Yesterday, the Department of Education's Office for Civil Rights announced new guidance for public elementary and secondary schools regarding their obligation to provide athletic opportunities for students with disabilities. Public schools are subject to the 1973 Rehabilitation Act, Section 504 of which prohibits federally funded programs from discriminating against or excluding individuals on the basis of disability. While the Department of Education's regulations implementing 504 call for equal opportunity for students with disabilities to participate in extracurricular activities and athletics, yesterday's guidance clarifies what schools must do under the law to include students with disabilities in athletic programs.
First, the guidance prohibits schools from limiting athletic opportunities due to generalizations and stereotypes about students with disabilities. For example, it would be unlawful for a high school coach to exclude a player based on her learning disability, on the belief that all students with learning disabilities are incapable of handling both schoolwork and sports. Instead, the coach must use the same criteria for eligibility that apply to other students.
Second, schools must make reasonable modifications to existing athletic programs, where doing so would enable the participation of a students with disabilities without altering the fundamental nature of the program or put students' safety at risk. As an example of a reasonable modification, OCR describes a track competition where the schools agree that the race start will be signaled by a visual cue along with the starting gun, in order to accommodate a student whose hearing is impaired.
Finally, where schools cannot accommodate students' participation in existing athletic programs, they must create additional athletic opportunities for students with disabilities. When individual schools do not have a sufficient number of students with disabilities to field a team, they should consider district-wide or regional teams, co-ed teams, and "allied" or "unified" teams that allow students with and without disabilities to participate together.
Advocates for students with disabilities have expressed their hope that this guidance will do for them what Title IX has done for women and girls: end the presumption that they are incapable and uninterested in participating in sports, and expand the opportunities available for them to do so. Like Title IX, I expect this new guidance will trigger concern that accommodating students with disabilities will detract from existing opportunities. But the fears that Title IX would cut into boys' athletic opportunity have not panned out. So if the Title IX analogy is correct, we'll see continued expansion of sports for all students, regardless of sex and regardless of disability.
Friday, January 25, 2013
Thursday, January 24, 2013
HS Athletic Director Suspended Over Scheduling Dispute
The Boston Globe today reported that a high school athletic director in Lexington, Massachusetts, will serve a one-week suspension for falsifying an email to other athletic directors in the Middlesex League, claiming that a parent was threatening to sue the League over inequities in the girls' basketball schedule.
The email worked, in that it helped motivate the League to change its schedule so that girls' teams would have the same number of prime time games as boys' teams -- we blogged about that change, back in December. But the abruptness of the change, along with the apparent threat of litigation, triggered a backlash in the community, as we noted in this earlier post. Kathryn Robb, the parent who had initiated discussions with the Lexington H.S. athletic director Naomi Martin, received negative publicity when community members upset with the schedule change came to believe that she had single-handedly forced the change by threatening to sue. And it was Martin's falsified email to the other athletic directors that set Robb up to take the fall. Martin's email incorporated text from an email she had received from Robb, but which she had doctored to suggest that Robb had threatened litigation, which she did not. Martin's email also misidentified Robb as a civil rights attorney and made it seem that her "threat" addressed the entire league, when in fact, her concern had been limited only to Lexington High School.
Now that the truth has come out, Martin has apologized to Robb, and the Lexington school district has suspended Martin for one week without pay. Lexington's superintendent, while condemning Martin's conduct, characterized Martin as well-intentioned, in that she embellished Robb's concern in order to "strengthen her advocacy" for Title IX compliance. Yet, this decision came at great personal cost to Robb, who became the scapegoat for an unpopular schedule change, and was ridiculed and alienated from the basketball community in which she had participated as a coach as well as a parent.
In my opinion, Martin isn't the only one deserving of blame in this story. Yes, she threw another woman under the bus, so to speak, in an ends-justify-the-means approach to Title IX advocacy. But the Middlesex League itself is also at fault. After all, the League apparently needed a threat of litigation, however false, in order to do the right thing. Scheduling girls in the inferior, "warm up act," time slot is a clear violation of Title IX, with any doubt of that erased by the ruling of the Seventh Circuit Court of Appeals last year, so the Middlesex League should have changed its scheduling practices already, like the other leagues in Massachusetts have done. In addition to the League, the other --and perhaps even worse -- culprits in this story are the parents and community members who were so outraged by a decision that boys would now have to share the prime time spotlight with girls. Even if Robb had threatened litigation, she shouldn't have had to pay the social cost they imposed upon her for pursuing equal treatment. By retaliating against Robb, these folks have ensured that anyone in position to similar to Robb's and Martin's in the future will think twice about pushing for change. They, along with their counterparts in communities across the country, are the real reason it takes more than 40 years to achieve equality in athletics.
The email worked, in that it helped motivate the League to change its schedule so that girls' teams would have the same number of prime time games as boys' teams -- we blogged about that change, back in December. But the abruptness of the change, along with the apparent threat of litigation, triggered a backlash in the community, as we noted in this earlier post. Kathryn Robb, the parent who had initiated discussions with the Lexington H.S. athletic director Naomi Martin, received negative publicity when community members upset with the schedule change came to believe that she had single-handedly forced the change by threatening to sue. And it was Martin's falsified email to the other athletic directors that set Robb up to take the fall. Martin's email incorporated text from an email she had received from Robb, but which she had doctored to suggest that Robb had threatened litigation, which she did not. Martin's email also misidentified Robb as a civil rights attorney and made it seem that her "threat" addressed the entire league, when in fact, her concern had been limited only to Lexington High School.
Now that the truth has come out, Martin has apologized to Robb, and the Lexington school district has suspended Martin for one week without pay. Lexington's superintendent, while condemning Martin's conduct, characterized Martin as well-intentioned, in that she embellished Robb's concern in order to "strengthen her advocacy" for Title IX compliance. Yet, this decision came at great personal cost to Robb, who became the scapegoat for an unpopular schedule change, and was ridiculed and alienated from the basketball community in which she had participated as a coach as well as a parent.
In my opinion, Martin isn't the only one deserving of blame in this story. Yes, she threw another woman under the bus, so to speak, in an ends-justify-the-means approach to Title IX advocacy. But the Middlesex League itself is also at fault. After all, the League apparently needed a threat of litigation, however false, in order to do the right thing. Scheduling girls in the inferior, "warm up act," time slot is a clear violation of Title IX, with any doubt of that erased by the ruling of the Seventh Circuit Court of Appeals last year, so the Middlesex League should have changed its scheduling practices already, like the other leagues in Massachusetts have done. In addition to the League, the other --and perhaps even worse -- culprits in this story are the parents and community members who were so outraged by a decision that boys would now have to share the prime time spotlight with girls. Even if Robb had threatened litigation, she shouldn't have had to pay the social cost they imposed upon her for pursuing equal treatment. By retaliating against Robb, these folks have ensured that anyone in position to similar to Robb's and Martin's in the future will think twice about pushing for change. They, along with their counterparts in communities across the country, are the real reason it takes more than 40 years to achieve equality in athletics.
Wednesday, January 23, 2013
USC Settles Title IX Complaint about Rowing Facilities
After a 14-year investigation, OCR has determined that the University of Southern California violated Title IX by providing inferior facilities to the women's rowing team, which produced a significant disparity in the overall treatment of men's and women's athletics. The rowing team uses an old boathouse 20 miles from campus, which is described as a "garage-like structure" with open and exposed walls, no designated locker room, and a single bathroom available for athletes and spectators alike. Rowing is the largest women's sport at USC, a factor that influenced
OCR's analysis of the university's compliance. Men's golf apparently
also lacked a designated locker room, but with only nine male golfers so
affected, that fact did not balance out the inferior rowing facilities
provided to the 62-member women's crew team.
In response to OCR's findings, USC entered into a settlement agreement requiring it renovate the boathouse by January 2014. The new boathouse will include a designated locker room, seating for spectators, a lounge area and office space, and additional restrooms to accommodate spectators of both sexes.
(If you're wondering about why the investigation took so long...so am I. A Department of Education spokesperson reportedly told the Chronicle of Higher Education that it took 14 years to investigate the complaint, which was initially filed by California NOW, due to the "complexity of the case, which required significant data analysis." Yet equal treatment complaints involving facilities are fairly typical, and they usually don't take this long. A more compelling explanation would serve OCR well. Because no one's going to file a complaint if they think it's likely to take 14 years to resolve.)
In response to OCR's findings, USC entered into a settlement agreement requiring it renovate the boathouse by January 2014. The new boathouse will include a designated locker room, seating for spectators, a lounge area and office space, and additional restrooms to accommodate spectators of both sexes.
(If you're wondering about why the investigation took so long...so am I. A Department of Education spokesperson reportedly told the Chronicle of Higher Education that it took 14 years to investigate the complaint, which was initially filed by California NOW, due to the "complexity of the case, which required significant data analysis." Yet equal treatment complaints involving facilities are fairly typical, and they usually don't take this long. A more compelling explanation would serve OCR well. Because no one's going to file a complaint if they think it's likely to take 14 years to resolve.)
Tuesday, January 22, 2013
Sexual Harassment Roundup
Here is a roundup of some recent judicial decisions in Title IX sexual harassment cases:
A federal court in New York dismissed a Title IX claim against the Monroe-Woodbury Central School District. While in tenth grade, the plaintiff, had been receiving home tutoring and treatment for anxiety and self-injurious behavior when she disclosed to a counselor the she had been sexually abused by male classmates on two separate occasions while she was in eight and ninth grades. At that point, school responded by enrolling her in an alternative education program. When that did not work out, district officials decided to resume individual tutoring, but denied the parent's request to transfer her to a public school out of district, which they said they did not have the power to grant. The court determined that by taking these measures, the school district could not be said to have acted with the "deliberate indifference" required for liability to attach. This decision is concerning, however, not because the school district did not honor the parent's request, but because school officials apparently waited several months before informing parents that they could, if they wanted, file a written grievance that would trigger an investigation and potential corrective and disciplinary measures against the students accused of sexual assault. In my mind, this aspect of the district's behavior should have constituted deliberate indifference. School officials should have initiated an investigation when the plaintiff first reported that she had been abused by two male students. I see no point in requiring a formal, written grievance, let alone waiting several months before informing the student's parents of that requirement. On this point, the court disagreed because the sexual assaults had not happened recently, but in prior years. For reasons I don't understand, this somehow justified the school's delay in this regard. I'm rooting for an appeal in this case. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013).
A federal court in Missouri dismissed two separate Title IX claims against Saint Louis University filed by a former student. One of the claims alleges that the university responded with deliberate indifference to her report that she was raped at an off-campus party in 2006. The court rejected this claim, attributing the university's delay in commencing an investigation to the plaintiff's delay in reporting the incident and turning over the assailant's name, and pointing out the university's response, meanwhile in ensuring that the plaintiff received support and counseling. In a separate claim, the plaintiff alleged that while a student-athlete on the field hockey team, she was the victim of sex discrimination in the supervision of the athletic training, and the absence of medical and academic support that would have kept her eligible and able to continue to participate on the team. However, the court dismissed this claim as well, citing the plaintiff's failure to compare the academic and medical support she received to that provided to male students. Roe v. Univ. of St. Louis, 2012 WL 6757558 (E.D. Mo. Dec. 31, 2012).
