Title IX Blog

Single-Sex Education Will Not "Save" Black and Latino Boys, Professor Argues

2012-02-12T07:53:00.000-05:00

In an opinion piece on the Education Week blog, NYU Professor Pedro Noguera argues that coeducation single-sex education is not the solution to problem that young men of color experience lower graduation rates and other disparities in educational outcomes. Noguera points out that there is no scientific research supporting claims that separating young men into separate schools or classrooms is the best way to meet their needs. To be sure, there are single-sex schools that boast higher-than-average graduation rates for African-American and Latino boys, but Noguera suggests that what is most likely making them successful are characteristics other than their single sex design -- characteristics like strong teachers-student relationships, personalized learning environments, and a peer culture that values academics and character. In support of this suggestion, Noguera points out that co-ed schools like Thurgood Marshall Academy in Harlem have achieved success by developing these characteristics. School districts that adopt single-sex education as a single magic bullet to the problems facing young men of color are poised not only to fail the students they are trying to help, but to project harmful gender stereotypes onto boys and girls alike. Noguera urges schools to focus on solutions that provide "positive learning environments that meet the needs of the children they serve."

High School Athletes Win Title IX Trial

2012-02-11T09:21:00.004-05:00

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

Dallas School District Takes Only Boys on Field Trip to the Movies

2012-02-10T08:20:00.003-05:00

As reported here, the Dallas Independent School District is getting flack for its decision to take 5000 students, only boys, to the movies to see the film "Red Tails." Due to the high cost of such an outing -- $57,000 to rent buses and purchase tickets -- it wasn't feasible to include girls as well. So the school district's solution was to leave the girls behind, assuming, most likely, that girls would not be interested in a movie about the Tuskegee Airmen who fought in World War II.

If you're wondering, yes, this violates Title IX. As one expert put it:

"This sort of blatant gender discrimination is actually quite shocking in 2012."

Indeed. I hope the stakeholders in Dallas ISD are holding school district officials accountable for their poor judgment.

What's happening at Yale?

2012-02-07T15:48:00.002-05:00

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Sexual Harassment Roundup

2012-02-03T13:41:00.003-05:00

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)

Indiana Scheduling Practice Violates Title IX, Appellate Court Rules

2012-01-31T20:41:00.003-05:00

Today the Seventh Circuit Court of Appeals ruled that a scheduling practice that reserves "prime time" Friday night scheduling for boys basketball games while relegating the girls' games mostly to the less preferential weeknights, violates Title IX. The case at hand was filed in 2010 by a former Franklin County, Indiana, basketball coach, Amber Parker against Franklin County school district, the Eastern Indiana Athletic Conference, and its high school members. Earlier, the district court dismissed the suit after determining -- without sufficient analysis, in my opinion -- that the scheduling disparity was substantial enough to constitute a denial of equal treatment under Title IX. But the plaintiff appealed, and today's appellate court reverses the lower court's ruling and reinstates the case.

Unlike the district court, the appellate court acknowledged that the scheduling of most girls basketball on weeknights has a negative affect on girls that constitutes a substantial deprive of equal treatment. For one thing, community members are less likely to attend weeknight games, which deprives the girls' teams of audience and community support. It also imposes on girls a larger burden that their male counterparts to balance sports with academic work during the week. Moreover, the court acknowledged that the scheduling disparity can harm female athletes in a psychological way because it casts girls' activities as inferior to boys. This inferior treatment, reasoned the court, contributes to the perception that girls' sports are "second class" and undeserving, a perception that deters girls from participating in sport, "in contravention of the purposes of Title IX." This perception is also transmitted to fans and contributes to their lack of support for girl teams.

The appellate court also reinstated plaintiff's claims that the schools' scheduling practices violate the Equal Protection Clause, which district court had wrongly dismissed on sovereign immunity grounds.

Evergreen School District Resolves Title IX Complaint

2012-01-31T07:43:00.003-05:00

Evergreen School District in Washington State has reportedly entered into a voluntary resolution agreement with the Department of Education's Office for Civil Rights. Under the agreement, OCR agrees to suspend its investigation that was triggered this summer by a complaint that the school district favored boys baseball with better facilities, uniforms, and equipment as compared to softball. In particular, at two of the district's high schools, the complaint alleged that the district had neglected to repair damage on the softball fields, that the fields lacked drainage and irrigation, as well as fences, batting and pitching machines and cages, and proximity to bathrooms and drinking water.

For its part, the school district agrees to assess its baseball and softball programs along these lines and to devise and implement an action plan to address any discrepancies that the assessment reveals -- in other words, the school district agrees to do what Title IX already requires. The agreement provides deadlines by which the district shall accomplish these tasks, and affords OCR the opportunity to monitor and review the district's efforts.

35 years of participation data

2012-01-29T15:07:00.000-05:00

We have, countless times during our research and writing about Title IX and equity in sports, said "thank goodness for Drs. Linda Carpenter and Vivian Acosta." For 35 years now these women have compiled and categorized and interpreted data about the participation of women as athletes, administrators, coaches, and other staff in intercollegiate athletics.
They just released the report for year 35.
Here are some of the highlights:

The most women ever are employees (coaches, trainers, sports information directors, administrators, in intercollegiate athletics.
Participation is the highest ever as is the number of teams per school (8.73 average)
The number of women coaching women's teams is at the highest level since the start of the study.
But 57.1 percent of women's teams are still coached by men as are 97-98 percent of men's teams.
And only one in five coaches of intercollegiate teams are women.
But there are 100 more women in head coaching positions today than in 2010
One of the most interesting and startling statistics to me was that almost all schools have Sports Information Directors but only 9.8 percent are women. (Is there a connection between this stat and the lack of media coverage of women's sports?)
And DI has the lowest percentage of women as SIDs (3.1%)
Women are better represented as strength and conditioning coaches, though. In DI Football Bowl Subdivision schools there is at least one female S/C coach. (The issue remains though how many of those women are hired solely to train female student-athletes. This is the first year the study has addressed S/C coaches. Maybe in future years some of this information will be added.)

You can always go to the website linked above for more information about Title IX.

Retaliation Case Filed Against Jackson State

2012-01-27T11:17:00.002-05:00

Denise Taylor, former women's basketball coach at Jackson State University, has reportedly filed a retaliation suit against the university in federal court. Her suit alleges that she was terminated with two years left on her contract in retaliation for threatening to file a Title IX complaint after she was denied the opportunity to attend the convention of the Women's Basketball Association. The university's stated reason for terminating Taylor's contract including "sexual gender stereotyping, verbal abuse and misappropriation of funds." As litigation proceeds, it will be Taylor's burden as the plaintiff to prove that the university's reasons are pretext, and that the real reason she was terminated was retaliation for threatening to file a gender equity complaint.

Possible progress in Castle Rock complaint

2012-01-26T14:55:00.002-05:00

This past week's meeting which would have addressed the Title IX complaint against the Castle Rock school district (Washington) was postponed until next month. But administrators say they are taking steps to remedy some of the inequities upon which the complaint is based.
As we noted in November, parents complained that the girls' soccer team often had games cut short because of darkness even though the football stadium, which has lights, was not being used. Requests to use the stadium were denied for various reasons that will not likely trump Title IX's equal treatment standards.
Superintendent Susan Barker has said that the athletic director is being trained in how to assess gender equity in athletics programs (apparently it is not a job requirement to be aware of how to follow the law). Also there may be an athletic advisory committee established, which would pass along recommendations to the school board. One of the things the hypothetical committee might recommend is that girls' soccer be allowed to use to the football stadium.
So it seems that more needs to be done in Castle Rock.
In the meanwhile, the girls' JV soccer coach has submitted a letter of resignation. (Her team often gets the brunt of the discriminatory treatment.)
Also, the stadium is not the only issue parents have. They would like addressed the issue of paying for uniforms, driving their children to games, the level of parent representation on any advisory board.

Parents will be speaking at the hearing schedule for late February.

University of Montana Football Players Linked to Wave of Sexual Assaults

2012-01-19T08:13:00.004-05:00

An article in Huffington Post describes an alarming series of sexual assaults involving football players at the University of Montana. Most recently, an incident in which multiple football players are accused of drugging and raping two female students has produced felony charges and one admission of guilt. This incident has also apparently brought to light two prior allegations of rape committed by football players, that were reported to the University but which the University did not investigate or pursue disciplinary action.

The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.

An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.

Teacher Harassment Case Settles for $600K

2012-01-18T08:02:00.004-05:00

The Susquehanna Township School District in Pennsylvania will reportedly pay $600,000 to settle a lawsuit filed against it by a former student who alleged she was sexually assaulted by a drivers education instructor, and who thereafter was harassed at school for filing charges against him. We have blogged about this case before when the court denied the defendant's motion to dismiss and motion for summary judgment. In the latter, the judge determined that the instructor's violation of school policies in the past should have put it on notice that female students were at risk. The judge faulted the school district for taking a “lackadaisical approach” to disciplining the instructor, noting that if officials had followed up to ensure that he was complying with, for example, the policy prohibiting him from being alone with students during "behind the wheel" instruction, it could have prevented plaintiff's assault.

The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.

Case Raises Question of Title IX's Application to Private High School

2012-01-17T07:45:00.000-05:00

A recently-filed federal lawsuit claims that Poly Prep High School in Brooklyn violated Title IX by responding with deliberate indifference to knowledge that a football coach was sexually abusing his student-athletes. This case is vulnerable to dismissal on the grounds that Poly Prep is a private school that does not directly receive federal funds. But the plaintiffs' lawyer reportedly plans to argue that the school's tax-exempt status is the equivalent of a federal subsidy, and as such Title IX should apply. While there does not appear to be conclusive legal precedent on this question,one federal court has labeled it a "nonfrivolous argument" (for purposes of settling a question of federal subject matter jurisdiction) because tax exemptions have been deemed to count as federal financial assistance in the context of other laws. See M.D.H. v. Westminster Schools, 172 F.3d 797 (11th Cir. 1999).

Lacrosse League in Connecticut Faces Title IX Suit

2012-01-16T16:16:00.000-05:00

The New Canaan Lacrosse Association, a private youth lacrosse league in Connecticut, is defending litigation claiming that it violates Title IX for failing to provide equal treatment to girls and boys. It is unclear, however, that the law applies, given Title IX's limited application to educational institutions and the fact that NCLA is not affiliated with any school. Nevertheless, the lawsuit has succeed in raising awareness about parental concerns about unequal treatment in the league, including providing boys with more money, equipment, supplies and experienced referees and a lower ratio of coaches players.

The article does not say whether the lawsuit also includes claims under the Equal Protection Clause, which prohibits sex discrimination by government entities as well as private entities with which they are closely intertwined. In my opinion, the league's use of municipal fields makes that at least a plausible argument, one more likely to apply than Title IX.

Public Single-Sex Education Vulnerable to Legal Challenge, Professor Explains

2012-01-16T07:08:00.000-05:00

A recent essay in the National Law Journal by emerita Columbia law professor Vivian Berger criticizes the trend in single-sex education. Noting that the "bloom may be off the rose" in light of some recent, high-profile decisions to cancel single-sex classes, either voluntarily and/or in response to litigation pressure (see, e.g., here, here, here, and here), she points out there are more than 500 public schools that are either wholly single-sex or sponsor some number of single-sex classes. Professor Berger's observation is timely in light of Friday's front-page story in the Boston Globe, which reported on a controversial decision to segregate the first grade at a public school in Roxbury.

