The school board in Kenosha, Wisconsin, voted to settle its litigation with its former student, Ash Whitaker, who sued the school after it refused to permit his access to the boys' locker room and restrooms because he is a transgender male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor on this matter was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.
Soon thereafter, however, Whitaker graduated from high school and the focus of the case changed from what the school was required to do for him going forward to whether the school was liable for damages because of the discrimination that had already occurred. This aspect of the litigation will now end as well as a result of the $800,000 settlement voted on by the school board this week. $650,000 of that amount will reportedly cover Whitaker's attorneys' fees and costs. School officials told the press that the settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. Whitaker told the press he was happy to have the litigation behind him so that he could focus on being a college student.
Showing posts with label Wisconsin. Show all posts
Showing posts with label Wisconsin. Show all posts
Wednesday, January 10, 2018
Wednesday, August 09, 2017
Gender policing in youth sports
In early June, the story of Mili Hernandez, an 8-year old soccer player from Nebraska, made national headlines.
her team, playing in a youth tournament, was disqualified right as they
were about to play in the finals because organizers thought Mili was a
boy. Rather an anonymous person told officials that a boy was playing on
a girls' team. And the team had to go home. {I have a breakdown of this
situation below.}
There was outrage and support from current and former professional soccer players. It was not a Title IX issue because it was a youth sports league run independently from interscholastic sports governance. So, though outraged it did not make it onto the blog. But now another story of questioning gender in youth soccer has arisen, and it seems like a good time to bring Title IX into the discussion.
A girls' club soccer team in Madison, Wisconsin has several short-haired players (some of whom model their style on favorite players like Abby Wambach and Megan Rapinoe) who experience what Hernandez did but on a regular basis. They have not been disqualified from games or tourneys but other teams ask questions of their parents, coaches, officials, and of them. They try to "catch" the girls by asking them their names. The team is accused of cheating. This persists even though the club system in which the team plays requires birth certificates from each child before she can be rostered on a team. The certificates are used to check for age and for sex. Cheating, in other words, would require forging birth certificates.
In some ways it is very simple. Some people have short hair and some people have long hair. And some people style their hair after people they want to emulate (remember the Rachel?). And kids play soccer.
The thing about gender is that everyone knows what it "should" look like--even if one cannot or chooses not to conform to the norms or expectations. This means that if a girls' team was to engage in cheating by including boys on the roster, the boys would be feminized in some way so as to avoid getting caught.
I can't believe I had to write that sentence. I do not want to live in a world where people are convinced that short-haired female soccer players are not boys because boys trying to pretend they are girls would know how to look like girls. That is the logic of the deeply gendered culture in which we live.
But there must be something else going on if people cannot stop and use that logic. And that is why gender is complicated. Because it is imbued with power. It is about access. It is about boundaries. In sports, those boundaries remain very tightly monitored.
What was interesting about the Madison situation is that the coach was initially skeptical about what her players' parents were saying about how the team was treated. This is likely because the team is based in Madison--a liberal college town. But one, a town that is sports obsessed and two, is in a a conservative state. In other words, how a region or town interprets or polices gender norms differs. For example, a look at the map at TransAthlete shows state interscholastic associations' gender identity policies.
The policy in Nebraska, where Hernandez plays, is the same as the old IOC policy. It requires gender reassignment surgery (we are talking about children remember) and a waiting period after the start of hormone treatment. The policy in Wisconsin is that each case is assessed as it arises. These policies reflect the cultural beliefs and can be used to predict how, for example, people might respond to short-haired soccer players on girls' teams.
Again, the interscholastic associations make their own policies, club teams and leagues make their own policies and Title IX has nothing to do with them. But it can influence thinking. Unfortunately the current administration's application of the law makes policies like the one in Nebraska--which is now more regressive than the IOC's--look more reasonable. It tightens the boundaries and it impedes logic.
There was outrage and support from current and former professional soccer players. It was not a Title IX issue because it was a youth sports league run independently from interscholastic sports governance. So, though outraged it did not make it onto the blog. But now another story of questioning gender in youth soccer has arisen, and it seems like a good time to bring Title IX into the discussion.
A girls' club soccer team in Madison, Wisconsin has several short-haired players (some of whom model their style on favorite players like Abby Wambach and Megan Rapinoe) who experience what Hernandez did but on a regular basis. They have not been disqualified from games or tourneys but other teams ask questions of their parents, coaches, officials, and of them. They try to "catch" the girls by asking them their names. The team is accused of cheating. This persists even though the club system in which the team plays requires birth certificates from each child before she can be rostered on a team. The certificates are used to check for age and for sex. Cheating, in other words, would require forging birth certificates.
In some ways it is very simple. Some people have short hair and some people have long hair. And some people style their hair after people they want to emulate (remember the Rachel?). And kids play soccer.
The thing about gender is that everyone knows what it "should" look like--even if one cannot or chooses not to conform to the norms or expectations. This means that if a girls' team was to engage in cheating by including boys on the roster, the boys would be feminized in some way so as to avoid getting caught.
I can't believe I had to write that sentence. I do not want to live in a world where people are convinced that short-haired female soccer players are not boys because boys trying to pretend they are girls would know how to look like girls. That is the logic of the deeply gendered culture in which we live.
But there must be something else going on if people cannot stop and use that logic. And that is why gender is complicated. Because it is imbued with power. It is about access. It is about boundaries. In sports, those boundaries remain very tightly monitored.
What was interesting about the Madison situation is that the coach was initially skeptical about what her players' parents were saying about how the team was treated. This is likely because the team is based in Madison--a liberal college town. But one, a town that is sports obsessed and two, is in a a conservative state. In other words, how a region or town interprets or polices gender norms differs. For example, a look at the map at TransAthlete shows state interscholastic associations' gender identity policies.