In Oklahoma, a federal court refused to dismiss a Title IX case against Mounds School District stemming from the sexual abuse of a student by a counselor who worked at the high school, but was employed a social services agency, not the district. The court agreed that the school district had actual notice that the counselor posed a threat of abuse to the student when the high school principal received information that the counselor was engaging in sexually suggestive communication with the student. "Actual notice," required for Title IX liability to attach, generally requires notice to a person with authority over the individual accused of harassment. Here, even though the principal did not have direct authority to hire and fire the counselor, the court agreed that the requisite authority existed, given that the school could have still taken steps to exclude the counselor from the premises in protection of the student. Having received sufficient notice, the school had an obligation to respond in a manner designed to protect the student from a situation that escalated into abuse, which the plaintiff satisfactorily alleged the school did not do. Doe v. Defendant A, 2012 WL 6694070 (N.D. Okla. Dec. 21, 2012).
A federal court in New York dismissed a Title IX claim against the Monroe-Woodbury Central School District. While in tenth grade, the plaintiff, had been receiving home tutoring and treatment for anxiety and self-injurious behavior when she disclosed to a counselor the she had been sexually abused by male classmates on two separate occasions while she was in eight and ninth grades. At that point, school responded by enrolling her in an alternative education program. When that did not work out, district officials decided to resume individual tutoring, but denied the parent's request to transfer her to a public school out of district, which they said they did not have the power to grant. The court determined that by taking these measures, the school district could not be said to have acted with the "deliberate indifference" required for liability to attach. This decision is concerning, however, not because the school district did not honor the parent's request, but because school officials apparently waited several months before informing parents that they could, if they wanted, file a written grievance that would trigger an investigation and potential corrective and disciplinary measures against the students accused of sexual assault. In my mind, this aspect of the district's behavior should have constituted deliberate indifference. School officials should have initiated an investigation when the plaintiff first reported that she had been abused by two male students. I see no point in requiring a formal, written grievance, let alone waiting several months before informing the student's parents of that requirement. On this point, the court disagreed because the sexual assaults had not happened recently, but in prior years. For reasons I don't understand, this somehow justified the school's delay in this regard. I'm rooting for an appeal in this case. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013).
A federal court in Missouri dismissed two separate Title IX claims against Saint Louis University filed by a former student. One of the claims alleges that the university responded with deliberate indifference to her report that she was raped at an off-campus party in 2006. The court rejected this claim, attributing the university's delay in commencing an investigation to the plaintiff's delay in reporting the incident and turning over the assailant's name, and pointing out the university's response, meanwhile in ensuring that the plaintiff received support and counseling. In a separate claim, the plaintiff alleged that while a student-athlete on the field hockey team, she was the victim of sex discrimination in the supervision of the athletic training, and the absence of medical and academic support that would have kept her eligible and able to continue to participate on the team. However, the court dismissed this claim as well, citing the plaintiff's failure to compare the academic and medical support she received to that provided to male students. Roe v. Univ. of St. Louis, 2012 WL 6757558 (E.D. Mo. Dec. 31, 2012).
In Oklahoma, a federal court refused to dismiss a Title IX case against Mounds School District stemming from the sexual abuse of a student by a counselor who worked at the high school, but was employed a social services agency, not the district. The court agreed that the school district had actual notice that the counselor posed a threat of abuse to the student when the high school principal received information that the counselor was engaging in sexually suggestive communication with the student. "Actual notice," required for Title IX liability to attach, generally requires notice to a person with authority over the individual accused of harassment. Here, even though the principal did not have direct authority to hire and fire the counselor, the court agreed that the requisite authority existed, given that the school could have still taken steps to exclude the counselor from the premises in protection of the student. Having received sufficient notice, the school had an obligation to respond in a manner designed to protect the student from a situation that escalated into abuse, which the plaintiff satisfactorily alleged the school did not do. Doe v. Defendant A, 2012 WL 6694070 (N.D. Okla. Dec. 21, 2012).
Sunday, January 20, 2013
Student Paper Raises Questions About UPenn's Title IX Compliance
A recent article in the student newspaper for the University of Pennsylvania takes the university to task for having the highest disproportionality of athletic opportunities among all of the Ivy League schools. Women at Penn constitute 51% of the student body, yet they receive only 37% of athletic opportunities. Some of this gap is due to the university's 51-man sprint football squad -- a sport for which no female counterpart exists. Tradition dictates that the sport continue, argues the athletic director. But as the article is careful to point out, even without football, Penn's gender gap would still be wider than that of several Ivy League peers. Moreover, football is not a legally recognized excuse for noncompliance.
To be sure, Penn's disproportionality is not by itself evidence of a compliance problem. The article describes how the university surveys female students about their interest in sports, suggesting that it likely complies, or is striving to comply, with prong three -- an alternative to proportionality that requires universities to demonstrate they are fully satisfying the interests and abilities of the underrepresented sex. Hopefully Penn's prong three efforts include more than surveying, since OCR clarified in 2010 that interest survey results alone aren't conclusive of prong three compliance. Part of the reason why this is so is captured in Penn's survey itself, which asks students what sports they are interested in playing, and whether they have the ability to play them at a Division I level. This obviously skews the survey results away from finding unmet interest and ability, since Division I-caliber athletes don't usually enroll of their own initiative at institutions where their sport of choice is not already offered. For this reason, OCR requires universities to take a broader look at women's interests by including evidence of regional and conference popularity of certain sports, which could suggest that, if offered, women would come to play. The article notes that Penn has a "robust" club women's rugby program, and recommends that Penn consider elevating it to varsity status. Given the gender gap in opportunities as well as Penn's seemingly vulnerability under prong three, this is definitely a recommendation worth looking in to. And if Penn were to turn down a request for elevation stemming from the rugby team itself, it would have a very hard time defending its compliance with Title IX.
To be sure, Penn's disproportionality is not by itself evidence of a compliance problem. The article describes how the university surveys female students about their interest in sports, suggesting that it likely complies, or is striving to comply, with prong three -- an alternative to proportionality that requires universities to demonstrate they are fully satisfying the interests and abilities of the underrepresented sex. Hopefully Penn's prong three efforts include more than surveying, since OCR clarified in 2010 that interest survey results alone aren't conclusive of prong three compliance. Part of the reason why this is so is captured in Penn's survey itself, which asks students what sports they are interested in playing, and whether they have the ability to play them at a Division I level. This obviously skews the survey results away from finding unmet interest and ability, since Division I-caliber athletes don't usually enroll of their own initiative at institutions where their sport of choice is not already offered. For this reason, OCR requires universities to take a broader look at women's interests by including evidence of regional and conference popularity of certain sports, which could suggest that, if offered, women would come to play. The article notes that Penn has a "robust" club women's rugby program, and recommends that Penn consider elevating it to varsity status. Given the gender gap in opportunities as well as Penn's seemingly vulnerability under prong three, this is definitely a recommendation worth looking in to. And if Penn were to turn down a request for elevation stemming from the rugby team itself, it would have a very hard time defending its compliance with Title IX.
Saturday, January 19, 2013
Pregnancy Discrimination Alleged at Borough of Manhattan Community College
The National Women's Law Center filed a complaint this week, urging the Department of Education's Office for Civil Rights to investigate its claim that the Borough of Manhattan Community College -- part of the CUNY system -- discriminated against a student, Stephanie Stewart, on the basis of her pregnancy. Stewart, an honors student, says a professor told her she would not be able to make up any tests or
assignments missed as a result of her pregnancy, including
any she might miss during labor and delivery. Deans and other college officials backed up the professor's decision and advised her to drop the course -- ironically, it was a course called Roles of Women -- since she expected to give birth during the semester, which she did. By withdrawing from the class, however, Stewart became ineligible for the merit scholarship she had been awarded.
Title IX regulations clarify that the statute's prohibition on sex discrimination includes discrimination on the basis of pregnancy. Schools must treat pregnancy and childbirth "as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began." Though Stewart wasn't requesting a leave of absence, the opportunity to make up and exam or assignment could easily be viewed as a similar, or "lesser included," accommodation that should be governed by this same regulatory provision. The professor and the college should have granted the accommodation, asking only for Stewart to make up any missed work as soon as she is medically able.
If OCR agrees, and NWLC's allegations prove true, BMCC might be required to reinstate Stewart's scholarship and develop better policies for dealing with pregnant students.
Title IX regulations clarify that the statute's prohibition on sex discrimination includes discrimination on the basis of pregnancy. Schools must treat pregnancy and childbirth "as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began." Though Stewart wasn't requesting a leave of absence, the opportunity to make up and exam or assignment could easily be viewed as a similar, or "lesser included," accommodation that should be governed by this same regulatory provision. The professor and the college should have granted the accommodation, asking only for Stewart to make up any missed work as soon as she is medically able.
If OCR agrees, and NWLC's allegations prove true, BMCC might be required to reinstate Stewart's scholarship and develop better policies for dealing with pregnant students.
Friday, January 18, 2013
Jukin' the Stats: Complaint Alleges UNC Underreported Campus Sexual Assaults
In a complaint filed this week with the Department of Education's Office for Civil Rights, a former associate dean at the University of North Carolina reportedly alleged that the university violated Title IX and other laws when the university counsel's office pressured her to under-report instances of sexual assault.
Melinda Manning, then the Association Dean of Students, was responsible for compiling statistics on sexual assault on campus and reporting them to the Department of Education in compliance with the Clery Act. In 2011, Manning received pressure from the university counsel's office to reexamine the statistics she had compiled on 2010. She was told they were "too high" and received repeated instructions to "look over [them] again" and "make sure those numbers were correct." When Manning stood by her figures, the university counsel's office allegedly took it upon itself to shave three instances off of the final tally before submitting it to the Department of Education.
Manning's complaint is joined by three students and one former student, who add their own allegations about the hostility they experienced as sexual assault victims seeking justice through the campus disciplinary process. Specific allegations include the administration’s "failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed."
Hostility also describes the environment Manning endured after advocating for better handling of sexual assaults. According to allegations in the complaint, Manning's supervisor, Dean of Students Jonathan Sauls, gave her a negative performance evaluation and threatened her with consequences if she again speak to OCR or the chancellor's office about the issue. He also intimidated and isolated her in the job, eventually leading to her decision to resign. As evidence that this hostility extended beyond Sauls, the complaint also notes that Sauls was promoted to the Dean of Students position over Manning, after Manning was told by the chancellor that he would "never hire her because she had a young child at home and what that could mean."
OCR will now determine if the complaint warrants an investigation, a process that could ultimately lead to an order requiring the remedial action from the university.
Melinda Manning, then the Association Dean of Students, was responsible for compiling statistics on sexual assault on campus and reporting them to the Department of Education in compliance with the Clery Act. In 2011, Manning received pressure from the university counsel's office to reexamine the statistics she had compiled on 2010. She was told they were "too high" and received repeated instructions to "look over [them] again" and "make sure those numbers were correct." When Manning stood by her figures, the university counsel's office allegedly took it upon itself to shave three instances off of the final tally before submitting it to the Department of Education.
Manning's complaint is joined by three students and one former student, who add their own allegations about the hostility they experienced as sexual assault victims seeking justice through the campus disciplinary process. Specific allegations include the administration’s "failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed."
Hostility also describes the environment Manning endured after advocating for better handling of sexual assaults. According to allegations in the complaint, Manning's supervisor, Dean of Students Jonathan Sauls, gave her a negative performance evaluation and threatened her with consequences if she again speak to OCR or the chancellor's office about the issue. He also intimidated and isolated her in the job, eventually leading to her decision to resign. As evidence that this hostility extended beyond Sauls, the complaint also notes that Sauls was promoted to the Dean of Students position over Manning, after Manning was told by the chancellor that he would "never hire her because she had a young child at home and what that could mean."
OCR will now determine if the complaint warrants an investigation, a process that could ultimately lead to an order requiring the remedial action from the university.
