Title IX news makes 2007 top ten lists

When we started this blog we wondered how often we would be posting. How often can Title IX be in the news we asked ourselves?

Well we learned quickly that Title IX is in the news almost every day. That being said, 2007 was an especially big year for Title IX--and not just because this year marked the 35th anniversary of the legislation.

And we have not been the only people to notice. As various year-in-review and top ten story lists emerge in media outlets all over the country we see various Title IX stories popping us as major headline-grabbers.

The Naples Daily News, which has been covering the various Title IX controversies at Florida Gulf Coast, named the investigation into the original complaint this past summer the number 9 top story of the year. I personally think everything that happened after the investigation ended has been far more newsworthy--and the story does mention the termination of the university counsel and the poor performance evaluations given to two of the complaining head coaches. But those incidents, in hindsight, look like the very tip of the misogynistic, homophobic, ignorant FGCU iceberg.

The Daily Herald which covers suburban Chicago has a top ten women's sports stories of 2007 and columnist Patricia Babcock McGraw named the Lindy Vivas verdict the 5th most important story of the year. Unfortunately she seems to have compiled the list before the Johnson-Klein verdict ($19.1 million) came out in early December because she writes that Vivas's was the largest jury award in a Title IX retaliation case ever.

The Daily Camera in Colorado counted down the top ten local stories (as chosen by their staff) of the year and named CU's settlement of its Title IX lawsuit, worth $2.85 million, number four on the list. CU settled the sexual assault lawsuit brought by two former students who accused the university of failing to do enough to stop the behavior that was occurring at football recruiting parties.

A review of the Long Beach Unified School District's year found the lawsuit brought by gymnasts who were kicked out of their gym and had some of their equipment damaged in the process to be one of the "highlights" (guess it depends on what side you are on) of 2007.

Lacrosse Magazine, in their top seven (seven??) stories of the year cite the dropping of two programs, women's lacrosse at Ohio University and men's at Butler University. LM was very responsible and noted that OU "cited Title IX compliance" as a reason for dropping the program but the magazine itself did not support this claim (which, of course, is not true).

Seven must be the magic number this year (I suppose next year there will be top 8 of 2008 lists) because Pat Griffin over at the It Takes a Team! Blog has her top 7 LGBT sports stories. Number one on her list is the Rene Portland resignation triggered (though no one official is admitting this) by the lawsuit brought by former player Jennifer Harris. The settlement of the lawsuit is number 4 on her list. Number 6 was the Lindy Vivas verdict in her discrimination case against Fresno State.

Stay tuned for our own Top Ten Title IX stories of 2007 coming tomorrow.

Funding Disparities Revealed at Benicia Unified School District

The local paper in Vallejo, California is reporting on disparities in funding between girls' and boys' athletics at Benicia High School, a situation brought to light by a Title IX complaint against the school district.

According to the article, booster club financial statements reveal that "More than $87,000 was spent last school year on boys' programs as compared to $6,900 on girls' teams. That includes $20,325 on boys baseball while nothing was given to girls' softball."

While Title IX regulations do not require schools to spend precisely equal amounts on girls' and boys' sports, this more-than-tenfold disparity is most likely indicative of inequality in any number of areas that are governed by Title IX, including facilities, coaches, publicity, travel, equipment, and number of opportunities.

Moreover, this extreme disparity is surprising in light of the comments of the booster association president, noted in this earlier article about OCR's ongoing investigation (which we blogged about here), insisting that booster-raised funds were equitably distributed between girls' and boys' teams.

Relatedly, OCR's investigation into the Benicia Unified School District has already revealed that the district had not appointed a school official to serve as the Title IX Coordinator, as required by law. Perhaps a Title IX Coordinator would have noticed these problems before OCR had to get involved.

Religious Conservatives Continue to Challenge California Antidiscrimination Law

California's newly-enacted Student Civil Rights Act (a/k/a "SB 777") is under attack by conservative, religious organizations, who have not only initiated a referendum that would repeal the law, but are now also challenging the law in court.

SB 777 amended the antidiscrimination provisions of the state education code by adding sexual orientation and gender identity. Many consider this legislation to be a mere clarification, since other, generally applicable antidiscrimination laws already contain those protections. However, as we've noted before, opponents of the new law are arguing that the new law will mean all kinds of changes to the education policies, facilities, and curriculum that will infringe the rights of Christian kids to endure a publicly-funded education without coming into contact with the reality that some people are gay and/or don't adhere to rigid gender stereotypes.

In November, the opposition to SB 777 entered the legal arena when Alliance Defense Fund and Advocates for Faith and Freedom filed a lawsuit in federal court, challenging the law as a violation of the due process rights protected in the federal and California constitutions. Specifically, they argue that by abandoning the biological category of sex in favor a social category of gender, the law imposes a vague nondiscrimination mandate, since educators can't be expected to "read the minds of individuals to determine the individual’s self-defined sexual identity so as not to inadvertently discriminate against an individual based upon their self-defined sex."

Two gay rights groups, Equality California and the Gay-Straight Alliance Network, recently filed motions to intervene in the lawsuit (which would allow them to make arguments in support of the law, even though they are not the named defendant). The groups are represented by NCLR, Lambda Legal, the Transgender Law Center, and two private firms. According to Equality California's executive director Geoff Kors, the intervenors' position is that the law is not vague, it simply clarifies what the courts have already determined: that schools can be liable for discriminating against students, including gay, lesbian, and gender-nonconforming students. I expect they will also point out, in response to the gender = vague = chaos line of reasoning that plenty of states have similarly constructed antidiscrimination law, and that federal courts are increasingly interpreting sex discrimination to include gender and in some cases, sexual orientation, and schools have not experienced the parade of horribles that ADF and AFF apparently fear.

Student Note Defends Comprehensive Single-Sex Education

A student note in the current issue of the Notre Dame Law Review argues that properly-implemented single-sex education should be found constitutional and consistent with Title IX. The author, Benjamin Carr, distinguishes between programs that offer only single sex education, which he says are "doomed to fail" due to their tendency to reinforce gender stereotypes, and programs that offer single sex options to both sexes as part of a "full buffet" of educational options. The latter, comprehensive model, says Carr, have the potential to survive judicial scrutiny under the Constitution and Title IX, so long as all of the classes are of equal quality. By creating single-sex classrooms as an alternative, not a replacement, for coed classrooms, Carr argues, schools are less likely to create the "heightened awareness of gender as a category used to define students" and tendency to reinforce gender stereotypes that are likely to run afoul of antisubordination underpinnings of the Equal Protection Clause and Title IX.

Citation: Benjamin P. Carr, Can Separate Be Equal? Single-Sex Classrooms, the Constitution, and Title IX, 83 Notre Dame Law Review 409 (2007).

The Encyclopedia of Title IX and Sports

The Encyclopedia of Title IX and Sports, edited by Nicole Mitchell and Lisa A. Ennis, was recently published by Greenwood Press. It does a great job shining the spotlight on female athletes and other leaders in women's sports. Reflecting an awareness that greatness often labors in obscurity--especially in women's sport--the authors included entries on women I had never heard of, but am happy to now know -- for example, Suzyn Waldman, the first woman to announce the play-by-play for a nationally televised baseball broadcast in 1995, Senda Abbott, PE director at Smith College who developed women's basketball in the 1890s, and Molly "Machine Gun" Bolin, the first payer to sign with the Women's Basketball League in 1978.

One slight criticism is that I would have liked a stronger explanation for why the editors chose to include biographical entries for individuals without stating their relationship to Title IX. In the preface, they say that they included women whose contributions to sport predated Title IX in order to provide a well-rounded look at women's sports, but this explanation is not satisfactory and undermines the book's utility as a Title IX resource. The authors could have made the case, for example, that Title IX influenced a cultural shift that helped create the opportunity in broadcasting that SuzynWaldman was the first woman to enjoy. They could have also suggested that Waldman's broadcast helped influence and inspire the people who were listening to support gender equity in sport, including Title IX. I think this is a missed opportunity -- the editors could have tied together the entries together by tying them more expressly to Title IX, creating a sense of interrelatedness and connectivity between early pioneers and contemporary stars, between advocates and beneficiaries.

