Thursday, April 17, 2014

Shortcomings Revealed in Mizzou's Response to Sexual Assault

Officials at the University of Missouri have acknowledged that they "did not follow proper Title IX guidelines" in handling information about the possible 2010 sexual assault of Sasha Menu Corey, a student-athlete who later committed suicide.  Earlier this year, an ESPN report about her story raised the possibility that the University had reason to believe Menu Corey had been sexually assaulted and should have investigated the matter while she was alive, or, at the latest, when news reports about her suicide raised the possibility that sexual assault had played a role in her deteriorating mental health.  In response, the University hired an outside law firm to investigate and evaluate its own response. 

The law firm's investigation, which recently concluded, affirms that the posthumous news reports mentioning sexual assault should have triggered an institutional response, but the absence of sufficient Title IX policies prevented that from happening.  At the same time, however, the investigation did not reveal that the university had sufficient information about the alleged sexual assault to have responded while Menu Corey was alive. The only university officials that the investigators could conclusively determine that she told about the assault were health care providers who have a duty to protect patient confidentiality and, as a result, do not have the same duty as other university employees to report such information.  The outside investigators could not confirm that Menu Corey had told an athletics department official named Meghan Anderson, as has been suggested by an entry inn Menu Corey's diary. Anderson denies that Menu Corey told her about a sexual assault, and the investigators' report suggests the circumstances of the phone call between Menu Corey and Anderson could have resulted in a miscommunication on that point, given that Anderson spoke to Menu Corey on her cell phone call while in a noisy restaurant. 

For its part, the University has vowed to improve its Title IX policies and improve its response to sexual assault. It has also reportedly apologized to Menu Corey's parents.

Monday, April 14, 2014

Testosterone Discrimination in Women's Sports

An op-ed in last week's New York Times by Katrina Karkazis and Rebecca Jordan-Young provides an early glimpse of what could be the next wave of sex discrimination in women's sports: testosterone discrimination.  As the scholars explain, the International Olympic Committee and other international sport governing bodies implemented new rules that require female athletes whose bodies naturally produce high levels of testosterone to undergo hormonal and surgical "therapy" in order to compete. According to a new study, this new policy has already subjected four female athletes -- all from developing countries, it seems relevant to note --  to invasive examinations and surgery (including "partially removing their clitorises") that even the performing doctors deemed had "no medical reason."  Only after they had undergone these procedures were the athletes allowed to return to competition, a year later.

Karkazis and Jordan-Young point out that there are many naturally-occurring conditions that can lead to high testosterone, and refute the perception that screening is necessary to ensure fairness in women's competition. They cite to research findings in which testosterone levels failed to predict athletic performance, as well as those of "significant overlap" between testosterone levels of men and women.  (16.5% of elite male athletes studied had testosterone in the so-called "female" range; while 14% of female athletes had testosterone levels above that range.)  If testosterone is like other bodily characteristics that vary within the population, even within each sex, and is not a predictor of athletic performance, then the IOC's policy indeed appears "untenable" -- as Karkazis and Jordan-Young call it -- and also discriminatory.

At the moment (fortunately), these issues do not directly impact Title IX.  We know of no schools that are testing (cisgender) female athletes for naturally occurring testosterone and subjecting them to heinous treatment as a condition for participation.  But many U.S. organizations -- including some that govern athletics in the scholastic context --  look up to the IOC and see its policies as a model to be emulated without critical evaluating the policy or its application to a markedly different population of athletes.  For example, one state high school athletic association currently (and two in the past) uses the IOC's policy governing transgender participation, even though its requirement of surgery and two years of hormone treatment is virtually certain to exclude all transgender athletes of high school age.  Women's sports advocates must be vigilant to ensure the IOC's testosterone policy does not similarly creep into schools.

See also: Women's Sports Foundation's position paper on intersex athletes. 

Sunday, April 06, 2014

More staff to OCR?