Thursday, January 17, 2013
Financial Inequality, College Sport, and Title IX: Reflections on the NCAA Scholarly Colloquium
I'm just back from the NCAA Convention, where I attended the Scholarly Colloquium for the first time in my capacity as a member of the board charged with running the Convention's annual academic conference. As it turns out, that first time will also be my last. On the eve of the Colloquium, NCAA officials announced that it was discontinuing support for the Colloquium, as well as the Journal of Intercollegiate Sport, which is also put out by our board. Some have speculated that this decision was not about financial considerations and scholarly "impact," but more about the NCAA's unwillingness to subsidize scholarly criticism of the college sport enterprise (see, e.g., here or here). A not entirely unreasonable point of view, I guess, though it's certainly disappointing that the NCAA and its members will miss the opportunity going forward to engage in constructive, critical dialog within the framework of the Convention.
This year's Colloquium is a case in point. Several panels of scholars, not to mention a few university presidents, provided various perspectives on the Colloquium theme, Financial Inequality in College Sport. From these presentations, I came away with a much clearer picture of the economics of college sport, and what economic disparities within sport mean for student-athletes and other students. For example, while it wasn't news to me that Division I schools outspend Division II schools, or that within Division I, FBS institutions outspend their FCS counterparts by exponential sums, I was surprised to see the economic disparities even within conferences of similarly-situated schools. In the Big Ten Conference, for example, Ohio State spends $132 million on athletics, or 2.7 times as much as the lowest-spending member of that same conference. No wonder there's an arms race of spending. Schools with an economic advantage can shore up that advantage by hiring an army of support staff (including, as we heard in one example, a "sleep consultant" to make sure the football team would be well-rested despite traveling across two time zones to the site of a bowl game) and other amenities. Perhaps more importantly, they can afford to purchase football wins against schools from weaker conferences and the FCS subdivision, in order to ensure eligibility to the revenue-generating bowl games. (Oklahoma State's 84-0 win over Savannah State was a much discussed example.) These kinds of investments, of course, drive up spending in the conference overall, who have little change of recouping their exorbitant investment unless they hang in there with the big spenders.
While this year's Colloquium panels did not include a specific focus on Title IX (though past year's Colloquiums have done so, see, e.g.), they certainly helped contextualize the economic situation in which Title IX decisions must take place. The presentations underscored for me the relationship between the financial inequality among schools and the financial inequality within schools, since the arms race spending, driven by economic pressure to keep up with big spenders, results in more resources allocated to the sports with revenue potential, which are, primarily, two men's sports -- football and basketball. When a school like Colorado State goes in the hole to build a new football stadium, this not only diverts money toward the football program, but creates economic pressure to keep its football team viable for as long as the debt on the stadium exists. It sets a men's sport as a permanent priority, driving a wedge of perpetual inequality between one (men's) sport and the rest. For these reasons, I agreed with a number of Colloquium presenters who called on the NCAA to press Congress for the authority to more tightly control athletics spending. (Presently, antitrust laws would prohibit the NCAA for doing so, which is why Congress needs to get involved). Financial and academic integrity were the primary reasons for this proposed reform, but gender equity goes on the list as well.
Whether or not the NCAA agrees with the content of this year's Colloquium, one thing is clear: the conversation about college athletics reform must continue. I'm grateful for the past six years in which the NCAA has supported the Scholarly Colloquium. Now it's time to look for new opportunities to promote academic discourse on college sports.
This year's Colloquium is a case in point. Several panels of scholars, not to mention a few university presidents, provided various perspectives on the Colloquium theme, Financial Inequality in College Sport. From these presentations, I came away with a much clearer picture of the economics of college sport, and what economic disparities within sport mean for student-athletes and other students. For example, while it wasn't news to me that Division I schools outspend Division II schools, or that within Division I, FBS institutions outspend their FCS counterparts by exponential sums, I was surprised to see the economic disparities even within conferences of similarly-situated schools. In the Big Ten Conference, for example, Ohio State spends $132 million on athletics, or 2.7 times as much as the lowest-spending member of that same conference. No wonder there's an arms race of spending. Schools with an economic advantage can shore up that advantage by hiring an army of support staff (including, as we heard in one example, a "sleep consultant" to make sure the football team would be well-rested despite traveling across two time zones to the site of a bowl game) and other amenities. Perhaps more importantly, they can afford to purchase football wins against schools from weaker conferences and the FCS subdivision, in order to ensure eligibility to the revenue-generating bowl games. (Oklahoma State's 84-0 win over Savannah State was a much discussed example.) These kinds of investments, of course, drive up spending in the conference overall, who have little change of recouping their exorbitant investment unless they hang in there with the big spenders.
While this year's Colloquium panels did not include a specific focus on Title IX (though past year's Colloquiums have done so, see, e.g.), they certainly helped contextualize the economic situation in which Title IX decisions must take place. The presentations underscored for me the relationship between the financial inequality among schools and the financial inequality within schools, since the arms race spending, driven by economic pressure to keep up with big spenders, results in more resources allocated to the sports with revenue potential, which are, primarily, two men's sports -- football and basketball. When a school like Colorado State goes in the hole to build a new football stadium, this not only diverts money toward the football program, but creates economic pressure to keep its football team viable for as long as the debt on the stadium exists. It sets a men's sport as a permanent priority, driving a wedge of perpetual inequality between one (men's) sport and the rest. For these reasons, I agreed with a number of Colloquium presenters who called on the NCAA to press Congress for the authority to more tightly control athletics spending. (Presently, antitrust laws would prohibit the NCAA for doing so, which is why Congress needs to get involved). Financial and academic integrity were the primary reasons for this proposed reform, but gender equity goes on the list as well.
Whether or not the NCAA agrees with the content of this year's Colloquium, one thing is clear: the conversation about college athletics reform must continue. I'm grateful for the past six years in which the NCAA has supported the Scholarly Colloquium. Now it's time to look for new opportunities to promote academic discourse on college sports.
Saturday, January 12, 2013
Title IX Law Review Scholarship Roundup
Several law review articles related to Title IX have been published in recent weeks. Here is a summary.
In the recent issue of the Williamette Sports Law Journal, author Zachary Anderson examines the University of Nebraska-Omaha's recent decision to drop its football and wrestling program. His case study examines the university's financial motivations as well as its compliance problems, and concludes that the university's decision was in the best interest of the institution and its student-athletes overall.
Zachary W. Anderson, Title IX Compliance: In the Name of Financial Stability or Gender Equality?, 10 Willamette Sports L.J. 33 (2012).
A student note in the Catholic University Law Review argues that Title IX plaintiffs alleging violations stemming from athletics ought to satisfy the same requirement of "actual notice" that applies to Title IX sexual harassment claims. The author acknowledges that several courts have rejected this idea because harassment, unlike athletics discrimination, involves conduct about which the university might not actually be aware. He argues nevertheless that universities may be unaware of discrimination in athletic departments and that a notice requirement should be imposed. Personally, I find this unconvincing, as I have argued elsewhere on this blog that it simply "make[s no] sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions."
Zachary Swartz, If It's Broken, Let Them Fix It: Why the Gebser Pre-Litigation Notice Requirement Should Apply to Title IX Athletics Lawsuits, 61 Cath. U. L. Rev. 1207 (2012).
Finally, another student note, this one in the Duke Law Journal, criticizes certain aspects of the 2011 Dear Colleague Letter from the Office for Civil Rights, which clarified universities' obligations to respond to sexual violence on campus. On the one hand, the author concludes that the DCL's requirement universities have a preponderance of evidence against the accused before taking disciplinary action is consistent with procedural due process requirements in the Constitution. But, he argues, other aspects of the DCL, such as its recommendation against allowing the accused to cross-examine the victim, conflict with the constitutional interpretations of some lower courts.
Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 (2012).
In the recent issue of the Williamette Sports Law Journal, author Zachary Anderson examines the University of Nebraska-Omaha's recent decision to drop its football and wrestling program. His case study examines the university's financial motivations as well as its compliance problems, and concludes that the university's decision was in the best interest of the institution and its student-athletes overall.
Zachary W. Anderson, Title IX Compliance: In the Name of Financial Stability or Gender Equality?, 10 Willamette Sports L.J. 33 (2012).
A student note in the Catholic University Law Review argues that Title IX plaintiffs alleging violations stemming from athletics ought to satisfy the same requirement of "actual notice" that applies to Title IX sexual harassment claims. The author acknowledges that several courts have rejected this idea because harassment, unlike athletics discrimination, involves conduct about which the university might not actually be aware. He argues nevertheless that universities may be unaware of discrimination in athletic departments and that a notice requirement should be imposed. Personally, I find this unconvincing, as I have argued elsewhere on this blog that it simply "make[s no] sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions."
Zachary Swartz, If It's Broken, Let Them Fix It: Why the Gebser Pre-Litigation Notice Requirement Should Apply to Title IX Athletics Lawsuits, 61 Cath. U. L. Rev. 1207 (2012).
Finally, another student note, this one in the Duke Law Journal, criticizes certain aspects of the 2011 Dear Colleague Letter from the Office for Civil Rights, which clarified universities' obligations to respond to sexual violence on campus. On the one hand, the author concludes that the DCL's requirement universities have a preponderance of evidence against the accused before taking disciplinary action is consistent with procedural due process requirements in the Constitution. But, he argues, other aspects of the DCL, such as its recommendation against allowing the accused to cross-examine the victim, conflict with the constitutional interpretations of some lower courts.
Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 (2012).
Thursday, January 10, 2013
Court Says Duke's Response to Student Rape Was Not Deliberate Indifference
Last month a federal district court in North Carolina dismissed a Title IX claim against Duke University, which stemmed from the 2007 rape of a female student by a non-student that occurred at an off-campus party hosted by other students. The plaintiff did not allege that the university should have protected her from the rape itself, but she did allege a number of examples of university conduct in the wake of the incident that contributed to an actionable hostile environment thereafter. Some of those allegations relate to the academic accommodations the plaintiff did or did not receive, such as being denied in her request to complete the semester from home (she was granted a personal leave of absence instead) and that the university responded to her stated request to transfer to another university by informing her that she forfeited eligibility to re-apply to Duke at a later time (an apparently routine response, and one that was consistent with plaintiff's intentions anyway). In what I would consider a noncontroversial aspect of the decision, the court rejected that these examples of Duke's conduct did not amount to deliberate indifference and serve as grounds for institutional liability.
I do take issue, however, with the court's evaluation of Duke's conduct related to the investigation of the rape itself. The plaintiff alleged that Duke turned the investigation over to the police, and that its decision not to re-open its own investigation was motivated by the fact that a large contributor to the university happened to be the person who owned the house where the party and rape took place. The court reasoned that the absence of an investigation was not deliberate indifference because that itself did not cause further harm to the plaintiff, in the sense that she was not raped, assaulted, or harassed a second time because the university dropped the ball. This seems like an overly-harsh application of the standard for institutional liability under Title IX, and one that conflicts with other decisions in similar cases. For example, we blogged last year about a case against Arizona State, in which the plaintiff survived a motion to dismiss based on allegations both that the university failed to protect her from being raped at a fraternity house with a known reputation for sexual assault, AND, as in the Duke case, that university officials failed to properly investigate the rape once it had been reported. To the second claim, it did not matter that the plaintiff in that case had not experienced a second instance of rape or harassment by the same fraternity due to the university's indifferent response.