The policy in Nebraska, where Hernandez plays, is the same as the old IOC policy. It requires gender reassignment surgery (we are talking about children remember) and a waiting period after the start of hormone treatment. The policy in Wisconsin is that each case is assessed as it arises. These policies reflect the cultural beliefs and can be used to predict how, for example, people might respond to short-haired soccer players on girls' teams.
Again, the interscholastic associations make their own policies, club teams and leagues make their own policies and Title IX has nothing to do with them. But it can influence thinking. Unfortunately the current administration's application of the law makes policies like the one in Nebraska--which is now more regressive than the IOC's--look more reasonable. It tightens the boundaries and it impedes logic.
Wednesday, May 31, 2017
Appeals Court Rules in Favor of Transgender Student's Preliminary Right to Use the Bathroom
Yesterday the Seventh Circuit Court of Appeals affirmed that transgender high school student Ash Whitaker may not be barred from the boys' bathroom while he litigates his case against the school district. Whitaker, who identifies as male, sued the Kenosha Unified School District in Wisconsin after it restricted his access to the boys' restrooms because his natal sex is female. After Whitaker sued under Title IX and the U.S. Constitution's Equal Protection Clause, he sought a preliminary injunction that would allow him to use the correct bathroom while his case is being litigated; a lower court agreed and the school board's appeal of that decision produced yesterday's landmark ruling.
What made the Seventh Circuit's decision noteworthy is that it is the first time a federal appellate court has construed Title IX directly to cover discrimination against transgender students in the context of bathrooms. Another federal appellate court, the Fourth Circuit, reached a similar conclusion in Gavin Grimm's case, but only after extending judicial deference to the Department of Education's former interpretation of Title IX's application to transgender students' bathroom usage. The Department of Education's subsequent withdrawal of that interpretation meant that future courts could not rely on it as the basis for their rulings, as the Fourth Circuit had done, but did not foreclose courts from reaching the same interpretation on its own -- which the Seventh Circuit did yesterday.
When deciding to grant a preliminary injunction, a court must decide among other factors, that the plaintiff is likely to win on the merits. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX's ban on sex discrimination encompasses discrimination against transgender students. Even though an earlier decision from that court rejected the idea that sex discrimination laws covered transgender plaintiffs, the court acknowledged that subsequent Supreme Court caselaw interpreted the concept of sex discrimination more broadly to include discrimination based on gender stereotypes. And what is transgender discrimination, reasoned the court, than discrimination that targets an individual for presenting in a way that's different from what society expects based on the sex that person was assigned at birth.
Additionally, the court also found that Whitaker was likely to succeed on his Equal Protection claim. Applying heightened scrutiny, the court recognized that the school would be unlikely to justify treating Whitaker differently from other students, who are permitted to use the bathroom that matches their gender identities. Though the school district claimed to be protecting students' privacy, the court could not see any evidence, at least at this preliminary stage of litigation, that anyone's privacy is infringed in bathrooms that have stalls. The court viewed the privacy "threat" from Whitaker no differently from any other student who may happen to be in the bathroom at the same time as another user. To the extent that Whitaker's different anatomy from other boys somehow makes privacy considerations different, the court noted that students with different anatomy use common bathrooms all the time, there being no effort by the school district, for example, to segregate pre-pubescent adolescents from those whose bodies are different and more mature.
What will happen next in this case? Theoretically, the school district can try to get the ruling overturned internally by the court, by seeking a rehearing in front of the full court. But, the court's decision notes that Whitaker is a high school senior and it is already May. Therefore, a decision by the full court would be unlikely to interrupt the preliminary relief he has obtained. More likely, therefore, the case will continue to litigate the merits. Whitaker has also sued for compensatory damages, so that aspect of the case will not be mooted by the fact of his graduation from high school.
What made the Seventh Circuit's decision noteworthy is that it is the first time a federal appellate court has construed Title IX directly to cover discrimination against transgender students in the context of bathrooms. Another federal appellate court, the Fourth Circuit, reached a similar conclusion in Gavin Grimm's case, but only after extending judicial deference to the Department of Education's former interpretation of Title IX's application to transgender students' bathroom usage. The Department of Education's subsequent withdrawal of that interpretation meant that future courts could not rely on it as the basis for their rulings, as the Fourth Circuit had done, but did not foreclose courts from reaching the same interpretation on its own -- which the Seventh Circuit did yesterday.
When deciding to grant a preliminary injunction, a court must decide among other factors, that the plaintiff is likely to win on the merits. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX's ban on sex discrimination encompasses discrimination against transgender students. Even though an earlier decision from that court rejected the idea that sex discrimination laws covered transgender plaintiffs, the court acknowledged that subsequent Supreme Court caselaw interpreted the concept of sex discrimination more broadly to include discrimination based on gender stereotypes. And what is transgender discrimination, reasoned the court, than discrimination that targets an individual for presenting in a way that's different from what society expects based on the sex that person was assigned at birth.
Additionally, the court also found that Whitaker was likely to succeed on his Equal Protection claim. Applying heightened scrutiny, the court recognized that the school would be unlikely to justify treating Whitaker differently from other students, who are permitted to use the bathroom that matches their gender identities. Though the school district claimed to be protecting students' privacy, the court could not see any evidence, at least at this preliminary stage of litigation, that anyone's privacy is infringed in bathrooms that have stalls. The court viewed the privacy "threat" from Whitaker no differently from any other student who may happen to be in the bathroom at the same time as another user. To the extent that Whitaker's different anatomy from other boys somehow makes privacy considerations different, the court noted that students with different anatomy use common bathrooms all the time, there being no effort by the school district, for example, to segregate pre-pubescent adolescents from those whose bodies are different and more mature.
