Settlement Ends Harassment Investigation Against Minnesota School District

This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.

Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:

• Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
• Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
• Enhance and improve its training of faculty, staff and students on sex-based harassment;
• Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
• Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
• Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
• Improve its system for maintaining records of investigations and responding to allegations of harassment;
• Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
• Submit annual compliance reports to the departments.

The consent decree will remain in place for five years.

Castle Rock Update

We've been following the situation in Castle Rock, Washington (see prior posts here and here), where parents have been advocating for equal rights for girls teams to use the high school's lighted stadium,which has so far been reserved for the priority use by the football team. After initial complaints to the school board failed, one parent filed a complaint with OCR, alleging that it violates Title IX to exclude girls soccer from the stadium.

A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).

The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.

Quinnipiac seeks to lift volleyball injunction

When Quinnipiac University tried to cut its women's volleyball team several years ago, it lead to the now famous and controversial case about cheerleading. (If you're not quite sure how that happened, click on the Quinnipiac tag.)
Early on in those proceedings volleyball asked for and received an injunction which prevented the university from cutting the team. That injunction is still in place while QU gets its proverbial house in order--i.e. they achieve compliance. Believing that are so, the university filed with the court in December of 2011. A hearing is scheduled for June 11.
But those watching QU closely say the university has not changed its ways. Sandra Staub of the Connecticut ACLU does not believe the university  has made any "meaningful improvement in the allotment of athletic opportunities for women at Quinnipiac." Additionally, QU is facing more legal proceedings regarding equal treatment. Staub argues that the school has some issues in the areas of facilities and coaching, among other unnamed items.
Clearly the university wants to replace the volleyball team. It has already fired the head coach. But whether they will have to seek out a new head coach remains to be seen.

Kansas in compliance

But there is still no men's swimming and diving team, much to the disappointment of Ron Neugent, an alum who filed a Title IX complaint in 2009 stating that male student-athletes were underrepresented based on the percentages of male and female undergraduates at the school.
Neugent argued that men were being discriminated against because they had proportionally fewer opportunities in athletics.
His goal was to get the university to add sports for men. But the university--agreeing that it would work on the situation but not admitting non-compliance--opted to achieve proportionality by looking more closely at team rosters and adding and subtracting roster spots.
And having done so, administrators recently filed paperwork stating that the school was in compliance.
Neugent, though, wanted Kansas to add, as mentioned, men's swimming and diving as well as men's tennis. But that seems like a lot of roster spots and KU was not grossly out of proportion. In 2007, two years before the complaint was filed, the university was told it had achieved substantial proportionality when it had a 1.8 percent gap. It seems that adding two men's teams would have required the addition of at least one women's team, which is always great--but expensive.
It also seems that Neugent was concerned not just with equity, but with his alma mater's position in a competition called the Director's Cup. The competition rewards a school for its success across 10 different men's and women's sports. Adding those two men's sports would help KU's standing in that competition.
But, as of now, KU has opted to closely monitor the numbers.

OCR Rejects 900 Complaints About California High Schools

Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.

Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.

Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.

As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."

Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."

Softball field issues in Butte

In an attempt to remedy an "inadequate" softball field used the by high school girls' softball team in Butte, Montana, two of the team's former assistant coaches. This story caught my attention because it was confusing and curious in multiple ways.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields. 
When more information/clarifications emerge, we'll be sure to post them.

Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

Standards of journalism and the Title IX blame game

Ebuz and I often discuss the need for greater awareness of the intricacies of Title IX--or even just the basic facts--that are free from common misconceptions. We wish, for example, that Title IX training for athletic department administrators happened before violations occurred.
We also wish, somewhat in vain, that the media would become better informed on Title IX issues before reporters and columnists printed stories about the law.
But headlines like "How Title IX Hurts Female Athletes" fail to surprise us anymore. What is somewhat surprising is when such a headline--actually this exact headline--is found on The Atlantic's web site.
And I am sure--based on the numerous angry comments--that The Atlantic is regretting running this piece by two women: a journalist and a cross-country coach. The logic is faulty throughout. Most egregious is when the authors say that Title IX has exposed more girls to sexual assault by male coaches.
There are the old arguments about ACL injuries and concussions. An argument based in--thank you Michael Messner--soft essentialism. (There's a decent amount of hard essentialism in here, too.) Because there is no mention about the general danger of competitive athletics and the injuries suffered by boys--like all those undiagnosed concussions. Or the way boys experience pressure to compete despite injury.
Attempts by the writers to get facts by experts to back up their points fail:

For female players, the gravest consequence of having male coaches has been an increased risk of sexual abuse. Pediatrician Ken Feldman, the recently retired medical director of the Children's Protection Program at Seattle Children's Hospital, says that although there is no formal tracking of sexual abuse by coaches per se, "girls will be more victimized than boys."

No studies. No data. But girls will be victimized more. Based on what evidence?
Yes, please, let's interrogate things like injury rates and types, the decline of female coaches and the absence of female coaches in men's sports, and the secrecy around sexual abuse of both boys and girls by coaches. But saying "Title IX did this" is not an interrogation. And it is not helpful in understanding the complexities behind such situations.

You know what hurts female athletes?
Misconceptions about them, their experiences, and how they came to be.
Misinformed coverage by media outlets.

I am disappointed in The Atlantic. I hope they more carefully vet what gets published under their moniker in the future.