It is also worth pointing out that Duke's response clearly defies the guidance provided by the Office for Civil Rights in its April 2011 Dear Colleague Letter, which states that it's not appropriate for universities to simply defer to police investigations. It also states that "a single instance of rape is sufficiently severe to create a hostile environment" and defines a university's prospective obligation to take immediate action to "eliminate the [hostile environment], prevent its recurrence, and address its effects." Granted, the standard for government agency enforcement is different from the standard courts use to determine institutional liability for damages, so Duke's failure to comply with the guidance letter does not have direct bearing on the court's decision. But it is at least worth noting, however, that if Duke or any other university behaved today like Duke did in this case, OCR at least would have the grounds to bring an enforcement action.
Decision: Rouse v. Duke University, 2012 WL 6681786 (M.D.N.C., Dec 21, 2012).
I do take issue, however, with the court's evaluation of Duke's conduct related to the investigation of the rape itself. The plaintiff alleged that Duke turned the investigation over to the police, and that its decision not to re-open its own investigation was motivated by the fact that a large contributor to the university happened to be the person who owned the house where the party and rape took place. The court reasoned that the absence of an investigation was not deliberate indifference because that itself did not cause further harm to the plaintiff, in the sense that she was not raped, assaulted, or harassed a second time because the university dropped the ball. This seems like an overly-harsh application of the standard for institutional liability under Title IX, and one that conflicts with other decisions in similar cases. For example, we blogged last year about a case against Arizona State, in which the plaintiff survived a motion to dismiss based on allegations both that the university failed to protect her from being raped at a fraternity house with a known reputation for sexual assault, AND, as in the Duke case, that university officials failed to properly investigate the rape once it had been reported. To the second claim, it did not matter that the plaintiff in that case had not experienced a second instance of rape or harassment by the same fraternity due to the university's indifferent response.
It is also worth pointing out that Duke's response clearly defies the guidance provided by the Office for Civil Rights in its April 2011 Dear Colleague Letter, which states that it's not appropriate for universities to simply defer to police investigations. It also states that "a single instance of rape is sufficiently severe to create a hostile environment" and defines a university's prospective obligation to take immediate action to "eliminate the [hostile environment], prevent its recurrence, and address its effects." Granted, the standard for government agency enforcement is different from the standard courts use to determine institutional liability for damages, so Duke's failure to comply with the guidance letter does not have direct bearing on the court's decision. But it is at least worth noting, however, that if Duke or any other university behaved today like Duke did in this case, OCR at least would have the grounds to bring an enforcement action.
Decision: Rouse v. Duke University, 2012 WL 6681786 (M.D.N.C., Dec 21, 2012).
Wednesday, January 09, 2013
Don't you dare complain!
We mumble and grumble--sometimes more loudly than at other times--when schools get praised by the community and media outlets for taking some action that appears to be making a situation better for female student-athletes (new softball field, addition of teams, renovated locker rooms) when what they're really doing is simply following the law and ending (some) discriminatory practices.
But when the media perpetuates backlash, well then you get a talking-to.
Mark Goodman, writer for HomeNewsHere.com out of Woburn, Massachusetts is not the only--just the latest--purveyor of Title IX backlash. Covering the Middlesex League, Goodman questions whether the hockey teams in the league will have to alter their practice of scheduling doubleheaders in which the girls' teams play first, followed by the boys' contest, the majority of the time. (Despite popular sentiment that everyone is fine with this arrangement, they do need to alter their scheduling practices.)
The question arose because the basketball teams in the league recently changed their game scheduling practices after a parent complained about the discrimination inherent in always putting the girls as the warm-up act in doubleheaders. Some people are not happy about this change citing damage to the school community. My guess is that the people who are happy are not so vocal in their support. Perhaps because people attack those advocating for equal rights, including reporters like Mark Goodman, who wrote: "all it takes is for one person to get bent out of shape and threaten legal action."
A parent is not getting "bent out of shape" when he or she asks for the school to provide equitable treatment to its female students. What that parent is asking is that the school comply with the law. A parent doesn't even need to "threaten legal action" because anyone can file a complaint with OCR. Anyone. An OCR complaint--even if it's just based on scheduling--can trigger a full investigation into all aspects of athletics in a district. All aspects: facilities, opportunities, equipment, coaching. And that will have administrators bent into all sorts of shapes.
But when the media perpetuates backlash, well then you get a talking-to.
Mark Goodman, writer for HomeNewsHere.com out of Woburn, Massachusetts is not the only--just the latest--purveyor of Title IX backlash. Covering the Middlesex League, Goodman questions whether the hockey teams in the league will have to alter their practice of scheduling doubleheaders in which the girls' teams play first, followed by the boys' contest, the majority of the time. (Despite popular sentiment that everyone is fine with this arrangement, they do need to alter their scheduling practices.)
The question arose because the basketball teams in the league recently changed their game scheduling practices after a parent complained about the discrimination inherent in always putting the girls as the warm-up act in doubleheaders. Some people are not happy about this change citing damage to the school community. My guess is that the people who are happy are not so vocal in their support. Perhaps because people attack those advocating for equal rights, including reporters like Mark Goodman, who wrote: "all it takes is for one person to get bent out of shape and threaten legal action."
A parent is not getting "bent out of shape" when he or she asks for the school to provide equitable treatment to its female students. What that parent is asking is that the school comply with the law. A parent doesn't even need to "threaten legal action" because anyone can file a complaint with OCR. Anyone. An OCR complaint--even if it's just based on scheduling--can trigger a full investigation into all aspects of athletics in a district. All aspects: facilities, opportunities, equipment, coaching. And that will have administrators bent into all sorts of shapes.
Tuesday, December 18, 2012
ACLU Files Complaints Against Single-Sex Classes Idaho and Alabama
Earlier this month, the ACLU filed formal complaints (see here and here) with the Department of Education's Office for Civil Rights, challenging single-sex educational programs at Middleton Heights Elementary in Middleton, Idaho and Huffman Middle School in Birmingham, Alabama.
Middleton's program, in place since 2006, separates girls and boys into separate classrooms and teaches differently to each group. Boys' classrooms incorporate exercise and movement, while the girls are given a quiet environment. Boys are not seated face-to-face, as girls are, on the theory that "boys are more competitive and should not be forced to make eye contact." Boys receive more explanation for assignments, and the school makes efforts to bring in "male role models" to combat concerns about them having too many female teachers. The school does not inform parents that the program is voluntary, and many believe they did not have a choice to opt out, which the law requires. One final objection to Middleton's program is that it has not caused any academic improvement, belying its justification in the first place.
In 2010, Huffman Middle School began separating boys and girls for all classes and activities, even lunch. It offers no coeducational alternative, which is a clear violation of Title IX's regulations on single-sex education. The curriculum in boys' classes calls for "stressing 'heroic' behavior that shows what it means to 'be a man.'" The ACLU complaint also criticizes the school for relying on a book "that teaches that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have similar skills only 'a few days per month' when they experience 'increased estrogen during the menstrual cycle.'" Huffman's program, like Middleton's is not supported by any evidence that academic achievement has improved.
According to its website, the ACLU wants OCR to investigate these cases and bring them into compliance with Title IX regulations, which only allow single-sex programs that have an academic justification. The organization also wants OCR to clarify to school districts that sex stereotypes such as those reflected in Huffman and Middleton's curricula are not justifications for segregation under the law.
Middleton's program, in place since 2006, separates girls and boys into separate classrooms and teaches differently to each group. Boys' classrooms incorporate exercise and movement, while the girls are given a quiet environment. Boys are not seated face-to-face, as girls are, on the theory that "boys are more competitive and should not be forced to make eye contact." Boys receive more explanation for assignments, and the school makes efforts to bring in "male role models" to combat concerns about them having too many female teachers. The school does not inform parents that the program is voluntary, and many believe they did not have a choice to opt out, which the law requires. One final objection to Middleton's program is that it has not caused any academic improvement, belying its justification in the first place.
In 2010, Huffman Middle School began separating boys and girls for all classes and activities, even lunch. It offers no coeducational alternative, which is a clear violation of Title IX's regulations on single-sex education. The curriculum in boys' classes calls for "stressing 'heroic' behavior that shows what it means to 'be a man.'" The ACLU complaint also criticizes the school for relying on a book "that teaches that boys are better than girls in math because their bodies receive daily surges of testosterone, while girls have similar skills only 'a few days per month' when they experience 'increased estrogen during the menstrual cycle.'" Huffman's program, like Middleton's is not supported by any evidence that academic achievement has improved.
According to its website, the ACLU wants OCR to investigate these cases and bring them into compliance with Title IX regulations, which only allow single-sex programs that have an academic justification. The organization also wants OCR to clarify to school districts that sex stereotypes such as those reflected in Huffman and Middleton's curricula are not justifications for segregation under the law.
Monday, December 17, 2012
Title IX and the Spending Clause
What does Title IX have to do with Obamacare? The answer is in the Constitution. Congress can only pass legislation pursuant to one of its constitutionally enumerated powers, and for both Title IX and one provision in the Affordable Care Act (a/k/a/ Obamacare) Congress relied on the same provision -- the Spending Clause. This provision of the Constitution gives Congress broad power to spend money, and pursuant to this power, Congress can conditional spending on the recipients agreement to comply with certain conditions. In the case of Title IX, recipients of federal education funding agree not to discriminate on the basis of sex. In the case of the Affordable Care Act, one of its provision asked states who agree to take federal funding for Medicaid to expand its coverage to include individuals with a higher income level than the current eligibility level. While the Supreme Court upheld most of the Affordable Care Act under a different constitutional provision (i.e., the Taxing Clause) the Court struck down the Medicare expansion as a violation of the Spending Clause. Given that Title IX is also Spending Clause legislation, does the Supreme Court decision about Obamacare jeopardize Title IX as well?
In a recently published issue brief, the American Constitution Society and author Emily Martin explain that, notwithstanding the Court's new Spending Clause jurisprudence, Title IX remains safe from attack. Martin argues that Title IX is sufficiently different from the Medicaid provision of the Affordable Care Act to be affected by the Supreme Court's recent decision striking it down. First, the Medicaid provision in the ACA made conditional requirements on the states themselves, impinging on state sovereignty in ways that Title IX -- which binds mostly private entities, along with state institutions but not the states themselves -- does not. Next, the amount of federal money subject to conditions in each of these laws differs by degree. In the case of the Medicaid provision, enough federal money was at stake for the conditions to be deemed coercive -- states wouldn't have been able to say no to them with so much federal money on the line. But in the education context, schools can (and a few even do) opt out of federal money in order not to have to comply with Title IX. The amount of money at stake is not enough to constitute coercion. This distinction is further illustrated by the fact that Title IX contains a provision limiting the federal funds that are conditioned on compliance to only those funds that may be demonstrated to be supporting the discrimination at issue.
Finally, unlike the Medicaid provision of the ACA, Title IX is justified not only by the power vested in Congress by the Spending Clause, but also by the power vested in Congress by the Fourteenth Amendment as well. Title IX overlaps with the Fourteenth Amendment when it comes to prohibiting sex discrimination by state educational institutions, and the extent to which Title IX's prohibition on discrimination extends to private institutions as well, is still within the outer boundary of Congress's enforcement power as defined by the Supreme Court.
Kudos to the American Constitution Society and Emily Martin for proactively addressing this issue and providing the response to any potential challenges to Title IX under the Court's new Spending Clause jurisprudence.
