Vast Majority of Public Comments Supported 2011 DCL, Research Shows

Interesting and helpful research by a Title IX expert and law professor Nancy Chi Cantalupo and colleagues, posted recently on SSRN, documents overwhelming public support for the Obama Administration's 2011 Dear Colleague Letter, which the current administration has repealed and is in the process of replacing.  The researchers examining public comments the Department of Education received in 2017 in response to a call for public comments on Executive Order 13777 (establishing a federal policy to “alleviate unnecessary regulatory burdens”).  Of the comments received, 12,000 specifically addressed Title IX. The researchers' review and coding of those comments generated findings like these:

● 99 percent (n: 11,893) of the commenters filed a comment in support of Title IX, with 97 percent of Title IX supporters (n: 11,528) specifically urging ED to uphold the 2011 Dear Colleague Letter: Sexual Violence (2011 DCL). Only one percent (n: 137) filed comments opposing Title IX, of which 90 percent (n: 123) specifically urged that ED rescind the 2011 DCL.

● Even accounting for the fact that many pro-DCL commenters used the same core language, the vast majority of *unique* comments (92%) still supported Title IX.

● Nearly all of the commenters who wrote in support of the DCL and Title IX identified themselves by name. In contrast, of the 137 comments that opposed Title IX, 44.5 percent (n: 61) were posted anonymously.

● Besides comments from individuals, the agency also received comments from two non-profit organizations that had 38,713 and 10,190 signatories respectively, which bring the total expressions of support for Title IX and the DCL to 60,796, in marked contrast to the 137 comments in opposition.

To be sure, comment periods are not a pubic referendum. Agencies are not required to tally the number of comments and adopt the position of the majority.  But agencies are required to express a cogent rationale for their policy choices. If an agency states that it is reversing an existing policy because that policy is unworkable and unpopular, as Secretary DeVos has said, and that statement is defied by an overwhelming record of evidence to the contrary, that agency might not be able to successfully defend that reversal in court if it is challenged.

Study Examines Faculty-on-Student Harassment

Professors Nancy Chi Cantalupo and William Kidder have posted a forthcoming study about an aspect of campus sexual misconduct that warrants more public discussion: the sexual harassment of students by faculty members.  They studied media reports as well as lawsuits and administrative complaints, amassing a data set of over three hundred cases. As they put it in the abstract,

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

Here is a link to the study, which will be published in the Utah Law Review.

Recent Law Review Articles Examine Title IX's Application to Sexual Assault, Transgender Rights

Today I read two recent law review articles that warrant mention on this blog.  The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former.  In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities.  Levasseur challenges courts to follow suit.  By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.

In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures --  aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities.  Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.

Articles cited:

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).

Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)

Title IX and Female Athletes' Preference for Male Coaches

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

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

Study Finds No Benefit to Single-Sex Education

Even as single-sex education continues to be touted as the solution for everything that ails public education, new research findings reported this week suggest that it provides no advantages over coed classrooms.  Psychologists conducted a meta-analysis of 184 studies from all over the world and going back several decades that examined the benefits of single-sex- versus co-education. Their conclusion derived from these studies are that differences in educational outcomes are "trivial, or in many cases, nonexistent." The subset of studies conducted in the U.S. produced a similar conclusion.

This analysis could potentially influence courts' and regulators' determinations of whether the ever-increasing number of schools purporting to experiment with single sex education are lawful under Title IX.  Title IX regulations require single-sex programs to be "substantially related to achieving" the school's objectives.  Evidence that single-sex programs do nothing would undermine claims that they "achieve" anything. 

In Forthcoming Article, Law Professors Argue Public Single-Sex Education is Unconstitutional

Professors David Cohen and Nancy Levit's article on the constitutionality of public single-sex education, which is forthcoming in the Seton Hall Law Review, was recently posted on SSRN.  The authors conclude that neither of the commonly cited justifications for segregating classrooms -- presenting a diversity of education options and research into sex-based differences in learning styles -- warrant a sex-based classification under the Equal Protection Clause.  Here is the abstract:

Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within the context of the constitutional doctrine of sex classifications, concluding that none is an “exceedingly persuasive justification” for the pernicious harms that are associated with sex segregation.