Professor Berger explains that these programs are vulnerable to legal challenges on a number of grounds. The Constitution's Equal Protection Clause, for one, prohibits states and state-sponsored entities such as public schools from relying on gender stereotypes, which are frequently the basis for sex-segregated classes. In addition, she points out, many sex-segregated programs violate the Department of Education's recently-revised Title IX regulations, which, while relaxing earlier restrictions on single-sex education, still require "substantially equal" alternative for members of the excluded sex: "This claim will usually be well-founded: Much sex-segregation involves charter academies, which offer benefits like lower student-teacher ratios and special curricula not available in regular schools." Last, Professor Berger points out that other federal agencies that provide funding for education also have Title IX implementing regulations, which still retain strict restrictions on single-sex education.

Professor Berger's observations about the legal vulnerability of hundreds of segregated public schools and classrooms raise legitimate questions about the role of government education and enforcement in this application of Title IX. As we noted on the blog yesterday, when OCR took a stand against universities' lax response to sexual assault, enforcement increased. A similar approach is certainly warranted in the context of single-sex education.

Stipend plan goes back to the drawing board

2012-01-15T21:30:00.001-05:00

The NCAA Convention has been going on in Indianapolis. High-profile issues were on the docket this year including the controversial $2,000 student-athlete stipend. That the issue was pushed back to the working subcommittee that proposed it initially last summer was not surprising--in contrast to some of the news reports on the meeting. The subcommittee will work on some of concerns over Title IX, students on partial scholarships, and hopefully the concern many schools had over how to fund these scholarships when one isn't in the BCS. A new proposal is expected in April after which there will be a 60-day comment period.

A PS of sorts: membership voted NOT to reduce football scholarships or women's basketball scholarships.

Supreme Court Endorses "Ministerial Exception"

2012-01-15T11:31:00.003-05:00

On Wednesday the Supreme Court decided that that First Amendment protected a religiously-affiliated elementary school from having to defend claims that it fired a teacher for reasons that discrimination on the basis of her disability. The Court concluded that because the teacher's job included religious instruction, the school's right to religious freedom precluded the application of antidiscrimination law. This decision is reportedly the first time that the Supreme Court has affirmed the concept of a "ministerial exception" to employment discrimination laws, though lower courts have applied this concept in the past -- including in cases involving discrimination on the basis of sex.

OCR Investigates Xavier University's Handling of Sexual Assault

2012-01-15T09:30:00.003-05:00

In response to a complaint filed by a former student, the Department of Education's Office for Civil Rights is investigating how Xavier University handled that student's accusations of sexual assault directed at another student. Kalyn Burgio, the complaining student, alleged to the university that she was assaulted by Sean Marron in March of 2009. The incident occurred in the several-week period after Marron was had been found responsible by the university for a similar assault against another student, but before he was required to leave campus to serve his suspension.

Burgio alleges that when she reported the incident, the Dean of Students encouraged her to drop the charges in exchange for a promise from Marron that he would leave campus voluntarily. According to Brett Sokolow, a legal expert on campus sexual assault who was quoted in the article linked above, such a conversation, which amounts to the university negotiating on behalf of the accused, would not only be highly inappropriate, but retaliatory and a violation of the victim's civil rights. Such a deal also reportedly violated Xavier's disciplinary procedures, which allow the accused to waive a hearing only if he accepts responsibility for the charges.

Burgio further alleges that the university's disciplinary procedure, which did result in a finding that Marron was responsible for sexual assault against, was nevertheless procedurally flawed and biased toward protecting the university's reputation and accommodating the accused. She alleges that Xavier failed to inform her of her rights to file criminal charges, unduly delayed the disciplinary proceeding, and denied her academic accommodations. In addition, Marron was again allowed to finish the semester before his sentence of expulsion took effect.

This investigation is reportedly one of 30 open investigations being pursued by the Office for Civil Rights, and one of 40 complaints received by the agency since the beginning of 2011. The number of complaints has nearly doubled that of prior administrations, and is likely due to OCR's efforts to clarify universities' responsibilities to protect victims civil rights in the wake of sexual assault, efforts that have included a recent Dear Colleague letter and a couple of high-profile settlements.

Court Dismisses Claims in Bully-Suicide Case

2012-01-09T12:04:00.001-05:00

Last week, a federal court dismissed claims filed by the estate of Jon Carmichael, a thirteen-year-old from Texas who committed suicide in March of 2010, after enduring years of bullying by his peers. The court reasoned that the plaintiff's complaint contained insufficient allegations that the bullying targeted Carmichael "because of sex," as required to sustain a Title IX claim. The complaint did allege that bullies had called Carmichael "fag, queer, homo and douche," which the plaintiffs argued suggested that he was bullied because he did not conform to gender stereotypes, and thus "because of sex." But the court dismissed that allegation of significant of a sexual or gender-based motive, pointing out that the statements accompanied a particular act of bullying in which Carmichael had been stripped nude, tied up, and put in in a trash can. According to the court,

Experience and common sense teach that bullies and harassers of this age are not particular about what they say when bullying and harassing their victims. While their words might reveal an animus based on the victim's male gender, they may also simply represent more generally a characteristic of the perpetrator's sociopathic behavior, regardless of the victim's gender.

In a way, the judge is right that what the bullies are saying as bully is not particularly meaningful or probative of motivation or intent. But the social context of male-on-male bullying makes clear that it's entirely about sex and gender. Whether its because the victim is short, not good at sports, or perceived to be gay, the point of bullying is to sustain a power imbalance between men and women by ascribing power to those who are most traditionally masculine (big, strong, straight, good at sports) and devaluing those who do not conform to that stereotype. Relatedly, many bullies bully in order to prevent themselves from being at the bottom of the pecking order within male groups and thus closer to the group (girls) constructed as inferior. While the court might rightly distinguish this motive from picking on the victim because of his perceived gender nonconformity, it is still bullying that is, at its core, about sex, because it is about the imbalance of power between (and thus, within) the sexes.

Decision is: Estate of Carmichael v. Galbraith, 2012 WL 13568 (N.D. Tex. Jan. 5, 2012).

How Diverse Are Women's College Sports?

2012-01-03T19:00:00.001-05:00

Recently, the NCAA published the most recent school-year's participation data, which includes breakdowns by sex, race, sport, division, and conference. Because this data set goes back to the 1999-2000 school year, I decided to use it to look for trends in racial diversity in women's college athletics over the last decade. Several hours and few Excel spreadsheets later, I have the some questions and answers to report.

My first question was whether athletic opportunities for women in general increased during the time period in question.

The answer, not surprisingly, is yes. Athletic opportunities for women at NCAA member institutions has increased by 31% -- from 147,683 in 1999-2000 to 193,207 in 2010-2011.
Half of that overall increase is due to gains in three women's sports: indoor track, outdoor track, and soccer.
Participation rates within most other women's sports increased as well. In addition to two emerging sports that were discontinued during the time frame in question -- archery and badminton -- only fencing, rifle, skiing, and synchronized swimming showed declining participation rates. All other sports gained some.

Next, I wondered whether opportunities for female athletes of color have increased during this time period as well.

Again, the answer is yes. Opportunities for women of all minority races (Black, Asian/Pacific Islander, Hispanic/Latina) increased by percentages higher than the mean 31%. For instance, opportunities for Black female athletes increased from 14,001 to 21,615, or 54%. In comparison, opportunities for white female athletes increased from 117,244 to 144,598, or 23%.
However, these gains for female athletes of color were not enough to significantly change the overall racial distribution of female athletic opportunities. In 1999-2000, 79% of female athletic opportunities went to white athletes, compared to 75% last year -- a change of only four percentage points. Meanwhile, the percentage of female athletic opportunities that went to Black women rose from 9 to 11 percent.

I then wondered whether the present distribution of female athletic opportunities by race is proportionate to racial demographics of the undergraduate population.

The best data I could find suggests that about 8% of female college undergraduates are black (13.5% of college students are black; 59.3% of black college students are female).
A total of 14,001 athletic opportunities received by Black women constitutes 11% of women's athletic opportunities, so Black women are not underrepresented in the distribution of women's athletic opportunities.
Yet when you take into account the general underrepresentation of women in college athletics, the percentage of athletic opportunities for Black women is disproportionately low, since a total of 14,001 athletic opportunities received by black women constitutes only 3% of all athletic opportunities.

Last, I wondered if racial diversity within particular sports has changed over time.

In 1999-2000, there were 14,001 athletic opportunities for black female athletes. 25% of these opportunities were in outdoor track, 21% in indoor track, and 23% in basketball. This not surprising, as reporters, scholars, and advocates have noted for years about this manner of racial segregation within athletics.
Unfortunately, though participation rates are rising in almost every sport, including two new emerging sports that have been added in the last ten years -- bowling and rugby -- opportunities for black female athletes are still concentrated in track and basketball in percentages nearly identical to those ten years ago.
Other minority races, though receiving fewer athletic opportunities than black women, were more evenly distributed throughout various sports. Latina/Hispanic women have 7747 athletic opportunities -- 17% in soccer, 14% in softball, 10% in track. Asian women have 3999 athletic opportunities -- 12% in soccer, 11% in tennis, and 10% in track. Finally, just 716 Native American/Alaska Native women have athletic opportunities at NCAA institutions, 18% of these are in softball, followed by 13 and 12% in outdoor and indoor track, respectively.

In sum, this year's NCAA participation data suggest there's been no drastic change in the diversity of women's college sports over the last ten years. Thanks to Title IX, opportunities for women to participate in college athletics continue to increase and close the gap between participation rates for women and men. Yet even though these increases produce opportunities for Black women that are proportion to their demographic rates on campus, their opportunities still remain clustered in track and basketball. With only two sports accounting for most athletic opportunities for Black women, questions must be raised about the accessibility of other sports to athletes of color.

Alma College wrestling reborn

2011-12-30T15:56:00.000-05:00

We've largely gotten away from correcting all the little mistakes, misinterpretations, and misrepresentations of Title IX that occur in the media.
But sometimes one of them just strikes that nerve and...
A story about the rebirth of intercollegiate wrestling at Alma College in Michigan says that the program was cut in 1984 "in large part because of Title IX." This bothers me for two--related--reasons. One, a majority of the wrestling community blames the enforcement of Title IX for its demise in the 80s. And two, Title IX was not being applied to athletic departments in 1984. The Grove City decision came down in 1984. No school is going to cut a program for Title IX reasons while a Supreme Court decision over whether it will have to or not is pending.
Wrestling advocates argue that wrestling is growing in popularity. And the numbers support this. But that does not mean it has retained a consistent level of popularity or support over the past 40 years. That some wrestling programs are being (re)introduced is indicative of the ways in which athletic programs change with the times. And this is a good thing.
The president and trustees of Alma College say that the time was right to reintroduce wrestling because of the benefits it will bring to the athletic department and the school as a whole.
They did a feasibility study. Which means they must have run the numbers I just did.
So Alma has a 105-member football team. (These are the latest numbers reported to the Department of Education.) This presents a certain amount of challenges especially when the student body is 58 percent female. They added 26 opportunities for men with wrestling. Fortunately they added 28 for women when bowling and lacrosse got put in place this year as well. So these new numbers added to the old numbers (in other words, this is approximate) look like this:
Fifty-nine percent of athletic opportunities at Alma go to male students. Prior to the addition of wrestling and women's lax and bowling this year men had 60 percent of the opportunities.
In other words, not much changed.
Alma remains in compliance under prong two. Still the implication that the wrong/discrimination men experienced when wrestling was cut in the 80s seems a little misplaced given that women then and now have fewer opportunities at Alma College.

