Student Denied Leave for Childbirth Files Complaint Against College

A student at Logan College of Chiropractic/University Programs in Missouri has filed a complaint against the school, alleging that it violated Title IX when it refused to recognize childbirth as an excused absence.  Brandi Kostl emailed her dean from the hospital about anticipated upcoming absences as she was about to undergo an emergency Cesarean section. The dean replied with reference to the college and faculty member's attendance policies, under which childbirth is not excused.  As a result, Kostl returned to school after 11 days, before she was fully healed, in order to minimize the academic penalty against her.  Even still, she ended up receiving an F in two classes. 

Kostl and her attorneys at the National Women's Law Center argue that the college's failure to accommodate her absence for childbirth violates the Department of Education's Title IX regulations, specifically, 34 C.F.R. 106.40(b)(5), which provides:

 a recipient shall treat ...childbirth as a justification for a leave of absence for so long a period 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.

NWLC filed a similar complaint earlier this year on behalf of another student who had a similar experience at a CUNY school.  That complaint resulted in a settlement favorable to the student.   

Nine for IX, Part II: Female reporters in the locker room

I have to admit that I was not particularly looking forward to the third film in ESPN's Nine for IX series, Let Them Wear Towels. But I enjoyed it overall. I was expecting a more narrow view of the issue of female reporters in the locker room; one that addressed the stories many of us already know--those key cases such as Lisa Olson's story about sexual harassment in the locker room of the New England Patriots (which was mentioned but was just one piece). But there were more than a handful of women who discussed their experiences being the first or second female reporter to cover a team or a league and their difficulties with access.
One of the women featured is Claire Smith, who was the first African-American female sportswriter for the New York Times. The documentary noted this but issues she faced because of her race and how that affected her ability to do her job were not discussed. It was a purely gendered consideration of her history as a female reporter covering men's sports. 
The historical footage was well edited into the movie. There are shots of the women doing their job in the press box (which was also off limits to many of them for a long time, the film reminds us) and in the locker room. (They re-enactments were unnecessary in my opinion.) The historical context was also fairly well covered (i.e., women's movement, women's entry into previously all-male spaces and domains).
 The movie certainly presents a sense of progress. And, unfortunately, this notion is not troubled at all. The level of hostility towards female reporters, even after they received access, was presented to show the audience what women faced. But being interviewed are the women who choose to stay and deal with that hostility. How many more decided the harassment and the attention was just not worth it? Access is just a first step. At the very end of the documentary, the access versus attitude issue is discussed, using the Lisa Olson case as the lens through which to examine this.
And hostility about women's involvement in sports remains--it just looks different. Many of the reporters in the documentary have kept all the hate mail they received. People don't take time to sit down a write a letter so much anymore to tell a woman who covers or plays sports that she is a whore, a lesbian, a harlot; they do take to the internet though making comments on articles, on blogs, and on social media like Twitter.
Technology is also an issue that doesn't receive much attention amidst the progress narrative. At the very end one of the women mentions that, yes, they did get access to the locker room, but no women have access to the analyst booth as a montage of male commentators is shown. The issue of where female reporters are in the age of changing media is not covered. It was likely outside the purview of this historical film, but we need to have more discussions about what it means that so many sideline reporters today are young, traditionally pretty women.
What is progress? What is access? What is acceptance?
I wonder if these are the questions that will keep emerging during the rest of the series or if any of other films will ask them a little more explicitly.

Sexual Harassment Roundup

Here is a summary of some of this month's decisions in Title IX cases involving sexual harassment in assault:

A student who was sexually assaulted at Duke appealed the lower court's dismissal of her case, which we had earlier blogged about here.  The Fourth Circuit Court of Appeals affirmed the lower court's ruling because most of the events which constituted her claim of deliberate indifference, including the university's meager investigation of the assault, took place more than three years before the student filed her lawsuit against the school.  Accordingly, Duke was protected by North Carolina's 3-year statute of limitations. Rouse v. Duke University, 2013 WL 3828308(4th Cir. July 25, 2013).

A federal district court in Michigan denied a school district's motion for summary judgment in a case involving claims that a mentally disabled student was sexually assaulted ("kissing and groping") by a paraeducator. The court reasoned that a factual dispute regarding whether the student's parent reported this to school officials required a jury to resolve.  Griffin v. Sanders, 2013 WL 3788826 (E.D. Mich. July 19, 2013).

