NWLC webinar

The National Women's Law Center, much in the news lately because of the filings of 12 Title IX complaints against various school districts nationwide, will be offering a free webinar about Title IX compliance tomorrow. Senior Counsel at NWLC Neena Chaudhry will be giving the webinar which begins at 1pm (eastern) and will focus on understanding and complying with the law.
The event, titled Rally for Girls' Sports: A Guide to Title IX for Parents, Coaches, and School Officials, does require pre-registration. If you are interested, you may do so here.
This event is part of NWLC's larger Rally for Girls' Sports campaign.

First-Class Locker Rooms Remedy Title IX Violations at N.C. High Schools

Last year we blogged about Title IX violations at the high schools in New Hanover County, North Carolina -- in particular, the inequitable locker room facilities that had girls' teams doubling up and changing in the weight room, and the county's ongoing efforts to honor a 2008 compliance agreement with OCR. But today there's good news for the girls at Hoggard and Laney high schools, as the county purports to have completed all of the necessary renovations to comply with Title IX. Of the new, spacious girls' locker room with varnished wood lockers (a "carbon copy" of the existing boys' locker room), Hoggard girls' basketball coach Ray Beatty said,

Everyone that's been in there has been overwhelmed, especially the girls that have been with me for a while[.] It's more like a college atmosphere now than in the past. My girls probably just felt like second-class citizens because the boys had such nice facilities, but now they feel like first-class citizens.

To me, this quote epitomizes the intent and effect of Title IX, indeed, civil rights laws in general, and provides the most compelling counterargument to those who say the law is unnecessary and unimportant. No group should be stigmatized by second-class treatment. Discrimination in athletics, whether it be in the number of participation opportunities for each sex, or the quality of their playing fields and locker rooms, sends a clear message to students about whose athletic experience society appreciates, expects, and respects. It's obvious that they should be equal. It's not obvious why it takes government intervention to make schools realize that too, but until it is, Title IX is both necessary and important.

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.

• 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.
  

Court Applies Title IX Standards to Harassment of Student With HIV

A recent decision from an Indiana federal district court applied Title IX's standard for institutional liability for peer harassment to a cause involving students' harassment of a fellow student who is HIV positive. Parents of P.R., a middle school student, sued the school claiming that its failure to address the harassment violated the Americans With Disabilities Act and the Rehabilitation Act. Consistent with other courts, the court borrowed the "deliberate indifference" requirement from case law interpreting Title IX, reasoning that the
Title IX's standards for imposing institutional liability for peer harassment should apply to ADA/Rehabilitation Act suits as well, owing to the similarities between the statutes. Where Title IX operates to ensure that no person is excluded from or discriminated against because of sex by federally-funded schools, the ADA and Rehabilitation Act ensure that person is excluded from or discriminated against because of disability in public programs.

After borrowing Title IX's peer harassment standard, the court proceeded to apply the standard to the allegations in the case. Ultimately, it concluded that the school could not be liable because it responded appropriately to each of the three alleged instances of harassment when they occurred. School officials met with offending individuals, and in one case, a student's parents. When the offender was a school employee (a coach who asked, seemingly innocently but with acknowledged insensitivity, whether P.R. had AIDS), the offender was admonished and apologized. None of the offenders re-offended, suggesting that the school's response was appropriate.

While ultimately this school district was held not to be liable for peer harassment of a student with HIV, the decision should help put schools on notice that they must be as diligent protecting student from harassment based on disability as they are required to be about harassment based on sex.

Decision is: P.R. ex rel. Rawl v. Metropolitan Sch. Dist. of Washington Township, 2010 WL 4457417 (S.D. Ind. Nov. 1., 2010).

Massachusetts State Colleges Fall Short of Title IX

A recent article in Commonwealth Magazine suggests that state colleges and universities in Massachusetts are falling short of Title IX's requirements for equity in athletics.

Here are some of the article's specific findings:

• Women's teams at Massachusetts state colleges and universities on the whole received only 38% of the $29.2 million collectively allocated to men's and women's athletics. There is no requirement that schools spend the same amount of money on men's and women's sports, but a disparity this large calls into questions whether teams are receiving equal treatment in access to support and resources as required by law.

• UMass-Amherst spends nearly twice as much per capita on male athletes as it does on female athletes.

• It spent just 30% of the $618,000 devoted to recruiting on recruiting for women's teams.
  

• State colleges and universities on the whole pay head coach of a men's team is 26 percent more than what a head coach of a women's team makes; assistant coaches on the men's teams on average make 37 percent more than those on women's teams -- a disparity largely driven by the salaries of UMass men's basketball coach Derek Kellogg, ($215,000) and football coach Kevin Morris ($200,000). In contrast, the former women's basketball coach at UMass who coached for eight seasons topped out at $145,000.

