Florida School Loses Bathroom Discrimination Case to Transgender Student

Yet another court has ruled in favor of a transgender student's right to use the bathroom according to their gender identity. But unlike many of the previous judicial rulings we've blogged about on this topic, which have been in the context of preliminary relief, this court's ruling came after an actual trial. This means that rather than predicting the plaintiff's likely success on the merits, the court in this case had the opportunity to conclude that the plaintiff did in fact succeed on the merits. It awarded the plaintiff, a transgender high school student whose gender identity is male, a permanent injunction that permits him to use the boys' bathroom at Nease High School in Ponte Vedra Beach, Florida, as well as $1000 in damages.

If you've followed other cases like this, the reasoning employed by this court is consistent and familiar. Its Equal Protection analysis considered the school's bathroom usage policy, which was based on student's biological or birth sex, under intermediate scrutiny, a test that requires the school to present an important justification and reasonably tailored means. The school predictably argued that its policy served purposes like privacy and safety, but the court rejected them as logically inconsistent with the policy itself. All students can access privacy by using the stalls or one of several single-user bathrooms in the building. Nor was there any evidence to support the idea that a transgender student's presence in the boy's bathroom posed a safety risk. The plaintiff had used the boys' bathroom for a six-week period before the school banned him, during which time no problems occurred. Nor is there any evidence to suggest that a transgender student is more likely than any other student to threaten the safety of other users. The court also favored the plaintiff's Title IX claim, rejecting the school board's argument that because Title IX and its regulations permit bathroom facilities to be segregated based on "sex" that necessarily means biological sex to the exclusion of considerations of gender identity. Instead, the court concluded that "the meaning of 'sex' in Title IX includes 'gender identity' for purposes of its application to transgender students."

Adams v. Sch. Bd. of St. Johns Cty., Fla., 2018 WL 3583843 (M.D. Fla. July 26, 2018).

Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

ACLU Challenges Single-Sex Classes in Hillsborough County, Florida

On Tuesday, the ACLU filed a complaint with the Department of Education's Office for Civil Rights challenging the Hillsborough County (Florida) School District's implementation of single-sex education throughout the district.  Fifteen elementary schools and one high school in the county have single-sex classes, while two of its middle schools are entirely segregated by sex.  The ACLU's complaint alleges that the school district has not provided a valid justification for separating the sexes, as required by Title IX, but instead is basing its decision on discredited science rooted in stereotypes. The district allegedly claims that separation is necessary to tailor curriculum to differences in brain development and learning style, including, for example, that “[b]oys engage with non-fiction and stories with action or ‘blood and guts.’ Girls more readily respond to simulations, discussions, and analyzing characters and relationships."  One of the elementary schools uses to boys' class "incorporate sports and competition in learning and classroom management" and promotes tolerance for "behaviors such as humming, tapping, standing, etc."  In contrast, the girls class "will implement a calmer environment that appeals to girls.”

Title IX regulations generally prohibit single-sex classes, but allow exceptions when such classes are substantially related to a plan to promote students' academic achievement or other particular identified student needs.  In no case, however, can permissible justification for segregation rely on "overly broad generalizations about the different talents, capacities, or preferences of either sex."  The regulations also require that any sex segregation be "completely voluntary" and offer parents and students the option of a coed alternative.  In this case, the ACLU also challenges the voluntary nature of the program by calling out the misinformation provided to students and parents in order to gain their consent.

Part of ACLU's apparent motivation in challenging Florida's second-largest school district is to send a message to the other Florida districts likely to follow suit when a new state law takes effect on July 1 that requires training for teachers in "gender-specific" classrooms. It is urging federal intervention, and state investigation, to ensure that this law doesn't put Florida schools in violation of Title IX.