A teacher claimed he was fired in retaliation for reporting sexual harassment behavior of a colleague, as well as relaying a student's report that she was receiving inappropriate text messages from her coach.  The school district argued, in turn, that it fired the teacher for legitimate reasons, including his use of profanity in the classroom and with parents, and an incident in which he brought a student to a bar and consumed alcohol in the student's presence.  The district court found that there was no evidence showing that there was a causal relationship between the teacher's reports of sexual harassment/misconduct and the school district's decision to fire him, which occurred several months apart. Bianca v. Independent School District No. 1 of Tulsa County, 2013 WL 3762895 (N.D. Okla. July 16, 2013).

After a female eighth-grader was raped in the bathroom by her male classmate, her guardian brought a lawsuit on her behalf, claiming that the school district was liable under Title IX, as well as other claims.  The assailant had been soliciting girls for sex, and when he solicited the plaintiff, she reported it to a teacher's aid.  The aid told her to meet the student in the bathroom, as he had requested, where she and other school officials would arrive to "catch him in the act" before anything happened.  The student agreed, and met the assailant in the bathroom.  Unfortunately, school officials arrived too late; a rape had already occurred.  A federal district court in Alabama determined that the school district was not liable under Title IX on these facts.  First, the school district did not have actual knowledge that the assailant posed a risk of sexual assault to the plaintiff, despite the fact that he had been disciplined many times before, including for incidents including sexual misconduct.  The court reasoned, however, that none of those prior incidents were severe enough to constitute notice of his propensity to rape. Next, the court held that the assistant principle, who was notified of the teacher's aid proposed "sting" operation before it was carried out, and who did nothing to stop it, did not have actual notice of conduct severe enough to trigger liability under Title IX.  According to the court, the plaintiff's evidence only showed that the assistant principle had knowledge of a single incident of harassment, i.e., the assailant's proposition of sex. "Indeed, as far as Dunaway [the assistant principal] knew, BHJ [the victim] agreed to the plan and was participating in it freely in order to catch CJC [the assailant]. Regardless of how foolish and perhaps even negligent this plan may have been, there never was an intent to subject BHJ to sexual harassment or assault, or even deliberate indifference to her plight."  To me this seems like an exceedingly narrow reading of what it means to act in deliberate indifference.  A school official knew that a student was reporting to the bathroom, not to have consensual sex, but in order to catch a student who wanted to have sex with her, and did nothing to stop it.  I don't see how this allegation doesn't at least warrant a trial on whether it constitutes deliberate indifference.  At least the court retained the plaintiff's claim that school officials responded negligently to knowledge that the teacher's aid had convinced the victim to let them try to catch the assailant.  A jury could award damages to the plaintiff based on that.  Hill v. Madison County Sch. Dist., 2013 WL 3712330 (N.D. Ala. July 12, 2013).

A federal district court in New York dismissed Title IX claims filed in a case involving incidents of alleged sexual abuse by one Ernest H. Lorch, deceased, occurring during the period of January 1, 1975 through December 31, 1984, when plaintiffs were members of the church-run basketball program coached  by Lorch.  Oddly, though, the court did not dismiss the Title IX claims for reasons you'd expect -- that a church-run basketball program is not an educational institutional subject to Title IX.  Rather, it dismissed the Title IX claim because the plaintiffs have not "plead any facts establishing that they were targeted for sexual abuse based on their race, other than the conclusory assertion that all three Plaintiffs are African American and Mr. Lorch is Caucasian. As such, Plaintiffs' have failed to adequately allege a claim under Title IX, and Defendants' Motion to Dismiss this claim is granted."  Of course, allegations of race discrimination are neither required nor relevant under Title IX, a sex discrimination statute.  And Title IX's requirement that discrimination be "because of sex" is typically satisfied in sexual assault cases due to the sexual nature of the offense.  This court is clearly confused about Title IX.  Walker v. Lorch, 2013 WL 3358013 (S.D.N.Y. July 2, 2013).

