Milutinovich is Woman of the Year

Former Fresno State associate athletic director Diane Milutinovich will be honored today by the California State Senate as Woman of the Year for the 16th district, the Fresno Bee reported. State Senator Dean Florez nominated Milutinovich for "her many contributions to women's athletics and her unwavering fight for gender equity in higher education."

Last October, Milutinovich settled her gender discrimination lawsuit against Fresno State for $3.5 million. She retired from Fresno State after 27 year of service as a coach and administrator, but continues her advocacy for Title IX, attending all of the hearings for Senator Florez's Select Committee on Gender Discrimination.

Congrats Diane! Your honor is well-deserved.

Professor Brake on Title IX as "Pragmatic Feminism"

When not starring in award-winning ESPN reports, Professor Deborah Brake from Pitt writes law review articles about Title IX. Her most recent is called Title IX: A Pragmatic Feminism. It is available on SSRN. I'll let the abstract speak for itself:

This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in antidiscrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law's approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash.

Following an introduction in Part I, Part II of this Article examines legal pragmatism and its relationship to feminist legal theory, arguing that both schools of thought have the potential to enrich one another. Part III provides an account of the multiple forms of gender oppression in sports, following pragmatism's insight that any sound theoretical approach to a problem must be grounded in the particularities of the context surrounding that problem.

Part III argues that given the slipperiness of subordination and its shifting practices and ideologies, we should not expect a unitary, consistent theory of discrimination to address it. Finally, Part IV examines the plural approach to theory reflected in Title IX, arguing that Title IX's eclectic approach to theory explains why this law has been unusually successful in navigating the double-bind and shaping cultural norms to fend off a backlash. The Article concludes that, though far from perfect, Title IX provides a promising example of how pragmatic approaches can shape successful feminist legal strategies.

Citation: Deborah Brake, Title IX: A Pragmatic Feminism, 55 Cleveland State Law Review 513 (2008).

Perhaps this is the beginning of a trend?

Last week we posted about a female baseball player in Indiana winning the right to try out for baseball even though her high school has a softball team. Now, via the awesome Women's Sports Blog, we learn of a similar development in Nebraska, where the interscholastic athletic association recently voted to change its past practice of treating baseball and softball as equivalent sports. By recognizing baseball and softball as separate and distinct sports, a girl now has the opportunity to try out for baseball even if a softball team is offered at her school. Interestingly, since Nebraska high schools play softball in the fall and baseball in the spring, a female athlete may actually try out for both.

Readers may wonder whether Title IX creates an equivalent right for boys to try out for girls' softball now that they are not regarded as equivalent sports. According to the Title IX regulation (34 CFR 106.41(b)) governing cross-over participation, if a school offers only one team in a particular sport, it must let members of the opposite sex try out if athletic opportunities for that athlete's sex have "previously been limited" (and the sport involved is not a contact sport, but this limitation most likely does not include softball). There is some debate over whether this standard requires the cross-over participant to show athletic opportunities overall were previously limited (a standard boys would not be able to meet) or whether they only need to show that previous limitations in opportunities to participate in sport in question (a standard boys might be able to satisfy with respect to high school softball). There is certainly judicial support for the former interpretation, which is presumably the position that the NSAA is taking.

Long Beach gymnasts win back their space

A federal judge has ruled that the folks at Wilson High School who moved the the gymnastics team and their equipment out of a dedicated facility at the high school to make room for aerobics equipment (for PE classes) and weights (to be used primarily by boys' sports teams--though why only boys are using weights is questionable but alas a post for another time) violated Title IX.
This is a preliminary decision. The judge is waiting for more information to issue a final judgment. (My guess is that it will hinge on whether the school has to pay for the damage to the equipment--especially the spring floor--that occurred during the moving process.)
The gymnasts and their parents are happy, of course, and probably pretty glad they did not accept a last-minute pre-trial offer by Wilson High School that would have paid for the use of a private off-campus facility and transportation to and from that gym. This part of the story has been somewhat buried but it important, I feel, because it shows the parents' and gymnasts' commitment to equity. The off-campus facility is, from the way it has been described, a superior facility with more amenities. But the gymnasts wanted their rightful place on campus. They wanted to remain a visible part of the school's athletic community. And they seemed to be able to see the injustice in having the only dedicated facility for women on campus taken away and given to the boys. The private facility may be bigger and better equipped but they saw beyond the perks to the larger issue of fairness.