Girls charged as juveniles in Florida bullying case

In a case of bullying that stands out because, as some experts note, of the length of time and the number of students involved in the bullying of a 12-year old girl who killed herself last month, criminal charges have been filed against two of the alleged perpetrators.
The details of the case are not particularly unusual (we have certainly heard worse) and seem to involve a boy who was a romantic interest of the victim and one of the alleged bullies who was the apparent mastermind of the constant verbal, emotional, and physical abuse of the victim.
What I found interesting about the reporting of the case. First, just how unusual this case is in terms of length of bullying and the number of students involved is probably up for debate. Given the long-held beliefs that bullying is just part of growing up, the ineffectiveness of many schools in intervening, the prevalence of cyberbullying that goes unchecked by parents and school administrators I would guess that there have been other (unreported/underreported) cases of long-term, mob-like bullying that have not made national news.
Second, I was very surprised by the lack of discussion about the role of school administrators in this case. The victim did switch schools at some point to physically get away from the bullying, but it continued online (this cyber trail was what alerted authorities). The victim's mother only said that the school district did not do enough to stop the bullying. The original school did change the schedules of the victim and the primary bully because of the prevalence of physical fights between the two.
But the lack of school involvement and discussion of the apparent laissez-faire attitude is surprising. While the two girls who have been arrested should be held accountable if they are found guilty, some additional attention needs to be placed on the school, its teachers and administrators. Florida, as a state, has not ignored the issue of bullying. They have an anti-bullying law, which the legislature even updated this past summer to include cyberbullying. And so it is surprising that the school did not intervene more.
Though the focus now remains on the two main bullies and their pending trial in juvenile court, I hope that attention is turned to the role the school played--or should have played--in this case.

ACLU Files Complaint in Bathroom Bias Case

Here is an update on the transgender bathroom case in Florida that we blogged about last month.   The ACLU has recently filed a complaint with the Department of Education challenging the Pinellas Tehnical Education Center's decision to exclude a transgender woman student from the women's bathroom.  This complaint came on the heels of a demand letter sent to the Center, which the Center has apparently ignored.  The complaint succintly summarizes why the discrimination against their client constitutes sex discrimination under Title IX:

Requiring Alex to use separate restrooms than those used by other students constitutes sex discrimination in violation of Title IX. First, it is per se sex discrimination because the differential treatment is based on her gender identity. Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (“Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . . .”). It is further per se sex discrimination because the treatment is based on her gender transition. See Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C..2008) (discrimination based on plaintiff’s plan to undergo transition “was literally discrimination ‘because of . . . sex’” under Title VII) (alterations in original). Finally, this treatment is unlawful sex stereotyping because Alex is being treated differently based on her failure to conform to gender stereotypes—PTEC does not consider her sufficiently feminine to use the women’s restrooms. See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“[D]iscrimination against a transgender individual because of her gender-nonconformity is sex discrimination.”).

ACLU Presses Florida Technical College to Let Transgender Student Use Women's Bathroom

The ACLU has gone to bat for a transgender woman nursing student at the Pinellas (Florida) Technical Education Center who has been denied access to the women's bathroom, by issuing a letter demanding that they restore her right to access the same facilities as other female students.  The ACLU's client, Alex Wilson, identifies and presents as female, and is listed as female on her drivers license and Social Security card.  Additionally, she had undergone hormone therapy for four years.  She had up until this summer used the women's bathrooms at PTEC without incident, but was barred access by school officials after they discovered that she is transgender.  Since then, Wilson has been offered various bathroom alternatives, such as single stall toilet the "storage area" of a separate building, or the men's faculty restroom for which she would need to ask for a key, but none are as convenient or accessible as the women's room would be. Nor do those alternatives afford the same degree of dignity and respect for her female identity.

The ACLU's letter explains that the failure to treat transgender women in a similar manner to non-transgender women is a form of sex discrimination, which is prohibited by Title IX.  The letter cites legal authority from the employment context, including a 2012 decision by the federal Equal Employment Opportunity Commission recognizing that a transgender gender identity could not be the basis for singling people out for different treatment.  In addition to demanding Wilson's access to gender-specific aspects of the nursing program, including the women's bathroom, the ACLU letter encourages PTEC to adopt GLSEN's model policy for inclusion.

