NCAA Adopts Policy for Including Transgender Athletes

The NCAA has approved a policy to govern athletics participation by transgender athletes who have transitioned to another sex. The new rule, which takes immediate effect, allows a transgender athlete who has transitioned from male to female to participate in women's sports after one year of hormone treatment that includes female hormones (estrogen) and agents that suppress the effects of male hormones in the body (testosterone blockers). The rule also clarifies that athletes who transition from female to male by taking testosterone are not eligible for women's sports, but may receive a therapeutic use exception* and be eligible for men's sports. A transgender athlete who transitions socially but not physically is still eligible for the sport that matches their birth sex. For example, Kye Allums plays women's basketball for George Washington, even though he goes by "he" as has not undergone any physical transition that involves testosterone.

The NCAA's new policy incorporates the recommendations of the report issued issued last year by the National Center for Lesbian Rights and the Women's Sports Foundation. It is receiving praise from advocates for equality and inclusion because it avoids many of the restrictions, such as genital surgery and legal sex change which do not affect athletic ability -- both of which are required, in addition to a 2 year period of hormone treatment, by the International Olympic Committee and other sport associations. The policy recognizes that in an educational setting, one in which one's opportunity to participate is limited to a short period of time, it is important to have requirements that do not go beyond what is necessary to promote equity on the field. There is no medical evidence that shows athletes who have transitioned with hormones compete at an advantage relative when competing in their transitioned sex. Medicine also suggests that it takes one year for physical changes in response to hormone treatment to be complete. Therefore, it makes sense to impose just a one-year requirement for hormone treatment, rather than the two-year period, plus surgery and legal sex change, that IOC requires.

*Therapeutic use exceptions are already granted to male athletes with conditions that result in lower-than-normal amounts of testosterone in their bodies. It is an "exception" because otherwise exogenous testosterone is a banned, performance-enhancing substance.

Resolution Agreement Reached at Adrian College

An anonymous reader mailed me a copy of a Resolution Agreement between the Department of Education Office for Civil Rights, and Adrian College in Michigan. In 2008, we blogged about ongoing investigation into a complaint against the college stemming from among other things the college's failure to include a women's locker room in its newly constructed "Multi-Purpose Stadium." (see here and here). Apparently, the inequities between men and women's sports at Adrian College were significant, as the college has agreed to remedies in every area covered by Title IX's athletic regulations. Specifically, the college has agree to:

• Evaluate its intercollegiate athletics program "to identify one or ore women's sport team to add in the 2012-2013 academic year."
• Develop a written replacement schedule for equipment and supplies, including uniforms, which will ensure equity by gender.
• Increase the number of competitive events for softball and women's tennis.
• Ensure that women's softball is not the only team stuck with 6 am indoor practices, but that that burden is shared by men's teams as well.
• Ensure that the head coach for men's and women's track splits his time equally between the teams, and to hire an assistant coach for women's track.
• Improve hiring practices to attract more qualified coaches to the women's program, including by increasing compensation and other conditions of employment to make the job more attractive to qualified applicants.
• Construct a new locker room for women in the Multi-Purpose Stadium.
• Renovate existing women's locker rooms in other facilities.
  
• Renovate the women's softball facility to allow for night play, concessions, changing areas, and spectator viewing.
  
• Assign the same number of "equivalently qualified" medical and training staff to men's and women's games.
• Provide equivalent publicity ("e.g., media coverage, statistics maintenance, attendance at games, and other services") to men's and women's teams.
• Provide recruitment funds to men's and women's teams "in proportion to each gender's participation rate in the athletics program" and, as needed, to the women's program at a greater rate in order to make up for the "significant" underrepresentation of women in the athletics program.
• Adhere to various reporting and monitoring requirements with respect to these promises.

OCR will continue to monitor the agreement until it determines that the College has fulfilled its terms.

Franklin Pierce adds sports

Knowing the state of the economy, the fiscal state of higher education, and--having attended school in New Hampshire--the fiscal issues faced by NH schools, we were a little surprised to read that Franklin Pierce University has announced it is adding several sports.
No word on how these sports will be financed but it appears that the university has every intention of adding women's ice hockey (it already has a men's ice hockey team), men's and women's track and field, sprint football. It will also reinstate men's cross country (previously cut in 2003 for unstated reasons).
Interesting. Especially interesting is sprint football--which I had never heard of. Turns out it's the same as regular intercollegiate football. But all players have to weigh less than 172 pounds.
Reading further though it appears that the differences go beyond body weight. There is no pre-season. There will be no athletic scholarships. And the roster will be kept at 65 players. Also, FPU will not be investing right away in a stadium. Administrators are making arrangements with local schools over use of their facilities. In its inaugural season--scheduled for 2012--they will play a reduced schedule.
I really can't think of a more responsible plan to add football (regardless of how much the players weigh!).
Again, no word on where the funds for these additions will come from. FPU is a private school, but still...

Jury Awards $26,500 to Male Student Accused of Rape

Last week, a federal jury in Tennessee returned a jury verdict and award of $26,500 in favor of a male college student who had been accused of rape. The student, using the pseudonym John Doe, sued the University of the South in Sewanee, Tennessee, charging that the university's failure to follow its published procedures in handing of the accusation against him constituted a breach of contract and negligence, violated Title IX, and unlawfully damaged his reputation. The jury concluded that the university was negligent, but reportedly found it to be 53% at fault, compared to Doe's 47%. The damages award constitutes tuition paid for the year that Doe did not finish.

The case began on August 29, 2008, when Doe had sex in his dorm room with a female student. Later that day, the female student reported to college officials that she had been raped. Three weeks later, Doe received notice of the charges from the university and was told to report to a hearing the following day. There, he was found responsible for sexual assault, for failing to recognize that the victim was too impaired from drugs or alcohol to provide consent. The university gave him a choice between two sanctions: a one-semester sanction, with the assault remaining on his record, or withdrawal from school, with the option to reapply later with an expunged record. Doe withdrew, and did not reapply.

Instead, he filed a lawsuit against the university, seeking up to $5 million in damages. In 2009, the judge dismissed Doe's claims that the university's actions against him violated Title IX, concluding that Doe's complaints did not include sufficient allegations to support a finding that the university was motivated by sex bias or negative assumptions about the male sex. Doe v. University of the South, 687 F.Supp.2d 744 (E.D.Tenn.2009). Later, the court dismissed Doe's claims of intentional infliction of emotional distress, but cleared the way for his negligence and breach of contract claims to go to trial.

At the trial, which concluded last week, the jurors heard evidence in support of Doe's charges that the university failed to comply with its own procedures, including providing timely notice of the charges, conducting an appropriate and thorough investigation, cutting off proceedings when there’s insufficient evidence to support the charges, allowing Doe to bring a lawyer to the hearing, and considering all of the relevant evidence, including evidence favorable to Doe (like the accuser's use of prescription medication, which could have affected Doe's perception of her ability to consent). The jury concluded that the university's conduct in this case constituted negligence (though not breach of contract) and returned a modest damages award meant to compensate Doe for actual damages in lost tuition, not for claimed damage to his reputation and future earning potential.