In a recently published issue brief, the American Constitution Society and author Emily Martin explain that, notwithstanding the Court's new Spending Clause jurisprudence, Title IX remains safe from attack. Martin argues that Title IX is sufficiently different from the Medicaid provision of the Affordable Care Act to be affected by the Supreme Court's recent decision striking it down. First, the Medicaid provision in the ACA made conditional requirements on the states themselves, impinging on state sovereignty in ways that Title IX -- which binds mostly private entities, along with state institutions but not the states themselves -- does not. Next, the amount of federal money subject to conditions in each of these laws differs by degree. In the case of the Medicaid provision, enough federal money was at stake for the conditions to be deemed coercive -- states wouldn't have been able to say no to them with so much federal money on the line. But in the education context, schools can (and a few even do) opt out of federal money in order not to have to comply with Title IX. The amount of money at stake is not enough to constitute coercion. This distinction is further illustrated by the fact that Title IX contains a provision limiting the federal funds that are conditioned on compliance to only those funds that may be demonstrated to be supporting the discrimination at issue.
Finally, unlike the Medicaid provision of the ACA, Title IX is justified not only by the power vested in Congress by the Spending Clause, but also by the power vested in Congress by the Fourteenth Amendment as well. Title IX overlaps with the Fourteenth Amendment when it comes to prohibiting sex discrimination by state educational institutions, and the extent to which Title IX's prohibition on discrimination extends to private institutions as well, is still within the outer boundary of Congress's enforcement power as defined by the Supreme Court.
Kudos to the American Constitution Society and Emily Martin for proactively addressing this issue and providing the response to any potential challenges to Title IX under the Court's new Spending Clause jurisprudence.
Sunday, December 16, 2012
College, HS League Take Steps Toward Compliance
Two stories about how Title IX is still improving athletic opportunities for female students were in the news this weekend:
Madison Area Technical College will reportedly add a women's soccer team to help balance out athletic opportunities, which presently favor men despite women making up more than half of the student body. The college is under investigation by the Department of Education's Office for Civil Rights, in response to anonymous complaint filed last year.
And here in Massachusetts, the high school athletics conference in Middlesex County has rescheduled its basketball games to ensure equity in the number of prime times girls and boys receive. The Middlesex League was reportedly motivated by a Lexington supporter, who explained that the League's former system of scheduling girls' games first in all double-headers constituted sex discrimination under Title IX. Under the new schedule, girls and boys will play on different nights, with JV leading off, followed by the varsity.
Madison Area Technical College will reportedly add a women's soccer team to help balance out athletic opportunities, which presently favor men despite women making up more than half of the student body. The college is under investigation by the Department of Education's Office for Civil Rights, in response to anonymous complaint filed last year.
And here in Massachusetts, the high school athletics conference in Middlesex County has rescheduled its basketball games to ensure equity in the number of prime times girls and boys receive. The Middlesex League was reportedly motivated by a Lexington supporter, who explained that the League's former system of scheduling girls' games first in all double-headers constituted sex discrimination under Title IX. Under the new schedule, girls and boys will play on different nights, with JV leading off, followed by the varsity.
Friday, December 14, 2012
Colleges Add Men's Sports, Despite Serious Gender Gap in Athletic Opportunity
A reader shared with me three separate stories about colleges that are adding lacrosse for men and women -- Brevard College in North Carolina, Capital University in Ohio, and Rockhurst University in Missouri. Seems reasonable, you might think, that when adding a program, colleges would afford equal opportunities to men and women. The problem is, at all three of these institutions, women are seriously underrepresented in the proportion of athletic opportunities made available by the institution:
Title IX, for its part, does not require equal opportunities within a single sport like lacrosse, but equity in the overall distribution of athletic opportunities. Thus, not only is there a serious fairness question about adding men's sports when women are so seriously underrepresented, it's also terrible risk management. Title IX compliance requires either (1) proportionality, (2) continuous women's program expansion, or (3) no unmet interest among female students. In the short term, these schools have at most** bought time under prong two. But unless these schools are prepared to continue to add new opportunities in the future every few years, they will quickly fall out of compliance. What about prong three? My guess is that with such lopsided numbers, latent unmet interest is a ticking time bomb. It's only a matter of time before a club team asks to elevate, or other evidence of unmet interest emerges -- perhaps under the spotlight of an OCR investigation. When either the prong two or prong three chickens come home to roost, what will these schools do? Will they complain then that they don't have the resources to add women's teams? Will they be forced by their own bad planning to downsize a men's team or two in order to satisfy the only prong that doesn't require an investment of resources?
The Department of Education promulgated the three prong test in 1979. In an ideal world, colleges and universities would have from that point forward held their men's programs steady while gradually adding opportunities for women (easily satisfying prong two) until opportunities were proportionally distributed. Then they could have moved forward, adding -- or cutting -- opportunities for men and women as resources allow or as changing enrollment requires. I don't understand why this is so hard! College athletic administrators seem to labor in blissful ignorance of either the law, the changing demographics of college enrollment, or the economy -- or maybe all three. I'm not rooting for these institutions to run into Title IX compliance problems -- that's not good for students. But if it happens, it will be hard not to say I told you so.
*To be fair, Rockhurst is also adding women's cross country, but this hardly changes my point, since that single team would have to have over 90 athletic opportunities in order to even out the opportunities between men and women at that school.
** And even this is a generous assumption. The article about Rockhurst helpfully notes that 2005 was the last time a women's sport was added. There's no question: Rockhurst clearly doesn't comply with prong two either.
- At Brevard, women constitute 39.9% of the student body, yet receive only 30.5% of athletic opportunities -- a gap of 9.4 percentage points.
- At Rockhurst, women constitute 59.4% of the student body, yet receive 47.1% of athletic opportunities -- a gap of 12.3 percentage points.
- At Capital, women constitute 56.9% of the student body, yet receive only 38% of athletic opportunities -- a gap of 18.9 percentage points!!
Title IX, for its part, does not require equal opportunities within a single sport like lacrosse, but equity in the overall distribution of athletic opportunities. Thus, not only is there a serious fairness question about adding men's sports when women are so seriously underrepresented, it's also terrible risk management. Title IX compliance requires either (1) proportionality, (2) continuous women's program expansion, or (3) no unmet interest among female students. In the short term, these schools have at most** bought time under prong two. But unless these schools are prepared to continue to add new opportunities in the future every few years, they will quickly fall out of compliance. What about prong three? My guess is that with such lopsided numbers, latent unmet interest is a ticking time bomb. It's only a matter of time before a club team asks to elevate, or other evidence of unmet interest emerges -- perhaps under the spotlight of an OCR investigation. When either the prong two or prong three chickens come home to roost, what will these schools do? Will they complain then that they don't have the resources to add women's teams? Will they be forced by their own bad planning to downsize a men's team or two in order to satisfy the only prong that doesn't require an investment of resources?
The Department of Education promulgated the three prong test in 1979. In an ideal world, colleges and universities would have from that point forward held their men's programs steady while gradually adding opportunities for women (easily satisfying prong two) until opportunities were proportionally distributed. Then they could have moved forward, adding -- or cutting -- opportunities for men and women as resources allow or as changing enrollment requires. I don't understand why this is so hard! College athletic administrators seem to labor in blissful ignorance of either the law, the changing demographics of college enrollment, or the economy -- or maybe all three. I'm not rooting for these institutions to run into Title IX compliance problems -- that's not good for students. But if it happens, it will be hard not to say I told you so.
*To be fair, Rockhurst is also adding women's cross country, but this hardly changes my point, since that single team would have to have over 90 athletic opportunities in order to even out the opportunities between men and women at that school.
** And even this is a generous assumption. The article about Rockhurst helpfully notes that 2005 was the last time a women's sport was added. There's no question: Rockhurst clearly doesn't comply with prong two either.
Thursday, December 13, 2012
Butte Enters Voluntary Resolution Agreement
Butte (Montana) School District No. 1. has entered into a voluntary resolution agreement with the Office for Civil Rights that will resolve a Title IX complaint filed against the district challenging inequities in the athletic facilities available for male and female students. As we noted earlier this year, the complaint was filed by former softball coaches, who complained that their team had to play in a city park of inferior quality to the school's new stadium that was available for boys' football. The resolution agreement requires the school district to investigate its locker rooms, practice
and competitive facilities, by December 31. It then has until January 14 to devise a plan to remediate any inequalities revealed by that investigation, which it must then execute. If the district fails to adhere to the terms of the agreement, OCR will reopen its investigation into the complaint.
Note: this post was updated on Dec. 14 to correct that the school's stadium is for football, not baseball as earlier reported. Baseball is not a high school sport in Montana.
Note: this post was updated on Dec. 14 to correct that the school's stadium is for football, not baseball as earlier reported. Baseball is not a high school sport in Montana.
Monday, December 10, 2012
A case study of roster management and prong two
The University of Georgia's student newspaper has an article on how the school approached compliance with Title IX and what this means for the athletic department, student-athletes, and club sports. Regarding the latter, it seems that many club sports are waiting for their call up, to use a baseball metaphor, to "the show." In other words, because UGA chooses prong two compliance (expanding opportunities) and has added teams in the past to meet this version of compliance, some women's club teams are wondering when it might be their chance. Women's rowing has been especially hopeful. Rowing has been used--with mixed results and mixed motivations--as a sort of panacea for football problem that most schools that field a football team have: an imbalance of opportunities.
But rowing--along with other UGA club sports--is losing hope. There has not been a new women's team added since 2002 and no talk of adding another team for 5-6 years according the rowing coach. UGA has opted to add spots to existing women's teams instead. This practice, referred to as roster management, has come under scrutiny, not because it is not a viable way to comply, but because it is often not done correctly. The NYT ran an investigative piece in 2011 about the roster management scams happening at some schools--adding athletes without them ever knowing, adding athletes and then dropping them once the season starts (and rosters are in), using male practice players to pad women's numbers. And it received a great deal of attention. We hoped this national coverage would put schools who were engaging in these practices on notice. And it may have.
It does not appear that UGA is doing anything wrong. But we have to wonder just how many spots they can add to existing teams without overburdening the teams and taking power over roster size out of a coach's hands. And we should ask how equitable this practice is. Are we asking the coaches of men's team to increase their roster sizes, to deal with additional players? How big can one make the softball team and still provide student-athletes with a comparable experience? Equal opportunities is only one area of compliance. A school cannot simply add spots while not guaranteeing equal treatment.
Of course there is no guarantee of equal treatment when a whole team is added. This has actually been a problem, especially for women's rowing teams. They get elevated to varsity status but wait years for facilities, for better equipment, for equitable travel situations. Some even have to file complaints with OCR or lawsuits against the school in order to get what they were promised.
Again, this has not happened at UGA, maybe in part because UGA has been careful about when and which sports to add. The question is, how many spots do they have to add a year, every two years, every three years, in order to remain prong two compliant? At what point does the rowing team--or any other club team--have a viable argument that the school is not providing equitable opportunities?
But rowing--along with other UGA club sports--is losing hope. There has not been a new women's team added since 2002 and no talk of adding another team for 5-6 years according the rowing coach. UGA has opted to add spots to existing women's teams instead. This practice, referred to as roster management, has come under scrutiny, not because it is not a viable way to comply, but because it is often not done correctly. The NYT ran an investigative piece in 2011 about the roster management scams happening at some schools--adding athletes without them ever knowing, adding athletes and then dropping them once the season starts (and rosters are in), using male practice players to pad women's numbers. And it received a great deal of attention. We hoped this national coverage would put schools who were engaging in these practices on notice. And it may have.
It does not appear that UGA is doing anything wrong. But we have to wonder just how many spots they can add to existing teams without overburdening the teams and taking power over roster size out of a coach's hands. And we should ask how equitable this practice is. Are we asking the coaches of men's team to increase their roster sizes, to deal with additional players? How big can one make the softball team and still provide student-athletes with a comparable experience? Equal opportunities is only one area of compliance. A school cannot simply add spots while not guaranteeing equal treatment.