Transgender Student Prevails In Title IX Settlement

The Arcadia School District in California has agreed to allow a transgender ninth grader to use male restrooms and locker rooms and to "otherwise treat the student as a boy in all respects."   The student has a male gender identity and has been living as a boy since the fifth grade.  With the help of the National Center for Lesbian Rights, he filed complaints with the Department of Education and the Department of Justice, alleging that the district violated Title IX by denying him access to boys' facilities at school, and by not allowing him to share a cabin with other boys on a school-sponsored camping trip.  The voluntary resolution agreement announced this week ends the agencies' joint investigation into the matter.  Under the agreement, the school district must treat the student as a boy going forward,  as well as amend its policies to ensure that other transgender students' gender identities receive similar respect.  By entering into this agreement, the school district preempts any formal findings that it was in violation of Title IX.

This case is significant because it represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity -- i.e., treating a transgender student who identifies as male differently from other, non-transgender students who identify as male.  Implicit in the Department's willingness to extend its enforcement power to a case like this is the agency's broad definition of what it means to discriminate on the basis of sex.  It is not an entirely novel interpretation, however.  The Department of Education may have been influenced by a similarly broad definition of sex discrimination which appeared earlier this year in a ruling by the EEOC in the analogous context of employment discrimination. There, the agency agreed to accept jurisdiction over a case involving a transgender complainant who was passed over for a job, reasoning that whether because the discrimination was based on the complainant's gender nonconformity, change of gender, or transgender gender identity, the case was one of sex discrimination and needed to be treated as such.

Now that the Department of Education has demonstrated that it is willing to extend its Title IX enforcement power to transgender gender-identity discrimination cases, it is likely we will see more such cases in the future. 

Jackson Alleges Continued Retaliation

Roderick Jackson, the Birmingham, Alabama coach whose case established Supreme Court precedent about Title IX's application to retaliation, recently alleged that he has been "permanently blackballed" from coaching in the city schools since his case settled four years ago.  He filed a complaint with the EEOC earlier this month, claiming that he has applied for more than 20 coaching positions within the Birmingham City Schools, and has only received one interview.  And he was passed over for that position, he says, in favor of a person less experienced and qualified.  He believes that the school district's failure to hire him is retaliation for having initially spoken out about gender equity affecting his girls basketball team at Ensley High School, the predicate to his Supreme Court case, as well as for advocating the enforcement of a settlement agreement that ended his case by requiring the district to ensure equal athletic opportunities for girls throughout the district.   

The EEOC has 180 days to conduct an investigation of his claim.

Updates on OCR's Investigations into Colleges' Responses to Campus Sexual Assault

The Department of Education's Office for Civil Rights has its hands full with sexual assault complaints. It has opened investigations into the complaints filed earlier by students from Dartmouth College, University of Southern California, University of Colorado Boulder, Swarthmore College, Occidental College, and University of North Carolina, Chapel Hill.  Here are some updates in each of those cases.  

In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.

At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape.  One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate.  Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students. 

The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee.  The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her.  Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there.  She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.

The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward.  The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff.  These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures.  Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.

Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.  

OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation.  The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser.   UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence. 

Dear Colleague letter re: pregnant and parenting students

At the end of June, the Department of Education released a Dear Colleague letter and accompanying pamphlet informing schools about their requirements, under Title IX, to support pregnant and parenting students. Study data reveal that over a quarter of male and female parents cite parenthood as a major factor in their decision to drop out of school and when looking at just young women, that number rises to about a third. The effects of young parenthood are seen most drastically in higher education where only 2% of women who had a child before the age 18 earn a college degree before they turn 30.
The (34-page) pamphlet emphasizes previously made points--schools cannot deter pregnant and parenting students from attending classes, extracurricular activities, or mandate participation in established "alternatives." Additionally, alternative programs must meet the same standards and have a similar range of opportunities as traditional schools. Pregnancy must be treated as other medical leave situations, which means students returning after this leave have the same academic and extracurricular status.
There is a very helpful FAQ section addressing issues like individual teachers' attendance policies, what policies and procedures schools must have in place to be in compliance, and how to file a complaint. 
The pamphlet also provides administrators and educators strategies for assisting pregnant and parenting students to ensure that these students satisfactorily complete their educations. They are divided by position (administrator, teacher, counselor) and many include pro-active strategies for retention, facilities, and policies, as well as post-birth and post-dropout outreach.