The feminist fable and soft essentialism

The Title IX Blog is a huge fan of Dr. Michael Messner. Messner is the type of academic I certainly strive to emulate. His work is impressive and thought-provoking, practical and accessible.
And in the June 2011 issue of the Sociology of Sport Journal Messner had an article that made me say "damn, I wish I had written that"--of course I would have had to think of it first. (It also had a handy chart!)
In the piece "Gender Ideologies, Youth Sports, and the Production of Soft Essentialism," Messner uses his research on the gender ideologies he observed in youth sports, providing a theoretical context in which to understand these constructions. He calls it soft essentialism.
Soft essentialism is a gender ideology based on the perceived experiences of the professional class (though it functions hegemonically) in the United States in this era of "post-feminism." It is marked by a belief in choice--for girls and women, but leaves unexamined the possibility of choice for boys and men. It is, as Messner notes, a triumph for liberal feminism which has advocated for individual success through access to options/venues/professions from which women have been historically barred. Title IX, of course, is a product of liberal feminism.
While supportive of access to sport opportunities for women and girls, Messner writes of the problems with the "triumphant feminist tale" in women's sport history (p. 152). First--and this is something I try to explain to my students all the time--progress is not linear. The idea that "things" are better now than they were at some unnamed point in the past is too easy and not supported by history. This problematic teleology also erases differences in class, race, ability, age, geography and various other markers that greatly affect a girl's access to opportunities and "choices" generally.
Finally one of the most interesting paradigm-shifting points Messner makes is that soft essentialism leaves boys and men unmarked. Girls can choose to do sports or become mothers or work or wear heels and dresses or get married. Despite shifts in the construction of masculinity, boys are still largely deprived of the same level of flexibility (noting again that very few women have such flexibility when we take into account age, race, and class).
How does this relate to Title IX? The argument that anti-IXers proffer is often rooted in soft essentialism. Opportunities for girls--which they can choose or not--take away, the argument goes, opportunities for boys. Sports for boys are viewed as less of a choice and more innate--something they are "naturally" drawn to. Both girls and boys suffer when society interprets gender roles in this way. Boys are not allowed to be "flexible choosers." We have seen this before when people speak out against Title IX's alleged quota system. They note that girls like to do many different things (like band and drama and chorus and yearbook and newspaper and community service) while boys mostly just like sports. And, on the other side of the gender binary, when girls "choose" to do something else, this is seen as an unrestricted, freely made choice reflecting some kind of innate interest level.
Messner, in the conclusion, brings up the idea of integrating sport, noting its potential benefits and downsides and pointing to other research on the issue. I believe that in order for this to happen we need to value all versions of sport--in practice not just in theory--from recreational to professional. The competitive model of sport (in combination with hegemonic gender ideologies) that is most prevalent in our culture right now presents, I believe, the biggest obstacle to integration.

Research on attitudes toward girls' participation

A recently published (June 2011) research note on  attitudes toward participation opportunities for girls in sports found that high school students are generally supportive of providing sport opportunities for girls. The research, done by Marni Brown, Erin Ruel, and Stephanie Medley-Rath and published in the Sociology of Sport Journal, examined the attitudes of high school sophomores all over the country. They found that girls are significantly more supportive than boys with competitive male athletes being even less supportive. Racial minorities (with the exception of Latinos) demonstrated greater support for opportunities for girls than did their white peers. When they examined attitudes using socioeconomic class as a variable, the researchers found that as class status increased, support decreased. And lest we think that the northeast is most liberal enclave of all, the study found that support of opportunities for girls by northeasterners was not significantly different than that of southerners.
But again, and in contrast to similar studies of younger students, there was a finding of general support among all demographic groups. The authors speculate that one possible reason for this support is both age and the effects of Title IX in increasing opportunities for girls.

Castle Rock issues in front of school board

After some delays, the concerns of parents of Castle Rock High School student-athletes in Washington will be addressed by the school board in the next week and a half. 
As we have written about before, parents of girls on the soccer team asked for and were denied access to the football field (which has lights) for games that were being cut short due to darkness. The superintendent attempted to address the concerns, but parents were not entirely pleased with her recommendations, including additional training in gender equity issues for the school's athletic director. Some involved believe that training would not work for AD Neil Williamson because he knew that his decision was discriminatory. Some also feel that the recommendation for an athletic advisory committee would just add an additional level of bureaucracy they would have to negotiate.
Additionally, in a non-Title IX issue, parents requested that the original unlit field be made handicapped accessible. But apparently the accommodations are less than ideal. A portable accessible bathroom is in a grassy area that those in wheelchairs would find difficult, if  not impossible, to traverse.
While the school board has implied that some girls' soccer games will be scheduled in the football field, it seems that the discord created over the way the situation has been handled may have longer-lasting effects.
If, when the board issues its decision on the matter(s), parents are displeased with the resolution, the district will likely find itself a party in a lawsuit which, if previous cases are any indication, will likely reveal additional inequities. 

USC equestrians to receive locker room

A gender equity consultant hired by the University of Southern California found that the university must remedy an equal treatment disparity. Apparently, a problem about which the athletic department has been well aware will be fixed soon(ish--dependent on funding). The equestrian team is getting a locker room right next to its practice facility. There is a "lounge" there currently but no showers or lockers. As part of the new facility, which is expected to cost just under half a million dollars, a tack room will be added where students can store saddles.
No information on the above linked article about why USC hired a gender equity consultant or if s/he found anything else of note.
What I found interesting was that the team, which won the national championships in 2005, has grown since that time. The team now averages around 40 riders (and there will be 40 lockers in the new facility). The year it won the championship it had around 25 members. This roster growth offers come insight into how the school is demonstrating compliance with Title IX's equal opportunity provision. Good to see that as they add roster spots, they are also paying attention to the quality of the opportunities provided.

