Scheduling remedies in our own back yard

Several friends have informed us about a settled Title IX complaint right in our neighborhood. Amherst Regional High School has agreed to make changes in both game and practice scheduling.


Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:

• scheduling an equal number of prime time games;
  


• scheduling an equal number of nighttime under the lights games;



• implementing a full schedule for girls' soccer, tennis, and volleyball (which had reduced schedules due to budget cuts; the athletic director said she had thought that--over the course of the reductions--cuts had been made equitably among boys' and girls' team; but apparently not);
  


• and ensuring equal access to desirable practice times in shared facilities.

And in case there is a question of why this matters (though we have spoken about it before, mostly in posts about the scheduling of girls' versus boys' basketball games), Goff makes a good point. When girls' games are scheduled exclusively during the day, fewer parents can attend. This also means, as Goff noted, that these teams get less community support. Parents are their student-athletes' biggest fans and advocates. The visibility of girls' and women's sports can be directly related to when their contests are scheduled, which is why scheduling is one of program areas Title IX covers.

This story continues our theme this week of "it's not just quantity--it's quality." Also of note, Goff is a parent of a former Amherst student-athlete. He noticed the inequities when his daughter played soccer for the school a decade ago. A good reminder that anyone can file a complaint. (But note it can be anonymous.)





* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.

Investigations into Locker Rooms and Softball Facilities Prompt Improvements

I've been meaning to post about these two stories, from earlier this summer, in which complaints filed with the Department of Education's Office for Civil Rights prompted requirements for improvements to facilities for women's sports.

Earlier this month OCR concluded that Oldham County School District in Kentucky violates Title IX because of inequitable locker room facilities at two county schools, Oldham County High School and South Oldham High School. OCR conducted an investigation of the school district facilities after parents filed a complaint (as well as a lawsuit, as discussed in an earlier post). Oldham County is also being investigated in response to a separate complaint, filed by National Women's Law Center, challenging the disparity in athletic opportunities available to girls and boys.

Elsewhere, an OCR investigation has recently prompted Santa Clara University in California to agree to construct an on-campus softball facility to remedy disparities in facilities available to men's and women's teams.

Both stories are a good reminder that Title IX does not just require equitable number of participation opportunities, but to the overall quality of those opportunities as well.

I wasn't going to say anything but...

...I can't not.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.

Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case

Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.

Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.

Ninth Circuit Affirms Victory for Montana State in Retaliation Case

Despite my prediction, the Ninth Circuit Court of Appeals has affirmed the lower court's decision to dismiss former coach retaliation Robin Potera-Haskins's case against Montana State. Apparently the appellate panel was not as concerned as I was about the trial judge's failure to give reasons for his determination that Potera-Haskins lacked credibility, or why it made sense to assume, in an employment case, that money damages were not at issue and therefore a jury trial was not warranted. But the judges certainly didn't take the time to say why, affirming the lower court's decision in a four-sentence, unpublished opinion.

Texas Southern Coach Wins $700,000 in Retaliation Case

A jury in federal court in Texas awarded over $700,000 to Surina Dixon, a former coach at Texas Southern University who had sued the school for retaliation and discrimination in violation of Title IX and other law.

As we noted when the case was first filed, Dixon claimed that she fired her from the head women's basketball coach position to which she had recently been hired after she insisted on parity in the terms of her employment contract, noting specifically that a recently-hired men's basketball coach with less experience than Dixon received a longer contract and higher salary. She had also complained that TSU glossed over gender inequities in its NCAA Gender Equity Self-Study.

District Court Reaches Decision in UC Davis Title IX Case

U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.

What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.

Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.

Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.

Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.

Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.

Settlement Ends Litigation Over WVU Tech Softball Facilities

A federal court in West Virginia dismissed a Title IX case against the University of West Virginia Institute of Technology after it agreed to improve facilities for its women's softball team. The lawsuit was filed in 2008 by two softball players after WVU Tech ostensibly reneged on promised improvements. The parties had been trying to settle for a while.

According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."

The court maintains jurisdiction over the consent decree to ensure compliance.

If only all equity data were this easy to find

T9B "Tip of the Hat" to web-savvy Kentucky citizen, Dick Richards. Leveraging the state's open records law, Richards got copies of high schools reports to the Kentucky High School Athletic Association, and then reported them online in a very searchable, user-friendly website. Thanks to these efforts, anyone in Kentucky can check on participation and spending data for girls' and boys' sports at any high school. He also developed a grading rubric that takes into account participation rates, added participation, spending per athlete, coaches salaries, and other factors. You can look up any school or district to find out how it rates.