Nine for IX Series, Part I

This week marks the third release* in ESPN's original documentary series Nine for IX.The series celebrates the 40th anniversary of Title IX and features stories about women in sports produced and directed by women.
So my two little qualms before I get into the movies themselves. One, the fact that they began the series on the 41st anniversary of Title IX makes me a little twitchy. Was this in the works last year and it just didn't happen? Robin Roberts is a producer of the whole series. It is possible that her health issues over the past year delayed the project. Still, I think it is perfectly fine to just say that this series is a celebration of Title IX.
Except (qualm 2) it's not really a celebration of only Title IX, it's a celebration of women in sports. I find it problematic when all the celebratory moments and activism in women's sports are automatically associated with Title IX. They are not. American women began gaining momentum in the Olympics, for example, decades before Title IX was passed. Attributing the moments or lines of progress we have seen in women's sports solely to Title IX erases a lot of the activism and activists that happened prior to and since Title IX that was not related to school-sponsored sports.
In short, the the greater visibility of and access to women's sports is not just about Title IX, and this is evident in the documentaries in the series.
For example the first one, Venus Vs, is about Venus Williams's rise to the top of women's tennis and the activism she engaged in for equal pay for female tennis players at the Grand Slams, primarily Wimbledon. Though I knew about this activism, hearing about the details of the campaign, which she basically led, was one of the highlights of the film. I was worried that this would be a "colorblind" film, but the film makers actually discussed the situation Venus and Serena, and their family, found themselves in when the emerged on the professional scene as teenagers, not having played the junior circuit. Their treatment, including their neglect, by the media is one of the more subtle messages of the film. Though I realize they are a deeply private family, when their sister was killed in 2003, the lack of sympathy was remarkable. I remember watching the sisters that year and wondering why they weren't talking more about how this violent death of an immediate family member was affecting them on the court. I mean when Steffi Graf's father was being tried for tax evasion in Germany we heard all about it!
I was disappointed though that that film basically talked about race and then gender. In the first half it was about "Venus as Black." In the second, the theme was "Venus as woman." The fact that she is always a Black woman and that this affects everything she does, especially as a public figure in the tennis world, remained unexamined. A Black female Wimbledon champion is demanding that the All-England Lawn and Tennis Club pay women equally. That's a big deal. She was not just a woman with power in the tennis world in this moment. Because we all know that AELTC is not colorblind.
I think this film would work well in the classroom.

Pat XO was the second film in the series and was basically a tribute to head coach emeritus Pat Summitt of the University of Tennessee. This is fine. But don't expect a lot of nuance. There was nothing about the struggles of female coaches in the professions--especially ones with children. It showcased the relationships she has formed throughout her years focusing especially on the one with her son, Tyler. I found the prevailing discourse about how tough and persevering she was and how she never let anyone see what was going on her personal life a little troubling. I thought it presented a male model of sport and coaching in which women had to be that way in order to both succeed and be seen as legitimate. And that aspect was not questioned at all. Summitt did bring her son with her everywhere but her ability to do so and the work-life balance issue was never raised. I don't think a film about Pat Summitt, at this point, could be anything but what Pat XO was. But it doesn't go much further than a feel-good story.

Next up, Let Them Wear Towels, about female reporters in the locker rooms of professional men's teams.

* the third full-length release. There was a short film, Coach, about C. Vivian Stringer that is available at the EPSNW website.

Unexpected meeting with Department of Education

Title IX news usually slows down during the summer with the exception of some annual anniversary coverage in June.
But this summer a core group of college students and recent graduates have continued their activism aimed at making college campuses less sexually dangerous and making more college students aware of their rights to a harassment- and violence-free campus. In addition to work on the Know Your IX campaign, this week a group of activists went to DC with a petition signed by over 100,000 people calling on the Department of Education and OCR to beef up enforcement of Title IX to better protect students from sexual assault. A small group of students rallied outside the Department of Education yelling up to the Secretary Arne Duncan's office through a megaphone and were surprised when Under Secretary Martha Kanter came out to personally accept the boxes of petitions saying that she would deliver that to Secretary Duncan.
Unlike Title IX's application to athletics, there is no universal handy checklist or comprehensive measurement scheme to assess a school's sexual climate. Though there are certainly signposts and other markers such as policies and educational and training programs, evaluation of a school's commitment to ensuring its campus is a safe place is quite subjective. Also, there has not yet been a confluence of negative effects to put some proverbial teeth into enforcement. Though the negative publicity a school receives provides some deterrent, it is both difficult to measure the ramifications of this negativity (students lost, donations lost?) and somewhat hard to believe that people will stop going to schools such as Yale or Dartmouth or Swarthmore even with the increase in the visibility of these issues. Additionally, there have been no set of legal cases resulting in large jury awards to scare schools into compliance as there have been in athletics (i.e., Fresno State. Florida Gulf Coast). While the efforts of the current group of student activists have been impressive and consistent and spread all over the country, other actions/results need to help the issue truly take hold.