Instead, many of the biographical entries read like a Who's Who in Women's Sport, a worthy project, to be sure, but that would have been a more accurate title. Further proving my point, is, I believe, the omission of Bernice Sandler from the biographical entries. Sandler's activism catalyzed Title IX's passage through Congress. That the Encyclopedia includes an entry for Trudy Ederle, who swam the English Channel in 1926, and not Sandler indicates that sports achievement was for the editors a stronger focus than Title IX (entries for Senator Birch Bayh and Gerald Ford notwithstanding).

Outside the context of its biographical entries, however, the Encyclopedia does a very good job profiling Title IX history and legal milestones. There are entries for every major judicial interpretation of Title IX's application to sport, as well as many of the advocacy organizations, like the Women's Sports Foundation and the National Women's Law Center, who work tirelessly to promote and protect Title IX. These entries, as well as the biographical entries described above, can serve as a useful starting point for students, journalists, or anyone starting down the research trail on issues relating to Title IX or to women's sports more generally.

Confusion at Slippery Rock

Not too long ago we reported that the Title IX issues at Slippery Rock University that seemed to settle in 2006 were back. Relying on the student newspaper's account of the story, we thought that the case had been reopened. According to President Robert Smith, it has not, though the Women's Law Project, which represents the original 12 plaintiffs, has sent a letter to the judge requesting the case be reopened.

Smith contends, and says that the District Court supports this position, that SRU is now in compliance with Title IX. He seems to be referring only to the number of opportunities, though. He told the Student Government Association that the number of opportunities for female student-athletes has risen and that men's opportunities have been cut since 2006.

But we don't know if the request to reopen the case is only about opportunities--or if it is at all.

There is not much news circulating about this right now and I suspect there won't be any until the judge decides to address the Women's Law Project's letter.

Locker Room Policy Discriminates Against Transgender Student

This story from Massachusetts shows why antidiscrimination statutes that govern educational institutions should be expanded or interpreted to include protection for transgender students.

Ethan Santiago is a 20 year old student at Northern Essex Community College in Haverhill, Massachusetts. He is a female-to-male transsexual who consistently presents as a man and is taking testosterone. Yet the College has refused to assign him a locker in the men's locker room because he has not had sex reassignment surgery. School officials were concerned that, unless his anatomy is consistent with his gender, he would not be safe in the men's locker room.

While I don't doubt that the College is trying to do the right thing, I don't think they realize the bind they've put Santiago in. Unless he has sex reassignment surgery -- an option that is expensive, time consuming, and for some transsexuals, inconsistent with how they view themselves -- his only choices are to either use the women's locker room or forgo whatever educational activity students need locker rooms for. The latter option alienates Santiago from an activity that his tuition dollars entitle him to participate in like every other student. And the former is unacceptable as well. The women's locker room is hardly the bastion of tolerance and goodwill for gender nonconforming individuals that the College is perhaps imagining. Santiago is likely to experience demoralizing harassment and probably have to explain himself to campus security on a regular basis. Even if the women's locker room patrons are unusually understanding, simply having to use a facility that is inconsistent with the gender you experience yourself as and present to the world has got to take a psychic toll.

As we've noted in the past, there are no judicial interpretations of Title IX that address whether transgender students have a right to access locker rooms or other single-sex facilities that are consistent with their presented gender, or even a right to access an equivalent gender-neutral facility, though such cases come up in the employment context with increasing frequency. Perhaps this is because a judicial result is likely to take longer than a students' four years of higher education, or because courts aren't always willing to interpret prohibitions on sex discrimination to include transgender plaintiffs. It also may be because universities are tending to accommodate transgender students, as we see by the increasing number of nondiscrimination policies that protect students regardless of their gender identity or expression.

But as this case and others make clear (consider this story of a Southern Utah University student who's been rejected from the men's dorm because he hasn't had SRS) there are still instances of colleges and universities failing to accommodate transgender students. This shows that there's still need for comprehensive nondiscrimination policies at the state, local, and university/college level. Both Massachusetts and Utah, it should be noted, have such legislation pending.

Prom Dress Discrimination Draws First Amendment, Title IX Claims

In a recently filed lawsuit against the Gary, Indiana school district, Kevin "K.K." Logan, a high school senior, alleges that his constitutional and statutory rights were violated when his principal refused to let him enter his senior prom because he was wearing a dress.

According to the complaint filed in the Northern District of Indiana by Logan's attorneys at Lambda Legal, Logan is transgender, outwardly manifesting a feminine gender that is consistent with his identity. (The complaint refers to Logan using male pronouns, which is why I do so here.) Fortunately, Logan's teachers and peers have been accepting and supportive of his gender expression. However, on the night of his senior prom, principal Diana Rouse physically barred him from entering the banquet center where the prom was being held. Logan had reviewed high school policies in advance to ensure that there was no policy prohibiting him from wearing a dress. He had also received encouragement from the assistant principal to wear what he felt comfortable in.

Logan's complaint alleges that the principal's conduct violated his freedom of expression protected by the First Amendment. It also relies on the First Amendment to challenge the school board policy the principal was ostensibly enforcing, which prohibits students from wearing "clothing or accessories that advertise sexual orientation, sex, drugs, alcohol, tobacco, profanity, negative social or negative educational statements." Students clearly receive less protection for expressive speech and conduct than adults, as the Supreme Court's recent "Bong Hits 4 Jesus" case makes clear, however, schools cannot curtail students' expression arbitrarily; they may do so only to protect the rights and safety of other students or to prevent substantial disruption of educational activities. Given the support that Logan received from his teachers, peers, and administrators other than Rouse, the potential for disruption was arguably absent here.

Logan also asserts that the principal's conduct violates Title IX's prohibition on sex discrimination, which includes discrimination on the basis of sex stereotypes and gender expression. Recently, federal courts have tended to generously construe Title IX in favor of sex stereotyping claims, including most recently in the nearby Southern District of Indiana. Thus, I think Logan's Title IX claim is strong. In light of this, I wonder if the school district will defend the litigation -- which I can't imagine is very popular choice, given the community support for Logan -- or whether it will try to settle.

More information to follow?

We may be learning more soon about former women's basketball coach Rene Portland, her relationship with former player Jennifer Harris, and the actions and inactions of the Penn State athletic department and administration regarding the claims of discrimination made during Portland's tenure. A federal judge has reversed an earlier ruling that would have prevented a lawyer representing a former faculty member, from obtaining information that had been sealed as a result of the settlement between Harris and the university. (More coverage here.) The lawyer, whose client is alleging discimination on the basis of her gender and sexual orientation, contends that papers gathered during the investigation into Portland and Penn State would be valuable to her client's case (for prior posts about the subpeona effort, see here and here).

What exactly they will find is unknown right now. And how much is revealed to the public may depend on whether this case goes to trial. Also an unknown is whether any of the parties (Portland, Harris, or Athletic Director Tim Curley) will challenge the subpoenas.

But for those of us who were a little frustrated by the closed settlement, the possibility that we may learn more about what exactly happened at Penn Stat is quite exciting.

OCR Investigates California School District

The Vallejo Times-Herald reports that the Benicia Unified School District is under investigation by the Department of Education's Office for Civil Rights for alleged violations of Title IX. The school district sounds a little bit tight lipped about what issues are exactly under investigation, but the reporter speculated that one possibility might be a disparity between baseball and softball facilities, since the baseball field, which the district shares with the city, recently benefited from a $500,000 renovation. Another possibility is disparity in opportunities, as there are more freshman sports for boys than for girls. The president of the Benicia High School Athletic Boosters, who was interviewed for the story, was doubtful that booster funds are at issue. He insisted that the funds the boosters raise from participation fees are allocated equally among girls' and boys' sports.

Athletic Department Assistant Sues Fresno State

Iris Levesque, a former administrative assistant for the Fresno State men's basketball program, has filed a lawsuit against the university alleging she was the victim of sex discrimination in the athletic department. Levesque says that she was fired in 2005, not for financial reasons as the department maintained, but because she complained about the hostile and discriminatory atmosphere of the basketball office under then-head coach Ray Lopes. The Frenso Bee's story here. Indymedia's is here.

Among other things, Levesque alleges that Lopes insisted that she replace her male student assistant with a female student assistant “because it would be better for recruiting.” He also refused to curb inappropriate behavior of his players, which included changing their clothes in her office and leaving sexual images of women around.

She also claims that Lopes ordered her to stop complaining to her superiors and that when she didn't, he retaliated with hostility and by stealing her notes and files and destroying notes she had taken about possible NCAA violations.