What will happen next in this case? Theoretically, the school district can try to get the ruling overturned internally by the court, by seeking a rehearing in front of the full court. But, the court's decision notes that Whitaker is a high school senior and it is already May. Therefore, a decision by the full court would be unlikely to interrupt the preliminary relief he has obtained. More likely, therefore, the case will continue to litigate the merits. Whitaker has also sued for compensatory damages, so that aspect of the case will not be mooted by the fact of his graduation from high school.
Wednesday, September 21, 2016
High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds
A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution. Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions. (It is not clear to me whether this policy actually took affect.)
Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed. On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.
Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case. Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.
Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed. On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.
Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case. Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.
Wednesday, August 03, 2016
Lawsuit Filed in Green Wristband Case
Kris blogged earlier about Tremper High School in Kenosha, Wisconsin, which is requiring transgender students to wear bright green wristbands as a way to enforce their exclusion from the bathroom consistent with their gender identity. As Kris noted, a Title IX lawsuit has been filed on behalf of a transgender student who is being targeted by the green wristband rule. Based on the now-public complaint, this post provides some additional detail about the lawsuit.
The plaintiff, identified in the complaint by his initials, A.W., alleges that he was informed of the new green wristband policy at the end of last school year, and expects that he will be required to wear the wristband when school starts again in the fall. The policy apparently came about after A.W. repeatedly used the boys' bathroom in defiance of school officials' insistence that he use the girls' room or an out-of-the-way single-use stall.
A.W. also alleges that the school denied his male identity by referring to him by his (female) birth name, by refusing to change his name and gender on school records, despite having produced the required doctor's verification of his transgender status. by assigning him to room with girls instead of boys on a school trip, and by initially refusing to let him run for prom king. (School officials eventually let A.W. onto the prom king ballot following a petition and sit-in protest attended by 70 students.)
The lawsuit declares that this conduct by school officials violates Title IX as well as the U.S. Constitution's Equal Protection Clause. It notes that the Department of Education has clearly stated that Title IX requires schools to treat transgender students in a manner consistent with their gender identities, including in the context of bathrooms. It seeks a court order prohibiting the school from excluding him from the boys' bathroom and from otherwise treating him differently from other male-identified students.
Transgender students have won other cases asserting their right to gender-consonant bathroom use. Though not binding on the federal courts in Wisconsin, the Fourth Circuit Court of Appeals determined that courts should defer to the Department of Education's position under Title IX. A transgender girl in Maine also won her case seeking access to the girls' restrooms at school, though her case was litigated under Maine state law rather than Title IX.
The plaintiff, identified in the complaint by his initials, A.W., alleges that he was informed of the new green wristband policy at the end of last school year, and expects that he will be required to wear the wristband when school starts again in the fall. The policy apparently came about after A.W. repeatedly used the boys' bathroom in defiance of school officials' insistence that he use the girls' room or an out-of-the-way single-use stall.
A.W. also alleges that the school denied his male identity by referring to him by his (female) birth name, by refusing to change his name and gender on school records, despite having produced the required doctor's verification of his transgender status. by assigning him to room with girls instead of boys on a school trip, and by initially refusing to let him run for prom king. (School officials eventually let A.W. onto the prom king ballot following a petition and sit-in protest attended by 70 students.)
The lawsuit declares that this conduct by school officials violates Title IX as well as the U.S. Constitution's Equal Protection Clause. It notes that the Department of Education has clearly stated that Title IX requires schools to treat transgender students in a manner consistent with their gender identities, including in the context of bathrooms. It seeks a court order prohibiting the school from excluding him from the boys' bathroom and from otherwise treating him differently from other male-identified students.
Transgender students have won other cases asserting their right to gender-consonant bathroom use. Though not binding on the federal courts in Wisconsin, the Fourth Circuit Court of Appeals determined that courts should defer to the Department of Education's position under Title IX. A transgender girl in Maine also won her case seeking access to the girls' restrooms at school, though her case was litigated under Maine state law rather than Title IX.
Monday, July 25, 2016
Trans issues round-up
In an act that I would find singularly outrageous if it were not in the current climate of fear--of everything and everyone--we see just how vulnerable some people are and how much we need the current interpretation of Title IX that includes transgender students.
In Wisconsin a trans high school student was told he could not use the boys' bathroom. He was offered the girls' bathroom or the office restroom. Neither option is acceptable but for a year, Ash Whitaker just did not use the bathroom at school, which had negative physical (and I would imagine emotional) health consequences. So he just started using the boys' bathroom seemingly without issue (and support from peers and some teachers) until the school instituted its wristband program. It would force students like Ash to use bathrooms based on sex on birth certificate. A green wristband would indicate that wearers are trans. The district and school wants to be able to monitor trans students and their bathroom use. The wristband reveals their trans identity to everyone.
A green wristband to identify trans students. The comparison is obvious and even if this is not a nationwide trend, it is deeply troubling. Whitaker and his mother have filed a Title IX lawsuit against the district. Also, this case serves as an example of the power of visibility. The Whitaker family was inspired to take action (there were other issues in addition to bathrooms) when they read about Gavin Grimm's case in Virginia.
Better news in South Carolina where a trans student, after OCR found her school district in violation of Title IX, is being allowed to use the girls' room in accordance to her gender of identity. The district engaged in a voluntary resolution of the complaint.