Preliminary Court Rulings Shape Ball State Retaliation Litigation

2011-12-28T10:16:00.003-05:00

After Kathy Bull was terminated from her position as head coach of Ball State's women's tennis team (which we blogged about here), she filed a federal lawsuit contesting this decision as unlawful retaliation under Title IX and other laws. Last week, the federal judge in Indiana granted Ball State's motions to dismiss several of Bull's claims, resulting in a winnowing of Coach Bull's claims that could be headed for trial.

The court did not dismiss Bull's primary claim, that Ball State is institutionally liable under Title IX for firing her in retaliation for her advocacy for gender equity. But the judge did dismiss her claims against individual university officials, which she had filed both under Title IX as well as Section 1983, the statute that allows plaintiffs to seek judicial enforcement of constitutional violations. Title IX, of course, only provides for institutional, not individual liability. And while 1983 does allow a plaintiff to enforce constitutional claims against individuals who are state officials, it does not allow plaintiffs to sue individuals for money damages, as Coach Bull's complaint had apparently been framed. Further applying these protections for state officials -- known as sovereign immunity --the court dismissed individual claims against the members of the Board of Trustees, as well as state law claims against Ball State officials and trustees.

Decision is: Bull v. Bd. of Trustees of Ball State Univ., 2011 WL 6740549 (S.D. Ind. Dec. 22, 2011)

UNI Undertakes Title IX Compliance Review

2011-12-23T07:49:00.002-05:00

The University of Northern Iowa is undertaking a comprehensive Title IX compliance review, officials announced this week. UNI reportedly has hired an outside firm to examine "'all policies and procedures that funnel into Title IX' including student misconduct, harassment and discrimination, communication, outreach and training." This kind of review is the first of its kind at UNI, which has in the past conducted a narrow review of its sexual misconduct policy but never one as broad as has been described. It also sets UNI apart from its peers, as this this article suggests, by undertaking a review that is broader than sexual abuse reporting policies as other public Iowa universities have done in the wake of the Penn State scandal.

The review will undoubtedly examine the university's response to a 2004 incident in which a female student was assaulted in her dorm room by two UNI football players. In 2007, the student sued the university, arguing that the university's hostile and indifferent response constituted a violation of Title IX. She argued that university officials treated her with "great animosity," denied her academic accommodations and a request to change dormitories, and failed to respond to reports that she was receiving harassing calls from players. After she was forced to quit school, the university sent her tuition bill to a collection agency and the dean of students told her she was disappointed "she didn't tough it out." All of this, if proven true, sounds like a classic case for institutional liability under Title IX.

This lawsuit remains pending, and there is no apparent, direct connection between the this litigation and the university's decision to undertake a comprehensive review at this time--i.e., there's no court order or settlement agreement telling them to do so. And obviously, changing problem policies going forward will not absolve the university for violations it may have committed in the past. All of this underscores the university's claims that it is taking this step in a voluntary, proactive manner. In that regard, more universities should follow UNI's lead, and review their sexual harassment and related policies not as a reaction to sexual assault, misconduct, abuse, and cover-ups, but in an effort to keep those things from happening in the future.

Cheer Team DQ'd for Having Male Member

2011-12-22T08:12:00.001-05:00

As reported in the Bleacher Report, a high school cheerleading squad in Michigan was retroactively disqualified from a competition for violating a league rule banning male athletes from female teams. The article goes on to criticize the Michigan High School Athletic Association, which governs competitive cheer and other sports in the state of Michigan, for employing a double standard, because girls are allowed to try out for boys teams at schools that do not offer a girls team in a particular sport.

As the article points out, MHSAA defends its rule by arguing that it's necessary to preserve athletic opportunities for those whose opportunities have historically been limited. Clearly MHSAA is invoking the Title IX regulations here, which provide that when a school "sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." In other words, to have the right to try out for a cross-sex team, you have to be a member of sex whose athletic opportunities have previously been limited, and the sport in question is not a contact sport. There's no question that cheer is not a contact sport, but the other limitation to the cross-over exception clearly applies -- girls in Michigan have previously, and continue, to be underrepresented in athletics.

MHSAA's policy is not only legal under Title IX, it also does not qualify as a double standard, as the article claims. A double standard is when you extend different privileges to similarly-situated groups. When groups are not similarly situated, different treatment may be warranted. According to last year's participation report by the National Federation of High School Associations, there were 133,000 opportunities for Michigan high school girls compared to 181,000 opportunities for Michigan high school boys. With girls receiving only 42% of high school athletic opportunities in Michigan, it's not a double standard to say that girls, but not boys, can try out for cross-sex teams.

But even though MHSAA's policy is legal under Title IX, and deflects the charge of "double standard," I still would prefer participation rules that promote, rather than limit, cross-sex participation in sports. I think that girls and boys playing more often together, rather than apart, can ultimately contribute to breaking down gender stereotypes that are perpetuated when segregation is maintained. Schools need to address the gender disparity in opportunities, that is true. But rather than doing so by excluding boys from "girls" teams, the better approach is to commit to adding as many opportunities as it takes to match girls' interest in athletics, whether that be more freshman and JV teams in sports that girls already play, adding new girls' teams in sports that girls don't yet but could be interested in playing, and being more inclusive of girls on boys teams in sports where it is not feasible to add a girls' team.

Slippery Rock Settles Retaliation Suit

2011-12-21T16:09:00.003-05:00

Slippery Rock University has settled on undisclosed terms the retaliation case filed against it by two female athletics officials, which we had earlier blogged about here. The plaintiffs had alleged that their employment contracts were not renewed in retaliation for their cooperation in an earlier lawsuit against the university that challenged the athletic department's compliance with Title IX.

Advocates Seeking Title IX Compliance Review of Penn State

2011-12-21T07:51:00.004-05:00

Legal scholars have speculated on the possibility that Penn State's response to allegations of sex abuse in its athletics department could violate Title IX (see earlier blog post here). Last week, ten civil rights advocacy organizations sent a joint letter to OCR, imploring the agency to conduct a compliance review of the matter -- particularly, whether the university employed a different standard because athletics was involved. OCR is already investigating whether Penn State violated the Clery Act, which requires universities to disclose criminal incidents that occur on campus.

Coincidentally, this request for an OCR compliance review comes on the heels of this report on the trend of increased compliance reviews by OCR in the last two years. Hopefully OCR will take some of that compliance-review momentum and use it to broaden the scope of it its investigation at Penn State.

Sexual Harassment Roundup

2011-12-16T08:32:00.001-05:00

Here is a roundup of some recent sexual harassment cases.

Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

DI Stipends Headed for Override

2011-12-15T09:20:00.005-05:00

Christine Brennan doesn't mince words in her column in USA Today. The NCAA's new plan allowing Division I schools to pay full-scholarship athletes a $2000 cost-of-living stipend was "bad from the beginning, a ramshackle idea that saddled already-strapped athletic departments with another financial burden while also asking them to do something that appeared to be against the law." Brennan explains how the stipend proposal was hastily passed after it emerged from a working group lead by none other than disgraced Penn State President Graham Spanier. There is no indication that the NCAA took into consideration the financial implications on athletic departments that are desperate to cut costs in this economy, not add them -- as Brennan points out, only 22 universities out of the 331 in Division I actually have a profitable athletic program. Nor does it appear that the NCAA gave any consideration to the gender equity implications of this proposal; Brennan echoes our concern that limiting the eligibility to for the stipend to full-scholarship athletes creates an inherently inequitable situation because there are twice as many full-scholarship male athletes than female. (Citing AD Tom Osborne's objections along these lines, which we blogged about Tuesday, Brennan says, "When a crusty warrior such as Osborne has to teach the NCAA about the law [Title IX], it's downright embarrassing.")

The good news, Brennan reports, is that this plan appears to be headed for a rare override vote by the Division I membership, as 97 institutions have petitioned the NCAA to reconsider the stipend-authorizing legislation. Come January, the plan could be overhauled or even scrapped.

Mississippi High School Coach Sues District

2011-12-14T08:33:00.004-05:00

Catherine Papagolos, former softball coach, filed suit against the Lafayette County School District in Mississippi, claiming that she was fired in retaliation for complaining about gender equity in her salary. Specifically, it is reported that she alleged she was fired after questioning why her salary was not comparable to that of the high school baseball coach.

While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.

Like We've Been Saying...

2011-12-13T10:12:00.003-05:00

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Cal State students file harassment complaint

2011-12-12T08:01:00.000-05:00

About a month ago I read about issues of harassment on the Cal State San Marco campus. At that time it seemed that groups of students were being targeted by a kind-of, sort-of campus publication whose purpose is hate-mongering. The publication called The Koala is actually a former Cal State San Diego publication that its founder (a CSUSD grad) has turned into a for-profit venture on several CSU campuses. It regularly, according to various reports, targets racial, ethnic, and sexual minorities as well.
A group of women and allies who did not enjoy the hostile content directed at women as a class (and some personal attacks against more outspoken women) and citing the publication's creation of a hostile and intimidating climate on campus, went to the administration seeking some redress. But they received none from the university. And so they filed a Title IX complain with OCR.
There continues to be pressure on the administration to take action against the publication including a petition at Change.org.

Title IX expert and adjunct professor of law, Wendy Murphy, is helping in the complaint process.

Division I Cost-of-Living Stipends Draw Objection from Faculty

2011-12-03T09:19:00.001-05:00

When we blogged last month about the NCAA's vote to allow Division I institutions to provide athletes who receive full athletic scholarships with $2000 spending money stipends, we speculated that this proposal could exacerbate existing disparities in scholarship funds awarded to men and women, causing and contributing to member institutions' compliance problems under Title IX.

Reading a letter sent today to the NCAA from the Faculty Athletics Representatives, I came to understand why the problem is even worse from a Title IX perspective than I initially understood. The new rule only authorizes the cost-of-living stipends to athletes in so-called "head count" sports who receive full scholarships or the equivalent of a full scholarship when combined with other financial aid. Athletes in "equivalency sports" who receive receive partial athletics scholarships are not eligible for the stipend. While Division I allows up to 98 full scholarships in the men's head-count sports (football and men's baseball), there are only 47 possible female head count student-athletes (basketball, volleyball, gymnastics, and tennis). So there is no way an institution could fully fund its cost-of-living stipends and still comply with Title IX. FAR has requested that the NCAA amend the proposal to allow cost-of-living stipends in equivalency sports as well, which could theoretically allow institutions to spread smaller awards over more athletes in a way that could balance out the total dollars awarded overall.

We'll have to wait and see how NCAA responds to this proposal, and generally to the Title IX objections that have been raised.

More re-integration

2011-11-29T14:34:00.001-05:00

Another school district in Alabama has opted to end its single-sex middle school classrooms.
Tallapoosa School District has said it will stop its single-sex program at the end of this year. This program had been in place for several years and, despite being legally required to, did not provide opt-outs for students/parents who did not want to be educated in single-sex classrooms.
The program began because of alleged hormone-induced behaviors that required disciplining.

Ann Arbor No Longer Plans to Exempt Football from Cuts

2011-11-28T08:19:00.003-05:00

This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.

I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

2011-11-18T15:55:00.004-05:00

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.