• UMass-Amherst handed out $5.9 million in full and partial athletic scholarships to 382 students. Men received 56 percent of the scholarship money and women 44 percent -- a disparity that would be even worse if it controlled for the higher number of female athletes who have larger awards because they are out-of-state. This is a likely violation of Title IX's requirements that scholarships be awarded in proportion to participation rates of each sex.
  

• At Westfield State University, women represent 52 percent of the school's enrollment and only 46 percent of the school's athletes, and at Bridgewater State University, women make up 60 percent of the student body but only 42 percent of the school's athletes. Bridgewater officials interviewed in the article claim compliance with the other two prongs that are alternatives to proportionality.
  

• Participation data submitted by UMass shows athletic opportunities for women identical to the percentage of women in the student body (both are 49%), but this figure includes 10 male practice players on the women's basketball team, and more female than male track athletes who are "triple counted" as members of winter, spring track and cross-country teams.
  

An interesting article indeed. Perhaps it will inspire some legal action?

[thanks, Elliot!]

National Women's Law Center Files 12 Complaints Challenging Sex Discrimination in HS Athletics

The National Women's Law Center announced today that it has filed administrative complaints against twelve school districts across the country to challenge sex discrimination in high school athletics. These districts are, according to NWLC President Marcia Greenberger, "the tip of the iceberg" in terms of the problem of sex discrimination in sports. Nationally, high school girls receive only 41% of athletic opportunities despite constituting half of the student population, which translates in absolute terms to a disparity of 1.3 million opportunities. NWLC's efforts will surely raise awareness about the problem as well as send a message that noncompliance has consequences.

NWLC singled out one school district in each of the Department of Education's 12 enforcement regions, and selected the targets based on participation data collected by OCR most recently in 2006. All of the target districts have (1) double-digit participation gaps, demonstrating a failure to comply with prong one's proportionality test, (2) a trend in declining opportunities for girls, which shows failure to comply with the continuing expansion test of prong two, and (3) schools that offer fewer sports for girls than sanctioned by state interscholastic association, suggesting a high likelihood of unmet interest in violation of prong three. Those districts are:

Chicago Public Schools (IL)
Clark County School District (NV)
Columbus City Schools (OH)
Deer Valley Unified School District (AZ)
Henry County Schools (GA)
Houston Independent School District (TX)
Irvine Unified School District (CA)
New York City Department of Education (NY)
Oldham County Schools (KY)
Sioux Falls School District (SD)
Wake County Public School System (NC)
Worcester Public Schools (MA)

If after investigation OCR determines that these districts are indeed in violation of Title IX, it will likely require the districts to agree to a compliance plan and subject the districts to continued monitoring to make sure it is sticking to the plan's deadlines for compliance. More unusual, but possible, remedies include a government lawsuit that would impose compliance obligations as part of a court order, and the termination of federal funding, although that has never occurred in Title IX history.

NWLC has posted the complaints on its website, and you can also see a chart comparing the participation rates in the target districts here.

NWLC's initiative is part of its new campaign called Rally for Girls' Sports: She'll Win More Than a Game, to provide advocacy for equity in high and outreach to parents. The initiative includes a hotline: 1.855.HERGAME, students and parents to get advice about inequities in their own districts.

Advice Column Takes on Title IX and Gender Stereotypes

Part of the "Ask Amy" column in today's Washington Post addressed the Title IX implications of a coach requiring a player to conform to gender stereotypes with respect to appearance:

DEAR AMY: I am a girl in my junior year of high school, and the volleyball coach won't let me compete until I shave my underarms and legs (our uniforms are sleeveless tops and shorts).

I don't want to be forced into something that I feel is completely unnecessary. Leg and underarm hair is a completely natural part of becoming a woman.

Is this discrimination? Is there anything I can do (besides shave)?

I really want to play volleyball! -- Hair Today, Gone Tomorrow

DEAR GONE: If your coach also insisted that the male volleyball or basketball players must shave their underarms and legs, then perhaps this wouldn't qualify as discrimination.

I'm going to assume that your coach does not make the male players at your school adhere to the same shaving practices.

I shared your letter with Lenore Lapidus, director of the Women's Rights Project for the American Civil Liberties Union, who responded, "This is clearly gender discrimination, based on stereotypes of how girls and women should look." Lapidus would like to remind your coach that Title IX prohibits discrimination in any institution receiving federal funds.

Title IX is the federal statute that pushed open the door for girls to compete in sports on an equal footing with boys.

Lapidus suggests that you start by talking to the coach. "Try to work it out at school. It seems like something they should come around about because this is fairly clear-cut." If your coach continues to insist on this shaving rule, take your concern to the principal. I hope you will stand up for your right not to be forced to shave any part of your body that you don't wish to shave.