Of course there is no guarantee of equal treatment when a whole team is added. This has actually been a problem, especially for women's rowing teams. They get elevated to varsity status but wait years for facilities, for better equipment, for equitable travel situations. Some even have to file complaints with OCR or lawsuits against the school in order to get what they were promised.
Again, this has not happened at UGA, maybe in part because UGA has been careful about when and which sports to add. The question is, how many spots do they have to add a year, every two years, every three years, in order to remain prong two compliant? At what point does the rowing team--or any other club team--have a viable argument that the school is not providing equitable opportunities?
Friday, December 07, 2012
Minute-by-minute compliance?
There has not been much news around the addition of teams at the collegiate level of late. A few here and there, a mention of Title IX compliance.
The forthcoming additions of two women's teams at Central Michigan University is the same. Women's golf and lacrosse in two and three years, respectively.* The university has not added a women's team since 1998. Though nothing in the article explicitly states that CMU is adhering to compliance via prong two, history of expanding opportunities for women, that is the impression one gets from reading based on statements such as the following:
"As long as we are working toward equality, we are in compliance"--Judy Chandler, chair of Gender Equality Committee
“This is step one. We aren’t done yet.” --University President George Ross
What struck me about this story was the comment Chandler made after the above remark: "No one can stay in compliance every minute, because things are always changing."
This might be true if an institution is opting for prong one or prong three compliance. If following the latter, interests do change and student populations change. Of course it is the school's responsibility to be diligent in its monitoring of these changing interests. And things change in terms of proportionality as well. Undergraduate populations fluctuate in terms of size and gender breakdown and are not always predictable. But again, the university has an obligation to remedy discrepancies in a timely manner.
But prong two is another story. If CMU has not added a sport since 1998 but still contend that they are expanding opportunities for women's participation, well--they aren't. Or they weren't. That situation was not changing--unless they were systematically adding roster spots to existing women's teams. There was no mention of that practice.
It seems to me that there were a lot of minutes of non-compliance. It doesn't appear that the university was scrambling to add opportunities for ten years or so and just couldn't because of some constantly changing circumstances.
* Apparently eight sports were up for consideration and golf and lacrosse were chosen because they are "Michigan sports." Unfortunately, women's golf is not a recognized part of the MAC, the conference to which CMU belongs. It will have to find a difference conference affiliation for this sport, along with making contacts and contracts with local golf courses to use for practice and competition.
The forthcoming additions of two women's teams at Central Michigan University is the same. Women's golf and lacrosse in two and three years, respectively.* The university has not added a women's team since 1998. Though nothing in the article explicitly states that CMU is adhering to compliance via prong two, history of expanding opportunities for women, that is the impression one gets from reading based on statements such as the following:
"As long as we are working toward equality, we are in compliance"--Judy Chandler, chair of Gender Equality Committee
“This is step one. We aren’t done yet.” --University President George Ross
What struck me about this story was the comment Chandler made after the above remark: "No one can stay in compliance every minute, because things are always changing."
This might be true if an institution is opting for prong one or prong three compliance. If following the latter, interests do change and student populations change. Of course it is the school's responsibility to be diligent in its monitoring of these changing interests. And things change in terms of proportionality as well. Undergraduate populations fluctuate in terms of size and gender breakdown and are not always predictable. But again, the university has an obligation to remedy discrepancies in a timely manner.
But prong two is another story. If CMU has not added a sport since 1998 but still contend that they are expanding opportunities for women's participation, well--they aren't. Or they weren't. That situation was not changing--unless they were systematically adding roster spots to existing women's teams. There was no mention of that practice.
It seems to me that there were a lot of minutes of non-compliance. It doesn't appear that the university was scrambling to add opportunities for ten years or so and just couldn't because of some constantly changing circumstances.
* Apparently eight sports were up for consideration and golf and lacrosse were chosen because they are "Michigan sports." Unfortunately, women's golf is not a recognized part of the MAC, the conference to which CMU belongs. It will have to find a difference conference affiliation for this sport, along with making contacts and contracts with local golf courses to use for practice and competition.
Thursday, November 29, 2012
OCR's Quadrennial Report, and Ali's Last Day
Yesterday the Department of Education's Office for Civil Rights held a conference call to roll out a new report summarizing its enforcement and policymaking efforts since 2009. Federal law requires the agency to produce a report like this every four years, covering all of its enforcement areas including but not limited to Title IX. The report does not contain any big news or surprises on the Title IX front, but the conference call did: tomorrow is Assistant Secretary Russlynn Ali's last day on the job. The Obama administration has not announced a replacement for the OCR chief.
Here's an excerpt from the report, which I thought was interesting. It's a chart of Title IX complaints, broken down by topic, and showing the total number of times a complaint addressed one of those topics. Athletics received the most complaints, over 1200, but sexual harassment/sexual violence was a close second with 1137 [that must be a typo in the chart, because racial harassment was discussed in another section]. Beyond those two big and well-known categories, sex discrimination is also alleged in a wide variety of topics from admissions, other forms of differential treatment, employment issues, financial aid, grading, pregnancy, retaliation, and other.
In addition to the complaints it received, the agency also initiated 37 proactive compliance reviews, 11 of which related to sexual violence and 17 of which related to athletics.
The report is useful as a barometer of what Title IX issues are still relevant and in what proportions. But other than the information about proactive compliance reviews, there's not a lot of useful data about enforcement. For example, of those 1264 athletics claims -- how many did OCR investigate? How many compliance orders or resolution agreements? Because we know that hundreds of athletics claims -- the mass complaints filed against school districts in Washington, Oregon, Idaho, and California -- were effectively dismissed without investigation, we can guess that the "percent of claims investigated" figure would have been rather low. I'd have been curious to compare that to similar enforcement data for other types of claims.
Here's an excerpt from the report, which I thought was interesting. It's a chart of Title IX complaints, broken down by topic, and showing the total number of times a complaint addressed one of those topics. Athletics received the most complaints, over 1200, but sexual harassment/sexual violence was a close second with 1137 [that must be a typo in the chart, because racial harassment was discussed in another section]. Beyond those two big and well-known categories, sex discrimination is also alleged in a wide variety of topics from admissions, other forms of differential treatment, employment issues, financial aid, grading, pregnancy, retaliation, and other.
In addition to the complaints it received, the agency also initiated 37 proactive compliance reviews, 11 of which related to sexual violence and 17 of which related to athletics.
The report is useful as a barometer of what Title IX issues are still relevant and in what proportions. But other than the information about proactive compliance reviews, there's not a lot of useful data about enforcement. For example, of those 1264 athletics claims -- how many did OCR investigate? How many compliance orders or resolution agreements? Because we know that hundreds of athletics claims -- the mass complaints filed against school districts in Washington, Oregon, Idaho, and California -- were effectively dismissed without investigation, we can guess that the "percent of claims investigated" figure would have been rather low. I'd have been curious to compare that to similar enforcement data for other types of claims.
Wednesday, November 28, 2012
Nevada School District Starts Girls' Flag Football
The inaugural season for girls' flag football starts this week Clark County, Nevada. The Clark County School District earlier announced its decision to add the sport to close the gap in athletic opportunities available to girls and boys -- a gap of over 4000 opportunities, so large that the district one of the 12 targeted by complaints filed by the National Women's Law Center in 2010. To resolve the complaint, Clark County also added 400 new opportunities for girls by starting a freshman soccer program.
I haven't seen information on the total number of opportunities that flag football has provided to girls, but it seems from this article that there are many schools in the district who are fielding teams -- so many that the district's league is divided into regions, and schools will compete for regional and district-wide championships after the regular season. Flag football was chosen in a process of meetings to assess the athletic interests of female high school students. And indeed, interest appears strong -- at one school, 125 girls reportedly tried out for the teams 15 roster spots.
Title IX advocates are sometimes skeptical of schools' decisions to add flag football, which sometimes appears to be a "quick fix" to Title IX problems, and as a substitution for sports that are more expensive and have more opportunities to compete. So I'm glad to see that Clark County's decision to add flag football was motivated by expressed and apparent interest in the sport from among its students. And I am glad that it appears the teams will have lots of opportunities for competition within the district -- to this end, it helps that Clark is the fifth largest school district in the nation, with almost 50 high schools. From what I can tell, Clark seems to be doing it right. I hope they have a great season.
I haven't seen information on the total number of opportunities that flag football has provided to girls, but it seems from this article that there are many schools in the district who are fielding teams -- so many that the district's league is divided into regions, and schools will compete for regional and district-wide championships after the regular season. Flag football was chosen in a process of meetings to assess the athletic interests of female high school students. And indeed, interest appears strong -- at one school, 125 girls reportedly tried out for the teams 15 roster spots.
Title IX advocates are sometimes skeptical of schools' decisions to add flag football, which sometimes appears to be a "quick fix" to Title IX problems, and as a substitution for sports that are more expensive and have more opportunities to compete. So I'm glad to see that Clark County's decision to add flag football was motivated by expressed and apparent interest in the sport from among its students. And I am glad that it appears the teams will have lots of opportunities for competition within the district -- to this end, it helps that Clark is the fifth largest school district in the nation, with almost 50 high schools. From what I can tell, Clark seems to be doing it right. I hope they have a great season.
Tuesday, November 20, 2012
The story behind the Adrian College complaint
The woman behind the 2007 complaint against Adrian College (which OCR found to be out of compliance in 8 program areas) spoke recently at a Michigan chapter of the American Association of University Women. Molly Ziegler-Moore, an Adrian College alum and former coach, presented her version of the events leading up and during the OCR investigation of the school. We have noted repeatedly that Adrian College was one of the most egregious examples of violations that has been brought to light (click on the Adrian College tag for our many posts on this). I don't think we realized just how much was going on before Ziegler-Moore decided that simply pointing out the inequities to administrators was not going to work.
We highlighted the multi-sport complex that lacked a women's locker room (an administrator told her "oh, it's in there"). A year later the hockey arena the hockey arena was built. It had a women's locker room but it was smaller with inferior amenities. When the college announced it was building a $2 million baseball complex, Ziegler-Moore--the softball coach--was promised her team would also get facilities. But when listing all she desired for the new complex softball would receive--like no more port-o-potties--she was told the softball complex costs were being capped at $200,000. So she asked one of the school's VPs if this was Title IX compliant. "Probably not" was his response.
I often discuss in my classes how discrimination can be subtle, sometimes even unintentional.
Not always, apparently.
I think Adrian College got off pretty easy on this one; largely because most employees were scared and Molly Ziegler-Moore was not out for for any kind of vengeance or compensation for the mistreatment of her or her athletes or female student-athletes as a whole. She just wanted the school to follow the law.
We highlighted the multi-sport complex that lacked a women's locker room (an administrator told her "oh, it's in there"). A year later the hockey arena the hockey arena was built. It had a women's locker room but it was smaller with inferior amenities. When the college announced it was building a $2 million baseball complex, Ziegler-Moore--the softball coach--was promised her team would also get facilities. But when listing all she desired for the new complex softball would receive--like no more port-o-potties--she was told the softball complex costs were being capped at $200,000. So she asked one of the school's VPs if this was Title IX compliant. "Probably not" was his response.
I often discuss in my classes how discrimination can be subtle, sometimes even unintentional.
Not always, apparently.
I think Adrian College got off pretty easy on this one; largely because most employees were scared and Molly Ziegler-Moore was not out for for any kind of vengeance or compensation for the mistreatment of her or her athletes or female student-athletes as a whole. She just wanted the school to follow the law.