We hope so!
Democratic Senators Kirsten Gillibrand and Claire McCaskill have sent a letter, signed by a handful of other Democratic senators, requesting an increase in staffing at the Office of Civil Rights, specifically to investigate complaints about sexual assault on college campuses. They are asking for additions to the 12-person staff that currently is responsible for investigating Clery Act complaints. This increase in staffing would seem more than appropriate given the recent expansion of the Clery Act to require colleges and universities to report additional crimes.
Also, as many of us know, OCR seems desperately understaffed. This impedes their ability to investigate both Title IX and Clery Act complaints about sexual assault (which continues to constitute a minority of the annual complaints but is growing at an exponential pace).
The Senators are requesting $2 million to cover the costs of hiring and training 13 employees who would be tasked with investigating complaints regarding sexual assault.
Gillibrand and McCaskill have chosen an opportune time to make the request given the growing profile of these cases, their numbers, and the likelihood that they will continue to grow. Still, I would expect that granting their request is guaranteed.

Saturday, April 05, 2014

Oregon university denying transgender student housing

In a decision that looks like it will not stand based on both state and federal discrimination laws, George Fox University has said it will not provide housing to "Jayce M.", a transgender man who would like to live with his male friends in on-campus in his junior year.
The Christian school does not currently have a policy addressing gender, but this situation has inspired them to write one that will say that students will be housed based on their biological sex.
And though the school has met with Jayce, his mother, and other advocates for his cause, school administrators have not changed their position about on-campus housing.
Additionally, in order to receive special permission to live off-campus (presumably all undergraduates are required to live on-campus with special exemptions offered), the school is requiring documentation that Jayce legally change his name, his driver's license, his birth certificate, and tell all his potential roommates and their parents that he is transgender.
The school eventually backed off of the birth certificate issue (Jayce was born in Tennessee which does not allow changes to birth certificates for transgender people,) and the obligation to tell roommates and their parents (privacy rights).
Because none of these options are viable, fair, or legal, Jayce and his lawyer have initiated a Title IX lawsuit against the school. The university's stance also appears to violate Oregon's anti-discrimination statutes. Neither the latter nor Title IX provide exemptions for religiously affiliated schools when it comes to issues of housing.

Friday, April 04, 2014

More exposed in FSU/Jameis Winston case

In December, I expressed some curiosity/skepticism about the timing of the results of the police and DA investigation into the sexual assault allegations against Florida State quarterback Jameis Winston. Though they did come out before the national championship and did not seem to negatively affect Winston, who also won the Heisman Trophy, the results were in his favor. At that point it seemed the criminal investigation was over. There was not, we were told, enough evidence to prove that the sexual encounter between Winston and the accuser was not consensual.
There was no surprise in February when news came of a Title IX case against the university because of its handling of the allegation by a now former FSU student (she left the university) that Winston raped her in December 2012. We had predicted that in December (2013) as well.
And now it is of little surprise that the investigating didn't seem to be as over as we thought it was. Deadspin has broken the news that the university, pursued an investigation into code of conduct violations in relation to the incident in January of this year. Administrators interviewed Winston and two of his teammates.
The findings? That the two teammates who had witnessed the sexual act had violated the code of conduct. There were no findings against Winston who refused to cooperate--on advice of his lawyers--with the team of university officials undertaking the investigation. The team took the tactic of educating Winston about consent and other issues such as alcohol impairment. Code of conduct violations could still be brought against Winston if further information comes to light.
Here is what the investigation and the exposure of its findings suggest:
That FSU felt external pressure to conduct an investigation and, more importantly, to come up with some wrongdoing. So Winston's teammates have become the scapegoats. This is not to say that what they did was right or not in violation of the code of conduct. [Both have been found to engage in "conduct of a sexual nature that creates an intimidating, hostile, or offensive environment for another person" and "acts that invade the privacy of another person." One of the two men also was charged with "recording images without consent" when he filmed Winston and the accuser having sex after being denied the opportunity to participate. The video and the phone have both allegedly been trashed.]
But, at this point, the findings are minor in contrast to the allegations and again largely serve to illustrate the fact that FSU did conduct an investigation.
But if the investigation was an attempt at protecting the university from the pending Title IX lawsuit, it is a failed attempt. Doing an investigation does not mean they complied with Title IX. Again, we have to look at timing. A January 2014 investigation into an event that occurred in the fall of 2012 falls outside the mandated 60-day timeline. FSU is no longer receiving the benefit of my doubt about the timing of investigations and the release of information and more questions than ever have been raised.
Two troubling things remain, in my mind. One, what is FSU going to do about the tight-lipped, lawyered-up Winston? Doesn't failure to comply with a school investigation violate the code of conduct? Again, we see a battle between campus judicial procedures and the legal system. Might some of this been avoided if FSU had complied with Title IX and done this investigation in the legally mandated 60-day time frame?
Finally, the two players with code of conduct violations. Though they are not the center of attention in this case, their fates are of interest and speak to the culture of football and the climate at FSU. Right now they are still listed as members of the team and as students at the university even though it is well within the rights of the university to issue interim sanctions while the men wait for their university hearing on the charges from which punishments ranging from "letter of reprimand" to expulsion could be issued.
So where are these men? Who are they being allowed to interact with? Are they still practicing with the team?
Are they (will they) being kept on because they good? Are they being kept on to ensure--if expulsion occurs--they leave the university in good academic standing at the end of the semester so as not to lower the team's Academic Progress Rate (a measure that can determine post-season play)? If expelled, will another school gladly take them in, history and all? 
If FSU was hoping for an end, this is not it.