Article Proposes Scrutiny for Schools' Prong One Compliance by Contraction

In a new article in the DePaul Journal of Sports Law and Contemporary Problems, three authors propose that OCR should strictly scrutinize schools' decisions to comply with prong one by cutting men's teams. As the authors explain:

The first prong of the Title IX compliance test is currently abused and should not serve as a safe harbor for institutions unwilling to fund additional female participation opportunities. Strict scrutiny review of all Title IX compliance grievances would better protect educational student-athlete experiences. A “2011 Clarification” implementing this standard would hold financially capable schools responsible for meeting the viable athletics interests of all students rather than cutting educational opportunities to divert funds for football and basketball. The option of reaching Title IX compliance through reduction of men's non-revenue generating athletic programs should be used only as a last resort by athletic departments that truly cannot afford them. Under this standard, if male student-athletes' opportunities are cut, they can file a Title IX grievance requiring the university to prove the action furthers the compelling interest of increasing female opportunities and that no less restrictive means exist. The use of strict scrutiny in a Title IX setting would not always prove fatal to compliance measures because legitimate cuts would survive the standard. Instead, the use of a strict scrutiny standard for Title IX would provide much needed protection against the use of illegitimate and unnecessary means under the guise of remedying past discrimination.

My understanding is that under the authors' proposed standard, a university's decision to cut an inexpensive men's sport like track would not survive "strict scrutiny," because it doesn't free up any money to re-allocate to address existing disparities in women's sports. That would leave universities seeking to comply with the proportionality prong with the choice of either adding women's teams, or cutting back on the doesn't-generate-as-much-revenue-as-you-probably-think sports of football and basketball. Option A would be good for women's sports. Option B would still be bad for the men's teams that would be targeted instead, but the scrutiny on those sports could help curb rampant commercialism and arms-race spending in big-time college sports. It's an interesting thought.

Article is: Jesse M. Rappole, Thomas A. Baker III, and Kevin K. Byon, Exposing the Shell Game: The Need for a Narrowly Tailored Approach to Title IX, 8 DePaul Journal of Sports Law and Social Problems 1 (2011).

$1.35 Million Settlement Ends UC Davis Litigation

Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.

The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.

Retaliation Case Against Florida School District Survives Motion to Dismiss

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

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

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

Single-Sex Education Will Not "Save" Black and Latino Boys, Professor Argues

In an opinion piece on the Education Week blog, NYU Professor Pedro Noguera argues that coeducation single-sex education is not the solution to problem that young men of color experience lower graduation rates and other disparities in educational outcomes. Noguera points out that there is no scientific research supporting claims that separating young men into separate schools or classrooms is the best way to meet their needs. To be sure, there are single-sex schools that boast higher-than-average graduation rates for African-American and Latino boys, but Noguera suggests that what is most likely making them successful are characteristics other than their single sex design -- characteristics like strong teachers-student relationships, personalized learning environments, and a peer culture that values academics and character. In support of this suggestion, Noguera points out that co-ed schools like Thurgood Marshall Academy in Harlem have achieved success by developing these characteristics. School districts that adopt single-sex education as a single magic bullet to the problems facing young men of color are poised not only to fail the students they are trying to help, but to project harmful gender stereotypes onto boys and girls alike. Noguera urges schools to focus on solutions that provide "positive learning environments that meet the needs of the children they serve."

High School Athletes Win Title IX Trial

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

Dallas School District Takes Only Boys on Field Trip to the Movies

As reported here, the Dallas Independent School District is getting flack for its decision to take 5000 students, only boys, to the movies to see the film "Red Tails." Due to the high cost of such an outing -- $57,000 to rent buses and purchase tickets -- it wasn't feasible to include girls as well. So the school district's solution was to leave the girls behind, assuming, most likely, that girls would not be interested in a movie about the Tuskegee Airmen who fought in World War II.

If you're wondering, yes, this violates Title IX. As one expert put it:

"This sort of blatant gender discrimination is actually quite shocking in 2012."

Indeed. I hope the stakeholders in Dallas ISD are holding school district officials accountable for their poor judgment.

What's happening at Yale?

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Sexual Harassment Roundup

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)

Indiana Scheduling Practice Violates Title IX, Appellate Court Rules

Today the Seventh Circuit Court of Appeals ruled that a scheduling practice that reserves "prime time" Friday night scheduling for boys basketball games while relegating the girls' games mostly to the less preferential weeknights, violates Title IX. The case at hand was filed in 2010 by a former Franklin County, Indiana, basketball coach, Amber Parker against Franklin County school district, the Eastern Indiana Athletic Conference, and its high school members. Earlier, the district court dismissed the suit after determining -- without sufficient analysis, in my opinion -- that the scheduling disparity was substantial enough to constitute a denial of equal treatment under Title IX. But the plaintiff appealed, and today's appellate court reverses the lower court's ruling and reinstates the case.

Unlike the district court, the appellate court acknowledged that the scheduling of most girls basketball on weeknights has a negative affect on girls that constitutes a substantial deprive of equal treatment. For one thing, community members are less likely to attend weeknight games, which deprives the girls' teams of audience and community support. It also imposes on girls a larger burden that their male counterparts to balance sports with academic work during the week. Moreover, the court acknowledged that the scheduling disparity can harm female athletes in a psychological way because it casts girls' activities as inferior to boys. This inferior treatment, reasoned the court, contributes to the perception that girls' sports are "second class" and undeserving, a perception that deters girls from participating in sport, "in contravention of the purposes of Title IX." This perception is also transmitted to fans and contributes to their lack of support for girl teams.

The appellate court also reinstated plaintiff's claims that the schools' scheduling practices violate the Equal Protection Clause, which district court had wrongly dismissed on sovereign immunity grounds.

Evergreen School District Resolves Title IX Complaint

Evergreen School District in Washington State has reportedly entered into a voluntary resolution agreement with the Department of Education's Office for Civil Rights. Under the agreement, OCR agrees to suspend its investigation that was triggered this summer by a complaint that the school district favored boys baseball with better facilities, uniforms, and equipment as compared to softball. In particular, at two of the district's high schools, the complaint alleged that the district had neglected to repair damage on the softball fields, that the fields lacked drainage and irrigation, as well as fences, batting and pitching machines and cages, and proximity to bathrooms and drinking water.