The article demonstrates that “diversity” was never intended to support segregation. It explains that parental choice does not eliminate the problem of state-sponsored segregation based on sex. Courts must address whether single-sex education is supported empirically before allowing it as a publicly funded option. The article reviews studies showing that most sex-differentiated behavior is learned, and biological differences do not justify sex-specific teaching methods. The article also examines studies of academic and emotional outcomes in single-sex and coeducational environments which confirm that the vast majority of outcomes do not support single-sex education.

The article then explores the formation of gendered behaviors and attitudes. The way that schools have been implementing single-sex education promote gender essentialism. Sex-segregation increases students’ and teachers’ stereotypes about sex and gender, gives them outlets for expressing those beliefs, and creates opposition between the groups. In short, sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”

Straight Talk from Rutgers AD on NCAA Stipend Proposal

Rutgers University Athletic Director Julie Hermann was interviewed in the local press about the challenges of helping college athletes cover the true cost of education.  Last year, the NCAA voted to allow Division I institutions to award $2000 cost-of-living stipends to those athletes already receiving a full scholarship, to cover the kind of incidentals outside of tuition, room and board.  The plan was later rescinded but the concept is still under consideration.  

As Hermann notes, the original stipend plan was inequitable from the start in terms of gender, given that far more male athletes (those in so-called "headcount sports") than female receive full scholarships and would be eligible for the stipend.  Counting the scholarships awarded in the headcount sports of men's football and basketball, Hermann notes, " you have $200,000 you can now award to your men, which is great. But that only gives you $60,000 that you can award on the women’s side [in volleyball and basketball]. You’re automatically $140,000 off.”

There's not an obvious fix, it seems.  Simply expanding eligibility to include equivalency sports, Hermann explains, would tremendously increase the total cost to institutions of funding the stipend.  People view the stipends as a way to share the profits with the athletes whose efforts generate those funds.  But most university athletic departments, even those with football programs, are not profiting on athletics.  Hermann notes that many football programs don't even turn a profit.  So the money for the stipends is coming from the university (tuition) or elsewhere in the athletics budget. So the possible consequence is that universities will cut equivalency sports in order to be able to pay out stipends to everyone else -- something Hermann doesn't want to see. 

Another challenge with the stipends, it appears, is that there's some evidence suggesting the students who received them didn't spend them as intended: "They’re buying a $500 pair of jeans that you and I don’t spend money on. So yes we could make them a card, but you have to teach them financial management. We’re trying to feed and clothe you, give you everything you need (via the stipend), but we’re not trying to make you into fashionistas."

Hermann's right that there's no easy answer to the fundamental questions of fairness that underlie this issue.  It's good to know that athletic directors like Hermann are cognizant of the gender equity implications as well as the potential implications for equivalency sports. Her remarks suggest that for most schools, stipends are not the answer, and will only drive an additional wedge between athletes in some sports that happen to be  popular with the public and others that are not.  It's becoming increasingly difficult to imagine an NCAA that governs the handful of profit-earning institutions along with everybody else.

Study Correlates Sex-Segergated Classes and Gender Stereotyping

Earlier this year, the journal Educational Studies published research finding that the more boys and girls were segregated for their junior high classes, the more they engaged in gender stereotyping the following semester, as measured by students' responses to a questionnaire with the questions "who [boys or girls] is better at math?" and "who is better at language arts?"

Here is the article's abstract:

Concern has been raised that segregation of girls and boys into separate classes leads to increased gender stereotyping. We tested this in a sample of 365 seventh-grade students attending a junior high school that offers both gender-segregated (GS) and co-educational classes. It was found that for both boys and girls, the more GS classes they took in the fall, the more gender stereotyped they were in their responding in the spring (controlling for initial levels of gender stereotyping). We concluded that GS likely heightens the salience of gender in the classroom thereby reinforcing and increasing gender stereotypes. As such, we argue that GS is a misguided approach to addressing any educational difficulties girls and boys might be having.

Citation: Richard A. Fabes et al.,  Gender-Segregated Schooling and Gender Stereotypes, Educational Studies (2013).

Article Examines Standing Issue in Title IX Case

In the current issue of Sports Lawyers Journal, student author Colton Puckett criticizes the federal court's standing analysis in American Sports Council v. Department of Education, the case in which ASC sought to have courts declare the three-part test inapplicable to high school athletics.  The federal court dismissed the case on the grounds that ASC did not suffer a concrete injury that would be redressed by a ruling against the Department of Education, i.e., that ASC did not satisfy the jurisdictional prerequisite known as standing.  (We blogged about that decision when it was announced last March.)  The author concludes:

To be clear, this Note is not commenting on the merits of the ASC's complaint. Whether one believes that Title IX is the savior of public athletic programs, the embodiment of all that is wrong with government regulation, or anything in between is irrelevant to the question at hand. The question is whether the ASC has a right to have its case heard in court. Whether one agrees with the ASC or not, it seems clear that its shotgun-style approach to standing should have garnered at least one hit. If this was indeed a case where the standing inquiry acted as a means to dismiss on the merits, the court should have let the ASC be heard, and let the merits of the case stand, or fall, on their own.