In today's issue of Inside Higher Ed, experts speculate on the effect of this decision, believed to be the first of its kind, on other universities going forward. Everyone seems to agree that this case is a reminder that universities have legal responsibilities to both accusers and accused when handling sexual assault cases, and that ignoring the rights of the accused can result in legal liability. Of course, universities can be liable under Title IX for failing to protect the rights of the accuser. Earlier this year, the Department of Education has clarified and promoted awareness about universities' obligation under Title IX to those who report sexual assault. Universities were reminded of their obligation to publish and follow grievance procedures for sexual assault, to investigate claims even if the police are involved, and to not impose a higher burden of proof on the victim than what the legal system normally requires of plaintiffs in civil cases. Importantly, however, nothing about this recent case in Tennessee suggests that universities are in a double-bind situation and forced to respect either one student's rights or the other's. None of the procedures the university was accused of violating in John Doe's case would have, if followed, put the university at risk of violating the Title IX rights of the accuser. While Title IX requires universities to take accuser's claims seriously, the law anticipates and expects that the university will provide a fair hearing that does not curtail the procedural rights of accused.

Sexual Harassment Roundup

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

• The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

• A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

• A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

• A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).

Scheduling remedies in our own back yard

Several friends have informed us about a settled Title IX complaint right in our neighborhood. Amherst Regional High School has agreed to make changes in both game and practice scheduling.


Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:

• scheduling an equal number of prime time games;
  


• scheduling an equal number of nighttime under the lights games;



• implementing a full schedule for girls' soccer, tennis, and volleyball (which had reduced schedules due to budget cuts; the athletic director said she had thought that--over the course of the reductions--cuts had been made equitably among boys' and girls' team; but apparently not);
  


• and ensuring equal access to desirable practice times in shared facilities.

And in case there is a question of why this matters (though we have spoken about it before, mostly in posts about the scheduling of girls' versus boys' basketball games), Goff makes a good point. When girls' games are scheduled exclusively during the day, fewer parents can attend. This also means, as Goff noted, that these teams get less community support. Parents are their student-athletes' biggest fans and advocates. The visibility of girls' and women's sports can be directly related to when their contests are scheduled, which is why scheduling is one of program areas Title IX covers.

This story continues our theme this week of "it's not just quantity--it's quality." Also of note, Goff is a parent of a former Amherst student-athlete. He noticed the inequities when his daughter played soccer for the school a decade ago. A good reminder that anyone can file a complaint. (But note it can be anonymous.)





* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.

Investigations into Locker Rooms and Softball Facilities Prompt Improvements

I've been meaning to post about these two stories, from earlier this summer, in which complaints filed with the Department of Education's Office for Civil Rights prompted requirements for improvements to facilities for women's sports.

Earlier this month OCR concluded that Oldham County School District in Kentucky violates Title IX because of inequitable locker room facilities at two county schools, Oldham County High School and South Oldham High School. OCR conducted an investigation of the school district facilities after parents filed a complaint (as well as a lawsuit, as discussed in an earlier post). Oldham County is also being investigated in response to a separate complaint, filed by National Women's Law Center, challenging the disparity in athletic opportunities available to girls and boys.

Elsewhere, an OCR investigation has recently prompted Santa Clara University in California to agree to construct an on-campus softball facility to remedy disparities in facilities available to men's and women's teams.

Both stories are a good reminder that Title IX does not just require equitable number of participation opportunities, but to the overall quality of those opportunities as well.

I wasn't going to say anything but...

...I can't not.
I usually let whatever Phyllis Schlafly says just go by. Most of it I don't even read more than a paragraph of. But she invoked Title IX last week and made statements that don't even border on reality so...
Her basic premise: feminists hate everything masculine so we have wielded Title IX like a sledgehammer destroying men's intercollegiate sports left and right and, in the process, making college a less desirable option for young men, which is why almost 60 percent of undergraduates these days are women. Really? So high school boys are saying, "Well, I'm a pretty smart person. I know that it's probably better to have a college degree in this economy than not. But I can't play sports, so I'm not going to bother." If that's the reason high school boys are opting not to go to college...well methinks they probably couldn't get into one in the first place. First, so few college students actually play intercollegiate sports. Second, men still have more opportunities to play sports. Third, club sports and intramurals. There are plenty of opportunities. Sure not every opportunity offers one the chance to pawn a championship bowl ring or exchange school-issued team gear for favors and cash--but broom ball is still really, really fun and doesn't involve criminal investigations.
Also, feminists don't hate masculinity. The loss of wrestling teams--the example Schlafly cites--is not because we feminists hate masculinity. It's because wrestling is not as prized a form of masculinity (perhaps because it does not bring in revenue??) as the masculinity associated with football. And when schools feel they can't keep all the masculinities because they are being required to be equitable--well wrestling suffers. (There are other reasons as well for the loss of wrestling teams. See our previous posts about it.)
Finally, if feminists--specifically Title IX advocates (not all of whom consider themselves feminists, by the way)--hated masculinity, we wouldn't be encouraging girls to play sports--one of the most historically masculine activities. We wouldn't be advocating for more girls to wrestle or to get the chance to play football--and every other sport.
Once in a while, I feel a smidge of sympathy for Schlafly. She got really burned by the Republican party early in her political career when she tried to run for public office and they would not back her. But the woman is the definition of cognitive dissonance. And, in this case, she's making odd and unsupportable claims about something she seems to know very little about.

Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case

Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.

Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.

Ninth Circuit Affirms Victory for Montana State in Retaliation Case

Despite my prediction, the Ninth Circuit Court of Appeals has affirmed the lower court's decision to dismiss former coach retaliation Robin Potera-Haskins's case against Montana State. Apparently the appellate panel was not as concerned as I was about the trial judge's failure to give reasons for his determination that Potera-Haskins lacked credibility, or why it made sense to assume, in an employment case, that money damages were not at issue and therefore a jury trial was not warranted. But the judges certainly didn't take the time to say why, affirming the lower court's decision in a four-sentence, unpublished opinion.

Texas Southern Coach Wins $700,000 in Retaliation Case

A jury in federal court in Texas awarded over $700,000 to Surina Dixon, a former coach at Texas Southern University who had sued the school for retaliation and discrimination in violation of Title IX and other law.

As we noted when the case was first filed, Dixon claimed that she fired her from the head women's basketball coach position to which she had recently been hired after she insisted on parity in the terms of her employment contract, noting specifically that a recently-hired men's basketball coach with less experience than Dixon received a longer contract and higher salary. She had also complained that TSU glossed over gender inequities in its NCAA Gender Equity Self-Study.

District Court Reaches Decision in UC Davis Title IX Case

U.S. District Court judge Frank Damrell issued a 147-page opinion yesterday in the near-decade-long litigation between the University of California at Davis and three female wrestlers who were cut from the men's wrestling team when the coach instituted a try-out policy in 2001. So far I've seen headlines calling it a "split decision," a "dismissal" of the lawsuit against Davis officials, a ruling that Davis "did not discriminate" and a "Title IX victory" against U.C. Davis. As these seemingly-conflicting sentiments suggest, the decision is nuanced and defies reduction to a clear and simple headline. I think "split decision" is the most accurate characterization.

What made the decision, at least in part, a "Title IX victory"? Ultimately, the judge decided that while the plaintiffs were students at U.C. Davis, the university did not comply with the three-prong test used to measure equity in the athletic opportunities provided to each sex. Davis stipulated that during the time the plaintiffs were students, the university did not offer opportunities proportionate to the percentage of women in undergraduate population (prong one) and that there was unmet interest and ability among the underrepresented sex (prong three). But, Davis argued, it satisfied prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, which is prong two of the three-part test. In large part, the university's prong two defense rested on the fact that it had added three women's sports in 1996. Typically, adding a women's team gets a university two-to three years of credit for "continuing" program expansion, and the court seemed inclined to agree that adding three teams at once should count for a longer safe harbor. However, the court reasoned that even if Davis got extra credit for adding multiple teams in 1996, it still eliminated over 30 athletic opportunities for women during the relevant time frame disqualified them for compliance with "continuous" program expansion. In particular, the university eliminated J.V. teams in women's water polo and lacrosse in 2000, and while the court noted that this decision was not discriminatory or itself a violation -- even the coaches of those sports supported the decision to turn the J.V. teams into club teams -- the court determined that the "failure to replace" those opportunities at the same time put prong two compliance out of reach.