The letter does not include an express threat of litigation.  But that would be the likely outcome in the event that PTEC failed to honor the ACLU's request on behalf of Wilson.

Florida School District Pays $250,000 to Settle Harassment/Retaliation Case

The Citrus County (Florida) School Board will pay $250,000 to settle sexual harassment and retaliation claims by former students.  This high dollar figure will probably not surprise readers who recall this case from earlier posts, such as this one describing the egregious sexual harassment and abuse student-athletes alleged against three male coaches of the girls' JV soccer team at Citrus High School, and this one describing school officials' absurd retaliatory acts of trying to kick one of the complainants and her sister out of school on false claims that she lived outside the district. 

The school district also agreed to write a letter of regret and provide Title IX training to district employees.  Yes, please, this district definitely needs some Title IX training.  

Retaliation Case Against Florida School District Survives Motion to Dismiss

In Florida, a federal district court judge has denied the Citrus County School Board's motion to dismiss claims filed by students who allege they were retaliated against after one of them reported that she was "offended and uncomfortable" by sexual behavior of their soccer coaches. As we noted in an earlier post, the case began when a female high school soccer player named Stacey Bigge and her teammate known in the complaint as A.M. reported to their parents that they were uncomfortable with their coaches' tendencies to make sexual comments, which included remakes about players' physicality and genitalia, and that on one occasion, a coach pulled down a player's pants. After their parents reported this conduct to school district officials, the coaches became threatening and intimidating to Stacey and A.M., interrogating them in front of their teammates and threatening to disband the team because of what they did. Eventually, the players quit to avoid this hostility. Later, Stacey and her sister Kathryn Bigge were ordered to be transferred to another high school after the coaches then told the school officials that the Bigges lived outside the district. This transfer order was rescinded after the Bigges' father supplied proof of residency.

Both Bigge sisters sued Citrus County School Board, alleging that the threat to transfer them to another high school was retaliation for Stacey's complaints about the coaches' harassing conduct. The school board argued that Kathryn Bigge's claim for damages on this retaliation theory should be dismissed because she was not the person who engaged in the requisite "protected conduct" by complaining about the coaches' behavior, her sister was. But the court rejected this argument, applying the Supreme Court's recent decision in an employment law case that a whistleblower's fiance could challenge the retaliation directed at him in response to the whistleblower's complaint about sex discrimination on the job. The judge concluded that the threats against Kathryn were actionable on a theory of retaliation because it was "reasonable to infer that the School Board’s threat to transfer Kathryn Bigge to another school district (a threat that was allegedly made in direct response to the Plaintiffs’ complaints) would dissuade her father and sister from making any further charges of discrimination and/or retaliation."

The case is scheduled for a jury trial in February 2013.

Florida High School Reinstates Coach After Retaliation

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."

Alleged abuses by Florida high school soccer coaches

When I started reading this story about alleged abuses perpetuated by three coaches of a girls' soccer team in Florida, I thought it was an Onion-like piece. Then I realized that in Florida it is not so unusual, perhaps, to have a high school named Citrus High School. But the allegations agains these coaches certainly seem so over the top that I wondered still.
But the complaint is legitimate. (As in the complaint has been filed, not that the allegations have been proven true at this point.) But the details are a little confusing. Here is what I have garnered thus far:
1. Some parents and players were concerned over the behavior of three male coaches who worked with the girls' JV soccer team at Citrus High School. This behavior included one coach who liked to watch the girls shower and who pulled down the pants of a varsity player, and another coach who made comments about his genitalia as well as that of his players.
2. Said parents and students made a complaint to the coaching staff and the District School Board of Citrus County. The district suspended without pay the coach who made the inappropriate comments during its investigation. They also reprimanded him.
3. After the invesitgation was complete, the girls who had complained feel they were retaliated against. They say they were made to feel unwelcome. Their families were threatened with lawsuits by the coaches' lawyers. And they allege the coaches asked the district to expel two of them because they allegedly live outside the Citrus County School District.
4. This has led to the current lawsuit against the district school board. The family is asking for an injunction (against the expulsion I would assume) and costs and damages for Title IX violations.