It is hard to take up the fight against discriminatory practices because often they lead to additional discrimination and backlash. It is more difficult in some areas and states than others. We live in Massachusetts where last week the legislature passed anti-discrimination legislation allowing trans people to use public restrooms and locker rooms in accordance with their gender identity. Yay Massachusetts! This does not mean, of course, that discrimination will cease. But an anti-discrimination measure has the backing of the state and that is hopeful. It goes into effect this fall.
Not Title IX related and not trans related (though potential implications) but too important to go without mention: Caster Semenya, who was subject to a disgraceful and malicious inspection of her gender in 2009 and then cleared to compete the following year, is competing in Rio this summer and is a favorite to win the 800 and also is a contender in the 400. But her participation is not without controversy, sadly. Again, despite being given the OK to compete in the field she has always competed in 6 years ago, some people are still worried about things being fair. Marathoner Paula Radcliffe--who does not compete against Semenya--is suspect of Semenya's participation and believes it is not sport when it is presumed that Semenya will win the gold. I guess gymnastics is going to suffer then given that Simone Biles is the presumptive all-around winner next month. Also Semenya, who won silver in 2012, is benefiting from the banning of the Russian team from track and field. Gold went to a Russian in London.
Her other fear is that so-called normal women will be pushed out of the sport when people to go areas of the world with higher occurrences of hyperandrogenism, which is the condition Semenya is believed to have. (In a rare moment of actually protecting her privacy, the results of her tests were not released.) One, athletes are recruited for specific physical traits all the time. Two, high testosterone levels are no guarantee of a specific performance outcome given that testosterone receptors are all over the body and perform different functions. Three, I could find distribution rates of intersex conditions. (They could exist, of course.)
In Wisconsin a trans high school student was told he could not use the boys' bathroom. He was offered the girls' bathroom or the office restroom. Neither option is acceptable but for a year, Ash Whitaker just did not use the bathroom at school, which had negative physical (and I would imagine emotional) health consequences. So he just started using the boys' bathroom seemingly without issue (and support from peers and some teachers) until the school instituted its wristband program. It would force students like Ash to use bathrooms based on sex on birth certificate. A green wristband would indicate that wearers are trans. The district and school wants to be able to monitor trans students and their bathroom use. The wristband reveals their trans identity to everyone.
A green wristband to identify trans students. The comparison is obvious and even if this is not a nationwide trend, it is deeply troubling. Whitaker and his mother have filed a Title IX lawsuit against the district. Also, this case serves as an example of the power of visibility. The Whitaker family was inspired to take action (there were other issues in addition to bathrooms) when they read about Gavin Grimm's case in Virginia.
Better news in South Carolina where a trans student, after OCR found her school district in violation of Title IX, is being allowed to use the girls' room in accordance to her gender of identity. The district engaged in a voluntary resolution of the complaint.
It is hard to take up the fight against discriminatory practices because often they lead to additional discrimination and backlash. It is more difficult in some areas and states than others. We live in Massachusetts where last week the legislature passed anti-discrimination legislation allowing trans people to use public restrooms and locker rooms in accordance with their gender identity. Yay Massachusetts! This does not mean, of course, that discrimination will cease. But an anti-discrimination measure has the backing of the state and that is hopeful. It goes into effect this fall.
Not Title IX related and not trans related (though potential implications) but too important to go without mention: Caster Semenya, who was subject to a disgraceful and malicious inspection of her gender in 2009 and then cleared to compete the following year, is competing in Rio this summer and is a favorite to win the 800 and also is a contender in the 400. But her participation is not without controversy, sadly. Again, despite being given the OK to compete in the field she has always competed in 6 years ago, some people are still worried about things being fair. Marathoner Paula Radcliffe--who does not compete against Semenya--is suspect of Semenya's participation and believes it is not sport when it is presumed that Semenya will win the gold. I guess gymnastics is going to suffer then given that Simone Biles is the presumptive all-around winner next month. Also Semenya, who won silver in 2012, is benefiting from the banning of the Russian team from track and field. Gold went to a Russian in London.
Her other fear is that so-called normal women will be pushed out of the sport when people to go areas of the world with higher occurrences of hyperandrogenism, which is the condition Semenya is believed to have. (In a rare moment of actually protecting her privacy, the results of her tests were not released.) One, athletes are recruited for specific physical traits all the time. Two, high testosterone levels are no guarantee of a specific performance outcome given that testosterone receptors are all over the body and perform different functions. Three, I could find distribution rates of intersex conditions. (They could exist, of course.)
Saturday, January 25, 2014
Wisconsin Middle School's Single-Sex Classes Targeted for Complaint
The ACLU has filed a complaint with the Department of Education's Office for Civil Right, alleging that Somerset (Wisconsin) Middle School's single-sex education program for fifth-graders violates Title IX. Students in Somerset's single-sex program are separated by sex for all core subjects, as well as extracurricular activities and non-academic periods like lunch and recess.
The ACLU's complaint alleges that this program violates Title IX because administrators have provided inadequate justification for the program. They claim to be using single-sex education to introduce "academic rigor" that will help close the gender gap on certain standardized tests, as well as to quell behavioral problems, but cite no data to substantiate either problem. The ACLU also chides officials for citing no "valid" evidence suggesting that separating students by sex is an effective means for solving either problem. Though they have been separating some fifth graders by sex since 2008, the school puts forward no evidence that it has made any difference on test scores or disciplinary rates so far. Instead, the complaint alleges, school officials justify sex-separation by relying on "debunked" pseudoscience on the different hardwiring of boys and girls brains, and the related "controversial" work of single-sex education proponents Leonard Sax and Michael Gurian, who advocate for teaching boys and girls in drastically different manners based on sweeping and questionable generalizations. The complaint cites some of Sax and Gurian's recommendations on which Somerset officials purport to rely:
The complaint requests that OCR conduct an investigation and ensure that school district correct any violations found by "reverting to a coeducational structure." The ACLU has attained that result in filing similar complaints against other school districts (e.g. here and here) We'll see if the Somerset case follows the same course.