Good advice, Amy!

Boys playing field hockey

Boys playing high school field hockey on historically all-girls' teams has caused the occasional flare-up in the gender equity/Title IX discourse.
I came across this article about a not-quite-a flare-up last month. I probably wouldn't have paid too much attention because it does not seem to be an especially contentious situation, but this story is in my backyard, so...
In South Hadley, MA, two boys--brothers, actually--are playing on the very successful South Hadley High School field hockey team. After initial concern about the boys dominating play, it seems everyone is pretty happy about the situation. The coach sees herself as having 16 players, not 14 girls and 2 boys. She's a little too close to saying "I don't see gender" for my comfort, but if everyone is indeed okay with what is happening--then, good. I am not surprised that a community like South Hadley is accepting, welcoming even, of boys playing with girls. And, according to the article, boys have been playing field hockey in western Massachusetts since the 1980s. And a Massachusetts Superior Court ruled that boys could play on girls' field hockey teams. This year alone several western Massachusetts communities have at least one boy playing field hockey.
I am not opposed to integrated sports--in theory. And in practice, this one seems to be working--for South Hadley.* What their opponents think or say, well...I assume some may not be so happy. [Post season starts this week. South Hadley went 17-0-1 this season and has earned a second seed in the tournament. The article about post-season play made no mention of the boys playing with girls issue.]
The invocation of Title IX by the author, though, confused me. He wrote that Title IX
"grants equal gender opportunity to females and males." And then states:
"it should be emphasized that neither the Menards [the brothers] nor South Hadley broke any rules. Actually, it’s just the opposite: they’re following the rules of Title IX."
I'm not really sure which rules he is referring to here. Title IX does not prohibit integrated sports. It does not provide, however, opportunities for girls to play in boys' contact sports (though other laws have compelled schools to, for example, allow girls on football teams). It does require the historically underrepresented sex be provided equitable opportunities.
And because there is still no requirement that high schools report their athletic department data, in the way colleges and universities do, we don't actually know how many athletic opportunities the girls in South Hadley receive in comparison to the boys.
Again, I like the idea of integrated sports. I think there are many benefits to such a situation. But what if those boys are taking away opportunities from girls when boys already have more opportunities? That situation becomes a little more sticky.


* In another nearby western MA town, people were not so happy that a boy was playing with the girls--in 2001. I hesitate to put up this link to Rick Reilly's column about the situation in Shelbourne Falls because parts of it are a little offensive, but it covers the issue well so...

University of Portland Cuts Golf, Violates Title IX?

University of Portland has announced plans to drop men's and women's golf, and to add women's crew. The article does not provide a reason for the cuts, other than to note that university officials claim the move was "not to cut costs." I'm not at all sure what that means.

While adding women's crew would bring the university closer to compliance under prong 1, its decision to cut women's golf still may violate Title IX. Portland's EADA report says that currently, there are 171 varsity athletic opportunities for female students, or 47% of the 363 opportunities overall. Yet women account for 63% of the student body. Even if we give Portland credit now for the 62 opportunities it plans to add in crew (and OCR does not count hypothetical future opportunities, as we recently noted), the total number of athletic opportunities for women would be 226, or 55% of what will be 410 total athletic opportunities -- still approximately 86 opportunities short of reaching 63%.

Failing to comply with the proportionality prong, Portland must be able to demonstrate compliance with either prong 2 (history and continuous expansion of opportunities for the underrepresented sex) or prong 3 (no unmet interest and abilities), which is difficult to impossible when you cut a women's team. Moreover, as our recent post also suggests, OCR does not look favorably on claims that a university is continuously expanding opportunities for women when it cuts an existing team and replaces it with one that is chosen because it's a good fit for the institution, rather than responsive to existing unmet interest. Thus, a decision to cut on sport and replace it with another that is chosen simply because its large roster offers better chance of Title IX compliance will probably not fly as a prong two defense.

If the female golfers were to challenge this decision, I think they would have a very strong case.

Superintendents Say the Darndest Things...

And we wondered why schools needed a reminder of their obligation to protect students against sexual harassment and sex-based bullying? Here's one superintendent, actually complaining about the recent OCR guidance letter:

"This is an incredible expansion of Title IX," Godfrey-Lee [Michigan] Superintendent David Britten said. "This was something intended for the college level for equality in athletics, expanded into the high school arena and now it’s going to tap right down all the way to pre-school."

Read the statute, Mr. Britten. It actually says nothing about colleges and nothing about athletics. It is a general statute that prohibits all manner of sex discrimination in all educational institutions that receive federal funds. What are they teaching in superintendent school?