As our regular readers well know, this lawsuit comes on the heels of three similar, high profile cases that resulted in multi-million jury awards or settlement to each plaintiff. Levesque has hired the the same lawyers that represented Vivas, Milutinovich, and Johnson-Klein. According to the Bee, there has not yet been talk of settlement in this matter, but I've gotta believe after all that's happened, Fresno State feels more in the mood for a quick exit here.

(Thanks to Dan W. for the heads up!)

UC Davis Athletes' Lawsuit Survives Motion to Dismiss

In July, female athletes filed a lawsuit challenging the inequitable distribution of athletic opportunities at UC Davis. As we noted then, women make up almost 56% of the student body but receive only 50% of the athletic opportunities. This ~6% disparity, we said, was "very close to the generally-accepted 'within 5%' benchmark for compliance with prong one" -- raising the question (and the opportunity for valuable judicial precedent) about how close a school's percentages have to be to satisfy prong one.

Last week a federal judge in California denied UC Davis's motion to dismiss, reasoning that proportionality question presents an issue of fact that is improper to resolve before discovery and formal fact-finding take place. Specifically, the judge left open the possibility that

Plaintiffs may be able to offer evidence that the disparity is greater than that disclosed by UCD. Plaintiffs may also be able to present evidence that a 6% disparity has a disproportionate impact on women enrolled at UCD due to the size of its enrollment and athletic program; this disproportionate impact may affect the court's analysis of whether the athletic opportunities are “substantially proportionate.”

The judge did, however, grant UC Davis's motion to dismiss plaintiffs' claims under 42 U.S.C. 1983 that the inequitable distribution of athletic opportunities violated the Equal Protection clause as well as Title IX. Courts are split on the question of whether Title IX preempts claims under 1983, but many courts, including this one, believe that Title IX's remedies are all Congress intended plaintiffs to have.

12/19 update: For more on the circuit split regarding 1983 preemption, see this tremedously helpful post.

Decision is: Brust v. Regents of the University of California, 2007 WL 4365521 (Dec. 12, 2007).

Judge Dismisses Coach's Retaliation Suit Against Moorhead State

In March we blogged about Eric Swanbeck, former women's soccer coach at Minnesota State University - Moorhead, who alleged in a lawsuit against the university that he was fired for filing a Title IX complaint on behalf of his team.

Earlier this week, however, a county judge dismissed all claims against MSUM. As we noted in the earlier post, the university claimed that Swanbeck was fired because his behavior had generated complaints from athletes and parents. After hearing the evidence, the judge agreed that the university fired Swanbeck for legitimate reasons, namely, forcing athletes to play while injured, being emotionally and physically abusive to them and causing them to quit the team in large numbers, and violating NCAA rules by taking an ineligible player on a road trip. With such strong evidence to support the university's explanation for why Swanbeck was not renewed, the judge could not find that it is pretextual of a discriminatory motive.

Study: Title IX benefits correlate to socioeconomic privilege and political views

Professor Betsey Stevenson of the Wharton School at UPenn examined the effect of Title IX on athletic participation at U.S. high schools, and published her study in the current issue of Contemporary Economic Policy (SSRN version is here).

Stevenson's analysis of participation data compiled by the National Federation of High Schools confirms the statistical narrative that we've noted here before, namely, that female participation rates have increased since Title IX and male participation rates have remained stable and higher on the whole. She also reports that while boys' participation rates overall have been both stable and high, particular sports have trended both upwards and downward in popularity. For example, high school football, baseball, and soccer (especially soccer!) have gained participants since 1971 while basketball, track, and wrestling have lost.

Stevenson also analyzed high school participation rates for each gender by state, and discovered that socioeconomic demographics and political climate correlate to gendered patterns of athletic participation. For example, in states with more urban populations, boys tend to have higher participation rates than girls. But in states with more college educated populations, and in states that spend more per pupil, the gender gap is smaller and boys and girls participation rates are more similar. Moreover, female athletes fare better in states where the population is more likely to agree that women should have access to abortions, and fare worse in states where the population is more likely to agree that women should "take care of running the home and leave the running of the country up to men."

These results suggest that the benefits of Title IX have inured disportionately to those who are socioeconomically advantaged. They also suggest that athletic participation for girls is part of a greater social movement towards equality and that "as attitudes [about women's equality generally] change, so will the gender gap in sports participation."

Citation: Stevenson, B. (2007). Title IX and the evolution of high school sports. Contemporary Economic Policy, 25(4), 486-505.

Via Odd Numbers.

UMass Men's Soccer "Survives" Title IX and Thrives

The New York Times reports that the University of Massachusetts' men's soccer team -- which had been slated for elimination in the early 1990s to comply with some aspect of Title IX (the article doesn't specify what UMass's Title IX compliance issues were) -- managed to survive with some modest funding, thrived over the years, and actually enjoyed enough success this season to play in the national semifinal match on Friday (UMass lost to Ohio State, 1-0). This is a huge turn around for a team that has operated on a very small budget since the early 1990s, but illustrates how budget cuts do not mean a team cannot be competitive and highly successful.

Do single-sex high schools influence students' choice of majors and attitudes about sex equality?

Researchers at the University of Scranton asked these questions and recently published their results in the Psychology of Women Quarterly.

Some proponents of single-sex education argue that students in single-sex environments experience less pressure to conform to gendered expectations. If this benefit is real and long-lasting, one would expect to find that female college students who graduated from single-sex high schools are less likely to concentrate themselves into majors that are traditionally female such as education, nursing, and physical/occupational therapy.

But unfortunately given the recently increased popularly of single-sex education, this hypothesis did not prove true. While alumnae of single-sex high schools were more likely to declare gender-neutral majors than their coeducated peers in their first year of college, this distinction disappears by graduation. Female college graduates who went to single sex high schools were just as concentrated in traditionally-female majors as the ones who had gone to coed high schools.

On the other hand, male college graduates who went to single-sex high schools were less likely to be concentrated in majors that are stereotypically male, such as computers, engineering, and science, suggesting that this particular ostensible benefit of single-sex education -- encouraging students to break out of stereotypical roles -- benefits men more than women.

But, as the second component of this study revealed, this advantage that single-sex education appears to bestow on men is not without costs to women. The researchers discovered that men who went to single-sex high schools were less likely to believe in equality of the sexes than their coeducated peers, a result that the they attribute to "something about the single-sex setting—perhaps direct sexism, exacerbation of 'macho male cultures' in schools, and/or lack of daily exposure to competent female peers in the high school classroom."

As these single-sex-educated men rise to positions of power and influence in their respective fields, their tendency to view women as less than equal will inevitably contribute to the glass ceiling and other forms of discrimination against women in the workplace. I hope school districts and other policy makers will give consideration to this study before jumping on the single-sex education bandwagon.

Citation: Karpiak et al. 2007, University students from single-sex and coeducational high schools: Differences in majors and attitudes at a Catholic university. Psychology of Women Quarterly 31 (3), 282–289.

Via Viva La Feminista and Feminist Law Profs.

South Dakota reflects on season changes

The Michigan High School Athletic Association was forced to switch six sports to their traditional seasons this year. The case, which we wrote about frequently, created a level of discord and acrimony that was a little bit shocking. Given how recent the decision was, I assume there is still a fair amount of bitterness in Michigan. And how well the transition proceeds may depend on the efforts of people (like athletic directors) who were not in favor of the switches.

But if South Dakota is any kind of indicator, it will not be all bad as opponents have proclaimed. The Argus Leader out of Sioux Falls has taken a look back at the past five years since the state was compelled, by the threat of a Title IX lawsuit, to switch basketball and volleyball. People in South Dakota saw the writing on the wall (the other states that had lost similar cases) and opted to switch the seasons in 2002-2003.

The benefits have been great for volleyball which has seen tremendous growth in interest. More girls are coming out for the sport and this has lead to better competition statewide. Fan interest has also increased. About 5,000 spectators showed up to the state tournament this year.

What many schools are still dealing with though is scheduling. Gym space is limited which means scheduling becomes a nightmare for athletic administrators. It is likely Michigan will experience the same problems. It just seems par for the course, though. What public school has plenty of time and space for all its activities from sports, to classes, to music and drama programs? Everyone in public education is doing a lot of improvising these days. I hope people in Michigan look at what has happened in South Dakota and see the possibilities.