Thursday, April 03, 2014

Texas School District Resolves Title IX Complaint

Last spring we blogged about a Title IX complaint filed by a coach against the Longview (Texas) Independent School District, alleging inequitable athletic opportunities for girls at Longview High School. We recently learned that the school district has entered into a voluntary agreement (.pdf) with the Department of Education's Office for Civil Rights resolving the issues raised in the complaint. 

As a result of the agreement, OCR will not need to complete its investigation or make any formal findings with respect to Longview's compliance with Title IX.  However, it appears from the information they already gathered that OCR would have likely found some violations. For instance, as the OCR noted in its letter to the complainant (.pdf), the district offered over twice as many athletic opportunities to boys than to girls, had not added a new sport for girls in at least twenty years, and had no process or procedure for gauging whether the opportunities that were available for girls were satisfying the interests and abilities of the underrepresented sex.  As a result, OCR probably would have found that Longview did not comply with Title IX's three-part test for measuring equity in the number of athletic opportunities for each sex.  Appropriately, the district has agreed to address this problem by assessing whether its female students have an interest in new sports that are not currently offered, or in having more teams in sports that are already offered, and to add new opportunities accordingly.

OCR's investigation had also already revealed some disparities in the quality of athletic facilities available to students of each sex.  In particular, the OCR noted disparities between baseball and softball facilities, which were the only ones used exclusively by students of one sex. Unlike the softball field, the baseball field has bathrooms, a press box, a sound system, and a concession stand.  The baseball field also has fancier dugouts and batting cages than those at the softball field. Notably, the school district has agreed to remedy these disparities by March 1, 2015

The district has also agreed to assess the assignment and compensation of coaches and the availability of equipment and supplies to ensure that any disparities between girls' and boys' teams are not the result of discrimination. 

All of the school district's obligations under the agreement are subject to OCR's monitoring and oversight.

Tuesday, April 01, 2014

Title IX Complaint Filed Against Beaverton, Oregon School District

The Beaverton (Oregon) School District has been named in an anonymous Title IX complaint challenging gender inequality in the number of athletic opportunities at the district's five high schools.  According to the complaint, none of the schools offer athletic opportunities proportionate to enrollment, nor can show a history of improving opportunities for underrepresented girls, nor are they offering all of the sports sanctioned by state's athletic association (suggesting probable unmet interest). It is now up to the Department of Education's Office for Civil Rights to decide whether these allegations are sufficient to warrant investigation. OCR has been inconsistent about whether to open an investigation based on similarly-structured allegations in other complaints. Sometimes, particularly in the context of "mass complaints" that OCR sometimes receives, it requires a more specific allegation of unmet interest  As I've said before, I believe that standard puts too much burden on complainants, and I hope that OCR declines to use it in the context of a complaint targeting a single school district.