Massachusetts Adds Transgender Protection to Antidiscrimination Laws

2011-11-18T14:40:00.003-05:00

In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.

Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.

Tennessee Rejects Equal Pay for Women's Athletics Officials

2011-11-17T10:03:00.005-05:00

The Washington Post reports that the University of Tennessee recently rejected an internal complaint filed by three employees of women's athletics, arguing that their salaries were discriminatory because they were less than their counterparts in men's athletics. The employees held the positions of Athletics Director for Women’s Sports Medicine, Assistant Athletics Director for Women’s Strength and Conditioning, and the Associate Director for Women’s Strength and Conditioning, until the recent merger of men's and women's athletics at Tennessee.

The University of Tennessee's Office of Equity and Diversity denied their pay discrimination claims after determining that these positions in women's athletics were not comparable to the equivalent positions in men's athletics to justify equal pay. Specifically, the Office stated that due to the financial importance of football to the university, the sports medicine/strength & conditioning employees in men's athletics had a more important job because it mattered more financially that male athletes were healthy:

Football overwhelmingly is the top revenue-generating sport in Athletics and the sport that generates the most fan interest,” the report says. “If the University’s football team is successful, then the entire Athletics program reaps the monetary benefits. If the University’s football team is unsuccessful even partly because football injuries are not being prevented, diagnosed, treated and rehabilitated successfully, then the entire Athletics program suffers. “With no disrespect being intended to Ms. Moshak [Athletic Director for Women's Sports Medicine], Mr. McVeigh’s position [Director of Men's Sports Medicine] is more important to athletics because of his football-related responsibilities."

With this statement, the University of Tennessee declares its true intentions in running an athletic department -- not, as its mission statement conveys, to enrich the education of student athletes, but to exploit the revenue-generating potential of certain sports. Aside from being hypocritical and morally void, this position also suggests that the University is (or was in the recent past prior to the merger) violating Title IX with respect to its athletes, as the law requires equal treatment when it comes to "medical and training facilities and services." And the law contains no exception for football or any sport because of its capacity to generate revenue.

Nor is it clear whether football's revenue justifies paying men's medical and training staff more. If this case made its way to the EEOC, the federal agency that enforces Title VII and the Equal Pay Act, it would consider whether the medical and training staff that McVeigh oversees is comparable in size to Moshak's. Yes, it may take more work to keep the football team healthy, but if you get a larger staff as a result, you can't use "football takes more work" as a justification for unequal pay. Another factor that the EEOC would consider is whether men's and women's athletics received equal opportunity to generate revenue. If the university allocated fewer resources to market and promote women's teams, it can't use the fact that men's teams bring in more revenue to justify pay disparities between men's and women's athletics.

The article does not suggest what's next for this case. Now that the university's decision is final, having been approved by the President on internal appeal, it will be interesting to see if the employees press their claims with the EEOC. And though its less likely, it would be even more interesting to see if someone presses the disparity in medical training as a violation of Title IX.

Coach Files Retaliation Suit Against Central Connecticut State

2011-11-17T07:37:00.003-05:00

A former track and cross-country coach at Central Connecticut State University has filed a lawsuit claiming that the university decided not to renew her contract in retaliation for her efforts to secure equal treatment for her team. Brenda Webb was hired by the university in 2006 on a one-year contract, which was renewed annually until it was terminated in 2010. According to her complaint, Webb successfully coached the women's track and cross-country team during that time, improving the team's record and engaging in successful recruiting efforts. Yet despite being promised equal treatment compared to the men's track team, Webb's team allegedly received a much lower budget than the men's team, less access to facilities, and had problems securing transportation to away meets. Webb also noted inequitable support from a "shared" assistant coach who spent his time helping the men's team and not the women's.

Webb claims that when she raised these concerns to a university official with oversight responsibility over athletics, her complaints were mocked and not taken seriously. Rather than investigate her complaints, the compliance officer investigated Webb, while one athletic department official allegedly pressured an athlete to file complaints against her. She was also threatened with "disciplinary action" if she did not "ignore everything that was happening" and continue to press her complaints. Meanwhile, Webb also noted ways in which she was afforded less respect than the male coaches, such as being left off the athletic department website (when newly-hired male coaches were added immediately) and misreporting the men's head coach's title as "Head Coach for Track" (instead of "Head Coach for Men's Track"). Webb claims she was also singled out for budget reductions and the cancellation of one of her athlete's scholarships. She attributes to this hostility to the fact that the athletic department had supported the assistant track coach for her position and was disappointed that the university president had required them to hire a woman instead.

In 2010, an athletic department evaluation committee recommended Webb for another contract renewal, noting the athletic and academic success of her team. But the athletic director did not renew her contract and instead combined the men's and women's track teams back together, as they had been before Webb was hired. The assistant coach who had sought Webb's job was hired as the head coach of the unified team, notwithstanding Webb's longer experience in coaching and coaching in Division I, as well as other superior coaching credentials.

On these facts, Webb's complaint satisfies the elements to establish a prima facie case for retaliation under Title IX. She alleges that she complained about gender equity, and that she experienced adverse employment consequences including being terminated from her position. She also alleges facts that support the inference that those two things are causally connected, including that she was threatened with "discipline" if she did not drop her complaints. The university will likely defend this lawsuit by proffering "legitimate" reasons for terminating Webb, perhaps by arguing that Webb did not meet performance expectations. Webb will then have to prove that the university's proffered reason is actually a pretext for retaliation. For example, if the university claims she was fired because her team was not competitive, Webb could demonstrate this is a pretext by proving the allegations in her complaint that the university did not terminate the coaches of other men's teams that were not as successful as hers.

Webb's complaint also includes counts of direct discrimination under Title IX, as well as comparable claims under state law. She seeks compensatory and other damages exceeding $2 million dollars, a number that is not out of bounds after verdicts and settlements in similar retaliation cases against Fresno State and Florida Gulf Coast University.

Recommendations for cuts in at Maryland

2011-11-16T08:00:00.001-05:00

The recommendations for how many and which teams will be cut from UMD's athletic department came faster than we expected. And it seems like President Wallace Loh will make his decision, based on the committee's recommendations, sooner than he had planned as well. (He initially said he would decide by the end of the year.)
So, as expected, men's and women's swimming and diving is on the list. Six other teams join them: the entire men's track program (a total of three programs), women's water polo, and acrobatics and tumbling.
The last was particularly interesting. Maryland was the first institution to elevate its cheerleading team to varsity status, calling it competitive cheer. This seemed to be the watershed moment for competitive cheer, which now goes by several names depending on which governing body a team aligns itself with. I would imagine this is kind of a blow for competitive cheer. We predicted that competitive cheer would be embraced by many schools because administrators view it as a somewhat cheaper way to add opportunities for women. Does this move by Maryland signal that administrators are also going to see the sport as easy to drop when things get tight?
As the WaPo article notes, these decisions are not final. Loh must make them official. I imagine he will not draw things out and do it soon.

Title IX and Penn State

2011-11-15T08:50:00.006-05:00

In a two-part column at Justia.com (see here and here), Hofstra law professor Joanna Grossman and Pittsburgh law professor Debbie Brake examine whether Penn State is liable under Title IX for the sexual abuse committed by former Assistant Coach Jerry Sandusky, who used Penn State facilities to anally rape boys he associated with under the auspices of charity that Sandusky founded.

In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."

For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.

Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.

The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.

While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.

Remaining Idaho Complaint Closed with Voluntary Resolution Agreement

2011-11-14T14:24:00.004-05:00

I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.

Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.

Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."

If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.

So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.

Pittsburgh School District Ends Single-Sex Classes

2011-11-14T08:36:00.002-05:00

The superintendent of the Pittsburgh Public Schools announced her recommendation to end single-sex classes at George Westinghouse Academy, after becoming "uncomfortable" with how staff where being trained to rely on gender stereotypes.

The ACLU and Women's Law Project had reportedly threatened to sue the district over its plans to convert George Westinghouse, which educates grades 6-12, into an entirely sex-segregated institution, a move that exceeds the scope of single-sex education allowed under Title IX regulations and that was justified by an erroneous conclusion that “research solidly indicates that boys and girls learn differently.” ACLU's press release on the matter also sheds some light on what might have been making the superintendent uncomfortable: teachers were apparently being trained to teach boys in ways that emphasize “characteristics of warrior, protector, and provider” and to provide “space/time to explore things that young women like [including] writing, applying and doing make-up & hair, art.”

Women's Sports Foundation Reports on Participation Trends in High School Athletics

2011-11-11T13:41:00.004-05:00

The Women's Sports Foundation has published a new report called “Progress Without Equity: The Provision of High School Athletic Opportunity in the United States, by Gender 1993-94 through 2005-06.” Using data from the Civil Rights Data Collection and the National Center for Education Statistics, the report authors, Professor Don Sabo from D'Youville College and Phil Veliz from SUNY Buffalo, examine gender differences in athletic opportunity in a sample of 24,370 public high schools across three school years, 1993-94, 1999-2000, and 2005-06. The authors measured the number of athletic participation opportunities, the number of teams, and the number of sports in the sample school districts during these years, and then controlled for a variety of factors about those schools including geographic region, level of resources, and whether urban, suburban or rural. As described in the report's abstract, its key findings include:

While high schools gradually increased their allocations of athletic participation opportunities between 1993-94 and 2005-06, progress toward closing the gender gap slowed after 2000.
Boys received a larger proportion of athletic participation opportunities than girls did for each school year in all communities (i.e., urban, suburban, town, and rural). The lowest percentages of athletic participation opportunities occurred in urban schools, whereas the highest percentages were issued in rural schools.
Schools with greater economic resources provided more athletic participation opportunities for their students—both girls and boys—than their less fiscally sound counterparts.
Girls were provided proportionately fewer athletic participation opportunities than boys during each school year and in all geographic regions (i.e., Northeast, Midwest, South and West.

To me, this report provides an answer to those who would curtail Title IX's enforcement at the high school level. By proving that girls' opportunities are still lagging and progress towards equality waning, this report should encourage regulators and lawmakers to strengthen Title IX's application to high school athletics such as by taking seriously those seeking OCR enforcement against continued disparities, and by passing legislation that would standardize participation data and make it available and easier to find for those seeking to file a complaint or a lawsuit.

Maryland athletics cutting teams

2011-11-09T16:02:00.000-05:00

University of Maryland has some tough decisions to make. The department, which is required to be self-sustaining (no money from the general fund; it does receive student fees) is not. Facing major deficits, it now faces the task of cutting teams--many teams--up to 10 according to this WaPo article.
It looks like men's and women's swimming and diving are almost certain to be cut. The university president has formed a commission and asked for a study which will include recommendations for teams to be cut. But the swim teams have caught wind of the news already; so has Bob Groseth, the executive director of the College Swimming Coaches' Association. Some coaches and administrators within the swimming community have been none too happy with Title IX, blaming the law on the elimination of men's swim teams.
But Groseth, whatever he thinks about Title IX, makes this observation about swimming in DI:
As you see with all this conference [realignment], there is a growing number of athletic directors who are using athletic departments as a bottom-line business model — not as part of an overall education model.

He notes that swimming has grown at the DII and DIII levels, though.
And it's true. UMD is in a big-time conference (ACC) playing big-time sports and they now seem to have no choice but to make similar decisions as other big-time programs--cutting the so-called minor sports.
It's going to be a tough year for UMD athletics--at least morale-wise--as rumors swirl and campaigns begin to save sports.