Mr. Britten at least went on to say how his district is nevertheless compliant, having recently "revamped its policies" and incorporated efforts to educate freshman about "the topic." So he's apparently just opposed on principle to federal intervention. So how about a poster-child for federal intervention? I nominate Clint McCance, school board member in Arkansas, who lashed out at recent efforts to raise awareness about life-threatening bullying by encouraging all "queers" to commit suicide. With people like this running the education system in our country, no wonder bullying is still met with deliberate indifference.

OCR "Dear Colleague" Letter Addresses Title IX and Bullying

Today the Department of Education's Office for Civil Rights sent letters of guidance to thousands of educational institutions across the country, reminding them of their obligation under Title IX and other civil rights laws to protect students from bullying and harassment.

OCR's letter provided hypothetical examples to illustrate the type of harassment that would warrants protection under Title IX (as well as other examples about race, ethnicity, and disability). One example seemed loosely based on the recent bullying of a Massachusetts teenager that resulted in her suicide:

Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e‐mails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers.

OCR used this example to make several points: one, that harassment based on a student's sexual behavior is covered by Title IX, two, that harassment may take the form of text messages and rumor-spreading, and three, that school officials did not respond properly by requiring the students to work it out. Rather, the school should have investigated the situation and taken preliminary steps to separate the accuser from the harassers.

Another example, involving bullying of LGBT students, also seemed ripped from recent headlines:

Over the course of a school year, a gay high school student was called names (including anti‐gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices). As a result, the student dropped out of the drama club to avoid further harassment. Based on the student’s self‐identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti‐bullying policy. The reprimands of the identified perpetrators stopped the harassment by those individuals. It did not, however, stop others from undertaking similar harassment of the student.

With this hypothetical, OCR clarified that while Title IX does not cover discrimination on the basis of sexual orientation, that does not absolve school districts from their obligation to address sexual orientation-based harassment that "overlaps" with sex-based harassment. Specifically, harassment that targets a student for failing to conform to sex stereotypes, such as the teasing in this hypothetical, is sex discrimination that warrants school officials' response. According to OCR's analysis of this hypothetical, the school officials should have done more than reprimand identified perpetrators. Additional steps include: notifying the victim's teachers and otherwise increasing efforts to monitor the situation to prevent ongoing harassment, making a clear statement that such conduct violates the school's policy on harassment, conducting school-wide education on civil rights and tolerance as they relate to gender issues, and providing counseling or other appropriate resources to affected students.

In the end, OCR's guidance letter does not tell schools officials anything they should not already know. After all, all of these responsibilities derive from existing agency and judicial interpretations of Title IX. But judging by the number of sexual harassment cases we blog about here, the word hasn't been getting out and hasn't been sinking in. So this letter was necessary. And hopefully, it will provide school officials with the impetus and the means to take harassment seriously.

OCR Concludes Investigation of Catawba College

When Catawba College in Salisbury, N.C., cut its women's field hockey team last year, Kris concluded that this decision likely violated Title IX, as it served to exacerbate the College's existing disparities between men's and women's athletic opportunities. OCR, it seems, agrees. According to a Letter of Findings, which was forwarded to me by the complainant, OCR determined that the college violates all three prongs of the test measuring equity in the number of participation opportunities available to each sex. First, proportionality is not satisfied, as cutting field hockey means that women are now underrepresented in athletic opportunities by eighteen percentage points, as the college undergrad population is 46% female, but women receive only 28% of athletic opportunities.

As for the second prong, despite some history of adding women's teams (9 teams between 1964 and 1999), the College does not have a "continuing practice" of adding opportunities for the underrepresented sex, as it lacks any sort of procedure and practice to actively determine women's interest levels and respond with appropriate new opportunities (the AD's approach of passively waiting with an "open door" for any reasonable request for new opportunities was not sufficient). Even its recently-announced plans to add women's lacrosse in the future does not constitute a continuing practice, as lacrosse was chosen because it suited the College, not necessarily because it satisfied student body interest. Moreover, OCR will not find that an institution satisfies prong two when it "merely promises to add additional opportunities in the future."

As for prong three, this analysis is usually simple when a college cuts an existing women's teams, as this always serves to generate "unmet interest and ability" among the underrepresented sex. Here, however, the College based its decision to cut field hockey on the absence of competition in the geographic region. Catawba's was the only Division II field hockey team in the south, and had to travel to Pennsylvania for most of its competition. This is relevant because according to OCR's guidance on prong three, schools do not have to fulfill unmet interest in sport for which there is no reasonable expectation of competition in the geographic region in which the College primarily competes. However, OCR's investigation produced no evidence that the College was otherwise seeking to identify, let alone satisfy female students' interests and abilities. So it could not demonstrate compliance with prong three, and consequently, the regulatory requirement for equity in the distribution of athletic opportunities to each sex.