Student Accused of Rape Sues University Under Title IX

Last winter, Brian Harris, a student at Saint Joseph's University in Philadelphia, was accused of raping a female student.  He was suspended after a disciplinary proceeding found him responsible.  Now Harris is suing the university under Title IX, alleging that the investigation and proceeding that lead to his suspension was biased against him because of his sex.  This is not the first case we've noted in which a student accused of rape later sues under Title IX.  In an earlier case against the University of South, a court dismissed the male student's claims that the university was biased against him because of sex.  But that student did prevail on other grounds, including negligence and violation of its own procedures.

According to press about Harris's case, his complaint alleges violations of the university's policies for investigating accusations of sexual assault.  He claims that the investigation was biased and one-sided in that it ignored exculpatory evidence.  Yet, as one expert interviewed in the article points out, the complaint is vague about how exactly this amounts to bias because of sex.  It is possible that Harris could convince a court, like the University of the South student did, that mistakes were made, without necessarily being able to attribute them to intentional gender bias.  Discriminatory intent is hard to prove, even though courts do not require plaintiffs to have direct evidence of such intent, such as if a university official made a statement that they was suspending Harris due to animus towards the male gender (an unlikely scenario).  In the analogous context of employment discrimination, when a plaintiff undermines the employer's stated reason for termination, it is sometimes inferred that discrimination was the reason instead.   Here, Harris can attempt to discredit the university's stated reason for his suspension -- i.e., that they believed it was more than likely that he committed rape -- by arguing that the investigation and hearing were so flawed that it could not have led the university to genuinely believe that that Harris was likely to have committed rape.  It might be reasonable, then, to infer that the suspension was motivated by bias instead.  But it's hard to see what Harris would argue supports the inference that bias was due to sex, when there are so many theoretically possible grounds for bias (personality based, for example, or motivated by campus politics) that are not prohibited by Title IX.  

Settlement Ends Single-Sex Classes in Wood County, West VIrginia

A federal court in West Virginia recently approved a consent decree between the ACLU and the Wood County Board of Education, which prohibits the Board from reinstituting single-sex education in core classes at Van Devender Middle School.  Last summer, the ACLU filed a lawsuit on behalf of parents whose children were assigned to single sex classes.  A federal court granted the ACLU's preliminary injunction after determining it was likely they would prevail in the argument that the program violates the requirements under Title IX that single sex education be "completely voluntary."  Wood County's was not, because parents had to opt their children out, rather than opt in.  The court's opinion also emphasized that single-sex public education must be able to withstand heightened scrutiny under the Equal Protection Clause.  It cannot be rooted in stereotypes and pseudoscience, as Van Devender's program appears to have been. 

This decision paved the way for the eventual settlement, approved Monday, that prohibits the Board from instituting single-sex classes for two years.  For the following three years after that, the Board can only implement single-sex classes after it provides notice to the plaintiffs and receives approval from the court, a valuable prophylactic against the Board's future implementation of another mandatory, broad, and poorly justified single-sex education program.

Quinnipiac settlement approved

Erin wrote in April about the settlement reached in the Quinnipiac class-action lawsuit. As she noted then, the settlement was subject to court approval. That approval came last week. We've already noted some of the terms of the settlement, one of the biggest being the guarantee that the volleyball team would not be cut and that female student-athletes would be receiving more scholarship dollars.
Here is a list (taken from the above link) of some of less discussed but very important settlement terms:

• Quinnipiac will treat two more of its women's teams as "sports of emphasis," which will lead to more scholarships, more coaches, and better facilities.
• It will increase its commitment to the new varsity sport of women's rugby by increasing scholarships, raising the level of competition, adding coaches, and substantially improving its field.
• It will increase its commitment to women's track by increasing the number of scholarships, coaches, and competitions, as well as building an indoor track & field facility that meets NCAA competition standards.
• It will authorize the maximum number of competitions for all of its teams.
• It will spend at least $5 million improving the facilities used by women's varsity teams, including locker rooms.
• It will spend about $450,000 annually improving its women's athletics program by, among other things, increasing coaching salaries, hiring more coaches and academic support staff, and providing greater access to athletic training and conditioning services.  
• It will allocate up to $175,000 during each of the next 3 years for additional improvements for women's sports.
• It will hire a "Referee," mutually agreed upon by the parties and confirmed by the Court, to monitor its progress.