In addition to dealing with the OCR, Beaverton School District also has to respond to parents' advocating for equal treatment of girls' teams. Some mothers of middle school softball players  complained recently to the school board about inferior playing facilities available to girls at Beaverton's Westview High School.  The softball field at Westview lacks electricity, which limits the fundraising potential of the concession stand and makes it difficult to plug in a pitching machine.  Coaches must bring in a generator to run batting practice. Additionally the softball team's batting cages are not enclosed by walls and the field does not have a working scoreboard.  In contrast, the boys' baseball field is wired for electricity, and has fully enclosed batting cages and a new scoreboard.  The mothers have asked the district to move quickly on the matter of electricity, and to put in place a plan for resolving the other issues.

Monday, March 31, 2014

Equality brackets

At the start of this year's March Madness, Mother Jones published a men's bracket that determined winners based on the spending each school does on women's sports as a percentage of men's sports.  They asked the big what-if: does spending more on women's sports lead to tournament success?
American University came out the winner (116%) barely beating out cross-town rival George Washington; and Stanford was the best in the BCS (63%).
I'm not sure if Mother Jones was attempting a correlation here. If so, there was no argument to that effect. But it does raise an interesting question about whether spending on women's sports can also be beneficial to men's teams. We would have to approach this question with a paradigm based in social sciences and cultural studies research over a purely economic model and look at factors such as athletic department unity, the effect of perceived fairness, level of sex segregation across athletics departments, etc.
What I was curious about was why there was not a women's bracket that shows the same figures. This would allow those who enjoy some quantitative with their qualitative to examine the outcomes when the tournament has concluded.

Other imaginary brackets that are produced at this time of the year includes ones that use APR to consider the relationship of academic success with sport success. The APR, Academic Progress Rate, was established by the NCAA in 2004 and is calculated for Division I institutions. The academic progress of scholarship athletes is calculated on a team. That team's APR must meet an NCAA established minimum in order for--in part--the team to compete in post-season play.
The APR was created and is maintained to address issues of athlete education.

Here's the imaginary bracket I would like to see. Actually, scratch that. What I would like to see is a real commitment to gender equity by the NCAA comparable to the one it has made to the education of student athletes. How about post-season play based on Title IX compliance? It seems like such a swing back from where the NCAA is now given that the organization is no longer engaging in accreditation (which included an assessment of gender equity). How would such a system affect the real brackets?

Friday, March 28, 2014

More Thoughts on the Title IX Question in Pay-for-Play

Yesterday I posted about why Title IX's equal treatment mandate would require schools to provide female athletes with the same benefits they award to male players via collective bargaining.  To make my point, I used the example of extended health insurance, because that is the benefit that the football players have stated is the purpose of their efforts to unionize. 

I think that the same analysis would apply even if the bargained-for benefit is salaried compensation.

And contrary to what other commentators have stated, I do not think that the revenue-producing nature of the sport is the basis for a distinction.

Here's why: Because when it comes to the treatment of student-athletes, the revenue-producing nature of the sport has already been rejected as the basis for unequal treatment among male and female athletes.  A school could not decide to provide better locker rooms, or more quality coaching staff, or disproportionately high scholarship dollars, or any other benefit to football players on the grounds that football derives revenue and other sports don't.  That is well-settled, "black letter" Title IX law.  So the revenue argument would not justify providing extended health insurance to players of one sex.  Nor should it justify providing salaried compensation to players of one sex.

Many have pointed out that there is case law holding that it is not a a violation of the Equal Pay Act to use revenue as the basis on which to pay one coach more than another for otherwise similar work.  In particular, folks have pointed to Stanley v. USC, 178 F.3d 1069 (9th Cir. June 2, 1999). In that case, the court rejected a female coach's Equal Pay Act claim after finding that the male coach's capacity for revenue made the jobs dissimilar, such that the plaintiff failed in her burden of showing that she was paid less for substantially similar job.