OCR Investigates Softball Inequities at California High School

The Santa Cruz Sentinel recently reported that the Department of Education's Office for Civil Rights is investigating claims that Scotts Valley Unified School District is violating Title IX for failing to provide softball facilities comparable to those for baseball. Baseball boosters used private funds to upgrade the boys' field three years ago; the softball field has not been similarly updated.

If this case sounds familiar, it's probably because it sounds like any one of the dozen of cases we've mentioned on this blog involving booster-funded inequities between high school baseball and softball teams (e.g., here, here, here, here, and here for our posts on this issue since September).

OCR's position on booster funds is clear (see, e.g., here). Treating athletes of one sex better than athletes of another sex is discrimination, regardless of where the money comes from. Boosters can raise whatever funds they want, but in the end, the school district is responsible for ensuring that all students receive equal treatment.

So there's no question that funding disparities caused by boosters is illegal under Title IX. But there is question raised by this trend in Title IX enforcement. Where are the boosters for girls' sports? Why is it that all across the country parents are only fundraising for their sons and not their daughters?

Fresno State Seeks New Trial

Not surprisingly, Fresno State is asking the judge to overturn the jury's $19.1 million verdict in favor of former basketball coach Stacy Johnson-Klein. Attorneys for the university also said they planned to ask in the alternative for a new trial in a new venue. Though the attorneys have not publicly specified the grounds for these motions, the Fresno Bee says that possible legal grounds include "newly discovered evidence, irregularity in the proceedings, jury misconduct or excessive damages."

Of course the excessive damages argument seems the most plausible. Eleven million of Johnson-Klein's $19.1 million dollar verdict is attributed to future non-economic damages (emotional harm), an issue around which there was relatively little testimony as far as I can tell. For this same reason, the judge in Lindy Vivas's case reduced her jury award from $5.85 million to $4.52 million, an adjustment that took into account what the judge said was insufficient evidentiary support for the $1.42 million that that jury awarded Vivas for noneconomic damages. He cut that figure in half to $700,000. So it is not unprecedented in these trials for the judge to be concerned about noneconomic damages. Whether Johnson-Klein's judge is concerned enough to grant a new trial or throw out the entire verdict remains to be seen.

Also of note, Fresno State's lawyers aren't the only folks critical of the verdict. Several of Johnson-Klein's former players held a press conference to "voice displeasure with the verdict, show support for university President John Welty and bring attention to what the trial was supposed to be about" which is, from their perspective, the student athletes.

University of Hawaii Coach Drops Title IX Suit

In September we noted that University of Hawaii head women's track coach, Carmyn James, filed a lawsuit against the University alleging Title IX violations in funding and number of opportunities for female athletes and differential treatment for female coaches.

But on Sunday, the Honolulu Advertiser reported that James has dropped her suit "after positive and productive meetings" with the Athletic Director Herman Frazier and Associate Athletic Director Carl Clapp that have given her "great faith that our administrative staff will do the right thing."

James's lawsuit, it seems, created sufficient leverage to motivate the athletic department to improve along gender equity lines. But what I don't quite understand is why she agreed to drop the lawsuit on the department's informal promise to change its ways, rather than insist on a settlement agreement that would have bound the University to a more specific plan. I'm guessing that James actually had a lot of bargaining power, given that she is represented by Dan Siegel, the attorney who represented all three plaintiffs in the recent litigation against Hawaii's conference rival, Fresno State. I suppose, though, that since James is still coaching for Hawaii she is in a good position to judge for herself whether Frazier and Clapp are making good on their word; if not, she can certainly re-file.

FGCU softball coach fights dismissal

Gina Ramacci, the former assistant softball coach at Florida Gulf Coast University has filed a complaint with the university citing violations of both both Title IX and Title VII. Ramacci, who technically was not fired, rather her contract was not renewed, and her lawyer are saying that the investigation FGCU did into alleged misconduct (as reported by a student-athlete and her mother) of a sexual nature with a (different) student-athlete found no evidence of wrongdoing. She's asking for her job back and back pay.
This is not a lawsuit yet but filing the grievance with FGCU is a step in that direction should it come to that.
Also interesting to note is that it does not seem we are tiptoeing around a discussion of sexuality any longer. Ramacci is openly gay and she (through her lawyer) noted the not quite coincidental near simultaneous punishment of volleyball coach Jaye Flood this fall who was described by Ramacci's lawyer as having "the same sexual preference."
It should not be surprising that an institution that has created a hostile environment for its female coaches that includes retribution for advocating for gender equity has punished two gay coaches for their interactions with their student-athletes with little to no evidence of impropriety.

Fresno Jury Awards Title IX Plaintiff $19 Million

After hearing eight weeks of testimony, a jury in Fresno needed just four hours to find that Fresno State discriminated against Stacy Johnson-Klein on the basis of sex when it terminated her from her position as head women's basketball coach in 2005. The jury also decided that $19.1 million dollars would fairly compensate Johnson-Klein for her damages, which included back pay and future lost wages as well as past and future pain and suffering.

This morning, attorneys for each side made closing statements that attempted to tie together hundreds of hours of testimony into a cohesive story. The jury believed Johnson-Klein's attorney's version of the story, that athletic department officials -- headed by a sexist and sexually reckless AD -- decided to fire her because she threatened to invoke Title IX to resolve disparities between men's and women's basketball program. They then opportunistically seized on complaints from players who resented her disciplinary style about her her behavior -- including that she had taken prescription painkillers from a player -- as a pretext for her termination. That the department did not punish drug use on the men's team lent further support to the pretext theory.

The jury thus rejected Fresno State's version of the story, in which the athletic department responded responsibly to valid concerns about the coach's behavior, which included manipulating per diem expenses to her own benefit and organizing a bonus payout scheme to benefit of the program secretary as well as erratic and verbally abusive behavior in addition to the drug use.

More updates on the verdict as developments warrant.
For prior posts use the Fresno link below.

UPDATE 12/7: The Bee reports this morning that Johnson-Klein offered to settle before trial for $950,000, but the University wouldn't go higher than $550,000.

It also reports the breakdown of the damages award:

Past economic losses: $634,254

Future economic losses:$4,440,419

Past noneconomic suffering: $3 million

Future noneconomic suffering: $11 million

Total: $19,074,673

Girls Sweep Top Prizes at Science Competition

The New York Times reports that, for the first time, girls have swept the top prizes at the prestigious Siemens Competition in Math, Science and Technology, a competition for high school students.

Dr. Nancy Hopkins, a biologist at MIT, reacted positively to the news, but stated that girls winning science competitions should come as no surprise. She aptly noted, “Why do people think girls can’t do science?... Where did this crazy idea ever come from?”

Male Student at Wellesley College

Okay, so it's not directly a Title IX issue, but it does touch on the issue of same-sex education and what it means for women and men who break new ground in this area.

The Boston Globe reports that Dartmouth undergrad Mohammad Usman is taking his "semester abroad" at Wellesley College, the prestigious women's college in Wellesley, Massachusetts. This makes him the only male student on Wellesley's campus this fall. He reports that the experience has been very good, and it seems from the article that his classmates have enjoyed getting to know him over the course of the semester. Usman chalks up his interest in attending Wellesley to its academic programs, its proximity to Boston, and experiencing the feeling of being the only male student at a women's college.

It's good to see that Usman's experience has been a very positive one; I wonder, however, whether a lone woman at a men's college has ever felt so welcome and positive about the experience. Certainly the experience of Shannon Faulkner, the first woman to attend the Citadel military academy in the 1990s, although not necessarily representative of all such experiences, was very different.

Colorado Settles with Lisa Simpson for $2.5 million

The University of Colorado has announced that it will pay sexual harassment plaintiff Lisa Simpson $2.5 million rather than go to trial to defend its failure to supervise the football recruits who sexually assaulted her and another plaintiff, Anne Gilmore. Gilmore will receive $350,000 to drop her claims as well.

In September, the Tenth Circuit Court of Appeals paved the way for either settlement or trial when it reversed a district court ruling that held CU's alleged conduct did not violate Title IX. Later, CU indicated that it would seek reconsideration of the Tenth Circuit decision. Today's settlement, obviously, moots any plans.

Simpson stated that she is "pleased with all the steps the university takes to prevent any of its students from becoming future victims of sexual assault." After paying out nearly $3 million to settle this case, CU should be motivated continue to take steps and not backslide on progress it has made.