Harvard Tests Out Women-Only Gym Hours

In response to a request from several Muslim women students, Harvard is testing out having "women-only" hours at one of its campus gyms, the AP reports. The women making the request, with support from the campus women's center, sought the women-only hours (six hours a week, at the least used gym on campus) due to Islamic dress codes that encourage a level of modesty in dress while around men; the dress code would make it difficult or impossible to exercise at the gym in a co-ed environment.

Apparently the decision has caused some controversy on the Harvard campus, where some students support the effort to accommodate the various religious needs of students, while others say that the campus environment should be about increasing access of space to everyone, not shutting men out of the gym for certain hours in the week. Harvard plans to evaluate its trial policy on gym hours at the end of the semester.

Phys Ed Shown to Improve Academic Success

An article in USA Today reports on a new study by the Centers for Disease Control and Prevention which shows that an increase in physical education classes in grade school can boost academic success, particularly for girls. This is interesting news given the trend in public schools to cut back on gym class to make the academic curriculum more rigorous for students.

The same boost to academic success was not seen in boys who were part of the study. Susan Carlson, a CDC epidemiologist and the lead author of the study, says that there is no evidence as to why that academic boost affected only girls, but speculated that "a higher level of physical activity might be needed to yield the same result because boys are commonly more active than girls." Except for the last part, which seems to based on Carlson's conjecture more than anything else, this is very interesting news, especially for educators looking for ways to defend gym class in the face of pressure to focus on more "academic" learning.

Student Note Criticizes EADA

In 1994, Congress passed the Equity in Athletics Disclosure Act, which requires colleges and universities subject to Title IX to report information about the number of athletic opportunities it provides to both sexes as well as certain information about athletic department expenditures (and revenues) for men's and women's programs. In a note in the Journal of College and University Law, student Kathryn Keen criticizes the EADA and argues for its repeal.

First, Keen argues that the EADA is failing in its purpose of helping prospective student-athletes decide on a college, since student-athletes are not aware of the information it makes available and don't factor it into their decisionmaking. Personally, I have never heard that helping prospective student-athletes was the purpose of the EADA and the only support for this idea is a buried statement on the Department of Ed's website. The real value of disclosing gender equity data is much broader -- it is to help the public ensure that federal dollars are not funding discrimination. The EADA makes private enforcement of Title IX possible by exposing schools with gender equity problems and by giving individuals with grievances the information they need to decide whether a violation has occurred. When similar reporting requirements don't apply, violations are more easily concealed because compliance information is so difficult to acquire. This is why legislation is pending to expand these reporting requirements to high schools, which are not subject to the EADA.

Keen's more persuasive critique of the EADA is that the data schools submit is inaccurate and/or fails to conform to a uniform standard that allows for meaningful comparison. Because the statute does not require schools to employ standard accounting practices, schools have some flexibility to generate a more favorable fiscal picture. For example, they may distinguish, and thus exclude, capital expenditures, which makes capital-intensive sports (like football) appear more profitable. Even when schools aren't deliberately manipulating financial data, by innocently assigning a particular expenditure to a different budget category than other schools, they make it difficult to make comparisons and spot trends. (Compare, for example, a school that accounts for utilities as a department expense and a school that apportions the bill to its men's and women's athletics programs based on their relative use.) Moreover, there is also no audit process or other mechanism for the Department of Education to catch and correct even obvious, plain errors, such as a $34 million data entry mistake in a report filed by the University of Texas. And, though Keen looked at the reporting of financial information, not the reporting of number athletic opportunities, we've had opportunity to note, there are even reporting discrepancies there as well.