The ACLU's complaint alleges that this program violates Title IX because administrators have provided inadequate justification for the program. They claim to be using single-sex education to introduce "academic rigor" that will help close the gender gap on certain standardized tests, as well as to quell behavioral problems, but cite no data to substantiate either problem. The ACLU also chides officials for citing no "valid" evidence suggesting that separating students by sex is an effective means for solving either problem. Though they have been separating some fifth graders by sex since 2008, the school puts forward no evidence that it has made any difference on test scores or disciplinary rates so far. Instead, the complaint alleges, school officials justify sex-separation by relying on "debunked" pseudoscience on the different hardwiring of boys and girls brains, and the related "controversial" work of single-sex education proponents Leonard Sax and Michael Gurian, who advocate for teaching boys and girls in drastically different manners based on sweeping and questionable generalizations. The complaint cites some of Sax and Gurian's recommendations on which Somerset officials purport to rely:
- Teachers should smile at girls and look them in the eye. However, teachers must not look boys directly in the eye or smile at them.
- Boys do well under stress, and girls do badly, so girls should not be given time limits on tests.
- Girls should be allowed to take their shoes off in class because this helps them relax and think better.
- Literature teachers should not ask boys about characters’ emotions, and should only focus on what the characters actually did. But teachers should focus on characters’ emotions in teaching literature to girls.
- Boys should receive strict discipline based on asserting power over them. Young boys can be spanked. Girls should never be spanked, but instead should be disciplined by appealing to their empathy.
- A boy who likes to read, who does not enjoy contact sports, and who does not have a lot of close male friends has a problem, even if he thinks he is happy. He should be firmly disciplined, required to spend time with “normal males,”and made to play sports.
The complaint requests that OCR conduct an investigation and ensure that school district correct any violations found by "reverting to a coeducational structure." The ACLU has attained that result in filing similar complaints against other school districts (e.g. here and here) We'll see if the Somerset case follows the same course.
Tuesday, December 17, 2013
Wisconsin Parents Claim Swim Team Facility Arrangements Were Retaliation for Earlier Complaint
In New Berlin, Wisconsin, student-athletes and parents are complaining that the school district's decision to relocate the Eisenhower High School girls' swim team practices and home meets to another high school's pool was retaliation for earlier complaints about gender equity in athletic facilities.
As we noted on this blog, the complaints by the swimmers and their parents alleged that the deteriorating condition of Eisenhower's pool amounted to sex discrimination when compared to the high school's recently-upgraded football facility. To the swimmers' disappointment, the school district responded to that complaint by upgrading its softball facility instead. To their further dismay, the school district then decided that the conditions of Eisenhower's pool were so bad that the team should no longer use it. For the season that just ended, the girls' swim team had to practice and compete at New Berlin West High School's pool. (The two high schools field a combined boys' team, which also uses the West facility). However, the Eisenhower girls' diving team continues to use the Eisenhower pool for its competitions.
Parents say that this inconvenient arrangement is pay-back for the earlier complaints. According to the them, the team would have preferred using the Eisenhower pool for practices and holding its competitions at West. And as evidenced by the fact that the pool still serves the diving team, it's not as if its condition foreclosed all use. Yet, district officials deny the charge of retaliation, arguing that scheduling both meets and practices at the same higher-quality facility was advantageous for the girls.
It does not appear that the parents have undertaken or are threatening any legal action against the school. If they did, their biggest challenge would be proving that the district had a retaliatory motive when it decided to relocate a team's regular practice to the West facility, which would have to undermine the school district's non-discriminatory explanation for the decision.
As we noted on this blog, the complaints by the swimmers and their parents alleged that the deteriorating condition of Eisenhower's pool amounted to sex discrimination when compared to the high school's recently-upgraded football facility. To the swimmers' disappointment, the school district responded to that complaint by upgrading its softball facility instead. To their further dismay, the school district then decided that the conditions of Eisenhower's pool were so bad that the team should no longer use it. For the season that just ended, the girls' swim team had to practice and compete at New Berlin West High School's pool. (The two high schools field a combined boys' team, which also uses the West facility). However, the Eisenhower girls' diving team continues to use the Eisenhower pool for its competitions.
Parents say that this inconvenient arrangement is pay-back for the earlier complaints. According to the them, the team would have preferred using the Eisenhower pool for practices and holding its competitions at West. And as evidenced by the fact that the pool still serves the diving team, it's not as if its condition foreclosed all use. Yet, district officials deny the charge of retaliation, arguing that scheduling both meets and practices at the same higher-quality facility was advantageous for the girls.
It does not appear that the parents have undertaken or are threatening any legal action against the school. If they did, their biggest challenge would be proving that the district had a retaliatory motive when it decided to relocate a team's regular practice to the West facility, which would have to undermine the school district's non-discriminatory explanation for the decision.
Sunday, May 12, 2013
Beloit school district proceeding with single-sex classrooms
In March we noted that the ACLU was contesting the School District of Beloit's (WI) use of single-sex classrooms in several of its schools. But the school board and superintendent have decided to maintain these classrooms used at two of the district's middle schools and have expressed confidence in their reasoning and ability to do so. The board plans to show the ACLU that there is a compelling interest to keeping the classrooms, which are used for several subjects. The district will produce data about the success of the classrooms. The superintendent said parents are being given a choice, however, about whether their children will participate in these single-sex classrooms.