Additionally, separate from the three-prong test, OCR's investigation revealed that Catawba College violated the requirement that every institution appoint a Title IX Coordinator, someone whose job includes coordinating the institution's Title IX compliance effort and investigating any complaints of noncompliance.

The College has entered into a compliance agreement with OCR that imposes deadlines for resolving these violations. By mid-November, the College must have identified its Title IX coordinator and revised its sex discrimination policy to expressly include Title IX grievances. It must also by that time have taken the first step toward demonstrating compliance with the three prong test by creating an assessment of enrolled female students' interest and ability in intercollegiate athletics, and administer this assessment on a yearly basis. It must also analyze high school participation data and other amateur and community sports in the area from which the College draws students and consider potential interest in other sports sanctioned by the NCAA. From this information, it must produce (by next spring) a plan to satisfy any unmet interest and ability revealed by the assessment.

We'll see what happens, but I predict Catawba College will announce plans to add another women's team.

[thanks, Herb!]

Sexual Harassment Roundup

Schools prevailed in three recent Title IX cases involving sexual harassment:

• A federal court in Pennsylvania refused to enjoin a university disciplinary proceeding allegedly filed in retaliation against a victim of sexual assault for reporting her abuser to authorities. The court recognized that the plaintiff "raises serious concerns about the protections afforded to victims of sexual assault" in that the hearing will require her to confront the person she has accused of sexual assault within one month of the alleged incident and to respond to his charges that her accusations are false. However, the court determined that the hearing itself does not amount to harassment or discrimination against the plaintiff, in part because it will be conducted by a chairperson who can ensure that all questions remain relevant and appropriate, and that the perpetrator of the alleged assault does not have the chance to directly question the victim. Sefanowtcz v. Bucknell Univ., 2010 WL 3938243 (M.D. Pa. Oct. 5, 2010).

• An elementary school's response was sufficient to preclude Title IX liability for a sexual incident between kindergartners, a federal magistrate has ruled. School officials discovered that one boy touched another's genitals while alone together in the bathroom. The principal then discussed the incident with both boys and their parents, and required oversight to ensure that the boys would not use the bathroom at the same time. These efforts did not prevent a second sexually-suggestive incident between the boys in the bathroom, but they nevertheless could not be characterized as "deliberate indifference." There was no evidence other than the first incident that would have suggested that the perpetrating student would continue to harass the victim, so the district's decision to address this issue with a monitoring requirement. Nor does the fact that the boys somehow managed to evade the bathroom monitor charged to keep them separated render the school's response indifferent one. Brooks v. City of Philadelphia, 2010 WL 392835 (E.D. Pa. Oct. 5, 2010).

• The Eight Circuit recently granted a school district's motion for summary judgment on a plaintiff's Title IX and constitutional claims stemming from the sexual misconduct of a basketball coach at Delight High School in Delight, Arkansas. The plaintiff's parents sued the school district and various officials after learning that the coach, Chad Smith, was having a sexual relationship with their daughter, a player on the team. On appeal from a decision denying the motion, the appellate court determined that the facts alleged failed to satisfy Title IX's requirement that school district officials have actual notice of sexual abuse or harassment and responded with deliberate indifference. Specifically, the court rejected that prior claims of inappropriate text messaging by Smith produced such notice. District officials had investigated and addressed these messages, and with regards to the only message with sexually suggestive content, determined that it not been sent by the coach at all. The principal also followed up on a rumor that the plaintiff's daughter was skipping class to spend time with Smith, but found no evidence to corroborate this claim. Moreover, other claims of misconduct by the coach (threatening players and directing them in an act of poor sportsmanship) -- though resulting in the district's decision not to renew his contract -- failed to provide adequate notice that he was sleeping with a player. Doe v. Flaherty, 2010 WL 4068748 (8th Cir. Oct. 19, 2010).
  

Title IX and bullying

We have been fairly silent on the recent spate of anti-gay bullying. It is not from indifference--rather we have been very concerned and somewhat at a loss as to what to say. We have commented previously on bullying, both anti-gay bullying and bullying that can be construed as sexual harassment. For some reason, I had thought the publicity around previous cases signaled a greater awareness and might possibly lead to a reduction in these incidents. And perhaps it has. Perhaps we have just experienced an unfortunate, concentrated period of anti-gay violence, and the programs and awareness that have been created will move us out of this violence. But I also know that as much publicity as these cases have received, there are less extreme cases (or outcomes) happening daily in American schools.
I was glad to finally see some commentary on the role of Title IX in preventing bullying. And John Merrow, at the Huffington Post, went directly to the source: Dr. Bernice Sandler.
The following is an excerpt from Merrow's post that includes quotes from Sandler.