Anson Dorrance Trial Scheduled for April

SI.com reports that Melissa Jennings's sexual harassment suit against University of North Carolina -- which was filed in 1998 -- finally has a trial date. On April 7, 2008, Jennings will be able to present her case that she was harassed by UNC women's soccer coach Anson Dorrance when she was a member of the team from 1996 to 1998. Initially, the federal district court held that Jenning's allegations of Dorrance's behavior in creating a sexualized atmosphere for the team (for details, see our prior post here) did not constitute harassment under Title IX. But this decision was reversed by the Fourth Circuit Court of Appeals, which eventually met en banc to overrule an initial, panel decision that would have affirmed the district court. Now that Jennings has cleared the legal hurdles, her next step is to prove to a jury that the facts she alleged in her complaint are true.

Gender-Neutral Housing at UConn

The University of Connecticut's Daily Campus reports on a new pilot program at UConn that allows for "gender-neutral housing". Basically, the program lets students live in university housing without regard to their gender or the gender of their roommates. UConn decided to try gender-neutral housing to address concerns voiced by members of the LGBT community, as well as students who had cited religious or cultural reasons to live in the same room as members of their own family who happened to be a different gender. Students who opt to live in gender-neutral housing need not indicate their gender on the housing application form.

UConn joins numerous other undergraduate schools that have gender-neutral housing, including the University of Colorado, Stanford, the University of Massachusetts, the University of Pennsylvania and Wesleyan University.

Increasing the Pipeline for Female Engineering Students

The Daily Pennsylvanian reports that the University of Pennsylvania has launched a new program, called Advancing Women in Engineering, to encourage the development and support of women engineering students, and to increase the support system for middle school and high school girls who think engineering would be a cool career to pursue.

As we've mentioned previously on the blog, supporting, hiring and promoting women who are interested in careers in the math, engineering and science fields is a challenge that many schools are still struggling with. It sounds like this program is a step in the right direction.

UNH and baseball

This is the type of editorial we usually just let go but given that it's about University of New Hampshire, the alma mater of Ebuz and myself, and that we were actually at UNH and in student government when the cut baseball team came to plead its case (we had no power to change that decision by the way), it probably deserves a posting.

The occasion of the editorial which bemoans the cutting of the baseball team over a decade ago is the installment of a new president who was hired "for one purpose: to raise money." First of all, what university president isn't hired these days to raise money? Second, the criticism that the money he is raising won't go to reinstating baseball seems to be more egregious to the writer than the fact that it is not necessarily earmarked for lowering tuition either--something that would benefit far more students than reinstating baseball.

The writer calls on new president Mark Huddleston to raise private funds for baseball. Let's also note here that the idea of bringing back baseball, which was actually only one of the sports cut that year and there have been several more since, including women's teams, has not even been a serious consideration. Additionally it is very difficult to sustain an athletic team on private donations. Teams are already doing a lot of fundraising. At home football games members of various athletic teams, it's often the ski team which had its budget cut significantly the year baseball was cut, sell raffle tickets in the stands. I had friends on the women's hockey team that had to go to men's hockey games and sell 50/50 tickets. Yet you don't see football players climbing through the stands at women's volleyball games trying to raise money for their very expensive program.

I don't know who asked Huddleston the question about baseball, but his response that it's not in the cards was a lot more diplomatic than my own would have been.

Slippery Rock case reopened

Though the claims from the 2006 case against Slippery Rock University which cut 8 men's and women's teams that year, have been settled, the case is being reopened at the urging of the original 12 plaintiffs. Because current compliance is in doubt, and because the university is being monitored for compliance, the reopening is not especially startling. The judge in the original case is receiving evidence about the situation right now and deliberations will occur in the next few months.
Though a list of specifics was not available in the article, it seems there is some concern over how the university is choosing to meet the accommodations standard. SRU has opted for roster management which means adding spots to existing teams, and has plans to drop women's water polo and swimming after this season. Whether SRU will be allowed to proceed with that plan given that these are currently viable teams will depend, in part, on if they have added enough spots to other teams to compensate.
It will be interesting to see how things proceed but it's also quite interesting to see how a group of students have persisted and pressured their university to follow through. While we hear a lot about initial Title IX complaints and lawsuits, we rarely hear what happens afterwards. The SRU plaintiffs have made sure their issues stay alive until they are satisfactorily resolved.

Alumna Threatens Suit Against High School

The Bogalusa (Louisiana) Daily News reports that Twanda Gatlin, a member of the Bogalusa High School girls' basketball team from 1988 to 1992, has threatened to sue her alma mater for violating Title IX's requirement that girls and boys have equal access to coaching and practice time.

The disparity Ms. Gatlin is challenging results from the fact that the head coach of the girls' team is also the football coach. So the girls' basketball season does not start until football season is over. Gatlin is a certified coach and has volunteered to coach the girls for the first few weeks of the season, until the head coach is free to take over, but the high school rejected her offer due to policy requiring that a head coach be present at all practices.

While the situation Gatlin cites seems to be a clear violation of Title IX, it's not clear that she's the right person to file a lawsuit in federal court if that is what she is planning. Federal courts require plaintiffs to have standing, that is, to be among the persons who are injured by the defendant's wrongful conduct. So a current player could sue the school, as could a parent because parents are allowed to bring claims on their children's behalves. A teacher or a coach could sue if he or she suffered retaliation for raising the issue of inequality to the school's attention, but this does not seem to be the case here. And even if Gatlin suffered the same discriminatory treatment when she was a member of the team 15+ years ago, the statute of limitations to seek remedy for this injury has expired.

Significantly, however, there is no standing requirement to file an administrative complaint with Department of Education's Office for Civil Rights. So Gatlin can still use the law as leverage to encourage the school to remedy the situation. The only difference is that what's at stake for the school is potentially less severe, as OCR is likely to require the school to fix the problem, where a federal court has the power to make the school pay damages. But I hope a school would rather rearrange this coaching situation than deal with an OCR investigation, especially where it's so clear that the school is in violation of Title IX.

Title IX Does Not Apply in Grenada (In Case You Were Wondering)

A federal district court recently held that Title IX does not apply to a university operating entirely outside the United States -- even if it is considered a federal funding recipient by virtue of federal assistance received by American students enrolled there (an issue the court assumed without deciding).

The plaintiff, Erika Phillips, is a student at the Saint George's University School of Veterinary Medicine, located in Grenada. In 2006 she was repeatedly sexually harassed by a university employee. She sued SGU in an American federal court, alleging that university officials' failure to remediate the situation, which she called to their attention, violated Title IX.

SGU moved to dismiss the case for lack of subject matter jurisdiction. The district court agreed, reasoning that the power of the federal courts to apply federal law is limited to the territorial United States unless Congress has clearly indicated otherwise. By its terms, Title IX says nothing about applying extraterritorially, and in fact, expressly prohibits discrimination by federally funded educational institutions only against persons "in the United States," so the court easily determined that the requisite congressional intent that the law apply abroad is lacking.

The court was clear to distinguish this case from another court's decision that Title IX did protect American students in South Africa who were participating in a study abroad program sponsored by Eastern Michigan University. When Title IX applies to an educational institution, it applies to every program under control of that educational institution, which in that case, included the study-abroad program operated by EMU. SGU had no comparable relationship to an educational institution subject to Title IX.

Decision is: Phillips v. Saint George's University, 2007 WL 3407728 (E.D.N.Y., Nov. 15, 2007).

NCAA Website Hosts Title IX Resources

If you're looking for information about women's participation in college sport, check out the NCAA Gender Equity website, which we've recently added to our blogroll. There you can:

• access the newly revised Gender Equity Manual for colleges and universities;
  
• visit the NCAA's Title IX Resource Center for news, information and videos about Title IX;
• register for the Women in College Sports Forum in Tampa on the Sunday of the women's final four;
• read reports by the Women's Sports Foundation and the Institute for Diversity and Ethics in Sport about gender participation trends and diversity in leadership;
• get information about the NCAA's efforts to support women in sports, including its annual Gender Equity Issues Forum, the emerging sports for women, and the Women Coaches Academy.
  

Chronicle Reviews Title IX Trilogy

The Chronicle of Higher Education (subscription req'd) recently reviewed a trio of new books about gender equality in sport. One book, Equal Play: Title IX and Social Change by Nancy Hogshead-Makar and Andrew Zimbalist, was reviewed by us here. Another, The Encyclopedia of Title IX and Sports, by Nicole Mitchell and Lisa Ennis, was described by the reviewer as "a pithy desk reference for Title IX, with brief entries on the people, organizations, and court cases that have figured prominently in the law's 35-year history."