Say what you will about Stanley (many think the court got it wrong, since the capacity for revenue is not in the coach's control, but a function of society's preferences for men's sports).  But regardless, I don't think Stanley settles the question as it relates to student compensation.  I have two reasons:

First, the proper reading of Stanley is a narrow one. The EEOC has, since that case, issued guidance that suggests revenue-generation can only be used as a defense to salary differential between male and female coaches when "the woman is not given the equivalent support to enable her to raise revenue."  I would argue that there are few women's teams that receive equivalent support to men's football.

Second, and by far the more important reason, is that Title IX, through its implementing regulations, contains a clear equal treatment mandate that applies to students, and not to coaches.  Importantly, that equal treatment mandate is the basis for my argument, above, that Title IX requires schools to match whatever benefit it extends to male students to female students as well.  Because no similar mandate applies to coaches, it is simply not relevant that courts have concluded that coaches can be paid dissimilarly on the grounds of revenue.  
I therefore think that schools cannot pay athletes of one sex and refuse to pay athletes of another sex -- even if the distinction they are making is the athlete's capacity for revenue. 

Thursday, March 27, 2014

What Effect Will the NLRB Decision Have on Title IX?

Yesterday a regional director of the National Labor Relations Board ruled that Northwestern University football players were "employees" within the meaning of the National Labor Relations Act, and, accordingly, have the right to elect a union to engage in collective bargaining on their behalf.  The decision focused on the ways in which football players are subject to the control of the university, which make them unlike other students at Northwestern and similar to employees in other contexts who are subject to their bosses' control.  The decision also examined the job-like time commitment football players make to their sport, and the nature of football players' scholarships, which, awarded entirely on the basis of "football prowess," operate like compensation -- another hallmark of the employer-employee relationship. 

Northwestern reportedly has plans to appeal the decision, which could be overturned if not by the full board of the NLRB, then by the federal courts (including, potentially, the Supreme Court).  If it is upheld, however, it would mean that football players at Northwestern as well as similar programs at other private institutions would be able to vote for union representation.  And even though a decision under the National Labor Relations Act does not apply directly to public employers, it is possible that state schools, to remain competitive for top players, would essentially match whatever benefits the private school players' unions have successfully bargained for.  The ripple effect from this decision, if it is upheld, is to potentially up-end the NCAA's amateurism paradigm throughout college athletics. 

What is the effect on Title IX from all of this?  I believe that if the decision results in actual bargained-for benefits for student-athletes of one sex, Title IX would continue to require that such benefits inure equally to student-athletes of the other sex.  Imagine that, for example, a football players' union succeeds in bargaining for extended health insurance -- the Northwestern football players' stated objective. It would clearly violate Title IX if that benefit only applied to male athletes and not female athletes -- even though the male athletes bargained for it and the female athletes did not. Title IX regulations require schools to provide equal treatment in the aggregate to its men's and women's programs, as measured by a "laundry list" of factors that expressly includes access to medical services, which has been interpreted to include "the equivalence for men and women, accident and injury insurance coverage."  Two days ago, it would have clearly violated Title IX for Northwestern to have decided on its own to grant extended health coverage to some of its male athletes but none of its female athletes.  And there is nothing in yesterday's decision that changes that analysis under Title IX.  The fact that male athletes obtained the benefit through collective bargaining is beside the point; it does not absolve the university of having to ensure equal treatment under Title IX.  In similar fashion, universities can't absolve their obligation to provide equal treatment by pointing to other external forces, either, such as a booster club that only gives money to one sex.  The university's obligations under the NLRA apply in addition to its obligations under Title IX; the latter is not supplanted by the former.