Richards' website also provides answers to bigger picture questions like what is the gender breakdown in athletic participation statewide? (Answer: 56.3% boys, 43.7% girls) And funding? 41% on girls' sports, 59% on boys sports. Also, that the participation and spending gap is larger in the the state's largest school districts.

This tool could be invaluable to Kentucky citizens seeking empirical support to discrimination claims. It could also provide a model for activists in other states!

Title IX and Transgender Students at Single-Sex Colleges

Inside Higher Ed recently had an article about transgender students at single-sex colleges. Like this piece in the Boston Globe a few years ago, the article addresses the increasingly common practice of re-issuing diplomas to reflect the new names and gender identities of alums who transition after graduation. Deciding who to admit, however, is a more challenging issue for single-sex colleges. Most women's colleges consider any student who is female on their application to be eligible for admission, and have no policy of excluding anyone who transitions or declares a non-female gender identity once enrolled.

The article mentions the role of Title IX in this regard, stating that under the law, "men’s and women’s colleges may admit only students whose legal documentation shows they are of the gender that a particular institution serves." I think this representation of Title IX is questionable, however, as I'm not aware of any aspect of the law that invokes a "legal documentation" test for determining a person's sex. Such a standard would not exactly provide workable clarity, either, because some states make it easier to change one's sex designation than others. Moreover, the decision to apply for new ID may come at different stages of transition for different folks. So, a "legal ID" test would require an all-women's school to consider for admission an individual who has surgically and hormonally transitioned from female-to-male, but who hasn't yet applied for, or received, a re-issued birth certificate (or drivers license, or some other legal ID). And that school would have to exclude someone who has changed his sex designation, but not his body, in accordance with a male gender identity, as well as someone who has physically transitioned from male-to-female but still does not have a female gender marker on her ID.

No court or regulatory interpretation has endorsed such bright-line rules. And I think the law's indeterminacy around the concepts sex and gender allows all of these hypothetical students make a case for eligibility for admission. A court could interpret Title IX's prohibition on sex discrimination to forbid a school from discriminating against someone who is born female but presents as male, if it decides to interpret presenting/identifying as male as an example of gender nonconformity. A court could also interpret Title IX's prohibition on sex discrimination to require an all-women's school to consider a male-to-female transsexual, because she, like other people who identify as female, is a woman. If both were legally required, an all-women's college would be open to anyone who is now female or who has been female in the past.

Is that a position that all-women's college could defend? This depends on the reasons all-women's colleges provide for remaining single-sex in the first place. If the purpose of all-women's college is to compensate for the male privilege that exists in education and in the wider world, they could certainly accept male-to-female transsexual students on the grounds that they have reduced their access to male privilege by virtue of their transition, as well as female-to-male transsexual students, who have been excluded from male privilege in the past. (For example, a female-to-male engineering student does not by virtue of a college-age transition overcome gender stereotypes that may have obstructed his K-12 education in science in technology.)

The bottom line for now, however, is one the article gets right. College admissions policymakers, like Title IX policymakers will be increasingly confronted with questions about transgender students' eligibility for single-sex colleges and other single-sex spaces. In my view, they should and can legally strive to be as inclusive as possible.

NYT investigates OCR's role in enforcement

Another good NYT piece today by Katie Thomas on Title IX enforcement. This one focuses on the Office of Civil Rights and how they do and have (or have not) investigated Title IX complaints. Not surprisingly, investigation and enforcement are politically driven, and we have certainly seen periods of lax enforcement--some of the specifics--like the complaint against USC that began in 1998 and is still not closed--are highlighted in Thomas's article.
But it also offers some hope for better enforcement and attention by the office under the new leadership of Russlynn Ali, who is an Obama appointee.
Other interesting points: the practice of self-investigation where OCR--because it is understaffed and overworked (dealing with all civil rights violations--not just Title IX complaints)--offers a school the opportunity to investigate itself and issue a report to OCR, rather than having OCR come in. I've always been wary--if not outright critical--of this practice because it requires, as Ali notes, a good faith effort in the part of schools. And I remain skeptical that schools, once informed of violations but still reluctant to remedy them--are really worthy of that kind of trust.
And the recent case at Ball State University, which we have not yet written about and which is highlighted in the article, is proof of why self investigations might not be all that effective. Ball State seems to have a problem retaining the coaches of its women's teams. Since 2005 12 head coaches of women's teams have left. There are only 11 women's teams at Ball State. And it is actually being sued by a former tennis coach. Offered the chance to investigate itself, the university, well, dropped the ball. They issued a finding that there was no discrimination--after two weeks! It failed to interview any coaches and didn't produce any new evidence in its report! Let's just reiterate: in an investigation about discriminatory practices in hiring/firing--the university didn't interview one coach;the president said she didn't think it was necessary.
And all is not right at Ball State in terms of facilities. Under pressure from OCR, the university has added some locker rooms for women's teams after it was discovered some athletes were changing in their cars and/or a storage shed.
Still the threat of OCR showing up on campus does compel more earnest responses from other institutions, which is why Ali is not ready to abandon the practice of self investigation.