The third book, Playing With the Boys: Why Separate Is Not Equal in Sports, by Eileen McDonagh and Laura Pappano, criticizes the sex-segregated structure of athletics and argues, according to the reviewer, "that sports teams at all levels should be integrated by gender, with sex segregation serving as the final, rather than the first, resort."

I'll definitely be getting my hands on a copy of Playing With the Boys. I agree that we over-rely on sex as a proxy for athletic ability and end up segregating sports unnecessarily in many contexts. I also agree with the authors that the presumption that girls shouldn't or can't play with boys is demeaning and ensures the second-class status of women's sports (and women, in general). So I'm interested in how far the authors take this view, and also how they address some of the mores persuasive counterarguments to an integrated model of sport. Even in this post-Title IX era, boys still get better access and more encouragement to participate in sport, and thus have an advantage over girls when it comes to developing athletic skill. As a result, there is a very real concern that selective coed sport would disproportionately exclude girls if not exclude them altogether. Relatedly, if selective sports were coed, would women be disadvantaged, at least in certain sports, because they tend to be outsized by men? If so, is the downside of lost opportunities outweighed by benefit women might collectively experience when individual women do compete on equal terms as men? I'm interested in whether and how the book addresses these questions.

Can Title IX benefit disabled athletes?*

This editorial briefly asks this question, wondering where the opportunities are for disabled athletes in the educational system and suggests that instead of being placed under special education, activities like wheelchair basketball should be under athletics like other sports. Or it recommends making sports into club activities which include disabled athletes. It is an interesting discussion--one that is not raised nearly enough--especially when we are speaking of student-athletes instead of elite level athletes who compete at the national and international levels.

*The answer is likely, no. What the editorial really illustrates is that a law that perhaps combines the philosophies of both Title IX and the Americans with Disabilities Act might be beneficial to disabled athletes.

Board Will Light Up Softball Fields

Earlier this week we mentioned that OCR had recently determined the Pitt County (North Carolina) Board of Education to be out of compliance with Title IX due to the absence of lights at its softball fields. The Daily Reflector reports that at a meeting Monday night, the Board approved a plan to install lights at the three high school softball fields, a total cost of $180,000, ensuring that girls and boys have equal opportunity to play evening games. Administrators also announced plans to develop a policy to ensure that booster club spending does not result in such disparities in the future.

Oregon School District Defends Four Sex Discrimination Suits

A school district that hasn't had a sex discrimination lawsuit in decades is now dealing with four. Over the past several months, former employees have filed separate, unrelated sex discrimination suits in federal court against the Salem-Keizar (Oregon) School District. The Salem Statesman-Journal reports that the district already settled with one plaintiff, a language teacher named Viola Carlile, who had alleged that a high school principal retaliated againt her after she rebuffed his sexual advances.

Two other cases are in discovery. A former high school teacher alleges that she was harassed by two special education instructors while supervisors refused to transfer her to another school in the district and instead subjected her to retaliatory employment conditions. She seeks $300,000 in damages. In a separate case, a former middle school teacher, William Warren, alleges that the principal terminated his position as girls' volleyball coach because of his sex; the complains suggests that, in the wake of a sexual molestation scandal involving another teacher in the district, the principal did not think men should not coach girls teams.

In the lawsuit most recently filed, a 21-year-old former instructional assistant, Andrew Distad, seeks $21 million in damages. Distad alleges that he was offended by sexual jokes made by co-workers and teachers and by their insensitivity to his desire not to be alone in a room with any woman other than his wife. Because he was unable to comfortably attend work under these conditions, Distad argues he was constructively discharged, in discrimination of his religion and sex.

OCR, Title IX, and High School Athletics

Title IX's most well-known application -- to college and university athletics -- sometimes overshadows the fact that it applies to high schools schools and secondary schools as well. In this light, I thought it was worth noting three separate, recent examples of Title IX enforcement taking place at the high school level.

First, the Department of Education's Office for Civil Rights recently paid a visit to the public high schools in Springfield, Missouri to follow up on a Title IX complaint alleging discrimination between the conditions of softball and baseball. The high schools have baseball facilities on campus but girls play at city-owned parks off site. This is not per se inequitable, but in context it may be -- schools do not transport the softball players to their home fields for games or practice, and the city fields lack amenities like locker rooms that are available to athletes who play at the school.

On a similar topic, OCR recently informed the Pitt County (North Carolina) Board of Education that it was out of compliance with respect to its softball facilities, which unlike the boys' baseball fields, did not have lights for night play. The board meets tonight to review OCR's report and make plans to address the issue, which had been under investigation since a complaint filed with OCR in 2005.

Meanwhile, in Phillipsburg, New Jersey, school district officials are working to set up a meeting the OCR to go over the independent gender equity audit the district commissioned after it was named in a Title IX complaint last year. (Prior posts about this case are here and here.) The district seems reluctant to address all of the inequities the auditor found -- most of which relate to booster-club-funded perks -- without first checking with OCR to make sure remediation is necessary. However, since the complaint, the district has eliminated some preferential treatment for football players (no more free breakfasts on game day) and added new coaching positions for middle school field hockey and a varsity girls track coach. It has also equalized salaries for the coaches of boys and girls teams, which officials say was the district's own initiative, not in response to the auditor's investigation.

Ithaca Editorial Argues for Stronger Antidiscrimination Provisions in Education Law

Last month we blogged about a decision by the Ithaca, New York school board to challenge the applicability of the state human rights law to schools, a legal strategy aimed at avoiding the jurisdiction of the local human rights commission investigating incidents of race discrimination at one of the local schools. This decision was controversial in town, as people wanted the school district to take responsibility for the underlying incident rather than raise a jurisdictional challenge to the human rights law. It was also controversial because had the school board won on appeal, the only law applicable in New York that provides any protection against discrimination on the basis of sexual orientation would have been nullified in the education context.

What we haven't yet mentioned here is that the school district reversed its decision and dropped its challenge to the applicability of the state human rights law. This decision, as well as the leadership of the board member Seth Peacock (who was my classmate in law school) in the efforts to reconsider, was praised by an Ithaca Journal editorial. The editorial also went on to point out that while the human rights law's applicability to schools is safe for now, other schools in the future could borrow the argument Ithaca would have used, which, if successful, would leave students lacking the broader protection that the human rights law affords.

The editorial suggests that in light of this uncertainty, we should strengthen state and federal statutes that prohibit discrimination in public schools so that plaintiffs need not rely on the human rights law for the broader level of protection it provides. A fine idea, but a long shot strategy, at least at the federal level. President Bush has indicated he will veto the Employment Nondiscrimination Act, which would prohibit employers from discriminating on the basis of sexual orientation. It's hard to imagine that the current administration would support an effort to enumerate protection on the basis of sexual orientation in laws like Title IX.

In New York, though, an easier solution might be to amend the human rights law to clarify its applicability to schools. Arguably, its public hearing provisions are inconsistent with federal laws protecting students' privacy. But the legislature could amend the hearing provisions to be consistent with privacy laws, such as by allowing schools to call for closed hearings and a sealed record when necessary. A procedural amendment aimed at protecting privacy is far less likely to be controversial than an effort to expand antidiscrimination laws.

Flood may be recognized

In an editorial about the suspension of head volleyball coach Jaye Flood of FGCU, writer Deron Snyder looks into why Flood's recent Atlantic Sun Coach of the Year award went unmentioned by the university.
In talking to sports information director Matt Fairchild, Snyder discovered that he was asked by AD Carl McAloose not to mention Flood in the press release that went out last week when the A-Sun announced their annual awards that included ones for FGCU players as well. But McAloose may be backing off--he and the school are getting a lot of flak over Flood's suspension and now this slight and the appearance that this is all in retaliation for Flood's participation in a gender equity complaint last summer. McAloose said there may be another press release forthcoming that does mention Flood's award but did not comment on why she was omitted from the first one.
Meanwhile, the university has told Flood's lawyer that the investigation is complete. But Linda Correia said the investigation did not even include an interview with Flood herself.