But while I agree with Keen that the EADA is flawed in this regard, I don't agree with her conclusion that the statute should be scrapped. I think that the transparency the statute provides is enormously valuable, not necessarily to prospective students (though this is probably somewhat and increasingly so), but to the public at large. Information is the foundation for private enforcement, which has been demonstrably more effective than agency enforcement at bringing about real improvements in gender equity. To that end, it is crucial for reported data to be accurate and standardized. Rather than calling for its repeal, we could seek to improve the EADA along these lines, by requiring standard accounting practices, imposing an audit system or one of peer review, by clarifying schools' obligations to include and apportion particular expenses. The NCAA, Keen points out, has already implemented a more stringent, meaningful, and accurate reporting obligation for its members (this is not a substitute for the EADA, though, since NCAA does not make its reports public). This could provide a model for the Department of Education to follow -- not to mention a retort to schools who might otherwise object that enhanced reporting requirements increase the the workload of their number-crunchers.

Citation: Kathryn Keen, The Equity in Athletics Disclosure Act: Does it Really Improve the Gender Equity Landscape?, 34 J. of College & Univ. L. 227 (2007).

Conference of interest

The Center for the Study of Sport in Society at Northeastern University will be holding a conference on sport and social justice in June. The Power of Sports Summit is open to scholars, activists, and those working in sport and for social justice (everyone from coaches to program coordinators/administrators) and will be held at NEU June 14 and 15. Topics to be addressed include legal issues and gender segregation but many many more (see the above link for topics and registration information). What is intriguing about this gathering is the format which will breakout groups lead by facilitators from the center. It looks to be very interactive and hopefully will draw people with a range of experiences and knowledge.

Documentary on 6-on-6 b-ball

Attention readers in Iowa: Iowa Public Television is airing what looks to be a very interesting documentary on girls' six-on-six basketball in the state. The first airing of More Than a Game was last night but it will be rebroadcast at 8:15 p.m. March 7 and on March 16 time TBA.
Times like these I miss living in Iowa. Perhaps some of our Iowa friends will tape it for us??
I would be interested to see the issues it addresses in comparison to Max McElwain's book The Only Dance in Iowa.

New York Times on Single-Sex Education

The New York Times Magazine's cover story today is all about single-sex education. The article highlights the sharp growth in single-sex classrooms in public schools (one estimate in the article is that there were approximately 12 public schools offering single-sex programs in 2002, compared with approximately 360 today), citing a number of factors: the Department of Education's 2006 decision to promulgate regulations making it easier for districts to create single-sex classrooms without running afoul of Title IX; scientific research showing that males and females have different patterns of brain development, which some argue implicates a different learning style based on sex; the need for a more supportive environment for girls to become stronger leaders; and the sense that public schools are not doing enough to address the problem of boys failing out of school, and that perhaps single-sex education is worth a shot to see if boys' achievement improves.

Countering these arguments are numerous criticisms: that the Bush administration's encouragement of single-sex education undermines one of the primary goals of Title IX, which is to eliminate sex-based stereotypes in education; that any sex-based differences in brain development is minimal compared to individual learning preferences, and should not be interpreted in essentialist terms which would designate all boys as one type of learner, and all girls as a different type of learner; and that both boys and girls would be better served in co-educational settings by getting the individualized support necessary to be confident and to succeed academically.

I will admit to feeling conflicted about the utility of single-sex education: on the one hand, I understand the appeal of trying different techniques to encourage different types of learners, and the argument that in certain limited circumstances, a single-sex learning environment which the students (and their parents) opt into, may provide more support for certain students, and may help the students feel freed from gender stereotypes that would affect them in a co-educational setting. (This may be particularly true in the case of African-American boys, who, frankly, have been failed by public education in a number of ways).

On the other hand, the biological essentialist argument is extremely disturbing to me. One of the single-sex education proponents cited in the article, Leonard Sax, argues that human development is gendered to its core and, therefore, that boys and girls do better when separated into different classrooms. Jay Giedd, a critic of Sax's argument, points out that the biological differences between boys and girls are there, but that Sax blows their significance out of proportion. Giedd uses a good analogy: boys are, after a certain age, more likely to be taller than girls of the same age. If you decided to divide students by height, assigning the tallest 50% to use the boys' locker room, and and the shortest 50% to use the girls' locker room, "you'd end up with a better than random sort, [but] the results would be abysmal, with unacceptably large percentages of students in the wrong place."