For its part, the school district agrees to assess its baseball and softball programs along these lines and to devise and implement an action plan to address any discrepancies that the assessment reveals -- in other words, the school district agrees to do what Title IX already requires. The agreement provides deadlines by which the district shall accomplish these tasks, and affords OCR the opportunity to monitor and review the district's efforts.

35 years of participation data

We have, countless times during our research and writing about Title IX and equity in sports, said "thank goodness for Drs. Linda Carpenter and Vivian Acosta." For 35 years now these women have compiled and categorized and interpreted data about the participation of women as athletes, administrators, coaches, and other staff in intercollegiate athletics.
They just released the report for year 35.
Here are some of the highlights:

• The most women ever are employees (coaches, trainers, sports information directors, administrators, in intercollegiate athletics.
• Participation is the highest ever as is the number of teams per school (8.73 average)
• The number of women coaching women's teams is at the highest level since the start of the study.
• But 57.1 percent of women's teams are still coached by men as are 97-98 percent of men's teams.
• And only one in five coaches of intercollegiate teams are women.
• But there are 100 more women in head coaching positions today than in 2010
• One of the most interesting and startling statistics to me was that almost all schools have Sports Information Directors but only 9.8 percent are women. (Is there a connection between this stat and the lack of media coverage of women's sports?)
• And DI has the lowest percentage of women as SIDs (3.1%)
• Women are better represented as strength and conditioning coaches, though. In DI Football Bowl Subdivision schools there is at least one female S/C coach. (The issue remains though how many of those women are hired solely to train female student-athletes. This is the first year the study has addressed S/C coaches. Maybe in future years some of this information will be added.)

You can always go to the website linked above for more information about Title IX.

Retaliation Case Filed Against Jackson State

Denise Taylor, former women's basketball coach at Jackson State University, has reportedly filed a retaliation suit against the university in federal court. Her suit alleges that she was terminated with two years left on her contract in retaliation for threatening to file a Title IX complaint after she was denied the opportunity to attend the convention of the Women's Basketball Association. The university's stated reason for terminating Taylor's contract including "sexual gender stereotyping, verbal abuse and misappropriation of funds." As litigation proceeds, it will be Taylor's burden as the plaintiff to prove that the university's reasons are pretext, and that the real reason she was terminated was retaliation for threatening to file a gender equity complaint.

Possible progress in Castle Rock complaint

This past week's meeting which would have addressed the Title IX complaint against the Castle Rock school district (Washington) was postponed until next month. But administrators say they are taking steps to remedy some of the inequities upon which the complaint is based.
As we noted in November, parents complained that the girls' soccer team often had games cut short because of darkness even though the football stadium, which has lights, was not being used. Requests to use the stadium were denied for various reasons that will not likely trump Title IX's equal treatment standards.
Superintendent Susan Barker has said that the athletic director is being trained in how to assess gender equity in athletics programs (apparently it is not a job requirement to be aware of how to follow the law). Also there may  be an athletic advisory committee established, which would pass along recommendations to the school board. One of the things the hypothetical committee might recommend is that girls' soccer be allowed to use to the football stadium.
So it seems that more needs to be done in Castle Rock.
In the meanwhile, the girls' JV soccer coach has submitted a letter of resignation. (Her team often gets the brunt of the discriminatory treatment.)
Also, the stadium is not the only issue parents have. They would like addressed the issue of paying for uniforms, driving their children to games, the level of parent representation on any advisory board.

Parents will be speaking at the hearing schedule for late February.

University of Montana Football Players Linked to Wave of Sexual Assaults

An article in Huffington Post describes an alarming series of sexual assaults involving football players at the University of Montana. Most recently, an incident in which multiple football players are accused of drugging and raping two female students has produced felony charges and one admission of guilt. This incident has also apparently brought to light two prior allegations of rape committed by football players, that were reported to the University but which the University did not investigate or pursue disciplinary action.

The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.

An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.

Teacher Harassment Case Settles for $600K

The Susquehanna Township School District in Pennsylvania will reportedly pay $600,000 to settle a lawsuit filed against it by a former student who alleged she was sexually assaulted by a drivers education instructor, and who thereafter was harassed at school for filing charges against him. We have blogged about this case before when the court denied the defendant's motion to dismiss and motion for summary judgment. In the latter, the judge determined that the instructor's violation of school policies in the past should have put it on notice that female students were at risk. The judge faulted the school district for taking a “lackadaisical approach” to disciplining the instructor, noting that if officials had followed up to ensure that he was complying with, for example, the policy prohibiting him from being alone with students during "behind the wheel" instruction, it could have prevented plaintiff's assault.

The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.

Case Raises Question of Title IX's Application to Private High School

A recently-filed federal lawsuit claims that Poly Prep High School in Brooklyn violated Title IX by responding with deliberate indifference to knowledge that a football coach was sexually abusing his student-athletes. This case is vulnerable to dismissal on the grounds that Poly Prep is a private school that does not directly receive federal funds. But the plaintiffs' lawyer reportedly plans to argue that the school's tax-exempt status is the equivalent of a federal subsidy, and as such Title IX should apply. While there does not appear to be conclusive legal precedent on this question,one federal court has labeled it a "nonfrivolous argument" (for purposes of settling a question of federal subject matter jurisdiction) because tax exemptions have been deemed to count as federal financial assistance in the context of other laws. See M.D.H. v. Westminster Schools, 172 F.3d 797 (11th Cir. 1999).