Anti-Title IX shirts at Slippery Rock

The VP of Financial Affairs for the Slippery Rock University Student Government Association (SGA), Michael Combs, showed up at a meeting wearing a t-shirt that read "End Title IX." The meeting the included a presentation by the VP of Student Life about the recent lawsuit between some of the women's teams and SRU and her support for the teams. The article does not offer much context and only that Combs wanted to raise awareness about how Title IX has affected men's teams. Members of the field hockey team confronted Combs about the shirt and its potential negative repercussions on the whole SGA, but it does not appear that any further discussion occurred. (You can see pics of the shirt at the above link.) More information on the situation can be found in the letters to the editor where two of the lead plaintiffs in the case against SRU write in to express their disappointment in the presence of multiple t-shirts at the SGA meeting. (Suggesting that Combs was not the only SGA member supporting one) and providing some necessary clarifications on Title IX that the article failed to bring up.

Flood wins coach of the year

Head volleyball coach Jaye Flood of Florida Gulf Coast University unanimously won coach of the year in the Atlantic Sun Conference. This is despite being suspended since October 15 for "student welfare issues" that seem to center around Flood grabbing a player's shirt in practice and subsequently missing the end of the season and FGCU's run into the postseason. The incident is still under investigation according to university officials. But this accolade for Flood has to make the university and the athletic department look a little foolish given that the incident happened a month ago and they have kept her away from her very successful team since that time while providing little information. They don't even seem to want to talk about the award: a university press release about the A-Sun honors talked about the players' accomplishments but failed to mention Flood at all.

Round up the posse!

Columnist David Whitley criticizes the status, conferred by the NCAA, of women's bowling as an intercollegiate sport as he recounts his search for the championship trophy in the halls of Vanderbilt University. (He never finds it--it seems to be off being cleaned somewhere.) He seems upset that the sport now "enjoys the same collegiate status as football." [Note: no intercollegiate sport enjoys the same status as football.]
And though Whitley claims to be all for women's equality and access to sport he sees the addition of bowling as evidence that "schools have turned sports into a semi-farce in order to stay ahead of the Title IX posse."
Why didn't anyone tell me there was a posse??

Anita Hill weighs in on Title IX

Professor Anita Hill, guest columnist for The Boston Globe, has a column about the benefits of Title IX this week. She touches upon some of effects, specific and general. For example, that the Rutgers women's basketball team got a prime time slot on ESPN and will be featured on the station four times in the coming month. She also cites research that has shown the benefits of sports and other physical activities for girls--activities that have grown since the passage of Title IX 35 years ago. She may not say much that is new about the benefits and effects of Title IX, but at a time when the legislation is being consistently attacked, a high-profile lawyer and scholar supporting it in a major newspaper is a good thing.

Lawsuit Challenging Substitute Teacher's Harassment Survives Summary Judgment

In May we blogged about a decision by a federal court judge in Alabama, holding that the parent of a child sexually abused by a substitute, Terry Wright, could sue the school district under Title IX. The superintendent knew about Wright's earlier inappropriate behavior in a different classroom and did not immediately fire him, choosing instead to leave his name off the sub list for the following month. This decision resulted in Wright's being called to sub again, which was the setting for his sexual contact with six students, including the plaintiff.

Two other children who were abused that day also sued the school district, and recently, a different federal court judge reached the same conclusion as the judge in the first case: no summary judgment for the school district. The superintendent was apparently concerned that the first incident would result in bad publicity, and so he tried to remove Wright quietly and without disclosing the reason for his concern. Rather than spreading an effective alarm about Wright, he simply removed him from the sub list for the following month. This constituted deliberate indifference to the safety of students, as it put them at risk for encountering Wright again before month's end, which is what happened to the plaintiffs.

Now that the school district has failed twice in its efforts to get these lawsuits dismissed, it shouldn't be long before it offers these plaintiffs -- and any others who might have filed a lawsuit over this -- a settlement to avoid having to fight a loosing battle at trial.

Decision is: Doe v. Autauga County Bd. of Educ., 2007 WL 3287 (M.D. Ala. Nov. 7, 2007).

Title IX Lawsuit Filed Against San Diego State

According to the San Diego Union-Tribune, Deena Deardurff Schmidt, recently fired from her position as head coach of the San Diego State swimming and diving team, has filed a Title IX sex discrimination suit against San Diego State, "alleging several years of mistreatment at the school, including being sexually harassed by an unidentified booster."

One example of alleged discrimination is the University's decision to close the pool for seven years during construction of a new facility. During that time, the swimming and diving team (a women's team) had to practice and compete in inconvenient and allegedly "dangerous" off-campus locations. She also alleges gender inequities in pay, practice times and administrative support, and that the university told her to "deal with" the sexual advances of a booster who promised to make a donation in exchange for sex.

The article points out that SDSU swimmers finished last in their conference for the last five seasons, which suggests that the University might defend its decision to fire Schmidt as performance-related. But further complicating the case is the fact that Schmidt has cancer and was scheduled for surgery when the Athletic Department told her that her contract would not be renewed. The department apparently lacked confidence that she would be able to take the team to the "national level."

FGCU update

This update actually has nothing to do with Title IX--at least that we know of right now--but since I wrote recently about the second paid administrative leave of a female coach at FGCU I wanted to report on the "resolution" of this situation. Though there seems to be no word on the investigation of volleyball head coach Jaye Flood's shirt-grabbing incident, the investigation into the student welfare issues surrounding assistant softball coach Gina Ramacci is complete. Ramacci has been fired for an inappropriate sexual relationship with a student-athlete.

The article says that Ramacci has a "partner" and that she denies having a sexual relationship with a player on her team. She and her lawyer are planning on looking at the report this weekend. But right now she will remain on paid leave until December when her current contract expires. But apparently whether or not Ramacci had a sexual relationship with the unknown player, she will stayed fired because of an overall inappropriate relationship with said student-athlete. Additionally there seems to be issues about whether Ramacci knew about illegal drug use by players, her own disparaging remarks about head coach, David Deiros, and relaying confidential information about one student-athlete to another.

It is difficult to say much about this situation. Ramacci is young and likely naive about "appropriate" behavior for a coach having so recently been a player herself. Also, her situation as an apparently out coach is something I suspect we will be hearing about more and more. Many more teenagers are out when they get to college--if not earlier. They don't really know what it is to be closeted. But they are encountering an older generation that has not been so open and welcoming. Of course, if Ramacci did have a sexual relationship with one of her players there is no question that this was wrong. But given that neither coach nor player admitted to a sexual relationship, it may just be that coach and player did not know how to establish boundaries. And this is not surprising given that the atmosphere at FGCU for women, let alone gay women, does not seem all that good. Why wouldn't two gay women who share a love of a sport and are close in age develop a relationship that may read to others as inappropriate? Given FGCU's recent history I am reluctant to embrace uncritically the findings of this particular investigation.

Football Profit Claim Challenged at SDSU

Professors at San Diego State are not letting the athletic director get away with calling his football program "a profitable enterprise."

To be clear, the faculty supports football -- they unanimously rejected a resolution calling for the termination of the team -- but some are objecting to the the athletic department's mischaracterization of the program's profitability, which, they argue,"obfuscates" consideration of the merits of a football program.

According to this column in the San Diego Union-Tribune, SDSU football shows a positive balance because it includes a "seven-figure subsidy" from the University on the revenue side of the ledger. Moreover, the columnist points out, college athletic departments are generally not bound by Generally Accepted Accounting Practices. Things that most enterprises would report as costs -- office space, utilities, debt service on facilities -- may not appear (or may be understated) on expenditure side of the football program's budget. This might explain why an independent accountant concluded that SDSU's program ran a $1.6 million deficit last year -- which doesn't count the $890K in the football took in from the University itself.

I agree with the columnist that "profit...is not the only purpose of college football. Nor can its value be adequately conveyed on a spreadsheet." But that doesn't give athletics the right to obscure the true financial cost of football. One member of the faculty said he wished the AD would just be honest about the cost of football and then explain "why we think its worth it."

More faculties should question the accounting practices of university athletic departments. When they labor under the myth of football profitability, athletic departments are afraid to trim the football budget. Instead, they'll cut entire teams, usually other men's sports, because the law prohibits schools from taking away opportunities from the sex that is already underrepresented to begin with. But if it's the case that all sports are subsidized, then no sport should receive special treatment. All sports should eligible to do their share of cost-cutting, and no sport should have immunity form cuts based on false pretense of profitability.