Later, after compiling a
“wish list” of improvements to replace the portable johns that female
softball students were using, she learned that they would not be the
same. The new softball complex would cost only $200,000. So she asked a
vice president, “is that Title IX compliant?”
#“Probably not,” he replied.
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Later, after compiling a
“wish list” of improvements to replace the portable johns that female
softball students were using, she learned that they would not be the
same. The new softball complex would cost only $200,000. So she asked a
vice president, “is that Title IX compliant?”
#“Probably not,” he replied.
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Later, after compiling a
“wish list” of improvements to replace the portable johns that female
softball students were using, she learned that they would not be the
same. The new softball complex would cost only $200,000. So she asked a
vice president, “is that Title IX compliant?”
#“Probably not,” he replied.
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Another side of the story that Ziegler-Moore presented was about her own experiences confronting administrators prior to filing and her relationships within the school after she filed. She said she left due to the chilly environment after 15 years with the school and now works outside of sport. Colleagues did not want to be seen associating with her. She knows that had she stayed and been fired (a not-so-unlikely possibility), she could have filed a retaliation lawsuit. But her motivation for filing was to make the school a better place for all students; to make it a fair(er) institution. Of course people at the school resent the money that has to be spent to remedy the discrimination and probably the attention their combination of ignorance and willful discrimination garnered. Discriminatory practices may have changed, but have attitudes?
Read more at: http://www.monroenews.com/news/2012/nov/14/monroe-woman-details-fight-gender-equity/
Saturday, November 17, 2012
"Title IX" Cuts at Towson Reconsidered
Often we read about colleges and universities cutting men's teams, ostensibly to comply with Title IX. I usually object to this framing, which makes it sounds like the law requires universities to equalize athletic opportunities in this manner and doesn't take into account compliance by other means than statistical proportionality. But of course, this is a convenient narrative for colleges and universities to employ, as it positions them as innocent victims of the law, rather than free agents making economic and political decisions about how many and which sports to offer. It's easier to say to disappointed baseball players and wrestlers, "sorry, blame the women," than it is to admit, "sorry, we just value football players' opportunities more than we value opportunities in your sport."
Because I am sensitive to the "Title IX made me do it" defense to cutting teams, I was interested in this article about the Towson University Athletic Director's proposal to cut baseball and men's soccer. But when AD Mike Waddell claimed that these cuts were needed for Title IX compliance, that rationale raised questions. Specifically, the university's Board of Visitors looked into the numbers, the determined that athletic opportunities were actually proportionate to the percentage of students of each sex, so Title IX compliance has already been achieved. Apparently, Waddell based his proportionality calculation on an unduplicated headcount, which counts the number of student athletes, without taking into account separate athletic opportunities that are enjoyed by multi-sport athletes. However, as long as athletic opportunities are truly separate, meaningful athletic opportunities in their own right, universities may count them that way for Title IX purposes. The so-called "duplicated" head count measures opportunities, not participants. In Towson's case, many female athletes participate in both indoor and outdoor track, so proportionality does not appear satisfied when you use the unduplicated head count, but it does when you use the duplicated one.
In my mind, there are three possible interpretations of this discrepancy.
1. Waddell, despite being an AD at a Division I institution, does not know that it is acceptable to use the duplicated head count. This is possible, as we frequency encounter gaps in Title IX literacy, even at the AD level. On the other hand, athletic directors *love* the duplicated headcount because it works in their favor. In fact, we usually complain about its over-use, such as at Quinnipiac, where certain female runners were triple-counted notwithstanding the apparent fact that winter and spring sports were really not functioning as separate sports but a glorified off-season for the cross-country team. But it's possible that Waddell didn't get the memo.
2. Waddell knows that's acceptable to use duplicated head count, but has doubts about whether winter track is a genuine, meaningful athletic opportunity in its own right. Maybe he is using the unduplicated count on principle because he feels that using the duplicated one would amount to taking advantage of a loophole. This too is possible, though it is certainly at odds with the decision to create a winter track team. If you object to the integrity of double-counting, why do you have those opportunities in the first place?
3. Waddell wants to cut men's soccer and baseball for reasons that have nothing to do with Title IX, but proffered the unduplicated headcount to provide a convenient excuse. If this is correct, I think we will soon find out, based on what happens at Towson now that the duplicate calculation is in the spotlight. If the athletic department goes ahead with the cuts anyway, we'll know they were not in fact motivated by Title IX compliance. And we'll have one more reason to be skeptical of such a claim in future cases involving cuts to men's teams.
Because I am sensitive to the "Title IX made me do it" defense to cutting teams, I was interested in this article about the Towson University Athletic Director's proposal to cut baseball and men's soccer. But when AD Mike Waddell claimed that these cuts were needed for Title IX compliance, that rationale raised questions. Specifically, the university's Board of Visitors looked into the numbers, the determined that athletic opportunities were actually proportionate to the percentage of students of each sex, so Title IX compliance has already been achieved. Apparently, Waddell based his proportionality calculation on an unduplicated headcount, which counts the number of student athletes, without taking into account separate athletic opportunities that are enjoyed by multi-sport athletes. However, as long as athletic opportunities are truly separate, meaningful athletic opportunities in their own right, universities may count them that way for Title IX purposes. The so-called "duplicated" head count measures opportunities, not participants. In Towson's case, many female athletes participate in both indoor and outdoor track, so proportionality does not appear satisfied when you use the unduplicated head count, but it does when you use the duplicated one.
In my mind, there are three possible interpretations of this discrepancy.
1. Waddell, despite being an AD at a Division I institution, does not know that it is acceptable to use the duplicated head count. This is possible, as we frequency encounter gaps in Title IX literacy, even at the AD level. On the other hand, athletic directors *love* the duplicated headcount because it works in their favor. In fact, we usually complain about its over-use, such as at Quinnipiac, where certain female runners were triple-counted notwithstanding the apparent fact that winter and spring sports were really not functioning as separate sports but a glorified off-season for the cross-country team. But it's possible that Waddell didn't get the memo.
2. Waddell knows that's acceptable to use duplicated head count, but has doubts about whether winter track is a genuine, meaningful athletic opportunity in its own right. Maybe he is using the unduplicated count on principle because he feels that using the duplicated one would amount to taking advantage of a loophole. This too is possible, though it is certainly at odds with the decision to create a winter track team. If you object to the integrity of double-counting, why do you have those opportunities in the first place?
3. Waddell wants to cut men's soccer and baseball for reasons that have nothing to do with Title IX, but proffered the unduplicated headcount to provide a convenient excuse. If this is correct, I think we will soon find out, based on what happens at Towson now that the duplicate calculation is in the spotlight. If the athletic department goes ahead with the cuts anyway, we'll know they were not in fact motivated by Title IX compliance. And we'll have one more reason to be skeptical of such a claim in future cases involving cuts to men's teams.
Friday, November 16, 2012
Opportunities, interest and what else Title IX covers
Last week I attended the North American Society for the Sociology of Sport and will blog in a few days about the Title IX panel held. But in light of the release of a new study in the field of psychology about female interest in sport, I thought it more important to tie that into the presentation Dr. Ellen Staurowsky made at NASSS about the so-called "loss" of opportunities for men when intercollegiate teams are cut.
In a case study of three institutions that cut teams, Staurowsky analyzed the discourse around the cuts, the ways in which Title IX was (or was not) invoked, and the course the respective athletic departments took after the cuts (i.e. building new facilities, upgrading conferences). For many schools, cutting athletic teams allows for things like new stadiums, new athletic centers, new bells and whistles, embellishments and adornments that make the school appealing to prospective student-athletes who might have gone to the school that already had these things. Better recruitment opportunities, better conference, better contracts and sponsorships, etc. Better treatment for a few select students. (By the way, Title IX mandates equal treatment too, so facility-happy schools must ensure that female student-athletes have access to these facilities or ones of comparable quality.)
So what does this have to do with opportunities and interest?
Well Staurowsky noted that the teams that are cut are not disappearing, they just are no longer intercollegiate teams. They exist in places like recreational and club sports. So men retain their opportunities to play sports--they just are not intercollegiate sports. First, I think this is a major issue that we will see discussed and researched much more. I know Dr. Sarah Fields at Ohio State has done some work on Title IX's applicability to rec sports. Second, the (potential) retort is that rec and club sports are not the same. And that is true; some might argue that they are better--for schools and for student-athletes. Regardless, they are an opportunity to play sports--often at a very competitive level. Look at college rugby which is almost exclusively comprised of club teams. And let's remember that sports allegedly exist in schools because they contribute to the educational mission of the institution. Club and rec and intramural sports, following this philosophy, are just as valuable.
And they fall under the purview of Title IX, too.
So, again, in light of this new study on interest, we must look at where women do and do not receive opportunities and the cultures that provide these opportunities. (There are a number of other factors ignored by the researchers which I will discuss at a later date as well.) If former men's intercollegiate teams are being shuttled to a club sports structure, there is 1) a disproportionate number of them and 2) an established team structure. Women who desire they same thing are more likely to have to start from scratch. They have to go through the process of establishing a team and meeting the requirements and raising the money. Many men's sports already have these structures and even funding (from boosters and alumni) in place. That's not about interest; that's about cultural and structural barriers.
In a case study of three institutions that cut teams, Staurowsky analyzed the discourse around the cuts, the ways in which Title IX was (or was not) invoked, and the course the respective athletic departments took after the cuts (i.e. building new facilities, upgrading conferences). For many schools, cutting athletic teams allows for things like new stadiums, new athletic centers, new bells and whistles, embellishments and adornments that make the school appealing to prospective student-athletes who might have gone to the school that already had these things. Better recruitment opportunities, better conference, better contracts and sponsorships, etc. Better treatment for a few select students. (By the way, Title IX mandates equal treatment too, so facility-happy schools must ensure that female student-athletes have access to these facilities or ones of comparable quality.)
So what does this have to do with opportunities and interest?
Well Staurowsky noted that the teams that are cut are not disappearing, they just are no longer intercollegiate teams. They exist in places like recreational and club sports. So men retain their opportunities to play sports--they just are not intercollegiate sports. First, I think this is a major issue that we will see discussed and researched much more. I know Dr. Sarah Fields at Ohio State has done some work on Title IX's applicability to rec sports. Second, the (potential) retort is that rec and club sports are not the same. And that is true; some might argue that they are better--for schools and for student-athletes. Regardless, they are an opportunity to play sports--often at a very competitive level. Look at college rugby which is almost exclusively comprised of club teams. And let's remember that sports allegedly exist in schools because they contribute to the educational mission of the institution. Club and rec and intramural sports, following this philosophy, are just as valuable.
And they fall under the purview of Title IX, too.
So, again, in light of this new study on interest, we must look at where women do and do not receive opportunities and the cultures that provide these opportunities. (There are a number of other factors ignored by the researchers which I will discuss at a later date as well.) If former men's intercollegiate teams are being shuttled to a club sports structure, there is 1) a disproportionate number of them and 2) an established team structure. Women who desire they same thing are more likely to have to start from scratch. They have to go through the process of establishing a team and meeting the requirements and raising the money. Many men's sports already have these structures and even funding (from boosters and alumni) in place. That's not about interest; that's about cultural and structural barriers.
Thursday, November 15, 2012
Study Uses Athletic Participation to Judge Women's "Predisposition" to Sport
A new study in the journal PLOS ONE cites lower rates of athletic participation among women as evidence that men have stronger predisposition to sports than women. Richard Deaner, a psychologist from Grand Valley State, and his coauthors conclude that these results suggest "that it may be a mistake to base Title IX implementation on the assumption that males and females have, or soon will have, generally equal sports interest."