Saturday, March 30, 2013
ACLU Challenges Single-Sex Classes in Wisconsin
The Wisconsin chapter of the ACLU has filed a complaint with the U.S. Department of Education, challenging single-sex classes at one middle school and two elementary schools. Riverview Middle School in Barron separated fifth-grade girls and boys in language arts and math classes in the past and plans to do so again next year. The two elementary schools, both in Beloit, have been offering single sex classes in multiple subjects. The ACLU alleges that all three single-sex programs violate Title IX because the schools lack the adequate justification required by law -- instead relying on discredited science and sex stereotypes.
Earlier this year, the ACLU convinced a high school in La Crosse, Wisconsin, to voluntarily suspend its girls' English and math classes, that were also justified solely by pseudoscientific generalizations about the ways girls learn.
The Wisconsin ACLU's efforts are consistent with the ACLU's nationwide campaign to "teach kids not stereotypes" -- an effort that has generated similar challenges to single sex programs around the country.
Earlier this year, the ACLU convinced a high school in La Crosse, Wisconsin, to voluntarily suspend its girls' English and math classes, that were also justified solely by pseudoscientific generalizations about the ways girls learn.
The Wisconsin ACLU's efforts are consistent with the ACLU's nationwide campaign to "teach kids not stereotypes" -- an effort that has generated similar challenges to single sex programs around the country.
Thursday, August 23, 2012
Complaint Filed Against Wisconsin School District
Parents in New Berlin, Wisconsin filed a complaint with the Office for Civil Rights last week alleging that inferior facilities for female athletes, as well as other inequities in athletics at Eisenhower High School, violate Title IX. Primarily, the parents complain that the pool facility used by the girls' swim and dive team is deteriorating, while the boys' team swims at a better facility located at another school in the district. The district recently funded an upgrade to the football facility of comparable cost to what it would take to renovate the pool, and provides a state-of-the-art facility to the boys wrestling team.
According to this article, the parents filed a similar complaint against the New Berlin school district last year, which resulted in an agreement by the district to conduct an audit of the swim facility and to replace certain equipment in order to ensure gender equity. Parents say this second complaint was necessary because the school district has not honored the terms of that agreement. The complaint also alleges that the school district has been stonewalling the pool upgrade project by proposing more expensive renovations than necessary, banking on the fact that the community would balk at the high price tag.
Other inequities alleged include inequitable locker room space and a booster club structure that gives an advantage to the "Friday night lights" sports of football and boys basketball.
The Office for Civil Rights will now decided whether to investigate the complaint.
According to this article, the parents filed a similar complaint against the New Berlin school district last year, which resulted in an agreement by the district to conduct an audit of the swim facility and to replace certain equipment in order to ensure gender equity. Parents say this second complaint was necessary because the school district has not honored the terms of that agreement. The complaint also alleges that the school district has been stonewalling the pool upgrade project by proposing more expensive renovations than necessary, banking on the fact that the community would balk at the high price tag.
Other inequities alleged include inequitable locker room space and a booster club structure that gives an advantage to the "Friday night lights" sports of football and boys basketball.
The Office for Civil Rights will now decided whether to investigate the complaint.
Thursday, March 08, 2012
Complaints Filed Against Five Wisconsin Districts
Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
Friday, December 16, 2011
Sexual Harassment Roundup
Here is a roundup of some recent sexual harassment cases.
- Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).
- A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).
- A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).
- A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).
Sunday, September 04, 2011
Sexual Harassment Roundup
Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!
- The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).
- A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).
- A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).
- A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).
Friday, November 12, 2010
Title IX Violations to be Remedied in Arrowhead, Wisconsin
A recent investigation into Title IX violations at Arrowhead High School in Wisconsin lead OCR to conclude, for the second time in recent years, that the school was not providing equal opportunity to female athletes. The school has agreed to fund alpine skiing and lacrosse, though the superintendent characterizes this a a voluntary, proactive decision and is seeking to challenge OCR's determination that the high school is in violation of Title IX.
In 2008, Arrowhead settled a complaint about unequal treatment by agreeing to make improvements to softball and field hockey facilities.
UPDATE: a reader kindly emailed me a copy of OCR's letter of findings, so I am able to add some additional details to the press account I summarized this morning.
In 2008, Arrowhead settled a complaint about unequal treatment by agreeing to make improvements to softball and field hockey facilities.
UPDATE: a reader kindly emailed me a copy of OCR's letter of findings, so I am able to add some additional details to the press account I summarized this morning.
- Arrowhead High School had a four-percentage-point disparity between the percent of athletic opportunities for girls (43%) and the percent of girls in the student body (47%). OCR characterized this as a substantial disparity not in compliance with prong one's substantial proportionality test because it amounted to 124 participation opportunities, well over the amount necessary to field a team in one or several sports.
- Next, OCR found that though the disparity had decreased since 2006 (it was as high as 5.3%) this does not satisfy prong two's requirement for continuous expansion of opportunities for the underrepresented sex because it was due to a decrease in the percentage of female students rather than the addition of new athletic opportunities. Moreover, prong two compliance was foreclosed by the fact that Arrowhead has only added one new sport for girls in the last 20 years, and had turned down a request to fund the existing self-funded lacrosse team.