A second problem with single-sex education is the perpetuation of gender stereotypes in how lessons are given (not the breaking down of gender stereotypes that Title IX mandates): the article discusses how in one school in Foley, Alabama which offers opt-in single-sex classrooms, an all-girls' fourth-grade class sings a song together called "Always Sisters" and then does a "tidy" experiment in measuring the relative density of oil and water, and then "confirm[s] their results with the firsthand knowledge that when you’re doing the dishes after your mother makes fried chicken, the oil always settles on top of the water in the sink." Meanwhile, their counterparts in the all-boys' classroom are discussing a story about a boy who survives a plane crash and needs to survive near a lake. Where to start with these choices on lesson plans? Why not teach the story of the plane crash AND the oil density/washing the dishes experiment to ALL of the students? Instead, the division seems to encourage boys and girls to think that they are fundamentally different, that they should care about different things in life and that they should focus on different aspects of their life outside of school as potentially helpful in the educational environment.

The story about the Foley, Ala. schools highlights the difficulty with establishing even an opt-in program: that some school districts and parents will feel entirely comfortable in perpetuating gender stereotypes in education. How to distinguish this kind of classroom from that of a different model of single-sex classroom that is able to assist in breaking down gender stereotypes is, in my view, one of the greatest challenges to establishing a potentially useful single-sex educational environment.

Under the pre-2006 Department of Education regulations, with more safeguards in place to protect against the promulgation of gender stereotypes, the Foley, Ala. curriculum might have been easier to challenge under Title IX. Under the current regulations and the attitude of the Bush administration, that's simply not the case.

Indiana girl gets baseball tryout

After being informed of its discriminatory ways, the Indiana High School Athletic Association has waived its rule that states that a girl cannot participate in baseball if the school offers softball. Baseball player Heather Bauduin is the impetus behind the waiver. She and her lawyers from Public Justice and the law firm of Hangley Aronchick Segal & Pudlin (HASP)* threatened the IHSAA with a lawsuit if it prevented Bauduin from trying out. But in the end there was no need for a lawsuit (good for Bauduin because it allows her to participate this spring). IHSAA was apparently convinced that their rule did indeed violate Title IX and the Equal Protection Clause. [Though it is curious that Bauduin was granted a waiver. Why didn't IHSAA just abolish the rule once they knew it was discriminatory?]
This situation will hopefully begin to illustrate to everyone that softball and baseball are different sports. They have always been different. Softball was created to be a lesser version of baseball and though many of us do not view it as such, the nearly unquestioned absence and exclusion of girls (of a certain age) and women from baseball illustrates how "natural" this segregation has been.

* Sharon McKee of HASP was lead counsel on this case. McKee, who we had the pleasure of meeting last year at the Title IX conference in Cleveland, also worked with NCLR on the Jennifer Harris case.

College Sports Council Cites Lack of Proportionality at Historically Black Colleges

The College Sports Council (no fan of Title IX) earlier this week released a study about Title IX compliance at historically black colleges and universities. The results: 73 out of 75 of HBCUs fail the proportionality prong of the three-part test. This means that for nearly all HBCUs, the percentage of athletic opportunities for women is lower, in some cases much much lower, than the percentage of women on campus. According to CSC President Eric Pearson, "The purpose of this study is to show that schools like the HBCUs that want to attract more male students run into a virtual roadblock when it comes to complying with Title IXs proportionality standard...The CSC calls on the NCAA to support HBCUs use of surveys to comply with Title IX. HBCUs need the flexibility that surveys offer, if they want to use sports to increase male enrollment."

First, I think that some context is required to better frame the story of proportionality problem among HBCUs. According to a recent Women's Sports Foundation study, 87% of colleges and universities are not within three percentage points of proportionality. So while the nonproportionality rate among HBCUs is quite high (97%), it is important to remember that the vast majority of all colleges and universities are also out of compliance with that prong.

Next, I think CSC overstates the consequences of failing to comply with the proportionality prong. Proportionality is not the only way to satisfy Title IX. Most schools that don't satsify this prong (which is to say, most schools) are in compliance or claim they are in compliance under prong three: effectively accommodating the interests and abilities of the underrepresented sex. In the absence of a decision by a school to (a) cut a women's team or (b) turn down a request to add a viable women's team, there is very little reason to doubt such claims.