Yet despite ruling that U.C. Davis did not comply with Title IX at the time it eliminated opportunities for female wrestlers, much of the court's decision is as pro-Davis as some of the headlines suggest. For one thing, even in its Title IX analysis, the court is careful to commend Davis for its history of program expansion, which included a rigorous self-analysis of compliance that resulted in the university's decision to add women's teams during a period of time in the 1980s when Title IX enforcement was lax and many other universities ignored the law. Additionally, the court emphasized that cutting the women from the wrestling team did not count against the university for purposes of prong two, since they were not cut because of sex but for "normal fluctuations" based on talent and skill.

Moreover, the court dismissed the plaintiffs' other Title IX arguments, such as that the university was required to provide a female wrestling team to satisfy the unmet interest and ability, after determining that at the time there was not a reasonable expectation for competition for such a team. And it dismissed all of the plaintiffs' Equal Protection claims which were directed at individual university officials. According to the court, the female wrestlers had no constitutional right to be members of the men's wrestling team, only, at most to an equal opportunity to try out for the team. A decision by the head coach that the women had to qualify based on talent is not discrimination on the basis of sex, nor is it a decision that can be attributed to the athletic director, associate athletic director, or other individual defendants.

Even the last section of the opinion, in which the judge acknowledged that plaintiffs are entitled to damages, reads rather pro-defendant to me. The court acknowledged that plaintiffs should receive damages to compensate them for whatever "actual harm" they experienced as students at UC Davis who were interested in athletics. The court does not assign a number to this, due to the fact that the parties have not yet briefed the issue of damages, but it's a number that could theoretically be zero. The court did not hold that U.C. Davis was not liable for reasons having to do with the wrestling team's decision to cut the plaintiffs. The basis for liability is only that it did not add enough opportunities for women in general. Thus, the wrestlers will not be compensated for their lost opportunity to wrestle (whatever dollar amount could be attached to that) but the generalized disappointment they experienced as undifferentiated members of the female student body because the university did not have enough opportunities to satisfy Title IX. This seems like a much harder type of damage to monetize.

Assuming this decision is either upheld or not appealed, I predict that it will be influential on the general question of how to measure prong two compliance when a university eliminates opportunities for the underrepresented sex. It has always been clear that a university that eliminates athletic opportunities for women will have a difficult-to-impossible claim of prong two compliance. After this decision, it is clear that eliminating viable opportunities without replacing them will never qualify for prong two. The rest of the decision, rooted in a rather unique controversy about female adjuncts to a men's wrestling team, will likely have less influence.

Settlement Ends Litigation Over WVU Tech Softball Facilities

A federal court in West Virginia dismissed a Title IX case against the University of West Virginia Institute of Technology after it agreed to improve facilities for its women's softball team. The lawsuit was filed in 2008 by two softball players after WVU Tech ostensibly reneged on promised improvements. The parties had been trying to settle for a while.

According to the judge's decision endorsing the consent decree, WVU Tech hired a full-time head coach for the team, and has entered into an agreement with the local school district to use softball facilities at a nearby high school for the softball team's games and practices. Meanwhile, the university will pursue a long-term solution that provides for the renovation of the on-campus facility. Based on an initial feasibility study that was submitted to the court, the judge found that the "proposed renovations would afford the women's softball team suitable facilities."

The court maintains jurisdiction over the consent decree to ensure compliance.

If only all equity data were this easy to find

T9B "Tip of the Hat" to web-savvy Kentucky citizen, Dick Richards. Leveraging the state's open records law, Richards got copies of high schools reports to the Kentucky High School Athletic Association, and then reported them online in a very searchable, user-friendly website. Thanks to these efforts, anyone in Kentucky can check on participation and spending data for girls' and boys' sports at any high school. He also developed a grading rubric that takes into account participation rates, added participation, spending per athlete, coaches salaries, and other factors. You can look up any school or district to find out how it rates.

Richards' website also provides answers to bigger picture questions like what is the gender breakdown in athletic participation statewide? (Answer: 56.3% boys, 43.7% girls) And funding? 41% on girls' sports, 59% on boys sports. Also, that the participation and spending gap is larger in the the state's largest school districts.

This tool could be invaluable to Kentucky citizens seeking empirical support to discrimination claims. It could also provide a model for activists in other states!

Title IX and Transgender Students at Single-Sex Colleges

Inside Higher Ed recently had an article about transgender students at single-sex colleges. Like this piece in the Boston Globe a few years ago, the article addresses the increasingly common practice of re-issuing diplomas to reflect the new names and gender identities of alums who transition after graduation. Deciding who to admit, however, is a more challenging issue for single-sex colleges. Most women's colleges consider any student who is female on their application to be eligible for admission, and have no policy of excluding anyone who transitions or declares a non-female gender identity once enrolled.

The article mentions the role of Title IX in this regard, stating that under the law, "men’s and women’s colleges may admit only students whose legal documentation shows they are of the gender that a particular institution serves." I think this representation of Title IX is questionable, however, as I'm not aware of any aspect of the law that invokes a "legal documentation" test for determining a person's sex. Such a standard would not exactly provide workable clarity, either, because some states make it easier to change one's sex designation than others. Moreover, the decision to apply for new ID may come at different stages of transition for different folks. So, a "legal ID" test would require an all-women's school to consider for admission an individual who has surgically and hormonally transitioned from female-to-male, but who hasn't yet applied for, or received, a re-issued birth certificate (or drivers license, or some other legal ID). And that school would have to exclude someone who has changed his sex designation, but not his body, in accordance with a male gender identity, as well as someone who has physically transitioned from male-to-female but still does not have a female gender marker on her ID.

No court or regulatory interpretation has endorsed such bright-line rules. And I think the law's indeterminacy around the concepts sex and gender allows all of these hypothetical students make a case for eligibility for admission. A court could interpret Title IX's prohibition on sex discrimination to forbid a school from discriminating against someone who is born female but presents as male, if it decides to interpret presenting/identifying as male as an example of gender nonconformity. A court could also interpret Title IX's prohibition on sex discrimination to require an all-women's school to consider a male-to-female transsexual, because she, like other people who identify as female, is a woman. If both were legally required, an all-women's college would be open to anyone who is now female or who has been female in the past.

Is that a position that all-women's college could defend? This depends on the reasons all-women's colleges provide for remaining single-sex in the first place. If the purpose of all-women's college is to compensate for the male privilege that exists in education and in the wider world, they could certainly accept male-to-female transsexual students on the grounds that they have reduced their access to male privilege by virtue of their transition, as well as female-to-male transsexual students, who have been excluded from male privilege in the past. (For example, a female-to-male engineering student does not by virtue of a college-age transition overcome gender stereotypes that may have obstructed his K-12 education in science in technology.)

The bottom line for now, however, is one the article gets right. College admissions policymakers, like Title IX policymakers will be increasingly confronted with questions about transgender students' eligibility for single-sex colleges and other single-sex spaces. In my view, they should and can legally strive to be as inclusive as possible.