I suspect some of the details got muddled in the reporting of this story and in my re-reporting of it. As we find out more, we will certainly add/correct.

Interest, equity, funding, facilities--what's the connection?

Being interested in both how the media covers issues of sport and equity and the cultural construction of gender, this article out of Florida had my interest piqued this morning.
On the heels of the NWLC's filing of 12 Title IX complaints last month, it seems local newspapers, at least Highlands Today out of Tampa, are taking an interest in how their local schools are doing in terms of equity in sports.
Thorough, but with a couple inaccuracies, this article touched on the issues of funding, boosters (good to see money equally distributed!), facilities, coaching, and participation levels.
The big problem many administrators and coaches want solved is the question of why more girls do not participate. Administrators recount their largely unsuccessful efforts at recruitment and say that the desire is just not there. Also the fact that Florida counts cheerleading as a sport apparently is pulling potential athletes away from other sports, say some.
I do not necessarily believe this to be untrue--the part about desire; I'd rather not take up the issue of high school cheerleading in Florida right now. But I also do not see this as an innate female characteristic.
Reading other parts of the same article I see that, for example, at one high school the softball facility is (admits the athletic director) not nearly as nice as the baseball facility. The explanation given is that baseball has been around a lot longer and draws a greater crowd. Also while volleyball is noted by one source as being popular, at the end of the article, the reporter writes that Title IX is to blame for putting smaller sports--like volleyball, he says--in danger of being cut.
So if you're a girl here's what you see: in addition to the fact that more people support boys' sports, that apparently you go to your boyfriend's events, but he won't come to yours (according to one AD), you hear from school administrators that the reason a facility that you might play in is not as nice is because of "tradition"; and that even a popular sport that does draw a crowd is in danger of being cut because it's considered minor.
And then if you read this article you see that some believe the reason for the disparity in participation is because boys and girls have different role models:
"Boys might emulate Tim Tebow; girls might choose Miss Florida"
And then you realize just how limited the choices are.

Are Flag Football Opportunities Equal Opportunities?

Recently, the New York Times profiled the increasing popularity of flag football as a high school sport for girls, particularly in Florida. In trying to examine this trend, the article managed to add controversy by sensationalizing the positions of some women's sports advocates and casting them as the mean, feminist foils to good wholesome fun.

Flag football for girls is controversial in Florida for the same reason competitive cheer is controversial. When schools count activities like sideline cheer or flag football as athletic opportunities, it reduces resources and legal incentive to add other athletic opportunities for girls, opportunities that would give girls who want it similar access to college or life-long play. Nobody is knocking flag football (or cheer for that matter) as a valid and valuable activity. But it is relevant to ask what responsibilities sports organizations have to act in a coordinated fashion when deciding to adopt an undeveloped sport. Women' sports advocates are only questioning the sports organization’s obligations to provide boys and girls with the same types of experiences, particularly when both boys’ and girls’ opportunities are so constricted.

In a letter printed in yesterday's Times, the Women's Sports Foundation's Director of Advocacy, Nancy Hogshead-Makar, tries to set the record straight. I say "tries" because the paper edited her letter to obscure its main point: Hogshead-Makar doesn't object to flag football itself, but to the Florida High School Athletic Association's strategy of discouraging more traditional, competitive, (and perhaps tellingly, more expensive) sports for girls like crew, water polo, lacrosse, and archery by offering them easier, cheaper, but less comparable alternatives in the form of flag football (and cheer). The fact that the FHSAA is promoting flag football (as opposed to other emerging sports on NCAA's horizons) without putting in the work to support the sport's infrastructure -- governance and promotion outside of Florida's high schools -- further suggests that the association cares more about helping schools find a quick fix to major Title IX compliance problems than trying to truly equalize opportunities for Florida's girls.