This outcome will surely seem weird to many people, and for good reason, I think.  Surely Congress when it passed the NLRA (in 1935) and Title IX (in 1972) never imagined that an educational institution would be subject to both laws simultaneously with respect to its student athletes.  But that's the consequence of having one's cake and eating it too, by which I mean running a profit-seeking business enterprise while receiving federal support and non-profit status.  With the latter comes the obligation to comply with civil rights laws like Title IX. And now, with the former, comes the obligation to comply with employment and labor law as well, meaning, having to collectively bargain with employees, as well as pay minimum wage, workers' compensation, payroll taxes, and the like. If college athletic departments like Northwestern's insist on straddling the line, they will be subject to both laws.  Alternatively, they can choose one paradigm or the other, business or education. In the business paradigm, athletic departments would have no obligation to comply with Title IX, and would be subject only to the demands of the market in determining which athletes to compensate and how much.  But the price of that freedom is no more federal funding, and no tax-exempt status.  Alternatively, in the education paradigm, athletic departments would continue to benefit from federal funding and tax-exempt status.  But the price of this public support is no more running an athletic department as profit-seeking enterprise; athletics would truly have to be an extracurricular activity, not tantamount to a full-time job (an Ivy League, or Division III model of athletics).

If schools choose the latter paradigm, the irony will be that yesterday's decision will not result in any actual players unions being formed.  But the lengths to which college athletics will have to reform itself in order to avoid them is just as game-changing. 

Monday, March 24, 2014

NYT Editorial Addresses "Pay for Play" and Title IX

Over the weekend, the New York Times published an editorial addressing the role of Title IX in the debate about amateurism in college sports.  The editorial board argues that athletic directors exaggerate when they claim that Title IX makes it impossible to allow athletes to receive compensation. The law's requirement to distribute financial aid to athletes in a manner proportionate to gender would not put college athletic departments out of business -- it would just cause them to adapt to a new business model that in which less money is available for "overhead."   It may not be possible, the editorial suggests, for schools to continue to pay the head football coach the highest salaries in higher education, if athletes are also receiving some form of compensation.  It also points out that the NCAA could permit athletes to negotiate their own licensing agreements without any Title IX consequences whatsoever, since the money would be flowing to athletes directly and not the institution.

These are good points, I think. While we've criticized the NCAA membership for ignoring the effect on Title IX compliance of proposals to compensate athletes (such as when they allowed schools to pay stipends to only those athletes in head-count sports and not equivalency sports), I agree that it's also not fair to let them argue "Title IX won't let us" as an excuse not to consider fairness reforms.

Of course, my opinion is that playing sports in college shouldn't be tantamount to a professional responsibility in the first place, and that the ROI on athletic department expenditures should be measured in educational values, not profits. But until we live in that alternative universe, it makes sense to both insist that athlete compensation comply with Title IX and, at the same time, not accept Title IX as an excuse to preserve status quo. 

Friday, March 21, 2014

Yearbook discrimination

Every spring a handful of stories emerge about high school students who want to do things that school districts feel are gender inappropriate: go to prom with a same-sex date, wear attire to prom that is perceived as gender non-conforming, run for homecoming king or queen in a non-biologically matching sex, wear the "feminine" or "masculine" attire for a yearbook photo. Some of these cases invoke Title IX, others do not, or do not make it that far.
The latest of these stories is the censorship of a gay male student's story--one that was solicited by the yearbook staff--in the yearbook.
In Arkansas, Taylor Ellis, a junior at Sheridan High School, wrote one of 7 profiles that would be shared in the school yearbook. He came out a year ago and his profile was (ironically) about how accepted he had been by the community in that time. But the school district feels it is "too personal" and has told the yearbook it will not be allowed to publish any of the 7 profiles. They clearly see that they cannot target Ellis's profile, but that does not mean the decision has been without controversy. Yearbook staffers are upset at the censorship, as are other students, and now the Human Rights Campaign has gotten involved in trying to pressure state officials to intervene.
The school district seems to be holding fast. The school superintendent issued that following statement earlier in the week:
We must make decisions that lead in the proper direction for all of our students and for our community. We must not make decisions based on demands by any special interest group.
The seven profiles will not be published in the yearbook.
Not sure who the "special interest group" is here. The yearbook? The students?  Ellis is not standing by himself here. He has the support of the larger community.
The tactic of "punishing everyone" that we seen with schools that cancel all extracurricular student clubs so that they do not have to allow a gay-straight alliance to meet, for example, is not working. If administrators hope that peer pressure will compel LGBT groups and students to skulk away they are 1) not in touch with shifting cultural tides and 2) very misguided and uncompassionate educators.