The federal law known Title IX (1972) prohibits sexual harassment, and most bullying falls into that category. "Most cyberbullying and other forms of bullying, as well, include sexual references. Girls are called "sluts" and "hos," boys are called "fags' and other sexual names. Sexual rumors and comments are frequent."

Dr. Sandler says Title IX requires schools to act, no matter where the cyberbullying occurs. "This federal law also prohibits these behaviors outside the school, as when personal computers are used, and when the behavior is disruptive to learning, such as affecting a student's ability to partake of the opportunities for learning in school as well as partaking in other school opportunities provided by the school. Schools have an obligation to stop sexual bullying when it occurs and to have a policy that prohibits it."

Indiana Scheduling Case Decided On Summary Judgment

Yesterday, federal district court judge William T. Lawrence of the Southern District of Indiana dismissed claims against the Indiana High School Athletic Association and area high schools that scheduling girls' basketball for fewer Friday and Saturday night games violated Title IX and the Equal Protection Clause. We've been following this case for a while, see prior posts here, here, here, and here.

In evaluating whether the high schools themselves violated Title IX, Judge Lawrence acknowledged that the regulations require equal treatment between boys' and girls' teams, and that the regulations specifically cite "scheduling of games and practice time" as an aspect of this determination. 34 C.F.R. § 106.41(c)(3). The judge also cited OCR's 1979 Policy Interpretation, which provides additional guidance for evaluating equality between athletic opportunities offered to each sex:

a. Whether the policies of an institution are discriminatory in language or effect;
or
b. Whether disparities of a substantial and unjustified nature exist in the benefits,
treatment, services, or opportunities afforded male and female athletes in the
institution’s program as a whole; or
c. Whether disparities in benefits, treatment, services, or opportunities in
individual segments of the program are substantial enough in and of themselves to deny equality of athletic opportunity.

Disparities in treatment, the judge concluded, must be "substantial" to constitute a violation of Title IX. In other cases involving scheduling, the judge acknowledged, courts have concluded that decisions to schedule girls' sports in a nontraditional season violated Title IX because such decisions limited the female athletes' access to role models, skills development, and team-building. But playing more weeknight games does not harm female athletes in these particular ways, so therefore, he reasoned, the high schools' scheduling decisions do not create substantial disparities in violation of Title IX.

Missing from the judge's analysis is an independent evaluation of the effect of a disparity in night-of-the-week scheduling, rather than season-of-the-year. Granted, judicial decisions to date have dealt with the former rather than the latter. But simply to conclude that the plaintiffs didn't suffer the same kind of harm as those in the season-of-the-year case is insufficient reasoning, as it fails to consider whether the harms from having more weeknight games might be substantially harmful in a different way. Greater academic challenges and a diminished opportunity to develop a fan base are two possible harms that come to mind. Another possibility -- which actually does have support in the season-of-the-year scheduling cases, is that scheduling girls' sports more often at a non-preferred time stigmatizes girls' teams with second-class status.

Another concern I have is that the factors cited by the judge from the 1979 Policy Interpretation are alternative, not conjunctive, suggesting that noncompliance might result from failure to comply with either standard independently. It seems to me, then, that the judge should have evaluated under part a. whether the schedule contains "discriminatory language or effect" as well as whether the effect of discrimination was "substantial," an element of b. and c. A schedule that relegates girls games to more weeknight games seemingly constitutes "discriminatory language or effect."

The judge also decided that the IHSAA did not violate the Equal Protection Clause, nor (in a separate decision issued last week) Title IX, reasoning that IHSAA did not determine the schedule of games; it only tells member institutions how many games it can schedule, when the season starts and ends, and limits each team to no more than two weeknight games per week. The judge did not endorse the plaintiff's argument that the IHSAA's failure to require gender equity in scheduling was "deliberate indifference" to discrimination, noting the absence of precedent for such a standard in these kinds of cases.

I am rooting for an appeal.

Decision: Parker v. Indiana High School Athletic Ass'n et al, 1:09-cv-00885-WTL-WGH (S.D. Ind. Oct. 6, 2010) (retrieved from Pacer, not yet available on Westlaw).

Report Urges Equal Opportunity for Transgender Athletes

The National Center for Lesbian Rights and the Women's Sports Foundation recently teamed up to tackle the barriers transgender student athletes face when seeking to participate in sex-segregated sports. A report released this week, authored by NCLR's Helen Carroll and WSF/It Takes A Team emerita Pat Griffin, provides guidance, in the form of policy recommendations and best practices, to high schools and colleges regarding this issue. The report is timely and necessary, as transgender athletes may be effectively excluded by the absence of any such policy, and in other cases, directly excluded by policies that do exist. Under the policy of the Connecticut Interscholastic Athletic Association, for example, transgender athletes may compete with the sex that matches their gender identity only if they comply with the same standard that the International Olympic Committee uses for this purpose -- a very high standard that requires legal sex change, sex reassignment surgery, hormone treatments, and a two year waiting period. At the high school level, very few students are likely to have the time and resources to comply with these requirements within the period of time of high school eligibility, let alone a medical diagnosis that warrants irreversible surgery at such a young age.