New study on sexual harassment of youth

2011-11-09T08:01:00.000-05:00

We all knew that grade 7 through 12 are not always pleasant times for kids.
We know about bullying and its severe effects.
But a new study by the American Association of University Women has revealed some pretty bleak statistics around the sexual harassment of both teenage boys and girls. Over 50 percent of girls surveyed reported experiencing sexual harassment and about 40 percent of boys self-reported harassment.
The survey of just under 2,000 students asked students only to report sexual harassment (defined as unwelcome jokes or comments, inappropriate touching, and sexual intimidation) within the last year (2010-11 academic year). It included harassment that happens in person and via other mediums (texts, social media, etc.).
The effects of such harassment are both physical and mental with many reporting headaches and stomach pain.
The AAUW undertook the study to bring attention to the issue of sexual harassment, which members do not want forgotten in the midst of the discussions about bullying.
The authors, or at least the NYT's portrayal of the authors, seem to make a stricter distinction between sexual harassment and bullying than I might. Sexual harassment is a form of bullying and so much bullying involves sexual harassment.
For example, the study found that 18 percent of both girls and boys report harassment based on perceived sexual orientation. This is also bullying. This is why, in some bullying cases, Title IX violations are cited.
And, of course, all sexual harassment in schools is subject to Title IX. Though we here at the blog believe that Title IX is quite underused in sexual harassment cases. It seems that the AAUW feels similarly, though T9 only got a brief mention in the article.

Interesting start to stipends

2011-11-08T12:08:00.003-05:00

Who was going to pull the trigger first, we wondered, when we heard about the NCAA's approval of living stipends for DI student-athletes.
Erin noted the Title IX implications. But would schools and leagues realize them? Would a school be bullied into providing the stipends by its league? Would scholarship dollars grow further out of whack?
I think I assumed, given the recent upsurge in the pay-for-play debate spurred by Taylor Branch's Atlantic article, that football would take advantage of the new rule first.
But, no, it's basketball. (This makes sense economically given the low numbers of student-athletes. But my cynical self is never surprised when there are economically unsound decisions made in intercollegiate athletics.)
The Horizon League, which includes former Cinderella team Butler University, has voted to provide stipends to its men's and women's b-ball players.
No mention of Title IX considerations. But obviously no issue here given the equitable distribution of the stipends.
Wonder if this is going to be a trend?
I am also curious about whether other leagues will follow. Obviously the payment of living stipends becomes a huge recruiting tool.

OCR Drops All Idaho Complaints But One

2011-11-07T07:56:00.003-05:00

The Office for Civil Rights will reportedly drop the complaints against 77 of the 78 Idaho school districts cited in the mass-complaint filed over the summer. Only the Meridian School District, the largest in the state, remains subject to OCR investigation for claims that it violated Title IX by failing to provide an equitable number of athletic opportunities for boys and girls.

There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.

Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.

As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.

NCAA releases participation numbers

2011-11-04T08:32:00.000-04:00

The numbers of student-athletes participating in NCAA championship sports has increased again this year. As has been the case for over a decade, there are more women's teams than men's teams. And has been the case since--well, since the inception of the NCAA--there are more male student-athletes than female: 252,946 men to 191,131 women.
Though some men's intercollegiate sports teams have been cut--wrestling has suffered the most losses--there has been a net gain of 510 men's teams since 1988. And women's opportunities have grown tremendously in that time as well with a net gain of 2,703 teams.
We were glad to see more opportunities, though somewhat surprised given the constant news we see about cash-strapped athletic departments.

Feminists Address Feminists on the Other Side of the Single-Sex Education Debate

2011-11-02T07:57:00.005-04:00

Rebecca Bigler and Lise Eliot are right when they point out that "feminists tend to be of two minds about single-sex schooling." In my experience, such discussions between these groups of feminists -- whether personal or playing out in the New York Times -- reflect an uneasy awareness of this divide, with both sides often choosing to address the common "enemy" in programs that take single-sex education too far, rather than address the conflicting positions between them. Of all the discourse over single-sex education that has spewed forth these last few months, Bigler and Eliot's piece in Slate notable for actually taking issue with the feminist variety of single-sex education -- the pro-woman Smith and Wellesley type. This respectful, measured, and evidence-based column makes the case that sex-segregated classrooms promote sex stereotypes that are the basis for bias and privilege. It delivers a persuasive argument that feminists would do more to promote gender equality by working together to end sex-segregated schools and enhancing co-education. It's worth a read.

Badminton Proves Popular Addition in Deer Valley, Arizona

2011-11-02T07:31:00.001-04:00

Girls' badminton, the newest sport offered by the Deer Valley Unified School District in Phoenix, Arizona, easily filled up at the district's five high schools, providing new athletes with a sport and demonstrating once again the "if you build it, they will come" relationship between Title IX, opportunity, and interest.

Deer Valley added badminton this August in response to pressure generated by the Title IX complaint filed by the National Women's Law Center last year. The complaint submitted to the Department of Education's Office for Civil Rights, challenged the relative lack of athletic opportunities for girls, citing an average of more than ten percentage points disparity between the percentage of female students at district high schools and the percentage of athletic opportunities available to them. It also noted the likelihood of "unmet interest" (as required for a school wishing instead to comply with prong three) due to the popularity of badminton in the region and its status as an Arizona Interscholastic Association championship sport.

With 20 girls coming out for badminton at four Deer Valley high schools (and 12 at the fifth) it is now evident that unmet interest existed. Hopefully Deer Valley and other districts will be on the lookout going forward to keep pace with girls' athletic interests rather than wait for a disparity in opportunity so egregious that it attracts a federal complaint. The fact that Arizona recently became the first state to sanction a high school championship in sand volleyball suggests another way to prove that opportunity begets interest.

NCAA Division I Votes to Increase Athletes Financial Aid

2011-11-01T09:09:00.004-04:00

Last week, the NCAA Division I Board of Directors voted to allow conferences to increase athletic scholarships by $2,000 so that athletes can have spending money. With this plan, the NCAA acknowledges that student-athletes have little time to work due to the professional-like demands on their time. To many, athletes' uncompensated labor seems like exploitation, especially when universities reap revenue, and a small handful, actual profit, from that labor. While I am sympathetic to the argument about exploited labor, I'm disappointed that the remedy isn't instead to reduce the professional-like demands on student-athletes time. That, of course, would require putting an end to the commercialization of college sports and returning it to its truly amateur status. This new policy seems to suggest that ship has sailed.

But more on topic for this forum, the new policy also raises some Title IX issues that schools who increase their scholarships will have to address. Title IX regulations require schools to distribute athletic financial aid in the same proportion as the percentage of male and female athletic opportunities that it provides. 34 C.F.R. 106.37(c). For example, at the University of Michigan, 51% of athletic opportunities go to men. Men should receive around 51% of athletic financial aid, but they already receive a higher percentage -- 55% -- so technically they already do not comply. If they added $2000 to every full ride scholarship for the teams that are most likely candidates for this argument about exploited labor, i.e., football and men's basketball, they would be even more out of compliance. Could Michigan afford to provide comparable financial aid to female athletes? I don't know. But I certainly question why, if they can, they haven't done so already. In total, male athletes receive almost $176 million more annually in athletic financial aid than female athletes, suggesting that Michigan is far from the only university already in the hole.

Alternatively, I wonder if these spending money stipends could be considered as something other than financial aid. Unlike existing athletic scholarships and grants-in-aid, this additional $2000 is not a discount from money that would otherwise be paid to the institution; it conceptually different in that it is money that the student can spend on whatever. That being the case, we wouldn't measure compliance by requiring proportional distribution under the financial aid regulation cited above. Instead, I think, schools would have to treat these stipends like any other perq or amenity that comes with playing sports, like medical training, access to facilities and equipment, tutoring, etc., which the Title IX regulations require be equitably distributed among male and female athletes. 34 C.F.R. 106.41(c)(2)-(10).

But whether we conceive of these stipends as financial aid or some other kind of perq or amenity, the bottom line is still the same -- schools can't legally limit these to men's sports, even if those are the ones that produce the most revenue. In world where already many (most?) Division I schools are out of compliance with the requirement to proportionally distribute athletic financial aid, I tend to view this new policy pessimistically, as likely to exacerbate Title IX violations rather than providing benefits to women's sports.

Washington High School Receives Complaint About Fields

2011-11-01T08:36:00.003-04:00

A group of parents have reportedly complained to the administration of Castle Rock High School, in Washington, about the unequal treatment received by the girls soccer team, which plays on a field without lights while the football team plays in a comfortable, lighted stadium that it does not share with other teams. As a result, girls' games are sometimes called early due to darkness, which reduces their playing time in a way that football players never experience -- sometimes J.V. games have been shorted to as little is 32 minutes, instead of the usual 80. (The boys' soccer team does not use the stadium either, but their season is in the spring so they don't have the darkness problem.) Adding insult to injury, they claim, is the fact that while their games are called for darkness, the football stadium is sitting unused, because their game schedule does not conflict with high school football practice and game times.

To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.

Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.

Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.

Women's College in Virginia Has Policy to Expel Transgender Students

2011-10-24T14:56:00.004-04:00

Hollins University, a private, women's college in Virginia, is in the news this week for its policy to expel transgender students who "self-identify" as male and have taken one of the following steps towards transitioning to the male sex: "1) begins hormone therapy with the intent to transform from female to male, 2) undergoes any surgical process (procedure) to transform from female to male, or 3) changes her name legally with the intent of identifying herself as a man." This is an unfortunate policy because it denies compassion and withholds tolerance to students who may need them most. Instead, it places transgender students in difficult position of having to choose to either uproot themselves from their education and community, or else suppress and deny their deeply-felt identify.

Hollins appears to be the only women's college in the country with such a strict policy to exclude transgender students who have already matriculated, though other women's colleges have been reported to have engaged in other acts of discrimination, including rejecting a transgender alum from conducting alumni interviews (Wellesley) and not letting a transgender student serve as an overnight host for prospective students (Smith).

The Chronicle of Higher Education reports (see also permanent link, subscription required) that while Hollins University has had this policy for four years, it has recently come under fire from some Hollins students and faculty, prompting a university diversity committee has decided to study it. Even though no one has been expelled under the policy, several students are believed to have transferred because of it. One faculty member, Women's Studies professor Susan Thomas, worries that the policy "sets the university up for problems."

As a legal matter, I agree -- the policy does set the university up for problems under Title IX. As a private institution, Hollins's undergraduate program is exempt from having to comply with Title IX's prohibition on sex discrimination. But this exemption is, by its terms, limited to admissions. See 38 U.S.C. 1681(a)(1) ("in regard to admissions to educational institutions, this section shall apply only to institutions of vocational education, professional education, and graduate higher education, and to public institutions of undergraduate higher education.") Even if Hollins could legally exclude applicants because of their sex (either their natal sex, or their transitioned sex), this exemption does not give a women's college license to discriminate against students who have already matriculated by expelling them because of their transitioned sex. Nor does the exemption allow schools like Smith and Wellesley to discriminate against transgender students and alumni in the manners described above.

I hope that Hollins reconsiders this policy, in light of its legal, ethical, and educational shortcomings.