The study, titled A Sex Difference in the Predisposition for Physical
Competition: Males Play Sports Much More Than Females Even in the Contemporary
U.S., acknowledges that girls and women's participation in intercollegiate and interscholastic high school sports is relatively high -- 42 and 43% respectively. Yet, the authors are concerned that these participation rates may "underestimate the actual sex difference in sports participation." So, they report on three sources of data other than intercollegiate/interscholastic competition to demonstrate an athletic participation gap between male and female subjects. First, the authors analyzed responses submitted to the American Time Use Survey, which finds female respondents of various ages engaging in 24% of total sports participation and 20% of team sports participation. Second, the authors engaged in "systematic observations of sports and exercise at 41 public parks in four states" and observed females accounting for only 19% of individual sport participation and 10% of team sports participation. Finally, they found that female college students accounted for only 26% of students registering for intramural sports.
As I told the reporter from Inside Higher Ed who wrote an article about study, I don't find these findings surprising at all, given the historical and continuing discrimination and exclusion of women from sports, as well as cultural constraints on women's participation. What I do take issue with is the apparent suggestion that these reported participation rates are somehow more accurate of women's true predisposition to sports than their participation rates in intercollegiate and interscholastic contexts. What worries me about this study is the implication that Title IX is somehow artificially inflating women's interest in athletics. To me, the fact that the gender gap is wider in sports contexts outside the scope of Title IX (in parks, for example, and other non-scholastic contexts measured by the ATUS) is actually an argument that Title IX is working, and, if anything, should be extended to those other contexts. If there was a law as effective as Title IX has been in breaking down barriers and promoting women's opportunities that applied to these other recreational contexts as well, who's to say we would not see interest and participation rising there as well?
Another thing that bothers me about this study is the odd extrapolation from women's low interest/participation in recreational contexts like parks and intramurals, to a suggestion of women's similar low interest in interscholastic and intercollegiate athletic opportunities as well. This is like saying, women don't like apples; therefore, they must not really like oranges, because both are fruit. In this case, the "oranges" are athletic opportunities that are well-coached, supported by the institution, allow athletes to compete in front of fans, to travel, and to possibly to earn a scholarship. Saying that women are not interested in these opportunities because fewer women have the interest (or, I would say, the privilege) of playing pick-up basketball at the local park is a pretty attenuated connection to me.
Finally, it seems to me that the authors have constructed a straw argument that Title IX implementation is in fact based on as assumption of equal interest. It's not. One of the compliance options in the three-part test (prong three) expressly allows schools to offer disproportionately low number of opportunities to female students, provided that there is no "unmet interest" in athletics among the female student body. Lack of interest, properly measured, does factor into compliance obligations under Title IX. That being the case, I worry that the point of this study is simply to supply inflammatory rhetoric rather than to address any real policy concern. For this reason, I hope this study does not gain traction in the media but instead lays low as the non-story that it is.
Saturday, November 10, 2012
Sexual harassment roundup
Here is a round-up of recent judicial decisions in Title IX cases involving sexual harassment and sexual abuse.
A federal district court denied a school district's motion to dismiss Title IX claims (as well as claims based on the ADA and Rehabilitation Act) filed by a student with Asperger's syndrome who was bullied throughout middle school and high school. Several instances of alleged harassment were sexual in nature, including the plaintiff having been taunted by other students to "touch my dick, you know you want to," having his pants pulled down, and several occasions where another student would grind his penis into the plaintiff's back. These allegations, as well as the plaintiffs claim that his reports of harassment were ignored because of his sex and/or perceived sexual orientation, were sufficient allegations to satisfy the law's requirement that discrimination be "because of sex." Galloway v. Chesapeake Union Exempted Village Schools Bd. of Educ., 2012 WL 5268946 (S.D.Ohio, Oct. 23, 2012).
In Arkansas, a similar case survived the defendant school district's motion for summary judgment on plaintiff's Title IX and other claims arising from a disabled student's ongoing sexual assault by another student in his alternative classroom. The plaintiff's evidence supports allegations that school district officials knew of the abuse and responded with deliberate indifference, precluding summary judgment. Braden v. Mountain Home School Dist., 2012 WL 5183575 (W.D.Ark. Oct. 18, 2012).
The federal district court in D.C. dismissed a Title IX claim against Howard University, filed by a group of students who alleged they were sexually harassed by a university employee in the course of their work-study employment at the library. The plaintiffs' complaint does not allege that an appropriate university official had actual notice of the harassment that was going on, as those individuals named in the complaint as having notice of the harassment were not individuals with authority over the offending employee. Bello v. Howard University, 2012 WL 4893727 (D.D.C. Oct. 16, 2012).
An Oregon school district won a motion to dismiss plaintiff's claims in a peer harassment case involving the persistent bullying and harassment of a middle school boy, including an incident in the locker room where another male student who was partially clothed "thrust his groin" against the victim's. The court determined that this was not actionable under Title IX because there was "not more than a scintilla of evidence" to support plaintiff's claim that the harassment was motivated by his perceived homosexuality and thus covered by Title IX's prohibition on discrimination "because of sex." A.E. ex rel. Evans v. Harrisburg Sch. Dist. No. 7, 2012 WL 4794314 (D. Or. Oct. 9, 2012)
A high school student in New York did not sufficiently allege Title IX violations by her school district in a case involving ongoing molestation outside of school by student in the same school, as well as ongoing teasing and harassment by other girls. The court said that allowing the molesting student to remain in the same lunch period as the victim was not an example of "deliberate indifference," since she was not in danger of being molested in the lunch room. As for the harassment by other girls, the complaint did not support the plaintiff's claim that the harassment was "because of sex" rather than for other reasons. The fact that some sex-related epithets were used by the harassers -- e.g., "whore" and "bitch" -- did not reveal their gender animus, given that they used other, non-gendered epithets as well. HB v. Monroe Woodbury Cent. School Dist., 2012 WL 4477552 (S.D.N.Y., Sept. 27, 2012).
A Colorado school district is not liable for sexual abuse and sexual harassment committed by a teacher against three female student victims because school officials did not have notice that the teacher posed such a threat. The plaintiffs argued that the teacher had been the subject of complaints during a stint, 6 years prior, as a student teacher at another high school in the same school district. However, the court determined that those earlier complaints -- which involved inappropriate contact and phone calls that made female students uncomfortable -- were too distant and too dissimilar from the present abuse to put school officials on notice that this teacher posed a threat of abuse. The court reached this conclusion about dissimilarity based on the fact that the earlier complaints did not expressly allege inappropriate contact that was sexual in nature. The court did not seem concerned that whatever the nature of the earlier complaints, they were serious enough to warrant the student-teacher's dismissal from his field placement, suggesting that officials at the first high school thought he was a threat. Doe No. 1 v. Boulder Valley School Dist. No. Re-2, 2012 WL 4378162, (D.Colo. Sept. 25, 2012).
Nor was an Alabama school district liable for an incident in which a janitor inappropriately touched a female student in the hallway. The plaintiff alleged that the school district had actual notice of the threat posed by this janitor given past complaints of sexual harassment filed by other teachers and employees at the school. The court reasoned, however, that because these complaints were filed by employees, not students, school officials were not on notice that the janitor posed a threat to students. E.S. v. Daleville City Bd. of Educ., 2012 WL 4378190 (M.D.Ala. Sept. 25, 2012).
A federal district court denied a school district's motion to dismiss Title IX claims (as well as claims based on the ADA and Rehabilitation Act) filed by a student with Asperger's syndrome who was bullied throughout middle school and high school. Several instances of alleged harassment were sexual in nature, including the plaintiff having been taunted by other students to "touch my dick, you know you want to," having his pants pulled down, and several occasions where another student would grind his penis into the plaintiff's back. These allegations, as well as the plaintiffs claim that his reports of harassment were ignored because of his sex and/or perceived sexual orientation, were sufficient allegations to satisfy the law's requirement that discrimination be "because of sex." Galloway v. Chesapeake Union Exempted Village Schools Bd. of Educ., 2012 WL 5268946 (S.D.Ohio, Oct. 23, 2012).
In Arkansas, a similar case survived the defendant school district's motion for summary judgment on plaintiff's Title IX and other claims arising from a disabled student's ongoing sexual assault by another student in his alternative classroom. The plaintiff's evidence supports allegations that school district officials knew of the abuse and responded with deliberate indifference, precluding summary judgment. Braden v. Mountain Home School Dist., 2012 WL 5183575 (W.D.Ark. Oct. 18, 2012).
The federal district court in D.C. dismissed a Title IX claim against Howard University, filed by a group of students who alleged they were sexually harassed by a university employee in the course of their work-study employment at the library. The plaintiffs' complaint does not allege that an appropriate university official had actual notice of the harassment that was going on, as those individuals named in the complaint as having notice of the harassment were not individuals with authority over the offending employee. Bello v. Howard University, 2012 WL 4893727 (D.D.C. Oct. 16, 2012).
An Oregon school district won a motion to dismiss plaintiff's claims in a peer harassment case involving the persistent bullying and harassment of a middle school boy, including an incident in the locker room where another male student who was partially clothed "thrust his groin" against the victim's. The court determined that this was not actionable under Title IX because there was "not more than a scintilla of evidence" to support plaintiff's claim that the harassment was motivated by his perceived homosexuality and thus covered by Title IX's prohibition on discrimination "because of sex." A.E. ex rel. Evans v. Harrisburg Sch. Dist. No. 7, 2012 WL 4794314 (D. Or. Oct. 9, 2012)
A high school student in New York did not sufficiently allege Title IX violations by her school district in a case involving ongoing molestation outside of school by student in the same school, as well as ongoing teasing and harassment by other girls. The court said that allowing the molesting student to remain in the same lunch period as the victim was not an example of "deliberate indifference," since she was not in danger of being molested in the lunch room. As for the harassment by other girls, the complaint did not support the plaintiff's claim that the harassment was "because of sex" rather than for other reasons. The fact that some sex-related epithets were used by the harassers -- e.g., "whore" and "bitch" -- did not reveal their gender animus, given that they used other, non-gendered epithets as well. HB v. Monroe Woodbury Cent. School Dist., 2012 WL 4477552 (S.D.N.Y., Sept. 27, 2012).
A Colorado school district is not liable for sexual abuse and sexual harassment committed by a teacher against three female student victims because school officials did not have notice that the teacher posed such a threat. The plaintiffs argued that the teacher had been the subject of complaints during a stint, 6 years prior, as a student teacher at another high school in the same school district. However, the court determined that those earlier complaints -- which involved inappropriate contact and phone calls that made female students uncomfortable -- were too distant and too dissimilar from the present abuse to put school officials on notice that this teacher posed a threat of abuse. The court reached this conclusion about dissimilarity based on the fact that the earlier complaints did not expressly allege inappropriate contact that was sexual in nature. The court did not seem concerned that whatever the nature of the earlier complaints, they were serious enough to warrant the student-teacher's dismissal from his field placement, suggesting that officials at the first high school thought he was a threat. Doe No. 1 v. Boulder Valley School Dist. No. Re-2, 2012 WL 4378162, (D.Colo. Sept. 25, 2012).
Nor was an Alabama school district liable for an incident in which a janitor inappropriately touched a female student in the hallway. The plaintiff alleged that the school district had actual notice of the threat posed by this janitor given past complaints of sexual harassment filed by other teachers and employees at the school. The court reasoned, however, that because these complaints were filed by employees, not students, school officials were not on notice that the janitor posed a threat to students. E.S. v. Daleville City Bd. of Educ., 2012 WL 4378190 (M.D.Ala. Sept. 25, 2012).
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