NYT investigates OCR's role in enforcement

Another good NYT piece today by Katie Thomas on Title IX enforcement. This one focuses on the Office of Civil Rights and how they do and have (or have not) investigated Title IX complaints. Not surprisingly, investigation and enforcement are politically driven, and we have certainly seen periods of lax enforcement--some of the specifics--like the complaint against USC that began in 1998 and is still not closed--are highlighted in Thomas's article.
But it also offers some hope for better enforcement and attention by the office under the new leadership of Russlynn Ali, who is an Obama appointee.
Other interesting points: the practice of self-investigation where OCR--because it is understaffed and overworked (dealing with all civil rights violations--not just Title IX complaints)--offers a school the opportunity to investigate itself and issue a report to OCR, rather than having OCR come in. I've always been wary--if not outright critical--of this practice because it requires, as Ali notes, a good faith effort in the part of schools. And I remain skeptical that schools, once informed of violations but still reluctant to remedy them--are really worthy of that kind of trust.
And the recent case at Ball State University, which we have not yet written about and which is highlighted in the article, is proof of why self investigations might not be all that effective. Ball State seems to have a problem retaining the coaches of its women's teams. Since 2005 12 head coaches of women's teams have left. There are only 11 women's teams at Ball State. And it is actually being sued by a former tennis coach. Offered the chance to investigate itself, the university, well, dropped the ball. They issued a finding that there was no discrimination--after two weeks! It failed to interview any coaches and didn't produce any new evidence in its report! Let's just reiterate: in an investigation about discriminatory practices in hiring/firing--the university didn't interview one coach;the president said she didn't think it was necessary.
And all is not right at Ball State in terms of facilities. Under pressure from OCR, the university has added some locker rooms for women's teams after it was discovered some athletes were changing in their cars and/or a storage shed.
Still the threat of OCR showing up on campus does compel more earnest responses from other institutions, which is why Ali is not ready to abandon the practice of self investigation.

Title IX and community colleges

The NYT ran a very interesting article last week about the application of and compliance with Title IX at the country's community colleges.
Community colleges face unique challenges when trying to comply with the law. It's non-traditional student body, of which women make up the majority--often a large majority, has lead many community colleges to believe they cannot possibly comply. Additionally, community colleges are facing the same--if not worse--budget issues as four-year institutions.
But this does not mean they are exempt from providing their female students with opportunities to play sports.
Many women who attend community colleges are juggling multiple roles in addition to being students: parent, employee, domestic caregiver/doer. They are often older. But, according to Katie Thomas's article, male students have similar constraints.
In my mind all this means is that the fact that community colleges offer fewer sports than 4-year institutions makes sense. The community college population is less likely to be able to fit sports into their schedules.
The article highlights several schools that are complying--but they work at it. They recruit. And actually, it isn't very hard. Athletic directors have found that when they tell women there are spots for them--they come. Interest and ability? Sounds like it's there is many cases.
And, again, measuring interest in a responsible way--and probably in a way that would be specific, here, to a community college population--is always an option.
I've taught at community colleges. There is a very unique student population, which makes community colleges really great places to work and go to school in many respects. But not so unique that community colleges get a pass on providing gender equity.

Soon-to-Be-Coed College Plans to Retain Single Sex Classes

Peace College in Raleigh, North Carolina is making some changes. Not only is it changing its name to William Peace University, it has decided to admit male undergrads for the first time in its history. According to this article in Inside Higher Ed, however, some classes will remain single-sex, though the President assures that no one will be denied access to a course, just sometimes a particular single-sex section. This raised some Title IX red flags to the reporter on this article, who contacted me and some other Title IX experts about whether this was legal. As I said to him, it seems to me like a difficult position to defend. By becoming coed, the college loses any claim to an exemption from Title IX on the basis of its single-sex tradition. Accordingly, it must comply with the law's prohibition against discrimination in all of its programs, and this includes classes, with limited exception for things like physical education, human sexuality, and choruses.

It is true that the Department of Education has in recent years promulgated regulations that permit additional exceptions by allowing single-sex education in core courses. But by their terms, these regulations only apply to K-12 education. Moreover, the exception they create is narrow -- the single-sex nature of the course be tailored to an important educational objective, which must be based on evidence and not assumptions and stereotypes about the way men and women learn. For both reasons, Peace College cannot rely on the single-sex education regulations to justify their position.

I could imagine that the Department of Education might allow Peace College some leeway and look the other way during a limited period of transition, such as the length of time it takes already-enrolled students to graduate. But I don't think this model can be permanently sustained without running afoul of Title IX.

Why Title IX should (and already does) apply to high schools

As we noted yesterday, a lawsuit against the Department of Education has been filed claiming that the application of the three-prong test to high schools violates the Equal Protection Clause of the Constitution. Here's a little more on that. And we are sure there is much more to come.
A significant amount of attention has been paid of late to the spate of complaints filed against school districts alleging disparities in the sport opportunities high school provide to their male and female pupils. Recap: NWLC's 12 complaints last fall, and the more recent ones targeting a majority of districts in Oregon, Washington, and Idaho.

Vocal opponents of such attempts to give more girls the opportunity to play sports--under the guise of "personal choice" and "reverse discrimination"--the College Sports Council, and others, have spoken out against what they believe is the misapplication of the three-prong test to high school athletics. The lawsuit they filed yesterday in federal court attempting to get the judiciary on their side was a long time in the works, I would imagine, but comes now at a time when these issues are very much in the spotlight. An additional reveal was, as we mentioned in yesterday's post, the group's new name: American Sports Council. This allows the former CSC to, I guess, legitimately turn its attention to high schools. And fighting discrimination against boys does reflect the American way.

ASC, when it was CSC, attempted this same move--to get rid of the three prong test--except with college sports. It didn't work. Courts have consistently held that all of Title IX's provisions apply to high schools (and other entities) as well. And, as Erin noted yesterday, we predict the outcome will be the same.

As well it should be. In fact, I argue that the three-prong test is even more applicable--or easily and equally--applicable in the high school context. Here's why.

First, let's address some misconceptions. Opponents of the three-prong test--specifically the proportionality test--say that applying the test to high schools is going to result in a million boys being denied sporting opportunities. They say that budget-strapped schools will, of course, have to cut sports for boys. But proportionality is NOT required. ASC keeps invoking the "safe harbor" rationale saying that this phrase--which came in a 1996 clarification letter from the Department of Education--means that schools will, of course, attempt compliance with that prong in order to avoid lawsuits. (You can see a You Tube video from the group about the filing.)
Let's clear some things up. Proportionality is a safe harbor because it is numbers based. Numbers don't lie. Except when they do. Like when schools manipulate rosters in order to make it seem like they are offering opportunities to girls and women--when they are not. I don't think this is the Department of Ed's problem. This is laziness and utter disregard for a gender equity law--passed almost 40 years ago--that we still cannot seem to adequately enforce.
Second, if these opponents truly believed that girls were less interested in playing sports then, I believe, they would be making greater efforts to prove it. Develop the methods to sufficiently measure interest and let's see. Opponents say that this opens up schools to lawsuits. Well, schools aren't doing a great job avoiding lawsuits right now as they manipulate rosters and continue to deny female athletes equitable treatment. A good faith effort goes a long way with me--and others like me. But we don't see it happening. We see avoidance of the issues--at all costs--even millions of dollars (as a result of jury awards and settlements).
So why are high schools arguably even better suited to the three-prong test?
Well, the gender division in most high schools (and I am speaking largely about public schools here) is close to 50/50. In other words--it shouldn't be that hard to offer equal opportunities. High school sports are often just a progression of student-athletes' careers from youth sports in a way that the transition from high school to college is not as natural or expected. It's hard to believe that the numbers aren't there given the growth in youth sports.
Second, the valuing of participation is somewhat more emphasized in high school sports. Because high school sports are not expected to be big revenue generators in the way intercollegiate sports are, the philosophy of sport as an educational and growth experience is more at the forefront and less easily disregarded and lost amid large and complicated athletic department budgets. And so, of course, opportunities should be equitably distributed when we're talking about an educational endeavor.
They don't have to worry about expenditures such as recruiting and scholarships, either.
I have read several pieces that complain that we feminists are lawsuit happy and attempting to dismantle boys' sports with these recent filings. First, these are complaints--not lawsuits.
There is no desire to kick boys out of sports. But again, Title IX has been around for four decades. What have schools been doing? Advocates for women's sports get villainized because we expect that schools and the government actually follow and enforce this law. These complaints serve to both put high schools on notice that they cannot continue to be ignorant of Title IX. And they're a wake-up call to OCR which has been somewhat complacent in its enforcement at the high school level.
Is there ever going to be a good time for us to request that girls be given what they deserve? The economy was pretty decent in 1996, as I recall. If schools had truly believed that proportionality was the safe harbor of Title IX, they would have had the means to implement it then. And prior to 1972? Well there were boon periods then too. Yet there was no widespread movement to add sports for women. Hard to argue that we don't need Title IX.
Progress is neither innate nor organic. Equality does not just manifest itself because years pass.