In contrast, the report urges all state interscholastic agencies to adopt a policy of inclusion modeled on the one adopted by the Washington Interscholastic Athletic Association two years ago. The WIAA's policy allows students to participate in the sports for whichever sex the student consistently identifies. A liberal participation policy ensures that all students have access to the educational benefits provided through athletics, and reflects the wide variation that already exists within the sexes, particularly among youth.

For college athletics, the report recommends a policy that focuses on a particular medical aspect of a transgender athlete's transition to the opposite sex: hormone treatment. Under the prescribed policy, a transgender athlete transitioning from male to female may compete in women's sports after a one year of taking estrogen and androgen blockers. (Such an athlete may continue to participate in men's sports during that one-year period, and even afterwards if she so chooses.) This policy reflects scientific research suggesting that most relevant sex-based physical differences are materially reduced or eliminated by such treatment. For the opposite reason, an athlete transitioning from female to male may not compete in women's sports after testosterone treatments have begun.

Significantly, neither the recommendation for high school or college athletics borrows from the IOC's surgical requirement, deemed overly-restrictive and, in light of hormone requirement, unnecessary to reduce sex-related physical differences between the sexes. The proposed policies also differ from existing ones by spelling out an athlete's right to appeal any challenge to their participation, ensuring confidentiality, and addressing collateral issues such as locker rooms, uniforms, and hotel room assignments. With regard to the latter issues, the policy takes the position that a transgender athlete ought to be treated like any other athlete of his or her transitioned sex. It smartly goes on to say that teams should support and seek to accommodate any athlete with privacy concerns, not just transgender athletes.

In sum, the proposed policies are appropriately focused on inclusion, and incorporate a well-researched position on the limited degree to which physical differences create competitive advantages, as well how such differences, when they tend to be more relevant, are moderated by hormone therapy. I hope that it gains traction among state athletic associations and college associations like the NCAA, and I am optimistic that this will be the case. Significantly, the report authors got input from athletic administrators in addition to the scientists and legal experts they also consulted.

Strike IX profiles the 1999 Providence College Baseball Team

When author Paul Lonardo contacted me about his new book Strike IX, I worried I might be in for another misplaced Title-IX-is-the-enemy screed from an advocate for men's sports. But after reading a copy of the book, which Paul kindly sent me, I learned that Strike IX is the story of the athletes on the 1999 Providence College men's baseball team who went on to have the season of their lives after the college announced its decision to cut the program. Strike IX is a compelling underdog story about athletes playing for pride, playing for the love of the game when there's no tomorrow, when the "only thing left to do is to go out and win the whole $*!@ thing!" Under these circumstances, the 1999 Providence College baseball team produced the best season record in the program's history and a Big East conference championship. It was, in sum, a good sports story.

The only problem I had was the title. Calling the book Strike IX creates the impression that Title IX was to blame for the college's decision to eliminate the team. And the chapter in the book that discusses the relationship between Title IX and PC's program reduction could have done more to clarify the statute's role. I have two specific critiques. First, while the author appropriately notes that PC made its decision to terminate baseball in the wake of the Title IX litigation involving Brown University, he leaves the impression that the decision created PC's obligation to comply with Title IX. Rather, the regulatory standard that Brown so gloriously unsuccessfully challenged in the early 1990s had been on the books since 1979. Unexamined in Strike IX was what Providence College's compliance approach had been since then. With twenty years to play with, did the institution seek to equalize men's and women's athletic opportunities gradually, so as to avoid a drastic approach like cutting teams? Or did PC behave cavalierly, like many colleges did, and exacerbate inequities by continuing to grow men's sports without first bringing women's sports up to level? It's true that Title IX limits school's choices about which teams to cut when that school fails to provide proportionate opportunities to begin with. But PC's decisionmaking prior to 1999 is what created that disproportionality, and some of that should have been in the book.

My second critique is that the author accepted too quickly PC's rhetoric about why it thought it had to satisfy the proportionality standard (and thus, to do so by cutting a men's team) rather than to claim compliance with prong three. Prong three recognizes that even disproportionate athletic offerings (like PC's at the time) can still comply with Title IX, as long as there is no demonstrable unmet interest among members of the underrepresented sex (i.e., women). Generally, an institution does not have a problem with prong three unless they (1) decide to cut a viable women's team (which PC did not do) or (2) reject a proposal from a women's club team to elevate to varsity status. Thus, if PC had been receiving and rejecting requests to elevate women's teams to varsity status, its claims that it "had to" comply with proportionality might ring true. But if not, it's more likely that the university was using Title IX to scapegoat its decision to engage in program reduction that it had made for others. Title IX prohibits schools like PC from making existing disproportionality worse through program reduction, which is why PC couldn't cut a women's team once it decided to cut teams, but it does not require a school to engage in program reduction to begin with. In PC's case, then, the decision to cut baseball was likely less related to Title IX than the college would have us think. That's the reality I would have liked to read about in Strike IX. Unfortunately, that doesn't lend itself to a clever book title.