A list like this highlights the importance of equal treatment and what equal treatment looks like. Sometime we think that equal treatment is more ambiguous or abstract than equal opportunities which have three methods for assessment. The QU case provides a good example of how equal treatment--or lack thereof--can be remedied.

Title IX Violations Alleged in D.C. Public Schools

The Washington Post reported yesterday on efforts to remedy the gender disparities in athletics throughout the public high schools in the District of Columbia.  This week, the National Women's Law Center filed a complaint challenging the relative lack of opportunities for girls as well as inequalities in the resources available for girls' teams.  As shown in the Post's graphic below, at most of the District's high schools, the percentage of athletic opportunities got girls is at least ten points lower -- and several more than twenty points lower! -- than the percentage of students who are girls. To underscore this disparity, NWLC's complaint notes that if the D.C. Public Schools allocated athletic opportunity proportionate to the representation of each gender in the high school student bodies, an additional 688 opportunities would have to be added for girls.



Collectively, D.C.'s disparities are worse not only than those in surrounding suburban areas, but as compared to those in other major cities  as well, the Post reported. They also indicate a strong possibility of Title IX violations throughout the District, especially when coupled allegations in the complaint that D.C.P.S. found survey evidence of girls' unmet interest in athletics, to which it has not responded. 

It was reported that NWLC filed its complaints with the Department of Education's Office for Civil Rights after efforts to negotiate with D.C.P.S. were "unfruitful." This apparent recalcitrance is unfortunate, and consistent with the fact, as noted by the Post, that the NWLC is not the first to file Title IX complaints against the District. Hopefully its effort will not need to be duplicated in the future as well. 

Is Tenure the Next Title IX Trend?

A lot of research has been devoted to the situation women in academia face in terms of getting jobs, getting tenure-tracks jobs (versus positions as adjuncts, lecturers, and temporary visiting positions). Though the number of women in graduate programs continues to grow and 2010 marked the first time women were awarded more doctoral degrees than their male colleagues, those numbers shift when we look at academic jobs. Fewer men actually start tenure-track positions, but more men have tenure. And there are fewer men in non-tenure-track positions.
But we have largely forgotten about Title IX when it comes to fighting the insititionalized sexism that occurs in academia. This is quite ironic given that Dr. Sandler's impetus for creating Title IX in the 70s came from her losing out on tenure-track positions to male colleagues. Has the time come to use the power of Title IX to being to remedy some of these issues over the treatment of female grad students and faculty members?

The Chronicle of Higher Education, another media outlet that has extensively covered the issue of women's equality in academia, published a very interesting piece this week about the applicability of Title IX to the treatment of women as grad students, post-docs, job applicants, and professors/instructors--especially when they are mothers or become pregnant.
We have discussed the protections Title IX provides to female student-athletes who get pregnant, and we have written about cases of Title IX being invoked when grad students have been retaliated against for complaining about equality. But there has been little--that we have seen at least--about the protections that Title IX affords grad students who hold positions as TAs and RAs.
This was a compelling piece because it brought together--for me anyway--a lot of these issues. We have noted, as have others, that Title IX and STEM is an emerging trend. And the Chronicle piece certainly addresses the issue of the difficulties women face as grad students and faculty in STEM fields. But the subtle and not-so-subtle cues women receive about becoming mothers exists across disciplines. I sat in a lecture in which a tenured, child-free female professor openly stated that she discourages her female graduate students from becoming mothers while in graduate school. Her "advice" was based on the statistics. The Chronicle article is right; we work very hard to just get the PhD; we don't want to hurt our chances in this very difficult job market and our advisers don't want that for us either. And we have seen our peers suffer for their choices to have children or go back to grad school after having children. I have witnessed my child-free female colleagues needlessly suffer through the tenure process. We have learned from what we have seen others go through and we make decisions about our lives based on what is clearly more than anecdotal evidence.
And it is not that these norms have gone unchallenged. Women have certainly brought lawsuits over the denial of tenure. A 2010 Chronicle article, discusses the cases brought by women under Title VII in the 80s and 90s. But as we have seen in other areas of discrimination law--including Title IX--proving intent to discriminate based, in these situations, on sex is becoming more and more difficult. The tenure process itself is so subjective and very few people want to make a federal case--literally--out of the discrimination they have faced. (In 2004 the AAUW published a report entitled "Tenure Denied: Cases of Sex Discrimination in Academia" which offers additional case history.)
What this week's Chronicle article provides though is more about the experiences of grad student and post-docs and the ways in which they can advocate for equality using Title IX. NASA has actually devised a questionnaire that schools can use in a self-study. Though it was written to assess gender equity in the sciences, it can--and should-- be applied across disciplines.
I predict that this issue will follow a path similar to that of sexual harassment and Title IX cases. Unclear or missing policies about discrimination will put a school at risk for a lawsuit. And when a few Title IX cases emerge around this issue--or even a watershed case--more will follow, in quick succession. A lot of schools have been slow to institute comprehensive sexual assault and harassment policies and are paying for it. Maybe they will have learned their lesson and be ahead of the curve when it comes to ensuring, at an institutional level, equal treatment of their female scholars.