Lacrosse League in Connecticut Faces Title IX Suit

The New Canaan Lacrosse Association, a private youth lacrosse league in Connecticut, is defending litigation claiming that it violates Title IX for failing to provide equal treatment to girls and boys. It is unclear, however, that the law applies, given Title IX's limited application to educational institutions and the fact that NCLA is not affiliated with any school. Nevertheless, the lawsuit has succeed in raising awareness about parental concerns about unequal treatment in the league, including providing boys with more money, equipment, supplies and experienced referees and a lower ratio of coaches players.

The article does not say whether the lawsuit also includes claims under the Equal Protection Clause, which prohibits sex discrimination by government entities as well as private entities with which they are closely intertwined. In my opinion, the league's use of municipal fields makes that at least a plausible argument, one more likely to apply than Title IX.

Public Single-Sex Education Vulnerable to Legal Challenge, Professor Explains

A recent essay in the National Law Journal by emerita Columbia law professor Vivian Berger criticizes the trend in single-sex education. Noting that the "bloom may be off the rose" in light of some recent, high-profile decisions to cancel single-sex classes, either voluntarily and/or in response to litigation pressure (see, e.g., here, here, here, and here), she points out there are more than 500 public schools that are either wholly single-sex or sponsor some number of single-sex classes. Professor Berger's observation is timely in light of Friday's front-page story in the Boston Globe, which reported on a controversial decision to segregate the first grade at a public school in Roxbury.

Professor Berger explains that these programs are vulnerable to legal challenges on a number of grounds. The Constitution's Equal Protection Clause, for one, prohibits states and state-sponsored entities such as public schools from relying on gender stereotypes, which are frequently the basis for sex-segregated classes. In addition, she points out, many sex-segregated programs violate the Department of Education's recently-revised Title IX regulations, which, while relaxing earlier restrictions on single-sex education, still require "substantially equal" alternative for members of the excluded sex: "This claim will usually be well-founded: Much sex-segregation involves charter academies, which offer benefits like lower student-teacher ratios and special curricula not available in regular schools." Last, Professor Berger points out that other federal agencies that provide funding for education also have Title IX implementing regulations, which still retain strict restrictions on single-sex education.

Professor Berger's observations about the legal vulnerability of hundreds of segregated public schools and classrooms raise legitimate questions about the role of government education and enforcement in this application of Title IX. As we noted on the blog yesterday, when OCR took a stand against universities' lax response to sexual assault, enforcement increased. A similar approach is certainly warranted in the context of single-sex education.

Stipend plan goes back to the drawing board

The NCAA Convention has been going on in Indianapolis. High-profile issues were on the docket this year including the controversial $2,000 student-athlete stipend. That the issue was pushed back to the working subcommittee that proposed it initially last summer was not surprising--in contrast to some of the news reports on the meeting. The subcommittee will work on some of concerns over Title IX, students on partial scholarships, and hopefully the concern many schools had over how to fund these scholarships when one isn't in the BCS. A new proposal is expected in April after which there will be a 60-day comment period.


A PS of sorts: membership voted NOT to reduce football scholarships or women's basketball scholarships.

Supreme Court Endorses "Ministerial Exception"

On Wednesday the Supreme Court decided that that First Amendment protected a religiously-affiliated elementary school from having to defend claims that it fired a teacher for reasons that discrimination on the basis of her disability. The Court concluded that because the teacher's job included religious instruction, the school's right to religious freedom precluded the application of antidiscrimination law. This decision is reportedly the first time that the Supreme Court has affirmed the concept of a "ministerial exception" to employment discrimination laws, though lower courts have applied this concept in the past -- including in cases involving discrimination on the basis of sex.

OCR Investigates Xavier University's Handling of Sexual Assault

In response to a complaint filed by a former student, the Department of Education's Office for Civil Rights is investigating how Xavier University handled that student's accusations of sexual assault directed at another student. Kalyn Burgio, the complaining student, alleged to the university that she was assaulted by Sean Marron in March of 2009. The incident occurred in the several-week period after Marron was had been found responsible by the university for a similar assault against another student, but before he was required to leave campus to serve his suspension.

Burgio alleges that when she reported the incident, the Dean of Students encouraged her to drop the charges in exchange for a promise from Marron that he would leave campus voluntarily. According to Brett Sokolow, a legal expert on campus sexual assault who was quoted in the article linked above, such a conversation, which amounts to the university negotiating on behalf of the accused, would not only be highly inappropriate, but retaliatory and a violation of the victim's civil rights. Such a deal also reportedly violated Xavier's disciplinary procedures, which allow the accused to waive a hearing only if he accepts responsibility for the charges.

Burgio further alleges that the university's disciplinary procedure, which did result in a finding that Marron was responsible for sexual assault against, was nevertheless procedurally flawed and biased toward protecting the university's reputation and accommodating the accused. She alleges that Xavier failed to inform her of her rights to file criminal charges, unduly delayed the disciplinary proceeding, and denied her academic accommodations. In addition, Marron was again allowed to finish the semester before his sentence of expulsion took effect.

This investigation is reportedly one of 30 open investigations being pursued by the Office for Civil Rights, and one of 40 complaints received by the agency since the beginning of 2011. The number of complaints has nearly doubled that of prior administrations, and is likely due to OCR's efforts to clarify universities' responsibilities to protect victims civil rights in the wake of sexual assault, efforts that have included a recent Dear Colleague letter and a couple of high-profile settlements.