Title IX and community colleges

The NYT ran a very interesting article last week about the application of and compliance with Title IX at the country's community colleges.
Community colleges face unique challenges when trying to comply with the law. It's non-traditional student body, of which women make up the majority--often a large majority, has lead many community colleges to believe they cannot possibly comply. Additionally, community colleges are facing the same--if not worse--budget issues as four-year institutions.
But this does not mean they are exempt from providing their female students with opportunities to play sports.
Many women who attend community colleges are juggling multiple roles in addition to being students: parent, employee, domestic caregiver/doer. They are often older. But, according to Katie Thomas's article, male students have similar constraints.
In my mind all this means is that the fact that community colleges offer fewer sports than 4-year institutions makes sense. The community college population is less likely to be able to fit sports into their schedules.
The article highlights several schools that are complying--but they work at it. They recruit. And actually, it isn't very hard. Athletic directors have found that when they tell women there are spots for them--they come. Interest and ability? Sounds like it's there is many cases.
And, again, measuring interest in a responsible way--and probably in a way that would be specific, here, to a community college population--is always an option.
I've taught at community colleges. There is a very unique student population, which makes community colleges really great places to work and go to school in many respects. But not so unique that community colleges get a pass on providing gender equity.

Soon-to-Be-Coed College Plans to Retain Single Sex Classes

Peace College in Raleigh, North Carolina is making some changes. Not only is it changing its name to William Peace University, it has decided to admit male undergrads for the first time in its history. According to this article in Inside Higher Ed, however, some classes will remain single-sex, though the President assures that no one will be denied access to a course, just sometimes a particular single-sex section. This raised some Title IX red flags to the reporter on this article, who contacted me and some other Title IX experts about whether this was legal. As I said to him, it seems to me like a difficult position to defend. By becoming coed, the college loses any claim to an exemption from Title IX on the basis of its single-sex tradition. Accordingly, it must comply with the law's prohibition against discrimination in all of its programs, and this includes classes, with limited exception for things like physical education, human sexuality, and choruses.

It is true that the Department of Education has in recent years promulgated regulations that permit additional exceptions by allowing single-sex education in core courses. But by their terms, these regulations only apply to K-12 education. Moreover, the exception they create is narrow -- the single-sex nature of the course be tailored to an important educational objective, which must be based on evidence and not assumptions and stereotypes about the way men and women learn. For both reasons, Peace College cannot rely on the single-sex education regulations to justify their position.

I could imagine that the Department of Education might allow Peace College some leeway and look the other way during a limited period of transition, such as the length of time it takes already-enrolled students to graduate. But I don't think this model can be permanently sustained without running afoul of Title IX.

Why Title IX should (and already does) apply to high schools

As we noted yesterday, a lawsuit against the Department of Education has been filed claiming that the application of the three-prong test to high schools violates the Equal Protection Clause of the Constitution. Here's a little more on that. And we are sure there is much more to come.
A significant amount of attention has been paid of late to the spate of complaints filed against school districts alleging disparities in the sport opportunities high school provide to their male and female pupils. Recap: NWLC's 12 complaints last fall, and the more recent ones targeting a majority of districts in Oregon, Washington, and Idaho.

Vocal opponents of such attempts to give more girls the opportunity to play sports--under the guise of "personal choice" and "reverse discrimination"--the College Sports Council, and others, have spoken out against what they believe is the misapplication of the three-prong test to high school athletics. The lawsuit they filed yesterday in federal court attempting to get the judiciary on their side was a long time in the works, I would imagine, but comes now at a time when these issues are very much in the spotlight. An additional reveal was, as we mentioned in yesterday's post, the group's new name: American Sports Council. This allows the former CSC to, I guess, legitimately turn its attention to high schools. And fighting discrimination against boys does reflect the American way.

ASC, when it was CSC, attempted this same move--to get rid of the three prong test--except with college sports. It didn't work. Courts have consistently held that all of Title IX's provisions apply to high schools (and other entities) as well. And, as Erin noted yesterday, we predict the outcome will be the same.