Colton Puckett, American Sports Council v. Department of Education: Forty Years of Title IX and Still Standing (Or Not), 20 Sports Lawyers J. 261 (2013).

"Transcending Gender Lines: Title IX and Transgender Rights"

Yesterday I had the opportunity to participate in a symposium at the University of Wisconsin about Title IX's application to transgender rights, sponsored by the law school's Journal of Law, Gender and Society.  Devi Rao from the National Women's Law Center kicked things off by discussing how Title IX courts have interpreted sex discrimination to include discrimination on the basis of gender nonconformity, clarifying the law's protection against harassment to include transgender and other gender-nonconforming students.  I followed by talking about legal precedent from the employment context, that if applied to cases involving students, could broaden Title IX's protections for transgender students to cases outside of the harassment context, where gender nonconformity theory may be less useful.  Rounding out the morning, we heard from Professor Jillian Weiss from Ramapo College, who emphasized the limits of Title IX in securing transgender rights, and advocated for judicial recognition of a constitutional right to gender autonomy as a way to supplement efforts to secure their legal protection. 

In the afternoon, Harper Jean Tobin from the National Center for Transgender Equality argued that Title IX should be interpreted to allow students access to single-sex facilities like bathrooms and restrooms based on their gender identity. Afterwards, Ilona Turner of the Transgender Law Center and Scott Thomspon from the law firm Cleary Gottlieb made a similar argument in favor of transgender students' participation on athletic teams. 

In addition to these presentations, we all enjoyed engaging discussion facilitated by able moderators.  It was a great day of insight and inquiry in Madison. I'm looking forward to the publication of these conference proceedings in an upcoming issue of the Journal.   

Law Review Article Examines Boy's Refusual to Wrestle Girl

Professor Deborah Brake has a new article forthcoming in the Nevada Law Journal, available for download here, called Wrestling with Gender: Constructing Masculinity by Refusing to Wrestle Women.  In it, Professor Brake examines the cultural significance of a recent case in which a boy refused to wrestle against a girl on moral or religious grounds, and the role of Title IX is such circumstances to protect girls' rights to the competitive opportunity at stake.

Here is the article abstract:

In February of 2011, an Iowa high school boy captured national attention when he refused to wrestle a girl at the state championship meet. The media shaped the story into a tale that honored the boy for sacrificing personal gain out of a moral imperative to “never hurt a girl.” Unpacking this incident reveals several “fault lines” in U.S. culture that often derail gender equality projects: (1) religion/morality is interposed as an oppositional and equally weighty social value that neutralizes an equality claim; (2) the agency of persons supporting traditional gender norms is assumed, while the agency of persons contesting them is questioned; (3) opting out or “leveling down” is employed to reinforce status hierarchies while maintaining a semblance of formal equality (neither boy nor girl wrestles); and (4) de-contextualized strands of feminist theory are appropriated and co-opted in service of the existing gender order. This paper asks, what happens when sex equality law is interjected into this narrative? After examining the anatomy of the backlash to the threat to the gender order posed by the entry of girls into wrestling, this paper constructs an argument that Title IX obligates schools and athletic associations to take measures designed to deter gender-based forfeitures that deprive girls of athletic opportunity. It then explores a tougher question: does the introduction of a sex equality claim disrupt the conventional understandings of gender that emerged from this narrative? I ultimately contend that law has a potentially useful role to play in subverting the gender order, but that to do so it must engage the crucial dynamic at the heart of forfeiture incident: the construction of masculinity, both for the boy who forfeited and for the sport of wrestling itself. Feminist legal strategies must contend with how masculinity is constructed and valued for the boys and men who play sports in order to further advance the cause of girls’ and women’s equality in sports.