Court Dismisses Claims in Bully-Suicide Case

Last week, a federal court dismissed claims filed by the estate of Jon Carmichael, a thirteen-year-old from Texas who committed suicide in March of 2010, after enduring years of bullying by his peers. The court reasoned that the plaintiff's complaint contained insufficient allegations that the bullying targeted Carmichael "because of sex," as required to sustain a Title IX claim. The complaint did allege that bullies had called Carmichael "fag, queer, homo and douche," which the plaintiffs argued suggested that he was bullied because he did not conform to gender stereotypes, and thus "because of sex." But the court dismissed that allegation of significant of a sexual or gender-based motive, pointing out that the statements accompanied a particular act of bullying in which Carmichael had been stripped nude, tied up, and put in in a trash can. According to the court,

Experience and common sense teach that bullies and harassers of this age are not particular about what they say when bullying and harassing their victims. While their words might reveal an animus based on the victim's male gender, they may also simply represent more generally a characteristic of the perpetrator's sociopathic behavior, regardless of the victim's gender.

In a way, the judge is right that what the bullies are saying as bully is not particularly meaningful or probative of motivation or intent. But the social context of male-on-male bullying makes clear that it's entirely about sex and gender. Whether its because the victim is short, not good at sports, or perceived to be gay, the point of bullying is to sustain a power imbalance between men and women by ascribing power to those who are most traditionally masculine (big, strong, straight, good at sports) and devaluing those who do not conform to that stereotype. Relatedly, many bullies bully in order to prevent themselves from being at the bottom of the pecking order within male groups and thus closer to the group (girls) constructed as inferior. While the court might rightly distinguish this motive from picking on the victim because of his perceived gender nonconformity, it is still bullying that is, at its core, about sex, because it is about the imbalance of power between (and thus, within) the sexes.

Decision is: Estate of Carmichael v. Galbraith, 2012 WL 13568 (N.D. Tex. Jan. 5, 2012).

How Diverse Are Women's College Sports?

Recently, the NCAA published the most recent school-year's participation data, which includes breakdowns by sex, race, sport, division, and conference. Because this data set goes back to the 1999-2000 school year, I decided to use it to look for trends in racial diversity in women's college athletics over the last decade. Several hours and few Excel spreadsheets later, I have the some questions and answers to report.

My first question was whether athletic opportunities for women in general increased during the time period in question.

• The answer, not surprisingly, is yes. Athletic opportunities for women at NCAA member institutions has increased by 31% -- from 147,683 in 1999-2000 to 193,207 in 2010-2011.
  
• Half of that overall increase is due to gains in three women's sports: indoor track, outdoor track, and soccer.
  
• Participation rates within most other women's sports increased as well. In addition to two emerging sports that were discontinued during the time frame in question -- archery and badminton -- only fencing, rifle, skiing, and synchronized swimming showed declining participation rates. All other sports gained some.
  

Next, I wondered whether opportunities for female athletes of color have increased during this time period as well.

• Again, the answer is yes. Opportunities for women of all minority races (Black, Asian/Pacific Islander, Hispanic/Latina) increased by percentages higher than the mean 31%. For instance, opportunities for Black female athletes increased from 14,001 to 21,615, or 54%. In comparison, opportunities for white female athletes increased from 117,244 to 144,598, or 23%.
• However, these gains for female athletes of color were not enough to significantly change the overall racial distribution of female athletic opportunities. In 1999-2000, 79% of female athletic opportunities went to white athletes, compared to 75% last year -- a change of only four percentage points. Meanwhile, the percentage of female athletic opportunities that went to Black women rose from 9 to 11 percent.

I then wondered whether the present distribution of female athletic opportunities by race is proportionate to racial demographics of the undergraduate population.

• The best data I could find suggests that about 8% of female college undergraduates are black (13.5% of college students are black; 59.3% of black college students are female).
  
• A total of 14,001 athletic opportunities received by Black women constitutes 11% of women's athletic opportunities, so Black women are not underrepresented in the distribution of women's athletic opportunities.
  
• Yet when you take into account the general underrepresentation of women in college athletics, the percentage of athletic opportunities for Black women is disproportionately low, since a total of 14,001 athletic opportunities received by black women constitutes only 3% of all athletic opportunities.
  

Last, I wondered if racial diversity within particular sports has changed over time.

• In 1999-2000, there were 14,001 athletic opportunities for black female athletes. 25% of these opportunities were in outdoor track, 21% in indoor track, and 23% in basketball. This not surprising, as reporters, scholars, and advocates have noted for years about this manner of racial segregation within athletics.
  
• Unfortunately, though participation rates are rising in almost every sport, including two new emerging sports that have been added in the last ten years -- bowling and rugby -- opportunities for black female athletes are still concentrated in track and basketball in percentages nearly identical to those ten years ago.
  
• Other minority races, though receiving fewer athletic opportunities than black women, were more evenly distributed throughout various sports. Latina/Hispanic women have 7747 athletic opportunities -- 17% in soccer, 14% in softball, 10% in track. Asian women have 3999 athletic opportunities -- 12% in soccer, 11% in tennis, and 10% in track. Finally, just 716 Native American/Alaska Native women have athletic opportunities at NCAA institutions, 18% of these are in softball, followed by 13 and 12% in outdoor and indoor track, respectively.

In sum, this year's NCAA participation data suggest there's been no drastic change in the diversity of women's college sports over the last ten years. Thanks to Title IX, opportunities for women to participate in college athletics continue to increase and close the gap between participation rates for women and men. Yet even though these increases produce opportunities for Black women that are proportion to their demographic rates on campus, their opportunities still remain clustered in track and basketball. With only two sports accounting for most athletic opportunities for Black women, questions must be raised about the accessibility of other sports to athletes of color.