So why is the CSC arguing that HBCUs should have the NCAA's blessing to use interest surveys? Without getting in to the controversial aspects of the interest survey methodology that OCR endorsed in 2005 (WSF does a fine job of that here), I'll just say that an advantage of using the interest survey is, from a school's perspective, that it provides concrete, statistical evidence of compliance with prong three. This evidences give schools the confidence to add more sports for men -- even when those additions compound already existing inequities in the distribution of athletic opportunities. The CSC wants the NCAA to bless a practice that would (lawfully, to be sure) result in HBCUs making even fewer athletic opportunities available to female students.

It seems to me that this argument exploits HBCUs for their tendency to invoke support, thus strategically pitting race against sex in CSC's larger project of challenging proportionality and Title IX. The subtext of its press release is that if you are for HBCUs (i.e., if you are not a racist) you must be against Title IX. But the CSC's argument that HBCUs should have the NCAA's support in eluding proportionality trades in both racial and sexist stereotypes. Most obviously, the argument that HBCUs in particular need to offer sports to attract male students suggests that the only way to get black men to college is to offer intercollegiate sports. It also assumes that prospective female HBCU students are uninterested in, or undeserving of, athletic opportunities in comparable ratios to their male counterparts. HBCUs should be working just as hard as other schools to eliminate gender disparities in their athletic departments. The NCAA should continue to encourage all schools, including HBCUs, to forgo interest surveys and strive for gender equity.

Court Won't Dismiss Pay Discrimination Case Against Youngstown State

The federal district court for the Northern District of Ohio held last week that Sandra Denman, formerly the general counsel for Youngstown State, could proceed with her claims of wage discrimination and retaliation against her former employer.

In September 2003, Denman analyzed the salaries of executive positions in the university and concluded that they revealed a pattern of discrimination against women. (Youngstown State had recently been advised by an outside consultant to raise the salaries in certain, higher-level pay grades to correct disparities between the salaries of long-serving employees and those of newer hires. However, it apparently incorporated this advice selectively and only to the advantage of male executives.) So Denman sent two memoranda to the university president regarding her conclusions. One warned that YSU might be exposed to liability based on its discriminatory compensation practices. In the other, Denman claimed in her individual capacity that she was being discriminated against because of her gender. Later that month, the President decided that Denman's contract would not be renewed.

Denman filed suit under the Equal Pay Act, Title VII, and Title IX, claiming that she was underpaid on account of her sex and that she was terminated in retaliation for speaking up about it. In denying Youngstown State's motion for summary judgment, the court agreed that Denman had stated a case for pay discrimination, as her salary was lower than the men in her pay grade and the men in the President's cabinet--a discrepancy for which Youngstown State could offer no legitimate business explanation. As for the retaliation claim, the court agreed there was a triable issue of fact whether Denman's memo got her fired. The timing of the President's decision, while not conclusive of a causal relationship between the memo and Denman's termination, is certainly suggestive of that. Moreover, there was also evidence that the President only started to gather evidence of Denman's ostensibly poor performance after Denman sent her memo, which casts doubt on the legitimacy of the President's stated reasons for firing Denman. As a result, the court decided that Denman can bring her case to trial.

Citation: Denman v. Youngstown State Univ., 2008 WL 483066 (N.D. Ohio 2008).

Maine parent sues school district over teacher's sexual assault of her son

A lawsuit filed last week in the federal district court in Portland, Maine, alleges that the school district violated Title IX by not protecting the plaintiff's son from sexual assault by a female teaching assistant at the alternative high school he attended. The teaching assistant, Amy Shriver, has been arrested, convicted and sentenced on charges of sexual abuse of a minor. The victim's mother's civil suit alleges, among other things, that even though she reported what was going on to Shriver's supervisors and to a member of the school board, the district did nothing to stop the abuse, which continued for seven to eight month period.

If you cheer louder...

...maybe you'll get a better grade.

The University of Oregon recently elevated competitive cheer to varsity status but that has not helped its grade on the recently released Gender Equity Scorecard. Oregon earned an F and has found itself 97th among 115 colleges and universities (and last in the Pac-10) for its gender equity efforts. The scorecard considers female participation rates (in terms of proportionality only) and funding.