Financial Inequality, College Sport, and Title IX: Reflections on the NCAA Scholarly Colloquium

I'm just back from the NCAA Convention, where I attended the Scholarly Colloquium for the first time in my capacity as a member of the board charged with running the Convention's annual academic conference.  As it turns out, that first time will also be my last.  On the eve of the Colloquium, NCAA officials announced that it was discontinuing support for the Colloquium, as well as the Journal of Intercollegiate Sport, which is also put out by our board.  Some have speculated that this decision was not about financial considerations and scholarly "impact," but more about the NCAA's unwillingness to subsidize scholarly criticism of the college sport enterprise (see, e.g., here or here).  A not entirely unreasonable point of view, I guess, though it's certainly disappointing that the NCAA and its members will miss the opportunity going forward to engage in constructive, critical dialog within the framework of the Convention.  

This year's Colloquium is a case in point.  Several panels of scholars, not to mention a few university presidents, provided various perspectives on the Colloquium theme, Financial Inequality in College Sport. From these presentations, I came away with a much clearer picture of the economics of college sport, and what economic disparities within sport mean for student-athletes and other students.  For example, while it wasn't news to me that Division I schools outspend  Division II schools, or that within Division I, FBS institutions outspend their FCS counterparts by exponential sums, I was surprised to see the economic disparities even within conferences of similarly-situated schools.  In the Big Ten Conference, for example, Ohio State spends $132 million on athletics, or  2.7 times as much as the lowest-spending member of that same conference.  No wonder there's an arms race of spending.  Schools with an economic advantage can shore up that advantage by hiring an army of support staff (including, as we heard in one example, a "sleep consultant" to make sure the football team would be well-rested despite traveling across two time zones to the site of a bowl game) and other amenities.  Perhaps more importantly, they can afford to purchase football wins against schools from weaker conferences and the FCS subdivision, in order to ensure eligibility to the revenue-generating bowl games.  (Oklahoma State's 84-0 win over Savannah State was a much discussed example.) These kinds of investments, of course, drive up spending in the conference overall, who have little change of recouping their exorbitant investment unless they hang in there with the big spenders.

While this year's Colloquium panels did not include a specific focus on Title IX (though past year's Colloquiums have done so, see, e.g.), they certainly helped contextualize the economic situation in which Title IX decisions must take place.  The presentations underscored for me the relationship between the financial inequality among schools and the financial inequality within schools, since the arms race spending, driven by economic pressure to keep up with big spenders, results in more resources allocated to the sports with revenue potential, which are, primarily, two men's sports -- football and basketball.  When a school like Colorado State goes in the hole to build a new football stadium, this not only diverts money toward the football program, but creates economic pressure to keep its football team viable for as long as the debt on the stadium exists.  It sets a men's sport as a permanent priority, driving a wedge of perpetual inequality between one (men's) sport and the rest.  For these reasons, I agreed with a number of Colloquium presenters who called on the NCAA to press Congress for the authority to more tightly control athletics spending.  (Presently, antitrust laws would prohibit the NCAA for doing so, which is why Congress needs to get involved).  Financial and academic integrity were the primary reasons for this proposed reform, but gender equity goes on the list as well. 

Whether or not the NCAA agrees with the content of this year's Colloquium, one thing is clear: the conversation about college athletics reform must continue.  I'm grateful for the past six years in which the NCAA has supported the Scholarly Colloquium.  Now it's time to look for new opportunities to promote academic discourse on college sports. 

Title IX Law Review Scholarship Roundup

Several law review articles related to Title IX have been published in recent weeks. Here is a summary.

In the recent issue of the Williamette Sports Law Journal, author Zachary Anderson examines the University of Nebraska-Omaha's recent decision to drop its football and wrestling program. His case study examines the university's financial motivations as well as its compliance problems, and concludes that the university's decision was in the best interest of the institution and its student-athletes overall. 
Zachary W. Anderson, Title IX Compliance: In the Name of Financial Stability or Gender Equality?, 10 Willamette Sports L.J. 33 (2012).

A student note in the Catholic University Law Review argues that Title IX plaintiffs alleging violations stemming from athletics ought to satisfy the same requirement of "actual notice" that applies to Title IX sexual harassment claims. The author acknowledges that several courts have rejected this idea because harassment, unlike athletics discrimination, involves conduct about which the university might not actually be aware. He argues nevertheless that universities may be unaware of discrimination in athletic departments and that a notice requirement should be imposed. Personally, I find this unconvincing, as I have argued elsewhere on this blog that it simply "make[s no] sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions."
Zachary Swartz, If It's Broken, Let Them Fix It: Why the Gebser Pre-Litigation Notice Requirement Should Apply to Title IX Athletics Lawsuits, 61 Cath. U. L. Rev. 1207 (2012).