"Room for Debate" over Single Sex Education

2011-10-18T09:34:00.003-04:00

Single-sex education remains in the public discourse, in the wake of the much-discussed article in Science that calls into question the presumed benefit of single-sex classrooms, and the news of Vermilion Parish's decision to curtail through 2016 single-sex classes at its middle school in settlement of its litigation with the ACLU. The New York Times "Room for Debate" series addresses single-sex education today by including columns from all angles on the debate -- from those most critical of single-sex education as a misguided placebo for the performance gap in public education, like Galen Sherwin (ACLU attorney),Verna Williams (University of Cincinnati law professor) and Richard Fabes (child development professor at Arizona State), to the more moderate positions like Rosemary Salomone (St. John's law professor) who supports more limited use of single sex education, to the stronger proponents of single-sex education like Jane Dammen McAuliffe (President of Bryn Mawr), Leonard Sax (author) and Christine Hoff Summers (author).

Florida High School Reinstates Coach After Retaliation

2011-10-16T11:35:00.004-04:00

In June, school officials at Jensen Beach High School in Martin County, Florida, terminated girls' lacrosse coach Michele Ruth, who had advocated for her team's access to the district's best athletic facility, the stadium built for the football team, but which is otherwise used during the spring lacrosse season. This week it was reported that the school district agreed to a settlement with Ruth to keep her from filing a lawsuit. As part of the settlement, Ruth is reinstated to her coaching position, and the girls lacrosse team will have their home games in the stadium. The settlement agreement (available here) also provides that the district will reimburse Ruth's attorneys, including Linda Correia and the law firm Public Justice.

Reportedly, the district had claimed that it terminated Ruth for coaching without shoes, in violation of a school policy necessitated by the dangerous condition of the field used for lacrosse, due to the presence of "glass and nails and snakes." Two problems with this explanation probably influenced the district's decision to settle rather than face a jury: first, the coach's shoes only became an issue after she raised the Title IX implications of the athletic director's decision to exclude the lacrosse team from the stadium, and thus appear to be pretextual. Second, the unsafe conditions of the field, which the district would have to emphasize as part of its defense, not only underscore Ruth's request to play in the stadium, but raise separate questions of liability, including under Title IX.

One local columnist is calling Ruth a role model to her students for having the "courage and conviction to stand her ground."

Former Coach Settles Claim for Retaliation Over Scheduling Complaint

2011-10-14T16:46:00.004-04:00

By personal correspondence from a source close to the case, I've learned that former girls' basketball coach Amber Parker has settled her lawsuit against the Franklin County (Indiana) Community School District, in which she claimed she was retaliated against for filing a lawsuit against the Indiana High School Athletic Association to challenge the inequitable scheduling of girls' basketball games. The district will pay Parker $28,500 to drop the retaliation suit that alleges the district failed to renew her teaching and coaching contracts to punish Parker for her advocacy for equity in scheduling. My correspondent suggests that Parker was seeking comparatively modest compensatory damages, which suggests that the district was willing to pay a premium to keep the case from a jury.

Parker's lawsuit against the IHSAA, which has been handed off to another plaintiff in light of Parker's relocation to another state, is not affected by the settlement. Recall that a district court determined that the IHSAA did not violate Title IX by scheduling girls basketball games for fewer Friday night games, and that decision is on appeal to the Seventh Circuit Court of Appeals.

School District to Renovate Softball Fields

2011-10-12T07:54:00.002-04:00

The Kennett Consolidated School District in Chester County, Pennsylvania, will improve its girls' softball field, having voted this week to retain a contractor to design and conduct the renovation, at an estimated cost of $30,000. Reportedly, the boys' baseball fields have better playing surfaces, dugouts, and a scoreboard, and the school board wants to bring the girls' fields to the same level in order to comply with Title IX.

No Investigations into Oregon Complaints

2011-10-05T07:37:00.004-04:00

The Department of Education has announced that it will not conduct investigations into the complaints filed against 60 school districts in June.

No reasons for this decision appear in any news report available at this time. My understanding, however, is that OCR dropped the complaints because they did not contain evidence to support allegations that the districts were violating all three prongs of the three-part test, as is required for a Title IX violation to occur. Specifically, OCR required more evidence to support allegations that the districts were in violation of the third prong, which measures whether school districts have satisfied all unmet interest of the underrepresented sex. Generally, the complaint based allegations of unmet interest on the fact that districts offered fewer girls' sports than are sanctioned by the Oregon State Activities Association.

Under normal circumstances, I think that basing a prong three allegation on evidence that schools don't offer girls' sports that are popular in the state, as evidenced by their recognition by the state athletic association, is a viable one. Remember, the complainant isn't required to prove that a violation exists -- that's OCR's job -- just give the agency a reasonable basis for conducting an investigation. Moreover, the Oregon complainant isn't the first to rely on state athletic association's list of sanctioned sports to support allegations of prong three violations; the National Women's Law Center did so when it filed 12 complaints against schools across the country earlier this year, and those complaints have not been dismissed. Perhaps when faced with the prospect of a single regional office having to investigate 100 schools at once, OCR is requiring more of complainants than it ordinary would?

Study Suggests Single-Sex Education Does More Harm than Good

2011-09-24T11:57:00.004-04:00

Even as Kris pointed out that single-sex education is on the rise, a review article in the journal Science that was reported widely on yesterday (see, e.g., here, here, and here) casts doubt on claims that separating students by sex makes them better learners. But evidence does suggest that the practice promotes gender stereotyping and sexism. For instance, the review cites a recent comparative study of two preschool classrooms, which found that the classroom where the teacher used gender-specific language to address the children quickly produced greater tendency among the students, when compared to a classroom where no gender-specific language was used, to exclude children of the opposite sex and to rely on gender stereotypes. The study also references a Department of Education report found little overall difference in academic outcomes between children in single-sex schools versus those in coed schools. Factors other than sex, such as economic factors and parent involvement, are more likely to influence academic success.

The study's authors, who include psychologists, education specialists, and a neuroscientist who studies gender, have created a American Council for Coeducation Schooling, and are using their findings as the basis of a political movement to urge the Department of Education to rescind the regulations that allow for single-sex education, which were promulgated after the 2002 No Child Left Behind law authorize single-sex education in elementary and secondary schools as an exception to Title IX's general prohibition on sex discrimination. As we have pointed out on this blog in the past, many school districts (see, e.g.) appear to be implementing single-sex education in a broad, coercive, and groundless manner that is not authorized by the regulations.

Given the Secretary of Education's record support of single-sex classrooms such as those in his home city of Chicago, it will be interesting to see whether he is open-minded to reform and keeps in mind President Obama's professed commitment to evidence-based policymaking.

Single-sex classes growing at MN middle school

2011-09-23T08:57:00.000-04:00

Must be the new school year, because we seem to be reading more and more stories about public schools experimenting with single-sex classrooms.
In Minnesota, Battle Creek Middle School experiments with single-sex classrooms began over five years ago with the number of single-sex options growing to the point where, this year, most of students' classroom time is segregated by gender. Previous incarnations of single-sex classrooms had students segregated for half the day and mixed the other half; but teachers reported an increase in disciplinary issues and lack of attention due to the desire of the students to socialize and have "party time" when they were reintegrated.
This situation--as well as the one in Indianapolis that I wrote about the other day is curious--is there much less socializing among just girls or just boys? Why is it only "party time" when boys and girls are present?
The article is fairly responsible in its coverage noting that no research to date has confirmed the value of single-sex education. It also notes the problem of perpetuating stereotypes, but then, unfortunately, includes line like this based on information from sources:
Teachers said they notice gender differences and tweak lessons accordingly. For example, boys tend to be more competitive and crave physical activity, they said, while girls are more organized.
Makes one worry about what teachers have learned about the research and what exactly they are doing with these so-called well-organized girls and competitive and physically active boys.
Also, no information on whether there are mixed gender options. Lack of such options could be a problem.

Boosters pay extra for coaches

2011-09-22T08:50:00.001-04:00

The football boosters at Mercer Island High School in Washington want to offer the football coach a little extra money for his off-season duties. Realizing last spring though that they could not do so without violating Title IX, they got together with the parents' club of the gymnastics team to offer a similar deal to the gymnastics coach. The amount of the extra pay will be different; a discrepancy explained by the difference in the size of the respective programs. A seemingly good explanation.
Kudos to the people at MIHS for recognizing the potential booster-induced disparity.
It could be, as one administrator noted, a slippery slope given that most coaches do work in the so-called off-season.
Also a possible issue (not mentioned in the article) is that the outside salary will benefit more boys than girls because the football team is bigger. Also it looks like the gymnastic coach's off-season duties include helping the cheerleaders--which seems like a separate job--especially since he is not allowed to work with his own team members in the off-season, per the state association's rules. (Not sure exactly how the football coach is getting around this. One of the boosters said that there is no "select season" in football, which I'm pretty sure is wrong. Why would every other sport have a season and not football?)
The issue of booster clubs in high schools, and what they are and are not allowed to do, is gaining visibility. And schools are likely to have to continue to juggle the desires of boosters to support the most popular sports and the equitable distribution of amenities, facilities, equipment, and perks. The case at MIHS, though, seems far less contentious than others we have read about.

Article Critiques Massachusetts's Anti-Bullying Statute

2011-09-21T11:23:00.004-04:00

New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.

According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.

She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."

Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).

National Women's Law Center Hosts Title IX Webinar

2011-09-20T14:06:00.002-04:00

The National Women's Law Center is hosting a free webinar called Rally for Girls' Sports: A Guide to Title IX for Parents, Coaches, and School Officials. NWLC attorney and Title IX expert Neena Chaudhry will "teach the basics, such as how schools can comply with Title IX and tips for recognizing Title IX violations in sports programs. All parents, coaches, school officials, and students who want to level the playing field are welcome."

Sign up here and participate online, Thursday, September 22 at 3:00 pm.

Women's Baseball League Reenacted in Wisconsin

2011-09-19T12:00:00.006-04:00

Not a Title IX story per se, but someone just sent me an article in the Milwaukee Journal-Sentinel about historical reenactments of the All-American Girls' Baseball League that is too cool not to post. Yesterday, a group called the World War II Girls Baseball Living History League staged a game between the Kenosha Comets and Rockford Peaches in authentic uniforms and using the rules and equipment of the day. What a cool project -- makes me wish I lived in Illinois or Wisconsin!

Sexual Harassment Round-up

2011-09-16T12:18:00.005-04:00

Here is a round-up of recent judicial decisions in Title IX sexual harassment cases. These summaries were prepared at my direction and supervision by Western New England law student Shiona Heru.

The First Circuit Court of Appeals addressed important questions regarding the actual notice requirement of a Title IX claim when they affirmed a lower court’s decision to dismiss a hostile environment harassment claim filed by the mother of a six-year-old special education student against Puerto Rico for alleged sexual abuse by a bus driver. According to the record, the mother reported the abuse to a special education teacher who in turn referred the mother to a social worker. The mother claimed that the social worker “did not do anything” and that she tried to meet with the principal several times before removing her son from school and filing a lawsuit. The appellate court dismissed the mother’s claim because she failed to allege that the principal had actual knowledge of the sexual abuse and had the authority to enforce corrective measures against the alleged harasser on behalf of the school department.. The court rejected that the principal had “, constructive knowledge” sufficient to satisfy the notice requirement by virtue of the mother’s unsuccessful attempts to contact the principal. The court emphasized that a plaintiff cannot establish institutional liability through allegations that a school employee did not inform someone with the proper authority to take corrective action. Perhaps more importantly, the plaintiff has to prove that the funding recipient not only has control over the service provided and the environment in which the harassment occurs, but also that the appropriate person has actual knowledge of the harassment. In this case, the plaintiff is free to pursue her local law claims in Puerto Rico. Santiago v. Puerto Rico, 2011 WL 3689000 (1st Cir. Jul. 27, 2011).