- OCR also found that the existence of two, self-funded club teams demonstrates unmet interest and ability in additional varsity sports for girls, thus precluding Arrowhead from prong three compliance. The girls' Alpine ski team has existed since 2006 and has grown from 10 girls to as many as 21. Last year, the skiers competed successfully against fifteen other teams in five invitational meets. A girls' lacrosse team also provides opportunities for as many as 69 girls divided onto four squads. Though lacrosse is not sanctioned by the WIAA (neither is alpine skiing), the lacrosse team is a member of the Milwaukee Area Youth Lacrosse Association and competes against the other 6 other girls' lacrosse teams in that league, as well as other schools in the Madison area and from Illinois -- all within 70 miles of the school. Therefore, there is unmet interest and ability in sports for which there is sufficient competition in the school's normal geographic region of competition.
- The school district had informed OCR through correspondence spanning the last several months that it would fully fund lacrosse this school year, that it would partially fund (50%) the alpine ski team next school year, and fully fund the ski team in the following (2012-13) school year. OCR has closed the complaint "based upon these commitments," but has required the district to verify its compliance with those commitments going forward, and to that end imposed several reporting requirements spanning the next several years.
Thursday, December 24, 2009
Wisconsin School District Will Offer Girls Hockey
Earlier this year, high school freshman Morgan Hollowell and her father sued the Elmbrook School District in Wisconsin, challenging the district's decision to exclude girls from the hockey cooperative it is joining with another school district. Elmbrook officials cited low interest among girls as its reason for leaving them out of the plan.
It was recently reported in Athletic Business that in response to the pressure from the lawsuit, the school district has reversed its plan and will now enter into a similar cooperative for girls hockey. Though I could find no details about existing athletic opportunities in Elmbrook, unless athletic opportunities are roughly proportionate to the gender breakdown of the student body, under Title IX's three prong test, the district can't ignore unmet interest and ability among the underrepresented sex. While this aspect of the law would not require a school district to form a team when only a small number of girls (the article said 3) is interested in the sport, a different standard arguably applies when the decision isn't to form a team, but to join a cooperatives with other districts. It seems to me that the very fact Elmbrook was joining a cooperative suggests that there were not enough male hockey players at either or both of Elmbrook's high schools to field a team either. If the school district is going to accommodate boys' interests in that manner, it should similarly accommodate girls'.
It was recently reported in Athletic Business that in response to the pressure from the lawsuit, the school district has reversed its plan and will now enter into a similar cooperative for girls hockey. Though I could find no details about existing athletic opportunities in Elmbrook, unless athletic opportunities are roughly proportionate to the gender breakdown of the student body, under Title IX's three prong test, the district can't ignore unmet interest and ability among the underrepresented sex. While this aspect of the law would not require a school district to form a team when only a small number of girls (the article said 3) is interested in the sport, a different standard arguably applies when the decision isn't to form a team, but to join a cooperatives with other districts. It seems to me that the very fact Elmbrook was joining a cooperative suggests that there were not enough male hockey players at either or both of Elmbrook's high schools to field a team either. If the school district is going to accommodate boys' interests in that manner, it should similarly accommodate girls'.
Monday, June 29, 2009
Title IX Doesn't Cover Coach's Discrimination Against Female Football Player, Court Rules
Ivyanne Elborough played football on the freshman team at Evansville High School in Wisconsin. She was the only female member of the team. Her coach, Ron Grovesteen, apparently did not like having a girl on the team. He regularly failed to unlock the girls' locker room, so Elborough had to find someone with a key to let her in so she could get her equipment. This made her late to practice, an infraction Grovesteen punished with pushups. Grovesteen also supplied the boys' locker room with snacks, and posted a copy of the practice schedule there. Elborough, of course, was not permitted in the boys locker room. Elborough also alleges, that Grovesteen told Elborough she had to get her hair cut like a boy, though Grovesteen denies this.
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Despite complaints by Elborough's mother to the athletic director and the district administrator about the key situation, when Elborough showed up for practice on August 30, 2007, the girls' locker room was, again, locked. Elborough could not find anyone to let her in, so she went to practice without putting on her protective gear. Coach Grovesteen nevertheless allowed her to participate in practice, and Elborough broke her clavicle during a form blocking drill.
Elborough sued the school district under Title IX and the Equal Protection Clause, but a federal court judge in Wisconsin recently dismissed her Title IX claim. Though it appeared likely that the coach allowed Elborough to play without pads because she was a girl, the court reasoned that the district could not be liable for this decision because officials did not have notice that Elborough could get hurt at practice as a result of sex discrimination. As for the other examples of discrimination, including the locked doors, the snacks, and the haircut remark, the judge cited the maxim that "the law does not concern itself with trifles" before deeming them too insignificant to render the school district liable.
The court did not throw out Elborough's Equal Protection claim, so she still will be able to press her case against the school district. But the judge's decision on the Title IX claim is wrong, wrong, wrong, and needs to be reversed on appeal so that it does not create bad precedent in future cases. The problem is that the judge considered this case under sexual harassment standards, rather than as a case about direct, intentional discrimination. Her concern with notice and materiality of harm derives from cases like Davis, where the Supreme Court held that a school district could be liable when students harass and bully each other. The court did not wish to create a floodgate of litigation for every little jaunt and jab between students, so it set forth the requirements for notice, deliberate indifference, and harm to the plaintiff in the form of impairment to her education. Elborough's case is about participation, not sexual harassment. A coach can't erect obstacles to a player's participation, such as throwing her into a practice drill without pads in the apparent hopes that she'll get roughed up and quit, simply because he doesn't like her gender. "Notice" does not come in to play because the school official in a position to prevent this discrimination is the coach himself, who certainly has notice of his own conduct!
Moreover, the locker room issue and even the snacks amount to more than just a "trifle" -- they are both physical and symbolic lack of access to the football program, intended to make Elborough feel different and inferior because of her sex. What's more, Title IX regulations say that equity is measured in part by whether girls have similar access to the benefits of participation, including such benefits as access to facilities, including locker rooms, and meals. These regulatory interpretation underscores that that access to participation is about more than just what goes on on the field.