Finally, another student note, this one in the Duke Law Journal, criticizes certain aspects of the 2011 Dear Colleague Letter from the Office for Civil Rights, which clarified universities' obligations to respond to sexual violence on campus. On the one hand, the author concludes that the DCL's requirement universities have a preponderance of evidence against the accused before taking disciplinary action is consistent with procedural due process requirements in the Constitution.  But, he argues, other aspects of the DCL, such as its recommendation against allowing the accused to cross-examine the victim, conflict with the constitutional interpretations of some lower courts.   
Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 (2012).

Opportunities, interest and what else Title IX covers

Last week I attended the North American Society for the Sociology of Sport and will blog in a few days about the Title IX panel held. But in light of the release of a new study in the field of psychology about female interest in sport, I thought it more important to tie that into the presentation Dr. Ellen Staurowsky made at NASSS about the so-called "loss" of opportunities for men when intercollegiate teams are cut.
In a case study of three institutions that cut teams, Staurowsky analyzed the discourse around the cuts, the ways in which Title IX was (or was not) invoked, and the course the respective athletic departments took after the cuts (i.e. building new facilities, upgrading conferences). For many schools, cutting athletic teams allows for things like new stadiums, new athletic centers, new bells and whistles, embellishments and adornments that make the school appealing to prospective student-athletes who might have gone to the school that already had these things. Better recruitment opportunities, better conference, better contracts and sponsorships, etc. Better treatment for a few select students. (By the way, Title IX mandates equal treatment too, so facility-happy schools must ensure that female student-athletes have access to these facilities or ones of comparable quality.)
So what does this have to do with opportunities and interest?
Well Staurowsky noted that the teams that are cut are not disappearing, they just are no longer intercollegiate teams. They exist in places like recreational and club sports. So men retain their opportunities to play sports--they just are not intercollegiate sports. First, I think this is a major issue that we will see discussed and researched much more. I know Dr. Sarah Fields at Ohio State has done some work on Title IX's applicability to rec sports. Second, the (potential) retort is that rec and club sports are not the same. And that is true; some might argue that they are better--for schools and for student-athletes. Regardless, they are an opportunity to play sports--often at a very competitive level. Look at college rugby which is almost exclusively comprised of club teams. And let's remember that sports allegedly exist in schools because they contribute to the educational mission of the institution. Club and rec and intramural sports, following this philosophy, are just as valuable.
And they fall under the purview of Title IX, too.
So, again, in light of this new study on interest, we must look at where women do and do not receive opportunities and the cultures that provide these opportunities. (There are a number of other factors ignored by the researchers which I will discuss at a later date as well.) If former men's intercollegiate teams are being shuttled to a club sports structure, there is 1) a disproportionate number of them and 2) an established team structure. Women who desire they same thing are more likely to have to start from scratch. They have to go through the process of establishing a team and meeting the requirements and raising the money. Many men's sports already have these structures and even funding (from boosters and alumni) in place. That's not about interest; that's about cultural and structural barriers.

Study Uses Athletic Participation to Judge Women's "Predisposition" to Sport

A new study in the journal PLOS ONE cites lower rates of athletic participation among women as evidence that men have stronger predisposition to sports than women.   Richard Deaner, a psychologist from Grand Valley State, and his coauthors conclude that these results suggest "that it may be a mistake to base Title IX implementation on the assumption that males and females have, or soon will have, generally equal sports interest."

The study, titled A Sex Difference in the Predisposition for Physical Competition: Males Play Sports Much More Than Females Even in the Contemporary U.S., acknowledges that girls and women's participation in intercollegiate and interscholastic high school sports is relatively high -- 42 and 43% respectively.  Yet, the authors are concerned that these participation rates may "underestimate the actual sex difference in sports participation."  So, they report on three sources of data other than intercollegiate/interscholastic competition to demonstrate an athletic participation gap between male and female subjects.  First, the authors analyzed responses submitted to the American Time Use Survey, which finds female respondents of various ages engaging in 24% of total sports participation and 20% of team sports participation.  Second, the authors engaged in "systematic observations of sports and exercise at 41 public parks in four states" and observed females accounting for only 19% of individual sport participation and 10% of team sports participation.  Finally, they found that female college students accounted for only 26% of students registering for intramural sports. 