A high school student’s Title IX claim against a school district in Pennsylvania survived a motion for summary judgment when the lower court determined found that a jury could find that a teacher conditioned the plaintiff’s ability to pass a driving test on her submission to his unwelcome sexual harassment advances. (We had earlier blogged about the case surviving a motion to dismiss.) The court also determined that there was sufficient evidence to warrant the conclusion that an appropriate school official had notice of prior violations by the teacher and the school district responded with deliberate indifference by pressuring the student to change her story, failing to prevent the teacher from contacting the student, assigning his wife as the student’s substitute teacher and publicly displaying support for the teacher’s innocence. Additionally, some of the 14th Amendment claims survived a prior motion to dismiss and were retained under Section 1983 which was enacted to provide a private remedy for violation of federal law. Even though a state is not subject to suit under section 1983, a state officer can be sued in his official capacity. This means that although punitive damages cannot be awarded against a municipality, the municipality can be held jointly and severally liable and ultimately be held liable through section 1983. E.N. v. Susquehanna Tp. School Dist., 2011 WL 3608544 (M.D. Penn., July 05, 2011).

A district court in Pennsylvania dismissed a high school student’s claim that North Allegheny School District officials permitted student-on-student harassment and failed to remedy a sexually hostile environment where the plaintiff was raped by a classmate in the school parking lot during school hours. Taking a narrow view of the requirement that school officials have actual notice of harassment – a view that conflicts with other courts’, see, e.g., Williams v. University of Georgia (institutional liability could be premised on university’s failure to respond to actual notice of football player’s sexual assault at a prior institution)-- the district court determined that notice of two prior incidents of sexual assaults filed by other high school students against the harasser did not constitute actual notice of sexual harassment of the plaintiff. Once school officials were aware of the assault, they took immediate action, thus insulating themselves from institutional liability for peer harassment under Title IX. Additionally, though the court dismissed the plaintiff’s claims for failing to sufficiently allege notice and deliberate indifference, it did emphasize that the harasser’s the repeated requests throughout their high school education that the plaintiff perform sexual acts upon him could qualify as sexual harassment. The fact that the plaintiff had consented to sex acts with the harasser in the past does not necessary preclude a jury from finding that the solicitation of those acts is “unwelcome.” Doe ex rel. Doe v. North Allegheny School Dist., 2011 WL 3667279 (W.D. Penn., Aug. 22, 2011).

Indianapolis high school imposes strict segregation

2011-09-15T17:26:00.003-04:00

Since the case in Vermillion Parish (LA) was settled last year (disallowing single-sex classrooms), there has been a spot open for the public school that could execute the strictest form of sex-segregation.
Looks like Arlington Community High School in Indianapolis has taken that spot. And most people are happy about it. But that could also be an impression created by the story I read which took a generally positive tone. It also failed to note that this so-called nationwide research that shows single-sex education is better is somewhat specious.
But there certainly are students and administrators and teachers who like that there seems to be more participation and engagement in the classroom and less drama in the hallways. Yes--everything is segregated: hallways, buses, the cafeteria. The move to such strict segregation came after the principal felt that, given the extreme underperformance of his school, he had nothing to lose by implementing the segregation. Spending less time disciplining students in and out of the classroom certainly would seem to free up some time and space for more learning. But is this the best way to do this? What are the consequences? And are we really assuming that all boys and all girls are going to get along thus freeing the school from conflict? And, of course, the underlying racial stereotypes (the majority of ACHS pupils are students of color) are problematic.
A short news piece from Ms. magazine about the school and the new policy does mention this aspect; which is good because few media outlets do when discussing any of the single-sex education cases.

Another interesting aspect: the school's lack of success actually means it will be one of four high schools in Indianapolis that the state will take over from the school district next year. That may put an end to the segregation--or not. Assuming no one(s) challenge it before then.

NCAA Adopts Policy for Including Transgender Athletes

2011-09-13T07:39:00.003-04:00

The NCAA has approved a policy to govern athletics participation by transgender athletes who have transitioned to another sex. The new rule, which takes immediate effect, allows a transgender athlete who has transitioned from male to female to participate in women's sports after one year of hormone treatment that includes female hormones (estrogen) and agents that suppress the effects of male hormones in the body (testosterone blockers). The rule also clarifies that athletes who transition from female to male by taking testosterone are not eligible for women's sports, but may receive a therapeutic use exception* and be eligible for men's sports. A transgender athlete who transitions socially but not physically is still eligible for the sport that matches their birth sex. For example, Kye Allums plays women's basketball for George Washington, even though he goes by "he" as has not undergone any physical transition that involves testosterone.

The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.

*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.

Resolution Agreement Reached at Adrian College

2011-09-12T12:16:00.005-04:00

An anonymous reader mailed me a copy of a Resolution Agreement between the Department of Education Office for Civil Rights, and Adrian College in Michigan. In 2008, we blogged about ongoing investigation into a complaint against the college stemming from among other things the college's failure to include a women's locker room in its newly constructed "Multi-Purpose Stadium." (see here and here). Apparently, the inequities between men and women's sports at Adrian College were significant, as the college has agreed to remedies in every area covered by Title IX's athletic regulations. Specifically, the college has agree to:

Evaluate its intercollegiate athletics program "to identify one or ore women's sport team to add in the 2012-2013 academic year."
Develop a written replacement schedule for equipment and supplies, including uniforms, which will ensure equity by gender.
Increase the number of competitive events for softball and women's tennis.
Ensure that women's softball is not the only team stuck with 6 am indoor practices, but that that burden is shared by men's teams as well.
Ensure that the head coach for men's and women's track splits his time equally between the teams, and to hire an assistant coach for women's track.
Improve hiring practices to attract more qualified coaches to the women's program, including by increasing compensation and other conditions of employment to make the job more attractive to qualified applicants.
Construct a new locker room for women in the Multi-Purpose Stadium.
Renovate existing women's locker rooms in other facilities.
Renovate the women's softball facility to allow for night play, concessions, changing areas, and spectator viewing.
Assign the same number of "equivalently qualified" medical and training staff to men's and women's games.
Provide equivalent publicity ("e.g., media coverage, statistics maintenance, attendance at games, and other services") to men's and women's teams.
Provide recruitment funds to men's and women's teams "in proportion to each gender's participation rate in the athletics program" and, as needed, to the women's program at a greater rate in order to make up for the "significant" underrepresentation of women in the athletics program.
Adhere to various reporting and monitoring requirements with respect to these promises.

OCR will continue to monitor the agreement until it determines that the College has fulfilled its terms.

Franklin Pierce adds sports

2011-09-08T09:41:00.002-04:00

Knowing the state of the economy, the fiscal state of higher education, and--having attended school in New Hampshire--the fiscal issues faced by NH schools, we were a little surprised to read that Franklin Pierce University has announced it is adding several sports.
No word on how these sports will be financed but it appears that the university has every intention of adding women's ice hockey (it already has a men's ice hockey team), men's and women's track and field, sprint football. It will also reinstate men's cross country (previously cut in 2003 for unstated reasons).
Interesting. Especially interesting is sprint football--which I had never heard of. Turns out it's the same as regular intercollegiate football. But all players have to weigh less than 172 pounds.
Reading further though it appears that the differences go beyond body weight. There is no pre-season. There will be no athletic scholarships. And the roster will be kept at 65 players. Also, FPU will not be investing right away in a stadium. Administrators are making arrangements with local schools over use of their facilities. In its inaugural season--scheduled for 2012--they will play a reduced schedule.
I really can't think of a more responsible plan to add football (regardless of how much the players weigh!).
Again, no word on where the funds for these additions will come from. FPU is a private school, but still...

Jury Awards $26,500 to Male Student Accused of Rape

2011-09-06T08:06:00.005-04:00

Last week, a federal jury in Tennessee returned a jury verdict and award of $26,500 in favor of a male college student who had been accused of rape. The student, using the pseudonym John Doe, sued the University of the South in Sewanee, Tennessee, charging that the university's failure to follow its published procedures in handing of the accusation against him constituted a breach of contract and negligence, violated Title IX, and unlawfully damaged his reputation. The jury concluded that the university was negligent, but reportedly found it to be 53% at fault, compared to Doe's 47%. The damages award constitutes tuition paid for the year that Doe did not finish.

The case began on August 29, 2008, when Doe had sex in his dorm room with a female student. Later that day, the female student reported to college officials that she had been raped. Three weeks later, Doe received notice of the charges from the university and was told to report to a hearing the following day. There, he was found responsible for sexual assault, for failing to recognize that the victim was too impaired from drugs or alcohol to provide consent. The university gave him a choice between two sanctions: a one-semester sanction, with the assault remaining on his record, or withdrawal from school, with the option to reapply later with an expunged record. Doe withdrew, and did not reapply.

Instead, he filed a lawsuit against the university, seeking up to $5 million in damages. In 2009, the judge dismissed Doe's claims that the university's actions against him violated Title IX, concluding that Doe's complaints did not include sufficient allegations to support a finding that the university was motivated by sex bias or negative assumptions about the male sex. Doe v. University of the South, 687 F.Supp.2d 744 (E.D.Tenn.2009). Later, the court dismissed Doe's claims of intentional infliction of emotional distress, but cleared the way for his negligence and breach of contract claims to go to trial.

At the trial, which concluded last week, the jurors heard evidence in support of Doe's charges that the university failed to comply with its own procedures, including providing timely notice of the charges, conducting an appropriate and thorough investigation, cutting off proceedings when there’s insufficient evidence to support the charges, allowing Doe to bring a lawyer to the hearing, and considering all of the relevant evidence, including evidence favorable to Doe (like the accuser's use of prescription medication, which could have affected Doe's perception of her ability to consent). The jury concluded that the university's conduct in this case constituted negligence (though not breach of contract) and returned a modest damages award meant to compensate Doe for actual damages in lost tuition, not for claimed damage to his reputation and future earning potential.

In today's issue of Inside Higher Ed, experts speculate on the effect of this decision, believed to be the first of its kind, on other universities going forward. Everyone seems to agree that this case is a reminder that universities have legal responsibilities to both accusers and accused when handling sexual assault cases, and that ignoring the rights of the accused can result in legal liability. Of course, universities can be liable under Title IX for failing to protect the rights of the accuser. Earlier this year, the Department of Education has clarified and promoted awareness about universities' obligation under Title IX to those who report sexual assault. Universities were reminded of their obligation to publish and follow grievance procedures for sexual assault, to investigate claims even if the police are involved, and to not impose a higher burden of proof on the victim than what the legal system normally requires of plaintiffs in civil cases. Importantly, however, nothing about this recent case in Tennessee suggests that universities are in a double-bind situation and forced to respect either one student's rights or the other's. None of the procedures the university was accused of violating in John Doe's case would have, if followed, put the university at risk of violating the Title IX rights of the accuser. While Title IX requires universities to take accuser's claims seriously, the law anticipates and expects that the university will provide a fair hearing that does not curtail the procedural rights of accused.

Sexual Harassment Roundup

2011-09-04T10:43:00.003-04:00

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).

Scheduling remedies in our own back yard

2011-08-26T06:45:00.003-04:00

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

2011-08-23T10:56:00.008-04:00

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...