Eleventh Circuit Reinstates Teacher Harassment Case

The Eleventh Circuit Court of Appeals recently decided a Title IX case in favor of the plaintiff, who alleged that a school district was liable under Title IX for sexual harassment perpetrated by her 9th-grade math teacher. The plaintiff, identified as Jane Doe, sued the Broward County, Florida school board after teacher Conraad Hoever sexually assaulted her in his classroom. She claimed that the school board was liable because it had failed to appropriately respond to two prior complaints that the same teacher had sexually harassed other female students. The district court granted the school district's motion for summary judgment, finding that the principal's response to the earlier complaints was sufficient. But this week, the Eleventh Circuit reversed the lower court's decision in this respect, paving the way for the plaintiff's case to proceed to trial.

The Eleventh Circuit analyzed the following elements for institutional liability for harassment under Title IX: whether an appropriate official had notice of harassment, whether the substance of that notice was sufficient to alert the school district of the harassment against the plaintiff, and whether the school district responded to that notice with deliberate indifference. First, the court held that the principal, who had received earlier complaints about the teacher in question, was an appropriate person to receive notice because he had been vested authority by the school board to take corrective action in response to sexual harassment complaints. Though the court acknowledged that this element will necessarily require a case-specific inquiry, as officials roles may vary among school districts, its reasoning suggests that notice to school principals will usually be sufficient.

Next, the court decided that the prior complaints against Hoever put the principal on notice of the sexual harassment he committed against the plaintiff. The district court suggested they were not, because prior complaints involved less severe conduct than Hoever's violent assault on the plaintiff. But relying on its earlier decision in Williams v. University of Georgia, the appellate court acknowledged that notice of prior instances of sexual harassment may be sufficient to warn officials of a later sexual assault. In Williams, the Eleventh Circuit held that school officials had notice that one of its students, a football player, had sexually harassed women at his prior institution, and the court reasoned that this constituted actual notice of the student's later rape against the plaintiff in that case.

Finally, the court determined that the principal responded to those earlier charges--specifically, the second one--with deliberate indifference. The district court had decided this element in the school district's favor based on evidence that the principal had confronted the teacher, taken statements of the students involved, and reported the incidents to the appropriate official on the school board. Moreover, in response to the first complaint, the school district placed the teacher on administrative leave while it conducted an investigation, and eventually determined that there was not enough evidence to warranted further discipline against the teacher.

The appellate court's analysis of deliberate indifference focused on the principal's response to the second charge of harassment. Even though the earlier investigation had been inconclusive, the fact of an earlier charge meant that the principal should have responded to the second charge more vigorously rather than less. But in response to the second charge, the principal did not conduct an investigation at all; he merely took the student's and the teacher's statement. And "most unreasonably," when he reported the complaint it to the school board, he did not indicate that the complaint was against a teacher who had been investigated already for sexual harassment. The principal then capped off this lackluster response by giving Hoever a satisfactory performance evaluation, and resigned without leaving any indication for the next principal that Hoever posed a risk of sexual harassment or assault. This, in the Eleventh Circuit's mind, constituted deliberate indifference.

This opinion provides important guidance to lower courts on all three elements discussed, but particular the deliberate indifference standard. As the lower court's decision in this case demonstrates, sometimes courts reason that any response at all by a school official is sufficient to overcome a claim of deliberately indifferent. The Eleventh Circuit has appropriately instructed the courts in its circuit to look at the school's response in the context of an emerging pattern of complaints.

Decision: Doe v. School Bd. of Broward County, 2010 WL 1655918 (11th Cir., Apr. 27, 2010)

Settlement Ends Title IX Suit Against FHSAA

The controversy in Florida that resulted when the state's athletic association that proposed a cost-saving schedule reduction for every sport except football and cheer was largely resolved over the summer, when the FHSAA rescinded the proposal in response to a lawsuit. Parents had sued the FSHAA arguing that that the proposal violated Title IX because it disproportionately affected girls' athletic opportunities. Exempting cheerleading along with football did not ensure that the cuts would equally affect girls' and boys' athletic opportunities, they argued, because even putting aside the issue of whether cheerleading counts as an athletic opportunity, football offers far more more athletic opportunities to boys than cheerleading does for girls.