As I told the reporter from Inside Higher Ed who wrote an article about study, I don't find these findings surprising at all, given the historical and continuing discrimination and exclusion of women from sports, as well as cultural constraints on women's participation. What I do take issue with is the apparent suggestion that these reported participation rates are somehow more accurate of women's true predisposition to sports than their participation rates in intercollegiate and interscholastic contexts.  What worries me about this study is the implication that Title IX is somehow artificially inflating women's interest in athletics. To me, the fact that the gender gap is wider in sports contexts outside the scope of Title IX (in parks, for example, and other non-scholastic contexts measured by the ATUS) is actually an argument that Title IX is working, and, if anything, should be extended to those other contexts.  If there was a law as effective as Title IX has been in breaking down barriers and promoting women's opportunities that applied to these other recreational contexts as well, who's to say we would not see interest and participation rising there as well? 

Another thing that bothers me about this study is the odd extrapolation from women's low interest/participation in recreational contexts like parks and intramurals, to a suggestion of  women's similar low interest in interscholastic and intercollegiate athletic opportunities as well.  This is like saying, women don't like apples; therefore, they must not really like oranges, because both are fruit. In this case, the "oranges" are athletic opportunities that are well-coached, supported by the institution, allow athletes to compete in front of fans, to travel, and to possibly to earn a scholarship.  Saying that women are not interested in these opportunities because fewer women have the interest (or, I would say, the privilege) of playing pick-up basketball at the local park is a pretty attenuated connection to me. 

Finally, it seems to me that the authors have constructed a straw argument that Title IX implementation is in fact based on as assumption of equal interest.  It's not.  One of the compliance options in the three-part test (prong three) expressly allows schools to offer disproportionately low number of opportunities to female students, provided that there is no "unmet interest" in athletics among the female student body.  Lack of interest, properly measured, does factor into compliance obligations under Title IX.  That being the case, I worry that the point of this study is simply to supply inflammatory rhetoric rather than to address any real policy concern.   For this reason, I hope this study does not gain traction in the media but instead lays low as the non-story that it is. 

Student Note Addresses Title IX, Transgender Discrimination, and Women's Colleges

Recent Harvard Law graduate Katherine Kraschel's Note in the Harvard Journal of Law and Gender argues that women's colleges need not worry that admitting transgender students would compromise their ability to remain single-sex.  She explains:

Title IX provides for affirmative action not only for women, but also for the non-advantaged gender, and transgender individuals are most certainly members of a disadvantaged gender. Title IX case law, such as Miles and the cases that follow, shows that despite the dichotomous conception of gender when it was enacted in the 1970s, Title IX can embrace the notion of discrimination not only against the non-advantaged gender, but against the non-advantaged genders. While this is not well-settled law, if women's colleges strive to “be at the forefront of [transgender equality], not sort of catching up to the rest of the world,” the logical step is to end reliance upon Title IX and embrace an inclusive conception of Title IX's anti-discriminatory charge.

For more, see Katherine Kraschel, Trans-Cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion, 35 Harv. J. L. & Gender 463, 483 (2012)

Study Connects Mother's Past Athletic Participation to Health of Baby

This study in the Journal of Labor Economics by UC Davis's Lisa Schulkind suggest that whether a mother had access to athletic opportunities has an affect on her babies' health, and that this benefit is particularly strong for black women compared to white women. 

In the researcher's own words:

I find that maternal athletic participation is an important determinant of infant health, as measured in the Vital Statistics Natality Files. The infants born to women who had access to greater athletic opportunities as teenagers are healthier at birth. High school athletic participation rates for girls increased from 5% in 1970 to 24% by the end of the decade, and I find that an increase of this size results in a 6% decrease in low birthweight infants (<2500 grams) and an 8% decrease in the incidence of very low birthweight infants (<1500 grams). I find little evidence that increased education or a change in observed behavior during pregnancy is the primary driver. At the same time, I do find evidence that selection into motherhood is affected.

When examined separately, the magnitudes of the estimated infant health effects are smaller for white women, but larger for black women. This difference likely reflects the fact that the black adolescents who participated in athletics as a result of Title IX are more disadvantaged, and have more to gain, than their white counterparts. In fact, the disparity in family background between black and white athletes is even larger than for non-athletes.