Alma College wrestling reborn

We've largely gotten away from correcting all the little mistakes, misinterpretations, and misrepresentations of Title IX that occur in the media.
But sometimes one of them just strikes that nerve and...
A story about the rebirth of intercollegiate wrestling at Alma College in Michigan says that the program was cut in 1984 "in large part because of Title IX." This bothers me for two--related--reasons. One, a majority of the wrestling community blames the enforcement of Title IX for its demise in the 80s. And two, Title IX was not being applied to athletic departments in 1984. The Grove City decision came down in 1984. No school is going to cut a program for Title IX reasons while a Supreme Court decision over whether it will have to or not is pending.
Wrestling advocates argue that wrestling is growing in popularity. And the numbers support this. But that does not mean it has retained a consistent level of popularity or support over the past 40 years. That some wrestling programs are being (re)introduced is indicative of the ways in which athletic programs change with the times. And this is a good thing.
The president and trustees of Alma College say that the time was right to reintroduce wrestling because of the benefits it will bring to the athletic department and the school as a whole.
They did a feasibility study. Which means they must have run the numbers I just did.
So Alma has a 105-member football team. (These are the latest numbers reported to the Department of Education.) This presents a certain amount of challenges especially when the student body is 58 percent female. They added 26 opportunities for men with wrestling. Fortunately they added 28 for women when bowling and lacrosse got put in place this year as well. So these new numbers added to the old numbers (in other words, this is approximate) look like this:
Fifty-nine percent of athletic opportunities at Alma go to male students. Prior to the addition of wrestling and women's lax and bowling this year men had 60 percent of the opportunities.
In other words, not much changed.
Alma remains in compliance under prong two. Still the implication that the wrong/discrimination men experienced when wrestling was cut in the 80s seems a little misplaced given that women then and now have fewer opportunities at Alma College.

Preliminary Court Rulings Shape Ball State Retaliation Litigation

After Kathy Bull was terminated from her position as head coach of Ball State's women's tennis team (which we blogged about here), she filed a federal lawsuit contesting this decision as unlawful retaliation under Title IX and other laws. Last week, the federal judge in Indiana granted Ball State's motions to dismiss several of Bull's claims, resulting in a winnowing of Coach Bull's claims that could be headed for trial.

The court did not dismiss Bull's primary claim, that Ball State is institutionally liable under Title IX for firing her in retaliation for her advocacy for gender equity. But the judge did dismiss her claims against individual university officials, which she had filed both under Title IX as well as Section 1983, the statute that allows plaintiffs to seek judicial enforcement of constitutional violations. Title IX, of course, only provides for institutional, not individual liability. And while 1983 does allow a plaintiff to enforce constitutional claims against individuals who are state officials, it does not allow plaintiffs to sue individuals for money damages, as Coach Bull's complaint had apparently been framed. Further applying these protections for state officials -- known as sovereign immunity --the court dismissed individual claims against the members of the Board of Trustees, as well as state law claims against Ball State officials and trustees.

Decision is: Bull v. Bd. of Trustees of Ball State Univ., 2011 WL 6740549 (S.D. Ind. Dec. 22, 2011)

UNI Undertakes Title IX Compliance Review

The University of Northern Iowa is undertaking a comprehensive Title IX compliance review, officials announced this week. UNI reportedly has hired an outside firm to examine "'all policies and procedures that funnel into Title IX' including student misconduct, harassment and discrimination, communication, outreach and training." This kind of review is the first of its kind at UNI, which has in the past conducted a narrow review of its sexual misconduct policy but never one as broad as has been described. It also sets UNI apart from its peers, as this this article suggests, by undertaking a review that is broader than sexual abuse reporting policies as other public Iowa universities have done in the wake of the Penn State scandal.

The review will undoubtedly examine the university's response to a 2004 incident in which a female student was assaulted in her dorm room by two UNI football players. In 2007, the student sued the university, arguing that the university's hostile and indifferent response constituted a violation of Title IX. She argued that university officials treated her with "great animosity," denied her academic accommodations and a request to change dormitories, and failed to respond to reports that she was receiving harassing calls from players. After she was forced to quit school, the university sent her tuition bill to a collection agency and the dean of students told her she was disappointed "she didn't tough it out." All of this, if proven true, sounds like a classic case for institutional liability under Title IX.

This lawsuit remains pending, and there is no apparent, direct connection between the this litigation and the university's decision to undertake a comprehensive review at this time--i.e., there's no court order or settlement agreement telling them to do so. And obviously, changing problem policies going forward will not absolve the university for violations it may have committed in the past. All of this underscores the university's claims that it is taking this step in a voluntary, proactive manner. In that regard, more universities should follow UNI's lead, and review their sexual harassment and related policies not as a reaction to sexual assault, misconduct, abuse, and cover-ups, but in an effort to keep those things from happening in the future.

Cheer Team DQ'd for Having Male Member

As reported in the Bleacher Report, a high school cheerleading squad in Michigan was retroactively disqualified from a competition for violating a league rule banning male athletes from female teams. The article goes on to criticize the Michigan High School Athletic Association, which governs competitive cheer and other sports in the state of Michigan, for employing a double standard, because girls are allowed to try out for boys teams at schools that do not offer a girls team in a particular sport.

As the article points out, MHSAA defends its rule by arguing that it's necessary to preserve athletic opportunities for those whose opportunities have historically been limited. Clearly MHSAA is invoking the Title IX regulations here, which provide that when a school "sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." In other words, to have the right to try out for a cross-sex team, you have to be a member of sex whose athletic opportunities have previously been limited, and the sport in question is not a contact sport. There's no question that cheer is not a contact sport, but the other limitation to the cross-over exception clearly applies -- girls in Michigan have previously, and continue, to be underrepresented in athletics.

MHSAA's policy is not only legal under Title IX, it also does not qualify as a double standard, as the article claims. A double standard is when you extend different privileges to similarly-situated groups. When groups are not similarly situated, different treatment may be warranted. According to last year's participation report by the National Federation of High School Associations, there were 133,000 opportunities for Michigan high school girls compared to 181,000 opportunities for Michigan high school boys. With girls receiving only 42% of high school athletic opportunities in Michigan, it's not a double standard to say that girls, but not boys, can try out for cross-sex teams.