As well it should be. In fact, I argue that the three-prong test is even more applicable--or easily and equally--applicable in the high school context. Here's why.

First, let's address some misconceptions. Opponents of the three-prong test--specifically the proportionality test--say that applying the test to high schools is going to result in a million boys being denied sporting opportunities. They say that budget-strapped schools will, of course, have to cut sports for boys. But proportionality is NOT required. ASC keeps invoking the "safe harbor" rationale saying that this phrase--which came in a 1996 clarification letter from the Department of Education--means that schools will, of course, attempt compliance with that prong in order to avoid lawsuits. (You can see a You Tube video from the group about the filing.)
Let's clear some things up. Proportionality is a safe harbor because it is numbers based. Numbers don't lie. Except when they do. Like when schools manipulate rosters in order to make it seem like they are offering opportunities to girls and women--when they are not. I don't think this is the Department of Ed's problem. This is laziness and utter disregard for a gender equity law--passed almost 40 years ago--that we still cannot seem to adequately enforce.
Second, if these opponents truly believed that girls were less interested in playing sports then, I believe, they would be making greater efforts to prove it. Develop the methods to sufficiently measure interest and let's see. Opponents say that this opens up schools to lawsuits. Well, schools aren't doing a great job avoiding lawsuits right now as they manipulate rosters and continue to deny female athletes equitable treatment. A good faith effort goes a long way with me--and others like me. But we don't see it happening. We see avoidance of the issues--at all costs--even millions of dollars (as a result of jury awards and settlements).
So why are high schools arguably even better suited to the three-prong test?
Well, the gender division in most high schools (and I am speaking largely about public schools here) is close to 50/50. In other words--it shouldn't be that hard to offer equal opportunities. High school sports are often just a progression of student-athletes' careers from youth sports in a way that the transition from high school to college is not as natural or expected. It's hard to believe that the numbers aren't there given the growth in youth sports.
Second, the valuing of participation is somewhat more emphasized in high school sports. Because high school sports are not expected to be big revenue generators in the way intercollegiate sports are, the philosophy of sport as an educational and growth experience is more at the forefront and less easily disregarded and lost amid large and complicated athletic department budgets. And so, of course, opportunities should be equitably distributed when we're talking about an educational endeavor.
They don't have to worry about expenditures such as recruiting and scholarships, either.
I have read several pieces that complain that we feminists are lawsuit happy and attempting to dismantle boys' sports with these recent filings. First, these are complaints--not lawsuits.
There is no desire to kick boys out of sports. But again, Title IX has been around for four decades. What have schools been doing? Advocates for women's sports get villainized because we expect that schools and the government actually follow and enforce this law. These complaints serve to both put high schools on notice that they cannot continue to be ignorant of Title IX. And they're a wake-up call to OCR which has been somewhat complacent in its enforcement at the high school level.
Is there ever going to be a good time for us to request that girls be given what they deserve? The economy was pretty decent in 1996, as I recall. If schools had truly believed that proportionality was the safe harbor of Title IX, they would have had the means to implement it then. And prior to 1972? Well there were boon periods then too. Yet there was no widespread movement to add sports for women. Hard to argue that we don't need Title IX.
Progress is neither innate nor organic. Equality does not just manifest itself because years pass.

Lawsuit Challenges Title IX's Application to High Schools

The American Sports Council (formerly the College Sports Council) has sued the Department of Education in federal court, arguing that the enforcement of Title IX's three-prong test against high schools violations the U.S. Constitution's Equal Protection Clause. College Sports Council and other anti-Title IX organizations have challenged Title IX's constitutionality in the past, though never successfully. I predict that the court deciding this case will apply the same interpretation as those earlier decisions holding it was not unconstitutional for Title IX to offer a proportionality test as one of three options for compliance . Though those earlier decisions were all in the context of disputes about college sports, there is nothing about applying those arguments to the high school context that warrants a different result.

For more coverage, see this thorough post on Education Week's Schooled in Sports blog.

School District with Sexual Orientation "Neutrality" Policy Targeted by Lawsuit and Investigation

The Anoka-Hennepin School District is the only district in Minnesota with a curriculum policy that requires teachers and staff to remain "neutral" on sexual orientation issues, deferring instead to students' "family homes, churches, and community organizations" to disseminate attitudes and information about homosexuality.

Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.

Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.

How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.