I hope that the plaintiff appeals this decision. Unfortunately, this judge is not the first one to conflate the notice requirement from harassment cases into athletics participation cases. We clearly need an appellate court decision on this issue to address this confusion.
Decision is: Elborough v. Evansville 2009 WL 1773135 (W.D. Wis. June 23, 2009).
Monday, February 02, 2009
Wisconsin Court Says Cheerleading Is a Contact Sport
File the Wisconsin Supreme Court's recent decision in Noffke v. Bakke under examples of cheerleading's increasing acceptance as an athletic activity.
Brittney Noffke was a high school varsity cheerleader who was injured while practicing a sideline stunt. (Cheerleading, we've noted, has a higher rate of injury than all (other) women's sports combined.) She sued, among others, a fellow cheerleader named Kevin Bakke, whose role in this particular stunt involved spotting her while she stood on the shoulders of another cheerleader. Bakke was out of position, and thus unable to catch Noffke when she fell. In his defense, Bakke argued that under a Wisconsin statute, an athlete who injures another athlete through negligence is immune from liability and cannot be sued. But for this immunity to apply to Bakke, the courts had to find that Naffke and Bakke were participants in a "recreational activity that includes physical contact between persons in a sport involving amateur teams, including...high school." In other words, Bakke was immune from suit only if cheerleading is a contact sport. The lower court agreed with Bakee that it is, but the decision was reversed on appeal. Bakke appealed to the Wisconsin Supreme Court, which reinstated cheerleading's status as a contact sport and dismissed the case against Bakke.
The court concluded that cheerleading is a sport because it involves physical exertion and skill, it is governed by a set of rules or customs, and its participants are organized and work together as a team to compete and to generate fan participation on the sidelines. Moreover, cheerleading incorporates the requisite physical contact as stunts require cheerleaders to toss and lift and have other manners of "forceful interaction" with each other. For purposes of the immunity statute, it did not matter that the accident occurred while practicing for a sideline routine rather than a competition, since the immunity rule by its terms does not turn on whether participants are in, or training for, competition.
The court's conclusion that cheerleading is a sport--and a contact sport at that--is of course limited to the immunity statute at stake in the case. It does not directly bear on whether the activity is sufficiently sporty to count as an athletic opportunity under Title IX or a contact sport that can, under the regulations, exclude a particular sex. While OCR endorses the practice of counting cheerleading for Title IX purposes if the team is treated like, and is as focused on competition, as any other athletic team, courts have not weighed in on this question or whether the contact sport exception applies to cheerleading. But for a court to recognize that cheerleading is not only a sport, but a contact sport warranting application of the same immunity rules that were written for sports like hockey and football, is not only evidence of the evolving, athletic nature of cheerleading but judicial acceptance of that fact as well -- acceptance that we could see spill over into the Title IX context.
Brittney Noffke was a high school varsity cheerleader who was injured while practicing a sideline stunt. (Cheerleading, we've noted, has a higher rate of injury than all (other) women's sports combined.) She sued, among others, a fellow cheerleader named Kevin Bakke, whose role in this particular stunt involved spotting her while she stood on the shoulders of another cheerleader. Bakke was out of position, and thus unable to catch Noffke when she fell. In his defense, Bakke argued that under a Wisconsin statute, an athlete who injures another athlete through negligence is immune from liability and cannot be sued. But for this immunity to apply to Bakke, the courts had to find that Naffke and Bakke were participants in a "recreational activity that includes physical contact between persons in a sport involving amateur teams, including...high school." In other words, Bakke was immune from suit only if cheerleading is a contact sport. The lower court agreed with Bakee that it is, but the decision was reversed on appeal. Bakke appealed to the Wisconsin Supreme Court, which reinstated cheerleading's status as a contact sport and dismissed the case against Bakke.
The court concluded that cheerleading is a sport because it involves physical exertion and skill, it is governed by a set of rules or customs, and its participants are organized and work together as a team to compete and to generate fan participation on the sidelines. Moreover, cheerleading incorporates the requisite physical contact as stunts require cheerleaders to toss and lift and have other manners of "forceful interaction" with each other. For purposes of the immunity statute, it did not matter that the accident occurred while practicing for a sideline routine rather than a competition, since the immunity rule by its terms does not turn on whether participants are in, or training for, competition.
The court's conclusion that cheerleading is a sport--and a contact sport at that--is of course limited to the immunity statute at stake in the case. It does not directly bear on whether the activity is sufficiently sporty to count as an athletic opportunity under Title IX or a contact sport that can, under the regulations, exclude a particular sex. While OCR endorses the practice of counting cheerleading for Title IX purposes if the team is treated like, and is as focused on competition, as any other athletic team, courts have not weighed in on this question or whether the contact sport exception applies to cheerleading. But for a court to recognize that cheerleading is not only a sport, but a contact sport warranting application of the same immunity rules that were written for sports like hockey and football, is not only evidence of the evolving, athletic nature of cheerleading but judicial acceptance of that fact as well -- acceptance that we could see spill over into the Title IX context.
Wednesday, September 24, 2008
New facilities will resolve WI complaint
Resolution of a 2006 complaint filed anonymously regarding the situation at Arrowhead High School in Wisconsin is forthcoming. The OCR investigation of the complaint that alleged discrimination because the girls' field hockey team did not receive equitable resources compared to boys' teams at the high school. Improvements to the field hockey field as well as the softball field will take care of the situation according to the school superintendent.
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