Senior associate athletic director Renee Baumgartner says that if the scorecard was based on satisfying prong two, which Oregon cites compliance with, they would have received an A. But a look at the athletic department's finances suggest otherwise. For example, a significant, and arguably disproportionate, amount of money goes toward paying the coaches of football and men's baseball.

Oregon administrators are looking into their poor grade on the scorecard.

Belmont Abbey College Faculty Challenge Exclusion of Contraception from the Health Care Policy

Update 2/25. We have heard that, contrary to the media report cited herein, the faculty and their counsel are not planning to challenge the college's contraception policy under Title IX. Rather, they have filed a complaint with the EEOC under Title VII, and they are challenging the school's policy under state law that requires insurers that offer prescription drug coverage to include coverage for contraceptives -- a law that, like Title IX, makes an exception for religious institutions.

Faculty at Belmont Abbey College, a Benedictine college in North Carolina, are considering whether to file a lawsuit to challenge the College's decision to exclude coverage for contraception from the health care plan offered to its faculty. They argue that the exclusion of contraception is sex discrimination in violation of Title IX.

Should the faculty file suit, their lawyers at the National Women's Law Center will have to contend with the religious exemption from Title IX, 20 U.S.C. § 1681(a)(3), which provides that the statute “shall not apply to an educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization.” Belmont Abbey College, of course, insists that contraception is inconsistent with its religious tenants. But interestingly, according to NWLC, the College's articles of incorporation do not stress an overtly religious purpose. And what's more, the College has in the past successfully litigated its eligibility for state scholarship funding reserved for secular institutions. There are no judicial decisions interpreting Title IX's religious exemption, so it's unknown how much weight a court would give to evidence that seemingly contravenes the College's stated position on its religious tenets.

The contraception question itself is also interesting. The College could defend that the health care policy withholds contraception from both male and female faculty and thus is not discriminatory. (Of course, this argument would fail if the policy covered, say, vasectomies, but not birth control pills.) The Eighth Circuit recently endorsed this position in a case construing Title VII, the statute that prohibits discrimination on the basis of sex (among other characteristics) by private employers. Union Pacific, 479 F.3d 936 (8th Cir. 2007). The faculty would have to contend that lack of access to contraception disproportionately impacts women, or argue that access to contraception is required under Title IX's express prohibition of discrimination on the basis of pregnancy, or make the case that the health care policy's exclusion of contraception results in women receiving fewer health benefits on the whole.

Two Title IX Notes in the Wisconsin Women's Law Journal

The new issue of the Wisconsin Women's Law Journal contains two student-written pieces that address different aspects of Title IX.

The first, by Madeline E. McNeeley, argues that educational institutions should do more to protect pregnant and parenting girls from discrimination, as the law requires. Among other forms of discrimination that McNeeley describes, she points out how the No Child Left Behind Act creates incentives for schools to fail or expel pregnant and parenting students (often citing attendance problems) by tying federal funding to students' academic performance. Schools are often willing to work with disabled or ailing students by providing homebound instruction and other assistance, but they would rather not encourage pregnant/parenting students to stay in school and give them the help they need to lift up their grades and test scores because there is too much to loose if they should fail.

The second, by Elizabeth S. Kisthardt, examines the Department of Education's new regulations allowing schools to experiment with single-sex education. Kitshardt encourages educators and school districts to "remain cautious" about implementing single-sex classrooms, owing to the mixed research results "regarding both the existence of the 'boy crisis' and the remedial benefits of single-sex settings." (Her advice comes too late for Greene County.) She argues that "to the extent the research has produced conflicting results, it remains questionable whether the current educational and psychological evidence should be used to justify segregation by sex."

Citations:
Madeline E. McNeeley, Title IX and Equal Educational Access for Pregnant and Parenting Girls, 22 Wisc. Women's L.J. 267 (2007);

Elizabeth S. Kisthardt, Singling Them Out: The Influence of the "Boy Crisis" on Title IX Regulations, 22 Wisc. Women's L.J. 313 (2007).