2011-08-21T18:08:00.001-04:00

...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

2011-08-20T07:40:00.001-04:00

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

2011-08-19T07:44:00.003-04:00

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

2011-08-16T10:39:00.004-04:00

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

2011-08-04T10:32:00.004-04:00

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

2011-08-04T10:05:00.000-04:00

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

2011-08-03T09:47:00.004-04:00

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

2011-07-30T17:39:00.000-04:00

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

2011-07-29T14:35:00.003-04:00

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

2011-07-28T11:31:00.003-04:00

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

2011-07-25T07:54:00.005-04:00

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

2011-07-22T11:10:00.002-04:00

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

2011-07-21T15:34:00.003-04:00

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

2011-07-21T14:46:00.005-04:00

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

2011-07-12T13:08:00.004-04:00

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

2011-07-04T07:47:00.001-04:00

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

2011-07-03T10:23:00.005-04:00

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

2011-07-01T18:18:00.005-04:00

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.

100 Oregon high schools cited

2011-06-28T16:29:00.003-04:00

Sixty school districts in Oregon were named in a recent complaint filed with the Office of Civil Rights. Over 100 high schools have been cited as not providing an equitable number of sport opportunities for girls.
This is a huge complaint--in both senses of the word! In what appears to be a significant amount of research and data collection, the complaint (just under 600 pages) lists the proportionality numbers for the 100 schools and ranks them accordingly. I was actually surprised at the numbers available. High schools are not required, by federal law, to report such data. But it seems that Oregon's high school activities association keeps track of such things. Makes it much easier than visiting every school asking for their records! Though it should be noted that the most recent data available was from 2006. I still think that OCR will at least look at the schools that seems to have the most egregious disparities.
It seems that opportunities is the only program area the complaint is focusing on. But if the complaint triggers an investigation (or many, many investigations), other areas will also be investigated.
Currently unknown is who is reponsible for this mssive undertaking, which was filed in April. Kudos to that person(s)--I certainly hope it is indeed persons. They appear to have done a lot of OCR's work for them already with the seemingly comprehensive report. I hope that OCR does indeed investigate these schools. I worry about their ability to do so. It seems as if so many complaints are emerging--large-scale complaints. I wonder if they are equipped (staff, budgets, etc.) to deal with it all.
The usual "surprise" being expressed by various school administrators who will certainly cooperate but are sure they are in compliance.
What has interested me about these large-scale complaints (I am thinking also about the 12 complaints filed by NWLC last fall) is that they focus on expanding opportunities for high school girls. This mirrors the push by women's sports advocates in the 70s, after the passage of Title IX, to focus on the expansion of intercollegiate opportunities. More and more attention is being paid to disparities in other programs areas (like facilities and uniforms for example). But the focus on high school opportunities is almost like a (near) 40-year trickle down effect. I hope that it both continues and creates a more widespread awareness of the need for mandatory nationwide data collection at the high school level.

Football Exempt from School District's Decision to Cut Freshman Teams

2011-06-27T20:18:00.005-04:00

I'm not sure how this can NOT be a Title IX violation: the Ann Arbor school district is cutting all freshman teams at its three high schools except football. In all other sports, freshman will be able to try out for existing junior varsity and varsity teams, but there will be no teams reserved exclusively for them. Budget cuts explain the district's decision to slash freshman sports. The reason they are saving freshman football is that "safety issues are a major concern" if freshman are allowed to compete on J.V. team. What? Excuse me while I parse this pretext. Even if it were the case the freshmen boys are so distinctly different from sophomore or junior boys in terms of size or skill that it would raise "major safety concerns" to have them play together, why doesn't this difference carry over into other boys and girls contact sports? Why isn't it a major safety concern to have freshmen on the J.V. lacrosse or hockey teams? And finally, if it's a problem to allow freshman boys to compete on the J.V. team because of safety, hold a tryout and only let the kids on the J.V. team who are big enough and skilled enough to hold their own. After all, that's the standard that is being applied to all the other sports. Safety, yeah right. This is clearly a case of football once again getting special treatment at the expense of girls' and other boys' sports.

And, as I said at the outset, I can't see how this isn't a Title IX violation. Even if Ann Arbor high schools were proportionate before, they certainly can't be now that they have eliminated more freshman girls' opportunities than they have freshman boys'. And of course, cutting girls' opportunities makes it difficult to claim compliance under prong two, and the interest and ability is clearly there and now unmet due to the cuts, making it impossible to claim compliance under prong three.

What's more, the article linked above says that several sports are being demoted to "club" status, meaning they receive no school district funding. 7 girls sports will be affected by this new status at one or more of the three schools: lacrosse, bowling, J.V. field hockey, figure skating, cheer, dance, and crew. Only 3 boys sports will be: lacrosse, bowling, and crew. It is highly unlikely -- impossible I think would be fair to say -- that a school district that exempts football from freshmen cuts, and then takes out more girls' teams than boys' sports still manages to provide athletic opportunities proportionate to the gender ratio of the student body.

I don't envy the administrator who is forced to balance the school district budget on the back of student athletes. But as hard as that job is, there is no excuse for ignoring Title IX. These cuts need to be spread out fairly between boys and girls and ensure that even if the pie is getting shrunk, boys' piece and the girls' piece are still the same size.

[Thanks, D.R.]

Merged booster clubs in Maine

2011-06-24T16:04:00.003-04:00

The Portland (ME) school board has proposed that all athletic booster clubs be merged. So now, at the city's two public high schools, there will no longer be booster clubs for individual sports. Each school will have one booster organization and an administrator who supervises the organization, according to the proposal.
The proposed change is due to some questionable accounting practices within booster clubs as well as Title IX concerns over the equitable distribution of funds and treatment of athletes.
Apparently there is already some sharing of booster funds among teams, so the concept is not completely foreign.
But based on the article's public comments section, there is much criticism of this plan. People are basing these critiques on the belief that fundraised monies should not affect Title IX compliance and that the amount of money raised is a direct correlation to the amount of effort put in by parents.
While the latter may be partially true (the former is not, by the way), these arguments fail to consider the different values parents, students, administrators and the general public have regarding different sports. Football boosters raise more money, in part, because high school football in many, many cities and towns is the highest profile sport. If both the football team boosters and the girls soccer team boosters sell concessions at their respective games, who is going to raise more money?
Such an argument just perpetuates the inequities and punishes those student-athletes, and their parents, who may feel just as passionately about their sports as football players and their parents but cannot get others to feel similarly.

Happy Birthday Title IX, You Don't Look a Day Over 39.

2011-06-23T19:26:00.002-04:00

39 years ago today Congress passed Title IX of the Education Amendments of 1972. Readers well know, there's been lots of progress towards equality in those 39 years and plenty yet to come. The Department of Education commemorated this anniversary by conveying a similar sentiment and pointing out their own efforts -- including initiating 11 compliance reviews and 13 investigations -- in the last year to bring about the day "when students will be safe from discrimination, harassment, and physical violence in our schools." Meanwhile, our friends at the Women's Sports Foundation have kicked off the celebration by unveiling a sparkling new website and encouraging women to "Get Your Game On" -- in addition to amping up their usual good work. And the National Women's Law Center blog imagined what Title IX would say if it could talk about its 39th birthday.

What are you doing to celebrate?

Law Review Article Addresses School Officials' Individual Liability Post-Fitzgerald

2011-06-21T14:34:00.003-04:00

An article in the recent issue of the Wisconsin Journal of Law, Gender and Society examines the Supreme Court's 2009 decision in Fitzgerald v. Barnstable School Committee, which held that Title IX does not preclude a concurrent claim for Equal Protection violations under 42 U.S.C. 1983. The author, attorney Jennifer Kirby Tanney, explains that one potential consequence of this ruling is that school officials may be held individually liable for violations of Title IX, including in the peer harassment context. This is because while Title IX only covers institutions and not individuals, the 1983 remedy allows plaintiffs to sue individual defendants unless immunity applies. Tanney argues, however, that while the Court was right to hold that Title IX does not preclude relief under 1983 as a general matter, the Court should not in future cases extend this holding to allow for the individual liability of teachers and administrators, a consequence she argues that Congress did not intend.

For more see: Jennifer Kirby Tanney, A Back Door to Individual Title IX Liability? The Implications of Fitzgerald v. Barnstable School Committee on the Liability of Teachers and Administrators for Peer-to-Peer Harassment, 26 Wis. J. Law, Gender & Soc'y 23 (2011).

Slippery Rock back in legal trouble

2011-06-20T10:59:00.000-04:00

Slippery Rock University in Pennsylvania is back in legal hot water again. (Click on the Slippery Rock tag for more on the history of Title IX lawsuits and settlements.)
This time a lawsuit is being brought by two women who are claiming retaliation over their participation in the initial lawsuits, which lead to SRU having to reinstate three women's teams that had been cut.
The first plaintiff is the women's volleyball coach who was told her contract will not be renewed when it ends in 2013.
The second woman is an assistant to the athletic director who says she has been overloaded with work and left out of department meetings she otherwise would have been a part of.
The lawsuit alleges that the retaliation is also due to the fact that the athletic director, Paul Lueken, cannot work with strong women.

Female Wrestlers' Case Against UC Davis Goes to Trial

2011-06-17T08:34:00.003-04:00

On Wednesday, a federal district court judge in California heard closing arguments in the trial to determine whether the University of California at Davis violated Title IX when it denied opportunities to female wrestlers in 2001. The case has been in litigation for a many years, and we have blogged about it several times (see here, here, here, and here.)

The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.

What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.

Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.

Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.

The judge's decision is expected in July.

Vermilion Parish Ends Single-Sex Education

2011-06-16T06:32:00.001-04:00

The school board in Vermilion Parish, Louisiana, voted earlier this month to end its single-sex education program at Rene Rost Middle School, which began in 2009. You may recall that in April, the 5th Circuit Court of Appeals issued a decision in the litigation over this program, which clarified that the courts would require the school board to have "exceedingly persuasive justifications," consistent with the Equal Protection Clause, if it continued to assign its students to certain classes or deny them from others on the basis of sex. We predicted that such a standard would be difficult for the board to meet, especially in light of the fact that the Rost principal's claims that such classes produced better outcomes were later revealed to be rooted in his own falsified data. However, the reported reason for the school board's decision was a low level of parental support for single-sex classrooms. The school board's decision ends the litigation against Vermilion Parish.

Dept of Ed Letter Supports Gay-Straight Alliances

2011-06-15T08:13:00.002-04:00

Yesterday, the Department of Education circulated a "Dear Colleague" Letter to remind and apprise elementary and secondary schools of the government's position that schools must provide equal access and support to student clubs formed around shared interest in sexual orientation discrimination, namely, gay-straight alliances (GSAs). The Department's interpretation is not rooted in Title IX, however, whose prohibition on sex discrimination would seemingly not apply to viewpoint discrimination on the basis of sexual orientation. Rather, the Department rooted its interpretation in another law, the Equal Access Act. Congress passed this law in 1984 because it was concerned that schools were not allowing religion-based student groups meet on campus. But it applies to all student groups. As the letter explains,

The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

Of course, a school wishing to deny access to a GSA may choose to have no extracurricular clubs at all, as a Utah school district once did. But the Department of Education's letter urges schools to consider the role of such clubs in fostering the kind of welcoming and supportive atmosphere that can be an antidote to the bullying crisis which has claimed several gay students' lives.