Monday, March 17, 2014

Expelled Student's Case Against Xavier Survives Motion to Dismiss

A male basketball player who sued Xavier University after he was expelled for sexual assault prevailed recently in a preliminary ruling when a federal district court denied Xavier's motion to dismiss his Title IX claim.  Dezmine Wells, whose case we have blogged about before,  alleges that he was expelled based on false accusation of rape by his female resident advisor.  He claims that the university failed to conduct a fair and adequate hearing because it had recently been under investigation by the OCR for two other cases in which the university failed to adequately respond to female students' charges of sexual assault, and is presently bound by a resolution agreement with the agency to improve its policies and procedures for handling such cases.  Wells believes that, as a result of this negative attention, Xavier used him as a "scapegoat" to distance itself from its earlier lapses. 

The court determined that Wells's allegations under Title IX were adequate to allow his case to proceed to the discovery phase.  In key part, the opinion reads:
Plaintiff's Complaint puts Defendants on adequate notice that he contends they have had a pattern of decision-making that has ultimately resulted in an alleged false outcome that he was guilty of rape. Whether Plaintiff can unearth adequate evidence to support such claim against further challenge remains to be seen. His Complaint, however, recounts Defendants having rushed to judgment, having failed to train [] members [of the disciplinary hearing board], having ignored the Prosecutor, having denied Plaintiff counsel, and having denied Plaintiff witnesses. These actions came against Plaintiff, he contends, because he was a male accused of sexual assault.
The court also allowed Wells's case to proceed on a second Title IX  theory: that the university violated Wells's rights under Title IX because it was "deliberately indifferent" to the defects in his hearing, about which the university had actual notice. Regardless of what the facts in this case turn out to be, this aspect of Wells's claim is, in my opinion, based on a misinterpretation of Title IX case law. The actual notice/deliberate indifferent test is the test courts use for institutional liability when the underlying discrimination is not caused directly by the institution.  It is only properly used in cases where the plaintiff has been the victim of harassment and assault at the hands of a student, employee, or some other relevant third party, and alleges that the university should have but didn't intervene. It is confusing and unnecessary to use a deliberate indifference theory in a case like this one, where the alleged discrimination was committed directly by the university.

The court also refused to dismiss Wells's claim of libel at this preliminary stage.

Wells v. Xavier Univ., 2014 WL 972172 (S.D. Ohio Mar. 12, 2014).

Thursday, March 13, 2014

Title IX and Female Athletes' Preference for Male Coaches

University of Pittsburgh law professor Deborah Brake recently published a thought-provoking scholarly article (free download) examining the relationship between Title IX and a generalizable preference among female athletes for male coaches, which has been demonstrated by various studies. This preference, Professor Brake argues, contributes to the decline in coaching opportunities for women, who are presently a minority among college coaches of women's teams. More broadly, the preference exposes the ways in which sex discrimination, in its subtlety and complexity, operates counter to the paradigm of discrimination that is recognized by law. For one, the bias is "within group" (i.e. exerted against women by other women) and "bottom-up" (exerted by those with less power on those with more). For another, it is a product of social forces that mediate women's agentic choices and preferences.  Finally, it is a preference rooted in the intersection of sexism and anti-gay bias, and in this way, exposes the limits of discrimination law's one-dimensional, uni-lateral paradigm.  By exposing counter-paradigmatic examples, Professor Brake argues, we can challenge discrimination law to become more responsive, and identify extralegal strategies for dealing with complexities of gender bias in and beyond the context of athletics.

Article citation:  Deborah Brake, Discrimination Inward and Upward: Lessons on Law and Social Inequality from the Troubling Case of Women Coaches, 2 Indiana Journal of Law & Social Inequality 1 (2014).