Lawsuit Challenges Title IX's Application to High Schools

The American Sports Council (formerly the College Sports Council) has sued the Department of Education in federal court, arguing that the enforcement of Title IX's three-prong test against high schools violations the U.S. Constitution's Equal Protection Clause. College Sports Council and other anti-Title IX organizations have challenged Title IX's constitutionality in the past, though never successfully. I predict that the court deciding this case will apply the same interpretation as those earlier decisions holding it was not unconstitutional for Title IX to offer a proportionality test as one of three options for compliance . Though those earlier decisions were all in the context of disputes about college sports, there is nothing about applying those arguments to the high school context that warrants a different result.

For more coverage, see this thorough post on Education Week's Schooled in Sports blog.

School District with Sexual Orientation "Neutrality" Policy Targeted by Lawsuit and Investigation

The Anoka-Hennepin School District is the only district in Minnesota with a curriculum policy that requires teachers and staff to remain "neutral" on sexual orientation issues, deferring instead to students' "family homes, churches, and community organizations" to disseminate attitudes and information about homosexuality.

Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.

Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.

How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.

78 Idaho School Districts Named in Title IX Complaint

First Washington, then Oregon, now Idaho. The Department of Education's Office for Civil Rights recently received a complaint (pdf here -- it's 600 pages) citing 100 high schools in 78 of the 115 school districts in the state, charging them with violating Title IX for failing to provide equitable athletic opportunities to female students. This is the third northwestern state in recent months in which OCR has been asked to look into Title IX violations at dozens of school districts statewide. Like the others, the complaint is based on data mined from OCR's most recent Civil Rights Data Collection report, which provides evidence of disparities in participation rates as well as evidence of school districts "padding" their participation rates by including activities (namely, sideline cheerleading and dance) that are not comparable to varsity athletics in terms of their competitive schedule. From these data, the complaint alleges violations of prong one's proportionality standard. It then uses OCR data over time to cite school districts with declining opportunities for girls, suggesting violations of prong two's requirement of program expansion for the underrepresented sex. Finally, the complaint sites examples of school districts failing to offer sports that are sanctioned by the state athletic association as evidence of unmet interest, which would violate prong three.

The press has not reported on the person filing the complaint, as government regulations protect anonymity of complainants. However, unlike lawsuits filed in federal court, complaints to OCR may be raised by anyone.

Is Montana next?

Cheerleading Coach Files Title IX Lawsuit Against University of Alabama

Debbie Greenwell was the head cheerleading coach at the University of Alabama for more than 24 years, until, she alleges, she was terminated from her position in a dramatic fashion in response to her advocacy for equal treatment for her student-athletes. She has recently filed a lawsuit in federal court, challenging the university's conduct as discrimination and retaliation in violation of the Equal Pay Act and Title IX.

Though Greenwell's team was not a varsity sport, it was part of the athletic department. Greenwell was hired by and answered to the athletic director. She ran very lucrative cheerleading camps that made cheerleading the second most-profitable athletic department enterprise, after football. In 2008, her cheerleading camp netted $400,000 -- money that all went in to the athletic department general fund. Greenwell brought other perks and prestige to Alabama athletics as well, yet, she argues, the athletic department exploited her by refusing to pay her commensurately to other coaches. Apparently, the University justified paying Greenwell less than other coaches on the grounds that cheerleading program was not an NCAA sport with varsity competition. But Greenwell argues -- validly, in my opinion -- that for purposes of determining pay equity, what matters is that her responsibilities of running camps and the cheerleading squad required effort equal if not greater to that of other coaches. Additionally, U of A held Greenwell out as one of their "coaches" when it suited them, to associate the institution with her prestige.

However, Greenwell's complaint is light on a couple of details that will determine the validity of charges against the university. In particular, there are no details about how Greenwell's salaries actually compared to those of male coaches. Also, it's not clear exactly on what basis Greenwell alleges the required nexus between the issue of her salary disparity and the fact of her termination. The complaint states that she advocated for a higher salary once in 2003, and that another time in 2006, she and students complained about the inequitable lack of academic and other support for cheerleaders compared to other student athletes. Typically, retaliation cases succeed when the plaintiff engaged in protected conduct much closer in time to the employer's retaliatory conduct (Greenwell was terminated in 2009). We'll have to wait and see whether such additional factual allegations are forthcoming, or whether their omission is enough to warrant dismissal of her case.

Columnist Criticizes Sex Discrimination in State Championship Site

I'm glad to see sports columnist Steve Hanlon calling the Indiana High School Athletic Association on the apparent sex discrimination in its chosen locations for the girls' and boys' state basketball championships. Criticizing a recent IHSAA memo siting the girls' championship in Terre Haute, Hanlon writes:

While female Hoosiers play an unequal game of geographic Ping-Pong come title time, the boys continue to perform on the big stage, under the bright lights of Conseco Fieldhouse.

Boys get the state capital that is centrally located. The girls get the town in western Indiana where Timothy McVeigh was executed.

Do you feel the thrill, ladies?

Apparently, the girls' basketball championship got squeezed out of Indianapolis's premier basketball venue again this year, due to scheduling constraints created by the fact that Consesco also serves as the championship site for the women's Big Ten conference. But that doesn't mean that the high school girls should perpetually lose out. Hanlon suggests that the girls could play their championship a week earlier so that both could be held at Conseco without conflict.

Another way equitably address the limited playing time available at Conesco would be would be to alternate the championship that gets to play there. Every year, either the boys or the girls would have to relocate to a remote location that will be very inconvenient for either northern or southern teams. Since the girls had to play elsewhere last year (Fort Wayne), this year, the boys should have to play in Terre Haute. The fact that this solution hasn't been suggested -- not even by a columnist who taking up this issue of discrimination -- shows just how unexamined male privilege is in high school basketball.

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.