Survey of female business leaders: almost all played sports

It's not news that athletic participation by women correlates with academic and career success, but this recent study serves as a remarkable underscore of that point.  Accounting firm Ernst and Young surveyed its female senior managers and executives, and found that nearly all of them had played sports at some level -- as high as 96% athletic participation rate among women at the highest level of management! Moreover, when comparing the athletic background between the top executives and managers, the executives had higher rate of athletic participation as former professionals, participants in adult recreation, or as college athletes, suggesting that the benefits of athletic participation are particularly helpful to reaching the very top level of business.  Overall, while athletic participation does not directly cause career success, the strong correlation between the two suggests the possibility that athletics provides women unique setting to cultivate leadership and teamwork skills that have positive impact on their careers.  This, in turn, provides another reason why Title IX is so important: gender equity in athletics today can promote gender equity in the executive suites tomorrow. 

Need a fun lesson on Title IX and athletics??

Well we created one! We worked with the amazing people at TED-Ed and put together a lesson on Title IX. The whole lesson can be found here and includes a video, multiple choice and discussion questions, resources, and a discussion board (if you would like to comment after watching). The lesson is aimed at grade school children. But the animation--by Kat Llewellyn--is great and should be enjoyed by all. So here's just the video:

Lhamon Nominated to Head OCR

President Obama has nominated attorney Catherine Lhamon to head the The Department of Education's Office for Civil Rights. Lhamon is presently the director of impact litigation at Public Counsel Law Center, a pro bono law firm in Los Angeles. There, her cases have challenged race- and class- based inequities in such contexts of housing, education and workers rights. For example, one of Lhamon's cases successfully challenged the disproportionate impact of statewide teacher layoffs on three low-income Los Angeles schools.

Prior to working at Public Counsel, Lhamon was an attorney for the ACLU of Southern California.  The ACLU is a strong supporter of Title IX, and I found record of at least one Title IX case Lhamon worked on, in which the ACLU and other public interest groups used the statute to challenge a Los Angeles high school's discriminatory practices against gay students and their GSA.  

Lhamon certainly appears to have strong credentials fighting for equality in education.  It will be exciting to see what new energy and ideas she brings to the OCR, pending her confirmation by the Senate.

No more sex segregation in Alabama middle school

Huffman Middle School in Birmingham, Alabama was the subject of ACLU action, which we wrote about here, in 2012. OCR investigated the school's sex-segregated practices (which included single-sex core classes, lunch, and homeroom) and determined that they were in violation of Title IX. The segregation was initiated and maintained because of the beliefs about hard-wired sex differences that could be better addressed by separating boys and girls. In addition to research that disputes such beliefs, the school district's own researchers did not see (in test scores) significant improvement in children who were in sex-segregated classrooms.
In accordance with an agreement with OCR, Huffman Middle School will stop this program at the end of this school year.