Ban on Laptops in Classroom to Create a Non-Hostile Environment?

One topic that generates a lot of controversy among law professors these days is how to deal with laptop use in the classroom. Some professors embrace it; others loathe it. In fact, a small movement has been brewing in which law professors ban laptops from the classroom altogether, calling them destructive to listening, note-taking and effective classroom participation.

A recent ABA Journal article notes that the decision of Suffolk law professor Kate Nace Day to ban laptops from her classroom stemmed, in part, from additional concern over women students feeling harassed at having to see their classmates surf the web for porn, or even sending them inappropriate text messages during class. According to Day, the use of laptops diminishes the learning potential of the class, and increases the potential for an uncomfortable classroom environment.

Title IX offers the possibility of bringing a claim against a federally-funded school for peer sexual harassment, if the school knows about it and neglects to take steps to stop the harassment.

Sex and Drugs Still at Issue in Fresno Trial

The sex discrimination trial between former women's basketball coach Stacy Johnson-Klein and her ex-employer Fresno State continues with more testimony about sex and drugs.

At issue is whether the athletic department terminated Johnson-Klein because of her drug problem (addiction to vicodin following an injury) or whether she was fired in retaliation for rebuffing sexual advances of the athletic director and threatening to expose gender inequities in the athletic department.

Johnson-Klein maintains that the fact she was terminated for drug use is actually further evidence of sexism in the athletic department, particularly, a sexist double standard when it came to addressing drug problems. An athletic department official testified at trial that some members of the basketball team who had failed drug tests continued to play for Fresno State. She also admitted to hearing concern that the (former) men's basketball coach, Ray Lopes, valued team success over athletes' health, and shared her opinion that he had both the discretion and the pressure to overlook drug use in the interest of winning. But she refused to support the plaintiff's characterization of the drug policy as a double standard, stating her belief that players' drug use and a coach's addiction warrant different responses, because coaches are in a position of responsibility for players.

Later, a separate witness, an athletic department employee, offered testimony that would tend to support Johnson-Klein's characterization of the athletic department's sexual culture. She described a sexual encounter that she witnessed in hotel room in Salt Lake City, where members of the athletic department traveled to watch the men's basketball team in the NCAA tournament, between the former athletic director, Scott Johnson, and a female athletic department employee with whom the witness was sharing a room. This testimony could undercut Johnson's earlier denial of charges of sexual impropriety. And if the jury thinks his denials are are not credible, they are more likely to believe Johnson-Klein's testimony that Johnson groped her at a car wash, a charge that Johnson also denied.

Does your AD know Title IX?

I was going to let this editorial in an online news source out of Athens, Georgia go unremarked upon despite the egregious misinterpretations of Title IX the author presents. Initially I thought the author to be perhaps a naive student journalist or an uninformed community member/fan. But this piece was written by former University of Georgia senior athletic director Dick Bestwick, who is also a former football coach.
So it is not surprising to hear him say, as many football coaches have and continue to do, that football should be exempt from the Title IX equation. In other words, they support proportionality so long as you don't have to count one of the teams. I don't think I have to really point out here that this sets up football players and programs as somehow "more equal" than everyone else--men and women.
But I was most surprised at Bestwick's interpretation of proportionality as a policy that mandates distribution of opportunities and money based on the gender breakdown of the undergraduate population. Proportionality is a policy that applies only to one aspect of Title IX compliance: accommodation of interests and abilities. How much money is spent is another category that is not subject to a proportionality standard. There is no formula for determining which gender or which team gets how much money, but there is a standard of equity that allows investigation into budget line items that seem to be providing greater benefits to male athletes over female athletes.
In other words, equipment budgets do not have to be equal for men and women so long as everyone is receiving the same quality of equipment. But there are areas where monies need to be distributed equally. For example, per diems need to be the same for male and female athletes--though the overall amount spent on a team will of course differ based on the size of the team.
That someone (formerly) in sports administration at a big-time athletics school does not know the difference between proportionality and equitable budgeting is worrisome.

UMD and competitive cheer

Last week I attended the North American Society for the Sociology of Sport Conference where a lot of interesting work is being presented--including some on Title IX. A contingent of UMaryland folks, grad students Sarah Olson and Jaime Ryan and Professor Jaime Schultz, presented on competitive cheerleading. They, of course, have a unique opportunity to examine how competitive cheer has been implemented given that Maryland was the first, and until Oregon recently, the only school to elevate competitive cheer to varsity status.

The group's future plans with the project include interviewing administrators and cheerleaders and I imagine will address some of the key issues: is cheerleading a sport? is it an activity that promotes women's physical activity? is it in keeping with the spirit of Title IX? is this elevation of cheering to varsity sport status a trend--and is it one advocates of women's sports will be forced to either embrace or speak out against?

The UMD grad students in the Physical Cultural Studies program also have a blog worth checking out called The Corpus about a variety of issues regarding sport and physical culture.

Gymnastics team gets their space back

Late in the summer we heard about a high school gymnastics team in California that had their dedicated gym taken away from them to install a weight room that allegedly would be used primarily by male football players. The trial, initiated by parents upset that the team's permanent space was being taken away, has been postponed due to a serious medical condition suffered by a key witness, co-principal Diane Brown who was to testify that Wilson High School is in compliance with Title IX. [See stories here and here.]
In the meanwhile the team is getting their space back until the new trial. Good news for them given that their access to a different, non-permanent, non-dedicated gym has meant reduced practice time. Setting up and taking down equipment means a mere twenty minutes of practice on the days they are allowed to practice.
Unfortunately, the spring floor the team fundraised for may have been damaged in the move this summer and may not be able to be reinstalled.
The new trial is scheduled for early December.

Equal Play: Title IX and Social Change

Professors Nancy Hogshead-Makar (Florida Coastal) and Andrew Zimbalist (Smith) have edited a new anthology called Equal Play: Title IX and Social Change. Equal Play compiles a wide variety of sources including legislative and regulatory material, judicial opinions, scholarly commentary, political commentary, and sports writing. Its presentation of this material conveys the mutually-constitutive relationship between law and culture in the area of gender equality and sport.

Part I contextualizes Title IX with excerpt from scholars like Susan Cahn and Welch Suggs and sports writers for SI and ESPN.com that convey the challenges and obstacles for female athletes prior to Title IX's inception. Part II provides a snapshot of the legal and political efforts to secure Title IX and its application to athletics. In addition to the statute, the implementing regulations, and the policy interpretation, the editors also include evidence of failed efforts to weaken or neutralize Title IX, like Senator Bayh's statement in opposition to the Tower Amendment, which had it passed would have exempted revenue-producing sports from the Title IX, and a district court opinion rejecting the NCAA's efforts to undermine Title IX's application to athletics.

Part III focuses on Title IX in in the 1980s and is appropriately titled "The Initial Backlash." The editors excerpt from the Court's Grove City College decision, which limited Title IX's applicability to programs receiving federal funds, until Congress reversed the ruling in 1987 (the legislation is also included). They also describe the NCAA's change in strategy from opposing Title IX to taking over women's sports and its governing body, the AIAW. By including an excerpt from Professor Gary Roberts's address to the Knight Commission, the authors convey that the NCAA's absorption of the AIAW expanded concern about commercialization to now include women's sport.

In Part IV the theme changes from backlash to progress as the focus shifts to the 1990s. Excerpts include the First Circuit's decision in Cohen v. Brown University, which favorably construed the three-prong test, and Mariah Burton Nelson's examination of the benefits of athletic participation for women and girls. But in Part V, the current decade, the backlash theme returns. On offense we see the National Wrestling Coach's Association, Jessica Gavora, the Department of Ed, and the Commission on Opportunity in Athletics all challenging Title IX's legality, principle, and application. On defense we see Donna de Varona and Julie Foudy, Don Sabo and Christine Grant, and the editors themselves all attempting to neutralizing the offensive strike with reason, evidence, and statistics.

By dividing up the book this way, the editors shine the spotlight on the persistent struggle to sustain and protect Title IX, an important project that countermands the popular mythology of Title IX as a thirty-five year feel-good story for girls and women in sport. The reader can't help but parallel the backlash of today and that of the 1980s and internalize the fragility of the law, which faced/faces serious legal and cultural opposition. At the same time, the progress chapters show exactly why it is so important to continue the struggle to overcome resistance backlash and fully realize the equality promise of Title IX.