderance of evidence" standard to determine a student's guilt rather, the conclusions of police are not dispositive of whether sexual assault was likely enough to have occurred to warrant protective measures taken by the school.  The police, after all, look for whether the evidence of assault was sufficient to satisfy the stricter clear and convincing evidence used in criminal cases. The school should have conducted its own investigation, and acted on their findings accordingly.

The student could have used Title IX to sue the school district in court for damages, but instead pursued relief through the OCR.  Grossman explains the advantage she might have had in going the agency route. OCR can't require a school to pay money damages for things like pain and suffering and other noneconomic harm, and is instead limited to relief that is mainly prospective in nature. But because money damages are not driving the case, OCR can use a lower bar than the courts for finding a school district responsible.  It's possible that the student did not have enough evidence of the school's deliberate indifference to warrant a court judgment in her favor, but what evidence she did have was enough for an adjudicative victory.  This case ended up producing a resolution agreement under which HISD is required to review and revise its policies and procedures for investigating sexual harassment and sexual violence complaints and take other steps to make sure this doesn't happen again.  It must also required the school to remove the lewdness violation and punishment from her educational record and pay for her to receive private counseling.  OCR was able to validate the victim's experience and provide a remedy that was appropriate for this case.

OCR Settles Four of Twelve NWLC Complaints

The Office for Civil Rights announced last week that it has settled four of the twelve complaints filed by the National Women's Law Center in 2010 against school districts across the country to challenge gender disparities in athletic opportunities (see additional coverage of the settlements here and here). The four districts to settle include Wake County public school system in North Carolina, the Houston Independent School District, Columbus City Schools in Ohio, and the Deer Valley Unified School District in Phoenix.  The remaining eight districts remain under investigation. 

With respect to the four districts to settle, OCR's investigation of each of these districts revealed that the none satisfied prong one of the three-part test for compliance, as a large gap between female enrollment and athletic opportunities for girls existed in all four districts.  Nor did any of these districts add opportunities for girls recently enough or with sufficient regularity to qualify for compliance under the second prong.  OCR's settlement agreements with the districts gives them the opportunity to prove compliance with the third prong by assessing and responding to athletic interest among female students.  They must also create procedures to create mechanisms for considering requests for new athletic opportunities by parents, coaches, and students. 

It's great that these four districts are now highly motivated to take prong three seriously.  But I'm a little worried about the message this story sends to school districts.  It took OCR 21 months to settle on terms that require schools districts to assess and respond to the interests of the underrepresented sex, i.e., what they should have been doing anyway.   This system of enforcement doesn't exactly provide strong motivation to proactively comply. 

Single-Sex Education in the News

Nothing "new" is happening, but single-sex education has been in the news recently.  USA Today ran an article about it last weekend, and it seems other publications have reprinted it or otherwise picked up the ball (see here, here and here).  These articles don't seem to be making a particularly complex point beyond "this is controversial -- people disagree," so I was glad that a little analysis entered the discussion via this recent column in Slate.  The author, Cassie Murdoch, made the point that SSE sounds compelling when proponents like Leonard Sax describe it as a mechanism to break down gender stereotypes -- to give boys and girls the freedom to pursue interests that might be constricted by usual gender dynamics.  But, she continued, it is hard to find evidence of this objective being realized in real-life segregated classrooms.  Quoting from a description of segregated elementary classrooms in Idaho, Murdoch says:

"In the single-sex classes, teachers use microphones that allow them to electronically adjust the tone of their voice to match the level that research suggests is best for boys. When preparing for a test, the boys may go for a run, or engage in some other activity, while the girls are more likely to do calming exercises, such as yoga."  Okay, so that’s maybe not the worst thing imaginable, but might it be more beneficial to teach some of the boys to learn to calm themselves down using yoga and to encourage some girls to run around more?

In the end, Murdoch makes the point that segregating classrooms harmfully ignores the variation in learning styles within each gender. 

Maybe instead of presuming all boys need to run before a test, they could sort the kids by finding out which ones—boys or girls—benefit from being more active and which ones thrive in a quieter, more introspective environment. If we instead just give in to what we assume girls and boys are stereotypically interested in, it doesn’t change anything; it only reinforces the problems we already have—and risks alienating a lot of kids who don't fit neatly into gender stereotypes

Amen to that.