Survey says? No baseball

In Michigan, the Gladstone Area Schools will not be adding baseball any time soon. Though there is interest in the sport, starting a program would further exacerbate the Title IX problems the district is having. They have not achieved proportionality which would mean adding baseball would mandate adding a girls' sport which, officials say, is not in the budget. They cannot cite compliance with prong 2 because in the last decade gymnastics has been cut and only competitive cheer added.
But in the hopes of complying with prong 3, interests and abilities, the schools surveyed their high school students. The results showed that the boys definitely want to play baseball but that girls are interested in, among other things, gymnastics, bowling, swimming, and soccer.
So no baseball. But if I was a high school girl in the Gladstone Area Schools interested in playing one of those sports I would take that survey data and demand the creation of a new program. They aren't proportional, aren't expanding the program, aren't meeting interests and abilities and there is a survey* that says girls want to play sports. The district may have just surveyed themselves into a corner.

* I am not advocating the use of surveys in assessing compliance with prong three. I am aware of the many faults of such "evidence."

Parents Demand, Are Promised, Equity for Girls' Sports

“I guarantee you this.... From this day forward, if the girls are eating a bologna sandwich, the boys will eat a bologna sandwich.”

This memorable quote was Raleigh County (WV) Superintendent Charlotte Hutchens's unequivocal promise for equal treatment for the female athletes at Woodrow High School. Hutchens made this promise after forty parents presented a petition to the school board demanding that the board address the condition of the high school gymnasium where the girls' basketball team plays. The gym's roof has so many leaks that the floor becomes dangerously slippery and has caused injury to players. The boys' basketball team is transported to a bigger, nicer, gym at the convention center in town. Parents insisted that if the boys had to play at Woodrow's gym, the conditions would not have been allowed to deteriorate so badly.

In response to the parents' argument, Hutchens emphatically promised that the girls and boys would receive equal treatment going forward. She is on the record stating that the girls will play at the convention center too, if that is where the boys continue to play (the board also debated fixing the roof at Woodrow). Pressed further, Hutchens issued her bologna sandwich promise, reminiscent of Bush I's famous "read my lips." It's hard to backslide from a memorable, emphatic promise like that.

Since we so often report about OCR investigations and lawsuits, it is good to see a seemingly successful example of resolving inequity issues without invoking the adversarial process. It is also good to see parents organizing themselves and making such a persuasive case for gender equity.

Florida's Foley: Don't Blame Title IX

This month's issue of Scholastic Coach and Athletic Director features an interview with University of Florida Athletic Director Jeremy Foley. I was extremely pleased to read his take on Title IX:

[SC&AD]: Depending on who you talk to, Title IX is responsible for cuts in non-revenue sports (like fencing, soccer, and wrestling) or Title IX is being used as an excuse by athletic departments to justify cutting non-revenue sports and reallocating that money to the big ones (football and basketball). There’s no shortage of examples of both sides, but in recent years it seems that it’s more to generate a profit for the athletic department. Rutgers has been cited as an example: cutting the rowing team and some other sports on the heels of a successful football and women’s basketball year. What is your take on this? Is there any validity to this argument?

Foley: I’ve never been a believer that you can blame Title IX on reductions. Maybe financially you can. At the end of the day, Title IX may be a legal obligation but to me it’s a moral obligation. Certain men’s sports don’t make any money either. Certain men’s sports are expensive to run as well. But you have got to have to equal opportunities for women. I don’t know how you have a conversation; look a woman in the eye, look a daughter in the eye, or look a sister in the eye and say, “Well, your sport isn’t as important or you’re not as important.” Obviously it’s a financial conversation because to have equal opportunity costs money. But you still have to have it. If it means that there are some sports that get eliminated on the men’s side, there’s not a lot that protects the men’s sports. There’s a law that says you have to do what’s right by the women. And as I said, to me, that’s a moral obligation. It is what it is. For the longest time you’ve had women’s sports that have been under-funded. You’ve had women’s sports that have not been getting the right priority. You’ve had women’s sports where the facilities are abysmal. You’ve had women’s sports that have been treated as second-class citizens. That’s just not right. So that part has to be fixed. And if it means taking away from another area of your program or your university, that’s what you have to do.

[Thanks, Scott.]