After the proposal was rescinded, the parents continued to press the court for an injunction that would prevent FHSAA from making a similar decision again in the future. Yesterday, however, the plaintiffs announced that they would drop that lawsuit as part of a settlement under which FHSAA agreed to give advance notice to the plaintiffs' attorney, Professor Nancy Hogshead-Makar of Florida Coastal School of Law, before attempting to reinstate any of the rescinded the policy. FHSAA also agreed to pay the plaintiffs' attorneys fees and to conduct Title IX training for its members.

Oh, Florida

There is no new news to report out of Florida and the situation with the Florida High School Athletic Association. But there has been plenty of media coverage--including editorials that ask the hackneyed question: "Is it time to revise Title IX?" Various constituencies and individuals have been asking that question since the 70s.

But Lee Nessel asks it anyway in light of the FHSAA lawsuit. She also points out that she benefitted from Title IX as a swimmer at a DI institution. But she says she also benfitted from football which funded swimming (as well as other sports).

And Ray McNulty doesn't actually ask about revision--he just says that Title IX should exclude football because football is popular and generates revenue.

None of these excuses are new. But they are especially disappointing, to me at least, when they are proferred here, in the current debate that centers on high school athletics. It seems more perverse somehow to simply disregard the educational mission of schools--the mission that Title IX aims to keep equitably applied. That intercollegiate athletics has become the model to follow despite its obvious and numerous problems is disheartening.

And thus it's not surprising that we keep hearing--over and again--the same rationales for football's exemption, now being given in the context of high school football which McNulty calls "a different animal." Yeah, it's an animal. An animal that eats up the opportunities for men and is never held accountable.

And speaking of accounting. All this football revenue talk is being done without a lot of numbers. FHSAA never offered a specific economic rationale for its decision not to cut football contests.

A FHSAA P.S.

The piece the NYT ran about FHSAA's decision to reverse its earlier inequitable cuts was the most comprehensive one I read. In addition to reporting on the situation in Florida, it notes that other state high school athletics associations have enacted similar budget-saving measures--some equitable, some not so much. In Delaware varsity football was spared from cuts to contests that everyone else will experience in the coming season.
The situation in Florida should put every other high school athletic association on notice. Of course, as we saw in Florida, these associations are not just going to remedy these things of their own volition.
As Roger Dearing, executive director of FHSAA said, "The board was in no way acting in a discriminatory way against girls. We were reacting to a crisis in the state of Florida.”
Except that they were acting in a discriminatory way as they reacted to the economic crisis. How is it not discrimination when you are asking one group of (historically oppressed) people to bear the burden of that crisis?
The problem is that the decision makers have a problem with which they must deal and they the concept of equitable distribution of the pain is not even on their radar screens when they make the tough decisions.
I doubt this will be the last we hear of this kind of situation.

FHSAA takes it back

The cuts to the number of interscholastic competitions, passed by the Florida High School Athletic Association in April, were rescinded yesterday in an emergency meeting, as expected.
There will still be a hearing tomorrow to consider the injunction brought by Florida Parents for Athletic Equity against FHSAA, which would prevent the latter group from going through with the cuts at a later date. FHSAA also has a motion to dismiss FPAE's lawsuit.
Even though FHSAA itself will not be able to govern the schedules, individual schools or districts can, in their own attempt to cut costs, reduce competitive schedules. Of course, anyone who does will also be bound by Title IX regulations, and it's likely that everyone involved in high school athletics in Florida is on alert about the concept of equitable cuts.