UC Berkeley Cuts Five Teams

As Kris noted recently, the University of California, Berkeley athletic department has been considering eliminating sports as a cost-reduction measure. So it is sadly no surprise that the Chancellor has announced that baseball, men's and women's gymnastics, women's lacrosse, and men's rugby will be no longer be varsity sports. Men's rugby will occupy a new "varsity club" status.

I have a couple of questions about whether this decision complies with Title IX. First, what is varsity club status? It seems like the rugby team will continue to receive some university support -- more than the club teams receive but not as much as varsity teams receive. Title IX does not preclude Cal from making up new status labels for its sports, but those labels must be equitably applied. If a women's sport asks for "varsity club" status, I cannot see the grounds on which Cal would deny them.

Second, I have concerns that the resulting distribution of athletic opportunities complies with Title IX. Before the cuts, Cal could have claimed compliance with prong two or prong three, but eliminating women's teams forecloses that option. This leaves prong one: substantial proportionality. As Kris noted in her earlier post, Cal's women received about 41% of the total athletic opportunities (385/948), despite constituting about 53% of the student body. After the cuts, they still receive about 41% (385-45/948-102*). There is no way a 12 percentage points qualifies as substantial proportionality, so my question is, on what basis is Cal making that claim?

* This denominator figure is adjusted by the loss of both gymnastics teams, baseball, and lacrosse. I did not subtract the 60 terminated opportunities in rugby from the denominator because Cal's EADA report did not include men's rugby when calculating the total number of athletic opportunities.

School Lunch Subsidies Render Catholic Schools Subject to Title IX

Congress, whose powers are limited to those enumerated in the Constitution, passed Title IX under its power to spend for the general welfare. Consequently, the statute's ban on sex discrimination only applies to those schools that receive federal funding. Sometimes this restriction is mischaracterized one that limits the laws school to public schools. But a recent federal court decision reminds us that private, parochial schools can be federal funding recipients. In that case, schools operated by the Diocese of Greensburg (Pennsylvania) were deemed subject to Title IX by virtue of accepting federal subsidies under the National School Lunch Program. (Though the court did not need to address the question, it also considered the schools federally-funded by virtue of their participation in the E-rate program, which entitles the school to discounts on qualified purchases of classroom technology.)

As the decision in this case points out, courts have uniformly recognized that schools receiving school lunch program subsidies are subject to Title IX. But what made this recent case trickier was that the Diocese of Greensburg operates several schools, only one of which participated in the school lunch program. The plaintiff alleged that the Diocese was liable for Title IX violations that occurred at one of other schools -- one did not participate in the school lunch program. But the court reasoned that Title IX would still apply. Since the Diocese did not organize or operate its schools as separate legal entities, the Diocese itself is the educational institution subject to Title IX by virtue of receiving federal funds for one of its programs. It is the same theory that renders one university department (such as athletics) subject to Title IX based on the federal funding received by another program or department.

This seems like a reasonable interpretation of the Civil Rights Restoration Act, which amended Title IX to impose institution-wide liability. What remains to be seen is whether this interpretation will extend Title IX's application to parochial schools beyond this particular case. That will turn on whether dioceses with several schools typically organize them separately, and if not, whether they could easily reorganize them as separate entities in order to limit liability.

Decision: Russo v. Diocese of Greensburg, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010)

Ball State agrees to changes

Issues of gender inequity in Ball State University's Athletic Department have been actively discussed for almost five years now but the university, in an effort to end OCR's ongoing investigation of the department, has come out and said it will bring the equity to the department in 10 program areas, according to a Chronicle of Higher Education article this week. They have also agreed to investigate the departures of several coaches of women's teams. This is something we haven't really seen before. I don't know if we can truly consider this a voluntary move even if it was Ball State's idea. The cynic in me thinks it was a little CYA-ish; especially when I see that the athletic director has claimed publicly that there was no retaliatory coaching changes made during the past five years and that Ball State will not admit it was not in compliance with Title IX. Just about a year ago we reported that the firing of tennis coach Kathy Bull, who had served in the position for 22 years, was a little suspect. This all serves to fuel my healthy suspicion around internal investigations. But no doubt this case was a factor in Ball State's decision to put forward an image of transparency.