100 Oregon high schools cited

Sixty school districts in Oregon were named in a recent complaint filed with the Office of Civil Rights. Over 100 high schools have been cited as not providing an equitable number of sport opportunities for girls.
This is a huge complaint--in both senses of the word! In what appears to be a significant amount of research and data collection, the complaint (just under 600 pages) lists the proportionality numbers for the 100 schools and ranks them accordingly. I was actually surprised at the numbers available. High schools are not required, by federal law, to report such data. But it seems that Oregon's high school activities association keeps track of such things. Makes it much easier than visiting every school asking for their records! Though it should be noted that the most recent data available was from 2006. I still think that OCR will at least look at the schools that seems to have the most egregious disparities.
It seems that opportunities is the only program area the complaint is focusing on. But if the complaint triggers an investigation (or many, many investigations), other areas will also be investigated.
Currently unknown is who is reponsible for this mssive undertaking, which was filed in April. Kudos to that person(s)--I certainly hope it is indeed persons. They appear to have done a lot of OCR's work for them already with the seemingly comprehensive report. I hope that OCR does indeed investigate these schools. I worry about their ability to do so. It seems as if so many complaints are emerging--large-scale complaints. I wonder if they are equipped (staff, budgets, etc.) to deal with it all.
The usual "surprise" being expressed by various school administrators who will certainly cooperate but are sure they are in compliance.
What has interested me about these large-scale complaints (I am thinking also about the 12 complaints filed by NWLC last fall) is that they focus on expanding opportunities for high school girls. This mirrors the push by women's sports advocates in the 70s, after the passage of Title IX, to focus on the expansion of intercollegiate opportunities. More and more attention is being paid to disparities in other programs areas (like facilities and uniforms for example). But the focus on high school opportunities is almost like a (near) 40-year trickle down effect. I hope that it both continues and creates a more widespread awareness of the need for mandatory nationwide data collection at the high school level.

Football Exempt from School District's Decision to Cut Freshman Teams

I'm not sure how this can NOT be a Title IX violation: the Ann Arbor school district is cutting all freshman teams at its three high schools except football. In all other sports, freshman will be able to try out for existing junior varsity and varsity teams, but there will be no teams reserved exclusively for them. Budget cuts explain the district's decision to slash freshman sports. The reason they are saving freshman football is that "safety issues are a major concern" if freshman are allowed to compete on J.V. team. What? Excuse me while I parse this pretext. Even if it were the case the freshmen boys are so distinctly different from sophomore or junior boys in terms of size or skill that it would raise "major safety concerns" to have them play together, why doesn't this difference carry over into other boys and girls contact sports? Why isn't it a major safety concern to have freshmen on the J.V. lacrosse or hockey teams? And finally, if it's a problem to allow freshman boys to compete on the J.V. team because of safety, hold a tryout and only let the kids on the J.V. team who are big enough and skilled enough to hold their own. After all, that's the standard that is being applied to all the other sports. Safety, yeah right. This is clearly a case of football once again getting special treatment at the expense of girls' and other boys' sports.

And, as I said at the outset, I can't see how this isn't a Title IX violation. Even if Ann Arbor high schools were proportionate before, they certainly can't be now that they have eliminated more freshman girls' opportunities than they have freshman boys'. And of course, cutting girls' opportunities makes it difficult to claim compliance under prong two, and the interest and ability is clearly there and now unmet due to the cuts, making it impossible to claim compliance under prong three.

What's more, the article linked above says that several sports are being demoted to "club" status, meaning they receive no school district funding. 7 girls sports will be affected by this new status at one or more of the three schools: lacrosse, bowling, J.V. field hockey, figure skating, cheer, dance, and crew. Only 3 boys sports will be: lacrosse, bowling, and crew. It is highly unlikely -- impossible I think would be fair to say -- that a school district that exempts football from freshmen cuts, and then takes out more girls' teams than boys' sports still manages to provide athletic opportunities proportionate to the gender ratio of the student body.

I don't envy the administrator who is forced to balance the school district budget on the back of student athletes. But as hard as that job is, there is no excuse for ignoring Title IX. These cuts need to be spread out fairly between boys and girls and ensure that even if the pie is getting shrunk, boys' piece and the girls' piece are still the same size.

[Thanks, D.R.]

Merged booster clubs in Maine

The Portland (ME) school board has proposed that all athletic booster clubs be merged. So now, at the city's two public high schools, there will no longer be booster clubs for individual sports. Each school will have one booster organization and an administrator who supervises the organization, according to the proposal.
The proposed change is due to some questionable accounting practices within booster clubs as well as Title IX concerns over the equitable distribution of funds and treatment of athletes.
Apparently there is already some sharing of booster funds among teams, so the concept is not completely foreign.
But based on the article's public comments section, there is much criticism of this plan. People are basing these critiques on the belief that fundraised monies should not affect Title IX compliance and that the amount of money raised is a direct correlation to the amount of effort put in by parents.
While the latter may be partially true (the former is not, by the way), these arguments fail to consider the different values parents, students, administrators and the general public have regarding different sports. Football boosters raise more money, in part, because high school football in many, many cities and towns is the highest profile sport. If both the football team boosters and the girls soccer team boosters sell concessions at their respective games, who is going to raise more money?
Such an argument just perpetuates the inequities and punishes those student-athletes, and their parents, who may feel just as passionately about their sports as football players and their parents but cannot get others to feel similarly.

Happy Birthday Title IX, You Don't Look a Day Over 39.

39 years ago today Congress passed Title IX of the Education Amendments of 1972. Readers well know, there's been lots of progress towards equality in those 39 years and plenty yet to come. The Department of Education commemorated this anniversary by conveying a similar sentiment and pointing out their own efforts -- including initiating 11 compliance reviews and 13 investigations -- in the last year to bring about the day "when students will be safe from discrimination, harassment, and physical violence in our schools." Meanwhile, our friends at the Women's Sports Foundation have kicked off the celebration by unveiling a sparkling new website and encouraging women to "Get Your Game On" -- in addition to amping up their usual good work. And the National Women's Law Center blog imagined what Title IX would say if it could talk about its 39th birthday.

What are you doing to celebrate?

Law Review Article Addresses School Officials' Individual Liability Post-Fitzgerald

An article in the recent issue of the Wisconsin Journal of Law, Gender and Society examines the Supreme Court's 2009 decision in Fitzgerald v. Barnstable School Committee, which held that Title IX does not preclude a concurrent claim for Equal Protection violations under 42 U.S.C. 1983. The author, attorney Jennifer Kirby Tanney, explains that one potential consequence of this ruling is that school officials may be held individually liable for violations of Title IX, including in the peer harassment context. This is because while Title IX only covers institutions and not individuals, the 1983 remedy allows plaintiffs to sue individual defendants unless immunity applies. Tanney argues, however, that while the Court was right to hold that Title IX does not preclude relief under 1983 as a general matter, the Court should not in future cases extend this holding to allow for the individual liability of teachers and administrators, a consequence she argues that Congress did not intend.

For more see: Jennifer Kirby Tanney, A Back Door to Individual Title IX Liability? The Implications of Fitzgerald v. Barnstable School Committee on the Liability of Teachers and Administrators for Peer-to-Peer Harassment, 26 Wis. J. Law, Gender & Soc'y 23 (2011).

Slippery Rock back in legal trouble

Slippery Rock University in Pennsylvania is back in legal hot water again. (Click on the Slippery Rock tag for more on the history of Title IX lawsuits and settlements.)
This time a lawsuit is being brought by two women who are claiming retaliation over their participation in the initial lawsuits, which lead to SRU having to reinstate three women's teams that had been cut.
The first plaintiff is the women's volleyball coach who was told her contract will not be renewed when it ends in 2013.
The second woman is an assistant to the athletic director who says she has been overloaded with work and left out of department meetings she otherwise would have been a part of.
The lawsuit alleges that the retaliation is also due to the fact that the athletic director, Paul Lueken, cannot work with strong women.