But even though MHSAA's policy is legal under Title IX, and deflects the charge of "double standard," I still would prefer participation rules that promote, rather than limit, cross-sex participation in sports. I think that girls and boys playing more often together, rather than apart, can ultimately contribute to breaking down gender stereotypes that are perpetuated when segregation is maintained. Schools need to address the gender disparity in opportunities, that is true. But rather than doing so by excluding boys from "girls" teams, the better approach is to commit to adding as many opportunities as it takes to match girls' interest in athletics, whether that be more freshman and JV teams in sports that girls already play, adding new girls' teams in sports that girls don't yet but could be interested in playing, and being more inclusive of girls on boys teams in sports where it is not feasible to add a girls' team.

Slippery Rock Settles Retaliation Suit

Slippery Rock University has settled on undisclosed terms the retaliation case filed against it by two female athletics officials, which we had earlier blogged about here. The plaintiffs had alleged that their employment contracts were not renewed in retaliation for their cooperation in an earlier lawsuit against the university that challenged the athletic department's compliance with Title IX.

Advocates Seeking Title IX Compliance Review of Penn State

Legal scholars have speculated on the possibility that Penn State's response to allegations of sex abuse in its athletics department could violate Title IX (see earlier blog post here). Last week, ten civil rights advocacy organizations sent a joint letter to OCR, imploring the agency to conduct a compliance review of the matter -- particularly, whether the university employed a different standard because athletics was involved. OCR is already investigating whether Penn State violated the Clery Act, which requires universities to disclose criminal incidents that occur on campus.

Coincidentally, this request for an OCR compliance review comes on the heels of this report on the trend of increased compliance reviews by OCR in the last two years. Hopefully OCR will take some of that compliance-review momentum and use it to broaden the scope of it its investigation at Penn State.

Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

DI Stipends Headed for Override

Christine Brennan doesn't mince words in her column in USA Today. The NCAA's new plan allowing Division I schools to pay full-scholarship athletes a $2000 cost-of-living stipend was "bad from the beginning, a ramshackle idea that saddled already-strapped athletic departments with another financial burden while also asking them to do something that appeared to be against the law." Brennan explains how the stipend proposal was hastily passed after it emerged from a working group lead by none other than disgraced Penn State President Graham Spanier. There is no indication that the NCAA took into consideration the financial implications on athletic departments that are desperate to cut costs in this economy, not add them -- as Brennan points out, only 22 universities out of the 331 in Division I actually have a profitable athletic program. Nor does it appear that the NCAA gave any consideration to the gender equity implications of this proposal; Brennan echoes our concern that limiting the eligibility to for the stipend to full-scholarship athletes creates an inherently inequitable situation because there are twice as many full-scholarship male athletes than female. (Citing AD Tom Osborne's objections along these lines, which we blogged about Tuesday, Brennan says, "When a crusty warrior such as Osborne has to teach the NCAA about the law [Title IX], it's downright embarrassing.")

The good news, Brennan reports, is that this plan appears to be headed for a rare override vote by the Division I membership, as 97 institutions have petitioned the NCAA to reconsider the stipend-authorizing legislation. Come January, the plan could be overhauled or even scrapped.

Mississippi High School Coach Sues District

Catherine Papagolos, former softball coach, filed suit against the Lafayette County School District in Mississippi, claiming that she was fired in retaliation for complaining about gender equity in her salary. Specifically, it is reported that she alleged she was fired after questioning why her salary was not comparable to that of the high school baseball coach.

While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.

Like We've Been Saying...

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Cal State students file harassment complaint

About a month ago I read about issues of harassment on the Cal State San Marco campus. At that time it seemed that groups of students were being targeted by a kind-of, sort-of campus publication whose purpose is hate-mongering. The publication called The Koala is actually a former Cal State San Diego publication that its founder (a CSUSD grad) has turned into a for-profit venture on several CSU campuses. It regularly, according to various reports, targets racial, ethnic, and sexual minorities as well.
A group of women and allies who did not enjoy the hostile content directed at women as a class (and some personal attacks against more outspoken women) and citing the publication's creation of a hostile and intimidating climate on campus, went to the administration seeking some redress. But they received none from the university. And so they filed a Title IX complain with OCR.
There continues to be pressure on the administration to take action against the publication including a petition at Change.org.

Title IX expert and adjunct professor of law, Wendy Murphy, is helping in the complaint process.

Division I Cost-of-Living Stipends Draw Objection from Faculty

When we blogged last month about the NCAA's vote to allow Division I institutions to provide athletes who receive full athletic scholarships with $2000 spending money stipends, we speculated that this proposal could exacerbate existing disparities in scholarship funds awarded to men and women, causing and contributing to member institutions' compliance problems under Title IX.

Reading a letter sent today to the NCAA from the Faculty Athletics Representatives, I came to understand why the problem is even worse from a Title IX perspective than I initially understood. The new rule only authorizes the cost-of-living stipends to athletes in so-called "head count" sports who receive full scholarships or the equivalent of a full scholarship when combined with other financial aid. Athletes in "equivalency sports" who receive receive partial athletics scholarships are not eligible for the stipend. While Division I allows up to 98 full scholarships in the men's head-count sports (football and men's baseball), there are only 47 possible female head count student-athletes (basketball, volleyball, gymnastics, and tennis). So there is no way an institution could fully fund its cost-of-living stipends and still comply with Title IX. FAR has requested that the NCAA amend the proposal to allow cost-of-living stipends in equivalency sports as well, which could theoretically allow institutions to spread smaller awards over more athletes in a way that could balance out the total dollars awarded overall.

We'll have to wait and see how NCAA responds to this proposal, and generally to the Title IX objections that have been raised.