Marquette Sports Law Review Publishes Title IX Symposium Issue

Marquette Sports Law Review has published its Title IX Symposium issue, which includes an article that Kris and I co-authored about Title IX's equal treatment requirement, using examples from this blog to help explore and explain why that aspect of Title IX is often overlooked in favor of the more widely known equal opportunity requirement (the three-part test). 

The issue also contains other articles about Title IX:

• Professor Paul Anderson reviews 40 years of legal developments that shaped Title IX.
• Professor Deborah Brake reminds us that we are not limited to using Title IX to address the problem of romantic relationships between coaches and athletes. 
• Attoney Diane Heckman examines the relationship between Title IX and the Supreme Court over the last 40 years.
• Attorney Julie Yap argues that schools should have notice and an opportunity cure claims for money damages under Title IX, in athletics cases as well as sexual harassment cases.
• Professor Brian Porto argues that retaliation victims ought to be protected under Title IX if they had a "contextually reasonable" or good faith basis that motivated their complaint that their institution was in violation of Title IX.
• Professor Ellen Staurowsky questions whether Title IX is really relevant in the debate about paying college athletes, when athletic scholarships are more like payment for services rendered and not connected to educational opportunities.
• Dean Cynthia Lee A. Pemberton critiques the persistence of reticence to comply with Title IX.
• Cassandra Jones has a brief book review of Brake's Getting in the Game: Title IX and the Women's Sports Revolution.

Title IX Legal Scholarship Update

In the current issue of the BYU Education Law Journal, author Patrick J. McAndrews proposes a strategy for universities' compliance with Title IX without cutting men's teams.  Specifically, his three-part strategy includes long-term planning, roster management aimed at football, and aggressive surveying of students interest in order to demonstrate compliance with prong three.  Though this last point does not seem to take into account that the Department of Education's 2005 Clarification, allowing surveys to serve as the sole evidence for compliance with prong three, has since been repealed, the other suggestions are worthy of consideration.

Additionally, two articles in the current Sports Lawyers Journal are related to Title IX.  Author Andrew Weissler critiques the application of the three-part test to interscholastic athletics, and advocates for OCR developing a different interpretation of the effective accommodation regulation that takes the special circumstances of high schools into account.  In another piece, Ephraim Glatt argues that courts should not defer to OCR's 2008 Letter that provides guidance on what counts as an athletic opportunity for purposes of Title IX. He argues that factors such as athleticism and injury rates counsel in favor of counting competitive cheer as a sport for Title IX. 

Patrick J. McAndrews, Keeping Score: How Universities Can Comply With Title IX Without Cutting Men's Teams, 2012 BYU Educ. JL 111 (2012). 


Andrew J. Weissler, Unasked Questions: Applying Title IX's Effective Accommodation Mandate to Interscholastic Athletics, 19 Sports Law. J. 71 (2012).


Ephraim Glatt, Defining "Sport" Under Title IX: Cheerleading, Biediger v. Quinnipiac University, and the Proper Scope of Agency Deference, 19 Sports Law. J. 297 (2012).

Professor Simson on Title IX, Athletics, Biological Differences, and Gender Inequality

Here is the abstract from Professor Rosalind Simson's article in the current issue of Denver University Sports & Entertainment Law Journal, "The Title IX Athletic Regulations and the Ideal of Gender-Free Society." The full article also posted on SSRN.

Some philosophers and political theorists have argued that to achieve a just society we must eliminate gender roles. Few would dispute that many of the reductions in the influence of gender over the last fifty or so years have increased justice in the U.S. Whether justice requires that our society become entirely gender-free, however, is more controversial. A common argument for retaining at least some gender roles is that some are natural consequences of biologically-determined average physical differences between the sexes. Athletics is one context in which people often make this argument. This article focuses on school athletics and the Title IX athletic regulations in order to gain insight into the implications of biological sex differences for the question of whether the creation of a gender-free society is a realistic and worthy ideal. Although Title IX has been hugely successful in increasing female participation on school sports teams, males today still dominate school athletics, and gender roles are still very operative in school sports. This article proposes a framework, based on the concept of equal opportunity, for understanding what it might reasonably mean for a society to be “gender free.” It then argues that overall equality of opportunity requires equality of athletic opportunity, and that, despite its successes, Title IX's failure to repudiate gender influences makes it unlikely that, in its current form, it will ever lead to equality of athletic opportunity. The article goes on to propose revisions of Title IX that would truly equalize opportunity in the school athletic arena. It thus suggests that the gender-free ideal is ultimately compatible with biologically determined average physical differences between the sexes.