Female Wrestlers' Case Against UC Davis Goes to Trial

On Wednesday, a federal district court judge in California heard closing arguments in the trial to determine whether the University of California at Davis violated Title IX when it denied opportunities to female wrestlers in 2001. The case has been in litigation for a many years, and we have blogged about it several times (see here, here, here, and here.)

The plaintiffs in this case are three female, former student athletes who wrestled on the U.C. Davis team until they were cut in 2001. According to this article about the trial, there is conflicting testimony about whether then-athletic director told the then-wrestling coach Michael Burch to cut the women, or whether the coach decided to cut the women, who did not contribute points in wrestling meets, after being told by the AD that he had to reduce the size of the team. In response to protest, the athletic director granted them the right to try out for the team. Two of the women tried out but did not make the team, and a third did not try out.

What about this scenario could violate Title IX? On the one hand, the law does not require schools to have coed teams in contact sports like wrestling. And where the contact sport exception does not apply, female athletes athletes are limited to a right to try out for the men's team when it's the only team in that sport. But at the same time, universities have the obligation under Title IX to provide an equitable number of athletic opportunities to female athletes. Thus, UC Davis could have lawfully excluded women from the wrestling team, if it otherwise provided equitable opportunities to women. But because it did not, the plaintiffs argue, eliminating their opportunities to participate in wrestling violated the law.

Thus, what the judge will really be deciding is whether UC Davis's overall distribution of athletic opportunities complied with Title IX. Davis contends that it complied with prong two, which requires it to show a history and continuous practice of expanding opportunities for women. Plaintiffs' witnesses, including women's sports expert Donna Lopiano, testified that UC Davis's history of women's sports, which included going twenty years without adding any women's teams, then adding three at once in 1996, followed by outdoor track in 1998 and indoor track in 1999, does not qualify. According to the same article, however, another women's sports expert, Christine Grant, testified for UC Davis that the university deserved credit for adding three teams at once.

Other issues also bear on the question of UC Davis's proffered prong two compliance. Namely, the judge will also have to figure out whether the university had good reasons in the 1990s to cut two other women's teams and to reject petitions by women's club teams seeking elevation to varsity status. And the judge will have to figure out how much prong two credit to give to the university's decision to add indoor track as a women's sport in 1999. An appellate court has already ruled that a sport does not necessarily have to raise the number of actual athletes in order to count as new athletic opportunity for existing athletes to compete in another sport. But adding indoor track could still be questionable evidence of prong two compliance if it appears that the decision was motivated by the universities interest in efficiency (in that indoor track doubles as an off-season for other running sports) rather than in response to genuine student interest.

The judge's decision is expected in July.

Vermilion Parish Ends Single-Sex Education

The school board in Vermilion Parish, Louisiana, voted earlier this month to end its single-sex education program at Rene Rost Middle School, which began in 2009. You may recall that in April, the 5th Circuit Court of Appeals issued a decision in the litigation over this program, which clarified that the courts would require the school board to have "exceedingly persuasive justifications," consistent with the Equal Protection Clause, if it continued to assign its students to certain classes or deny them from others on the basis of sex. We predicted that such a standard would be difficult for the board to meet, especially in light of the fact that the Rost principal's claims that such classes produced better outcomes were later revealed to be rooted in his own falsified data. However, the reported reason for the school board's decision was a low level of parental support for single-sex classrooms. The school board's decision ends the litigation against Vermilion Parish.

Dept of Ed Letter Supports Gay-Straight Alliances

Yesterday, the Department of Education circulated a "Dear Colleague" Letter to remind and apprise elementary and secondary schools of the government's position that schools must provide equal access and support to student clubs formed around shared interest in sexual orientation discrimination, namely, gay-straight alliances (GSAs). The Department's interpretation is not rooted in Title IX, however, whose prohibition on sex discrimination would seemingly not apply to viewpoint discrimination on the basis of sexual orientation. Rather, the Department rooted its interpretation in another law, the Equal Access Act. Congress passed this law in 1984 because it was concerned that schools were not allowing religion-based student groups meet on campus. But it applies to all student groups. As the letter explains,

The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

Of course, a school wishing to deny access to a GSA may choose to have no extracurricular clubs at all, as a Utah school district once did. But the Department of Education's letter urges schools to consider the role of such clubs in fostering the kind of welcoming and supportive atmosphere that can be an antidote to the bullying crisis which has claimed several gay students' lives.

Bullying, sexual assault and intent

The reporting of the trial against the Wayne County (Tennessee) School District by two families whose sons had been sexually assaulted by fellow team members on the middle school basketball team has raised some interesting questions about what constitutes bullying versus sexual assault.

An article I linked to the other day when I posted about the outcome of the trial is entitled "Horseplay or sexual assault" and is indicative of the belief that the two are somehow inherently separate. Of course, the term horseplay is quite deficient in describing the events that occurred in the basketball team's locker room at Waynesboro Middle School. Bullying is somewhat more appropriate. But the debate over whether what happened was bullying or sexual assault sets up a problematic hierarchy.

Both bullying and sexual assault (and sexual harassment) in schools are potential Title IX violations. Thus this discussion is not about the ability to file a complaint or lawsuit. Rather I wanted to explore the meanings behind these categories; the meanings as I see them and as they have been constructed by the people (including the media) in this case.

Obviously turning out the lights in the locker room and engaging in physical attacks of a sexual nature, or holding someone down and threatening to sodomize him with a marker extends far beyond horseplay.

The boys will be boys mantra has never really held much weight for me, and this case certainly has not altered my thoughts on that excuse. The charges against the perpetrators in this case were dropped by a juvenile court judge even though they all pleaded no contest. Various investigations found no "punishable offenses." Curious, but moving on...

At the federal trial last week the plaintiffs asked why some of the incidents in which sex acts were simulated were not dealt with. These all happened prior to what has been referred to as the marker incident. The answer from the former school principal was that there was a verbal reprimand, but that he didn't think these simulated sex acts were sexual assault.
So were they?
Were they just bullying?
Was it sexual bullying?
The article quoted Vanderbilt University professor Maury Nation, who is a bullying expert. Nation validated the severity of the marker incident but categorized it as chronic or serious bullying and not sexual assault because "this isn’t sexual behavior, per se, as much as power and dominance behavior. That is, the goal is to intimidate. I don’t think any of the kids were doing this for sexual gratification as much as the humiliation and embarrassment it was having to the victim.”
First, we have no idea about the level of sexual arousal.
But more importantly, sexual assault is itself about power and dominance and intimidation. Not all bullying is sexual in nature, but all sexual assault has a bullying component if we define bullying as behavior meant to exert power and control over another.
If the bullying involves simulated or actual sex acts as the means for exerting that control, then why isn't it sexual assault? And I am not speaking about the legal definitions, here; I am talking about the cultural constructions of these terms and behaviors.
Why did these boys choose to exert dominance via sex acts?
The inability to answer this question means we cannot ignore the sexual nature of these acts. The way they intimidated was sexual in nature, regardless of whether they received sexual pleasure from it. Nation's views--as presented in the article--seem to assume that all sex acts produce pleasure and that there is no sexual pleasure derived from exerting power and control over others. These, in my mind, are false assumptions.
Again, I don't want to suggest that bullying is not as bad as sexual assault. I do want to suggest that not calling the acts that occurred in Waynesboro Middle School sexual assault downplays the severity of the incidents and attempts to curtail discussions of behavior among boys and within sport culture. And it fails to acknowledge the motivations behind sexual assault.

I plan on one more post about this in which I talk about sport culture and sexual assault more generally.