78 Idaho School Districts Named in Title IX Complaint

First Washington, then Oregon, now Idaho. The Department of Education's Office for Civil Rights recently received a complaint (pdf here -- it's 600 pages) citing 100 high schools in 78 of the 115 school districts in the state, charging them with violating Title IX for failing to provide equitable athletic opportunities to female students. This is the third northwestern state in recent months in which OCR has been asked to look into Title IX violations at dozens of school districts statewide. Like the others, the complaint is based on data mined from OCR's most recent Civil Rights Data Collection report, which provides evidence of disparities in participation rates as well as evidence of school districts "padding" their participation rates by including activities (namely, sideline cheerleading and dance) that are not comparable to varsity athletics in terms of their competitive schedule. From these data, the complaint alleges violations of prong one's proportionality standard. It then uses OCR data over time to cite school districts with declining opportunities for girls, suggesting violations of prong two's requirement of program expansion for the underrepresented sex. Finally, the complaint sites examples of school districts failing to offer sports that are sanctioned by the state athletic association as evidence of unmet interest, which would violate prong three.

The press has not reported on the person filing the complaint, as government regulations protect anonymity of complainants. However, unlike lawsuits filed in federal court, complaints to OCR may be raised by anyone.

Is Montana next?

Cheerleading Coach Files Title IX Lawsuit Against University of Alabama

Debbie Greenwell was the head cheerleading coach at the University of Alabama for more than 24 years, until, she alleges, she was terminated from her position in a dramatic fashion in response to her advocacy for equal treatment for her student-athletes. She has recently filed a lawsuit in federal court, challenging the university's conduct as discrimination and retaliation in violation of the Equal Pay Act and Title IX.

Though Greenwell's team was not a varsity sport, it was part of the athletic department. Greenwell was hired by and answered to the athletic director. She ran very lucrative cheerleading camps that made cheerleading the second most-profitable athletic department enterprise, after football. In 2008, her cheerleading camp netted $400,000 -- money that all went in to the athletic department general fund. Greenwell brought other perks and prestige to Alabama athletics as well, yet, she argues, the athletic department exploited her by refusing to pay her commensurately to other coaches. Apparently, the University justified paying Greenwell less than other coaches on the grounds that cheerleading program was not an NCAA sport with varsity competition. But Greenwell argues -- validly, in my opinion -- that for purposes of determining pay equity, what matters is that her responsibilities of running camps and the cheerleading squad required effort equal if not greater to that of other coaches. Additionally, U of A held Greenwell out as one of their "coaches" when it suited them, to associate the institution with her prestige.

However, Greenwell's complaint is light on a couple of details that will determine the validity of charges against the university. In particular, there are no details about how Greenwell's salaries actually compared to those of male coaches. Also, it's not clear exactly on what basis Greenwell alleges the required nexus between the issue of her salary disparity and the fact of her termination. The complaint states that she advocated for a higher salary once in 2003, and that another time in 2006, she and students complained about the inequitable lack of academic and other support for cheerleaders compared to other student athletes. Typically, retaliation cases succeed when the plaintiff engaged in protected conduct much closer in time to the employer's retaliatory conduct (Greenwell was terminated in 2009). We'll have to wait and see whether such additional factual allegations are forthcoming, or whether their omission is enough to warrant dismissal of her case.

Columnist Criticizes Sex Discrimination in State Championship Site

I'm glad to see sports columnist Steve Hanlon calling the Indiana High School Athletic Association on the apparent sex discrimination in its chosen locations for the girls' and boys' state basketball championships. Criticizing a recent IHSAA memo siting the girls' championship in Terre Haute, Hanlon writes:

While female Hoosiers play an unequal game of geographic Ping-Pong come title time, the boys continue to perform on the big stage, under the bright lights of Conseco Fieldhouse.

Boys get the state capital that is centrally located. The girls get the town in western Indiana where Timothy McVeigh was executed.

Do you feel the thrill, ladies?

Apparently, the girls' basketball championship got squeezed out of Indianapolis's premier basketball venue again this year, due to scheduling constraints created by the fact that Consesco also serves as the championship site for the women's Big Ten conference. But that doesn't mean that the high school girls should perpetually lose out. Hanlon suggests that the girls could play their championship a week earlier so that both could be held at Conseco without conflict.

Another way equitably address the limited playing time available at Conesco would be would be to alternate the championship that gets to play there. Every year, either the boys or the girls would have to relocate to a remote location that will be very inconvenient for either northern or southern teams. Since the girls had to play elsewhere last year (Fort Wayne), this year, the boys should have to play in Terre Haute. The fact that this solution hasn't been suggested -- not even by a columnist who taking up this issue of discrimination -- shows just how unexamined male privilege is in high school basketball.

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.