Rescinding on the horizon

The Florida High School Athletic Association is meeting (I thought tomorrow but this article implies it is today) and is likely to overturn its own decision to cut varsity sport competitions--except in football and "competitive" cheerleading--by 20 percent.
FHSAA still has pending a motion for dismissal of the lawsuit that Florida Parents for Athletic Equity have filed. But that hearing is not schedule until later this week.
FPAE has said it will continue in its pursuit of an injunction against FHSAA whatever comes from this emergency meeting. Nancy Hogshead-Makar has said the injunction will prevent FHSAA from enacting the cuts in the future, a move she finds plausible given that FHSAA seemed to be motivated toward change only by the threat of litigation.
No word on the emergency meeting on FPAE's Facebook page. The latest update commented on FHSAA's attempt at deeming football and co-ed sport.

Cheerleading to ease Title IX controversy?

That's the thought of a writer in New York who believes that the growth of competitive cheerleading and its acceptance as a sport by some schools could help ease all the Title IX controversy over "quotas."
Would that it were so (or that we would want it to be so).

From what I have heard and read on blogs, in personal correspondence, and in the media, the competitive cheerleading issue has engendered more controversy--nearly every day, in fact, in recent weeks. (For more of a "history" on the emergence of competitive cheerleading click on the cheerleading tag.)
Last month was the Quinnipiac case in which the university cut women's volleyball and elevated cheerleading to varsity status. The volleyball team won an injunction preventing QU from cutting it until the lawsuit charging non-compliance with Title IX was complete. (Mediation is currently underway in that case.) But the discussion around competitive cheerleading in that case seemed to die when the volleyball team won their injunction.
Currently we have Florida Parents for Athletic Equity filing an injunction and lawsuit against the Florida High School Athletic Association over cuts to all athletic competitions except football and cheerleading. But the cheerleading issue has not received a lot of the coverage. We do know that there are far more male football players than female cheerleaders which makes the cuts inequitable, of course. But Nancy Hogshead-Makar, one of the lawyers for FPAE, has concern over cheerleading as a competitive, varsity sport. My guess is that those competitive cheerleaders are, in most cases, also sideline cheerleaders. And that is a big no-no if you want to count your cheerleaders as student-athletes.
A recent article in Inside Higher Ed has done a better job than most in addressing the cheerleading controversy and includes information about both QU and Florida as well as comments from Hogshead-Makar.
I predict (may be eating my words on this one) that the cheerleading issue is going to have to be decided soon. The case-by-case basis that OCR has allowed for is a little too abstract. It also places the burden on female students who have been denied a sporting opportunity (for example when a women's club sport is not elevated) to sue their school when it decides to take the cheap way out and elevate cheerleading. This, in effect, is pitting these athletes against the cheerleaders--an issue that was raised in the QU case by the cheerleading coach. It's an unfortunate situation, at best.
Also I see a difference between being treated like a sport and actually being a sport. And this is contentious territory. Competitive cheerleading is being counted as a sport for Title IX purposes when the team is treated like other varsity teams in terms of access to coaching, competition, facilities, etc. But is it really a sport just because it involves athletic elements? What definition of sport do we employ? If, as many claim, cheerleaders are largely former gymnasts, why don't we just have more gymnastics teams? It's hard to believe gymnastics is a dying sport if there are so many cheerleaders with gymnastic skills and experience.
I have some doubts though that when (if?) the final decision is made it will be based on defining a sport. It probably seems easier to base it on how the participants are treated. If this turns out to be the case, I encourage marching bands everywhere to apply for varsity status. There are plenty of athletic elements there: the actual marching, the need for good lung capacity, and lots of push-ups! Because if we take cheerleaders away from the sidelines can the marching band be that far behind?

Under pressure, FHSAA calls emergency meeting

Realizing what many before them have not, the Florida High School Athletic Association has decided that doling out legal fees might run counter to efforts to save money--exactly what their plan to reduce the number of athletic contests was supposed to do. After failed talks between FHSAA and the Florida Parents for Athletic Equity and the latter's subsequent filing of a lawsuit and injunction to prevent the inequitable cutting of contests, FHSAA has decided to try to deal with the matter. The board will meet July 15 to discuss the situation. They should be hoping the judge grants the injunction that would prevent the cuts from being enacted this fall. That would at least buy them some time to come up with an equitable solution and work with FPAE--for real this time.