Sexual Harassment Roundup

Here is another installment in our regular effort to provide summaries of all Title IX sexual harassment decisions issued by the courts:

A state court in Pennsylvania agreed that Slippery Rock University lawfully terminated a professor of sports management who, while leading a class trip to Spain, got drunk with his students and made sexual remarks to them. After the trip, a student complained to the professor about his conduct, and he responded by apologizing and by reporting to his Dean what had occurred. Eventually, a disciplinary proceeding ensued that resulted in the professor's termination, due largely to the fact that he had committed an act of sexual harassment in the past, and had agreed that he should be fired if it happened again.  The professor then appealed the decision to an arbitrator, who ordered him reinstated, finding that the university did not provide proper notice to the professor of the charges against him.  The university, in turn, appealed to the court, where the judge determined that, in fact, the notice was proper. As a second reason for overturning the arbitrator's decision, the judge noted that retaining the professor would put future students at risk of harm and the university at risk of liability under Title IX. Therefore, the arbitrator's decision was "against public policy" and should be overturned on that ground.  Slippery Rock Univ. v. Ass'n of Pa.  State College and Univ. Professors, 2013 WL 2450495 (Pa. Comm. Ct. June 7, 2013).

The parents of a disabled student sued a school district, alleging school officials' deliberate indifference to sexual assault by his peers that the student endured in the school bathroom.  However, the court determined that the school was not liable under Title IX because the parents had failed to allege that they notified school officials that he had been sexually assaulted, rather than bullied in a more generic way. C.L. ex rel. R.L. v. Leander Independent School Dist., 2013 WL 2452724 (W.D. Tex. June 4, 2013).

A former student's lawsuit against a community college based on sexual harassment by her professor was dismissed for being filed too late. The statute of limitations that applies to Title IX claims is based on the state's statute for tort claims, which in this case (in Pennsylvania) was two years. Despite the fact that the professor allegedly continued to harass the plaintiff until about a year before she filed suit, the professor was terminated as an employee of the college during that time. Because institutional liability for harassment does not extend to a harassment over which the school has no control (such as by former employees), the court reasoned that she needed to have filed a claim against the institution within two years of the professor's termination. Because she failed to do this, the plaintiff's case was dismissed as untimely. Gjeka v. Delaware County Community College, 2013 WL 2257727 (E.D.Pa., May 23, 2013).

A court dismissed a case against a school district in which a bullied student's parents allege that school officials were indifferent to bullying endured by their son.  The complaint failed to state a claim because the plaintiffs did not allege that the bullying was because of sex (such as targeting the victim for gender nonconformity, or consisting of sexual conduct). Baker v. Hamilton City Schools Bd. of Educ., 2013 WL 1131068 (S.D.Ohio, March 18, 2013).

The Sixth Circuit Court of Appeals affirmed a lower court's dismissal of a case alleging that school district officials were deliberately indifferent to known threat of sexual abuse by a teacher. Prior to the reports of sexual abuse, school officials had reprimanded and warned the teacher to curtail physical contact with students, based on reported incidents in which he had grabbed or pinched a student. Such response was not unreasonable, the court determined, because the earlier reports of physical contact were of a nonsexual nature. McCoy v. Board of Educ., Columbus City Schools, 2013 WL 538953 (6th Cir. Feb. 13, 2013).

Sand volleyball trickles down

The NCAA approved sand volleyball for its emerging sports list for DI and II schools in 2010. Now it seems state interscholastic sports associations are testing its feasibility at the high school level. Well, at least in Arizona which recently held its first high school sand volleyball championships. This is the first year of the two-year pilot program for the sport that the Arizona Interscholastic Association approved. And it looks like next year the program will see an additional 15 teams participate. (There were only a handful this year.)
What I found interesting was that student-athletes in Arizona were speaking of their preference for indoor or outdoor volleyball, which confirmed some of our concerns that schools were just doubling up numbers for Title IX purposes rather than creating new opportunities. In other words, sand volleyball teams would likely be comprised of indoor team members. This is certainly happening at the high school level, but how prevalent it is at the intercollegiate level remains unknown. But I was encouraged by the fact that current and former high school volleyballers were talking about choosing either an indoor collegiate program or a sand volleyball program. In fact, one player turned down an offer for an established indoor program to go to a new sand program at USC.
Also our concerns about the sexualization of student-athletes in the sport seemed to also be a concern for Arizona officials. Sand uniforms are the same as indoor uniforms. Spandex shorts (which are admittedly quite short and nothing like men's volleyball shorts) and full-length tops. No bikinis or bathing suit tops.