Victims in TN sexual assault case receive $100,000

Last week a jury, after deliberating only an hour, awarded two families $100,000 each in damages in a case of sexual assault. Parents of two middle school students in Wayne County, Tennessee sued the school district for failing to protect their sons from the sexual assault by teammates on the school's basketball team.
There seemed to be a culture of sexual pranks in the team's locker room and the plaintiffs alleged that the school did not respond in an appropriate way to the incidents, which began in October of 2008. The school looked into the allegations but apparently the investigation was stymied or in some way inconclusive because investigators could not certify that a felt pen had actually penetrated one of the victims. I know there are a lot of legal distinctions among crimes based on things like whether penetration has occurred. But intent is obviously a large factor as well. If a boy is being held down by other boys who intend to penetrate him with a foreign object...well that would seem to indicate a fairly egregious act of sexual assault. (More on this in a forthcoming post about bullying and sexual assault and the attempt to differentiate and hierarchize the two.)
School officials did temporarily suspend four identified perpetrators and kicked them off the basketball team. But the four came back to school after 11 days and were allowed to rejoin the team at a later point. Also, the victims were harassed by peers for getting these boys in trouble. Both victims were removed from the school by their parents. Some of the perpetrators argued at the trial that things had been blown out of proportion.
Also of note: apparently the locker room culture was stimulated by the coach who mentioned pranks himself though he allegedly told the boys not to engage in them.
“I shared stories with boys. In hindsight, obviously, I wish I hadn’t done that.”
Probably even more so now that damages have been awarded.
I have not read anything on how the jury decided on the damages figure. The plaintiffs were seeking a combined $3 million in damages initially.
No word on whether the school district will appeal.

Calling all Law Professors' Papers on Harassment and Bullying

This is a call for papers on the application of Title IX to bullying and harassment in schools. Selected papers will be presented at the American Association of Law Schools' annual meeting in January and published in the Western New England Law Review.

Title IX, the federal law prohibiting sex discrimination in federally-funded educational institutions, turns 40 years old in 2012. At the 2012 Annual Meeting of the AALS in Washington D.C., the Section on Education Law and the Section on Sports and Law, with a co-sponsorship from the Section on Sexual Orientation and Gender Identity Issues, will sponsor an extended program to look at the current state of Title IX’s application to a variety of issues including bullying and harassment, the subject of this call for papers.

In 1999, the Supreme Court confirmed Title IX’s application to peer harassment and defined the scope of liability for educational institutions that fail to respond appropriately to known occurrences and risks. Yet recent instances of severe sex- and gender-based harassment, in particular those related to the victim’s later suicide, have raised questions about both schools’ and the law’s effectiveness and preventing such abuse.

We are soliciting proposals for papers addressing the application of Title IX to bullying and harassment, including but not limited to: Title IX’s application to harassment motivated by the victim’s perceived sexual orientation or gender identity; judicial decisions applying the Court’s deliberate indifference standard for institutional liability; harassment contexts that have proven particularly challenging for schools and universities, such as online bullying and sexual abuse by and among student athletes; and the role of public enforcement, including the effectiveness of recent guidance from the Department of Education addressing institutional response to sex-, gender-, and sexual orientation-based bullying and harassment and sexual violence and abuse.

Deadline Date for Submission: August 1, 2011.

Proposal Requirements: There is no requirement as to the form or length of proposals.

Eligibility: Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Selection: Papers will be selected after review by a joint committee consisting of members of the Section on Education Law, the Section on Sports and Law, and the Section on Sexual Orientation and Gender Identity Issues.

Presentation and Publication: Accepted papers will be included in a symposium published in the Western New England Law Review. One or more papers will also be selected for presentation during the Sections’ joint program at the AALS Annual Meeting. Program participants will be responsible for paying their annual meeting registration fee and expenses.

Contact for submission and inquiries:

Professor Erin Buzuvis
Western New England University School of Law

ebuzuvis@law.wne.edu

413-782-1405

Guest blogging

In a bit of self-promotion...
I have a blog post up at The Athlete's Sport Experience, a blog by Kirk Mango, founder Becoming a True Champion, on the Chicago Now blog forum. My post is about the concept of reverse discrimination as it has been used in the conversations about Title IX. It was inspired by the recent complaint filed with the University of Delaware men's track team, but addresses the concept more broadly.
My thanks to Kirk for providing me with (another) forum to talk about some of misconceptions around Title IX.
There is a part two coming about the history of the three-prong test and the "fairness" of Title IX as it is currently implemented.

What will cheerleading investigation in SC find?

Parents filing Title IX complaints with the Office of Civil Rights might be the trend of the month.

In South Carolina, parents of a cheerleader at Lugoff-Elgin High School started wondering where the money allotted for cheerleaders was going when they were told the squad would not be able to replace their ten-year old uniforms.

Even attempts by the cheerleaders' parents to fund the new uniforms were rebuffed. So the Gogans, parents of LEHS cheerleader, started their own investigation and found that there was no money in the cheerleaders' account and no explanation of where it had gone.

First things first. This is very sketchy. There is clearly something amiss here.
And the Gogans were right to question what the heck has been going on.

But they filed the OCR complaint because they wanted an explanation and greater transparency regarding how the school treats its boys' sports versus its girls' sports. Except that it does not appear that cheerleading is a sport at LEHS. Yes, the squad does engage in competitive cheer competitions. But they also sideline cheer. Their dual purpose is apparent in what does and does not get covered by the fees students must pay to participate. The cost covers uniforms and poms but not sneakers; and cheerleaders need two pairs: one for competitions and one "to cheer in."
I know that cheerleaders and parents and probably every administrator at LEHS do consider it a sport because it is a South Carolina High School League sanctioned sport. And thus they have a right to question the distribution of funds and the quality of the experience cheerleaders have.
But the Department of Education has said that a sport cannot be a sport if it exists, even in part, to support another sport. What has happened at the intercollegiate level is that competitive cheer squads (or stunt squads or tumbling and acrobatics squads--depending on which side squads are choosing) are no longer cheering on the sidelines. Sideline cheerleaders are now a different group.
So what will OCR find when it goes to South Carolina? Will this even be an issue?
When will the rules at the intercollegiate level trickle down to high schools thus making high school state athletic associations take notice?

Dept of Ed Conducting Study on Bullying, Seeking Comments

According to a recent notice in the Federal Register...

The Department of Education is seeking comments on its plan to conduct an analysis of bullying laws and policies. The study’s field data collection will conduct case studies 24 school sites nationwide to document state and local implementation of anti-bullying laws and policies. The study will examine how policies are influenced by state legislative requirements, including ways that state and district policies facilitate or create challenges for effective implementation. The study aims to identify promising strategies that school districts are implementing to combat bullying in schools. This information will be used by the Department to better support bullying prevention activities.

Comments are due August 1, 2011 to U.S. Department of Education, 400 Maryland Avenue, SW, LBJ, Washington, DC 20202–4537, OMB Control Number: 1875–NEW.

First transgender prom queen

This is not directly a Title IX issue, but it's good news during prom season when we seem to only hear stories about how students who are gender non-conforming have their proms marred by administrators, parents, and other students who are apparently very concerned with who gets to wear tuxes and who gets to wear dresses.
This week the first transgender student (MTF) in an American public school was crowned Prom Queen. Andii Viveros was voted Prom Queen at McFatter High School in Florida after beating out 14 other young women for the title. There was a movement to remove Viveros from the ballot, but Viveros, president of the school's GSA, wrote a speech to explain her* position.



* The article refers to Viveros with male pronouns, I chose to use female pronouns because the article mentioned that Viveros has been living as a woman for two years.