Sexual Harassment Roundup

Here are summaries of some recent Title IX sexual harassment cases making their way through the courts:

The 11th Circuit Court of Appeals affirmed a decision dismissing a case against a school district deriving from a female teacher's sexual harassment and abuse of a 13-year old male student.  The court determined that the Principal did not have notice of the ongoing harassment nor other signs that the student was at risk.  The Principal, Whatley, did know of past complaints against the teacher, Elizabeth Gaddy, that she had crossed boundaries with students by sending them text messages, but the court rejected that this was sufficient notice of potential sexual misconduct.  The court also summarized all of the other things that the Principal knew about, before determining that that the plaintiffs did not satisfy the notice requirement for a harassment case under Title IX:

Whatley knew about complaints from teachers and parents that Gaddy was constantly sending O.K.K. [the student-victim in this case], and other students, text messages. He knew that Gaddy bought Christmas gifts for O.K.K. that J.F.K. [the victim's parent, the plaintiff] thought were inappropriately expensive, and that Gaddy took O.K.K. home in her car against J.F.K.'s wishes. He knew that Gaddy had been shopping for a baseball uniform despite having no sons. He knew that Gaddy and O.K.K. had been seen sharing a towel at a pool party and spending time alone inside the house, and later sharing a blanket with their legs touching on Gaddy's sofa. He also knew that Smith thought that Gaddy was too fond of O.K.K. and that another student's parent worried that Gaddy was “possessive” of O.K.K. by not letting any other girl “like” O.K.K. but her daughter. He knew that several parents, including those of cheerleaders, were complaining of Gaddy's excessive involvement in their children's lives and that Gaddy called some female students inappropriate and offensive names. He also knew that O.K.K.'s parents wanted Gaddy to stay away from him, although they told him they did not believe anything was going on between O.K.K. and Gaddy. It appears clear to this court that Whatley knew Gaddy's conduct was inappropriate, devoid of professionalism, and reeked of immaturity; however, despite this, her known conduct was not of the same type of conduct of a sexual nature.

Thus, it seems that in the 11th Circuit, the bar for actual notice is quite high, even in cases  involving harassment by teachers as opposed to fellow students.  J.F.K. v. Troup County Sch. Dist. 2012 WL 1538370 (11th Cir. May 3, 2012). 

Elsewhere, a federal court denied a school district's motion to dismiss a case involving claims of sexual harassment by a high school teacher.  The court agreed that a genuine issue of material fact existed as to whether the school district was on notice that a particular teacher posed a risk of harm to students, including the plaintiff, whom the teacher locked in the computer lab and attempted to touch in a sexual manner.  Earlier in the school year, the principal received a report that the teacher had touched another student's leg inappropriately, and responded to this report by reporting the matter to Child Protective Services, which did not take further action.   The Principal did not initiate an internal investigation, other than to keep a closer eye on the teacher in question.  Then, the Principal went on leave, without sharing his suspicions of the teacher with anyone else.  The incident computer lab incident involving the plaintiff occurred during this time. On these allegations, the court determined that a jury could find that the school district had sufficient notice to which it failed to adequately respond, so the court refused to dismiss the case and will instead let it proceed to trial.  C.B. v. Tibbetts, 2012 WL 1448308 (D. Ind. Apr. 26, 2012).

In another case, a court denied a plaintiff a preliminary injunction ordering the defendant school district to transfer her to a different high school outside of the school district, which the plaintiff was seeking as a response to sexual harassment and assault by other students she had suffered in her present school. The court determined that the plaintiff failed to demonstrate a likelihood of success on the merits of her case because school officials had responded to incidents about which they were made aware.  In particular, after learning that the plaintiff had been sexually assaulted by other students on two occasions in the past (a year prior, and a year-and-a-half prior, respectively) district officials responded by taking immediate steps to ensure the student's present safety, including making sure that the student did not have classes with either perpetrator.  Five months after this report, school officials worked with the plaintiff's parents to file a formal grievance with the school district's Title IX officer. That triggered an investigation in which both alleged perpetrators, along with other potential witnesses, were interviewed. The investigation did not produce sufficient evidence to warrant expelling either student.  But the district did provide or offer numerous other accommodations to the plaintiff, including counseling and that a school employee "shadow" the plaintiff to address her concerns for safety, were offered to the plaintiff.  Emphasizing that the law does not require school districts to  provide a particular response, just a reasonable one, the court denied the plaintiff's request for a preliminary injunction requiring the school to transfer her out of district. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2012 WL 1521060 (S.D.N.Y. Apr. 30, 2012). 

Butler University Resolves OCR Compliance Review

The Department of Education announced this week that it has entered into a resolution agreement with Butler University, which had been the subject of a compliance review by the Office for Civil Rights.  A compliance review is different in than the typical investigation that we usually write about here, in that it is initiated by the agency rather than triggered by a complaint.  According to its website, OCR initiates compliance reviews in order to "target resources on compliance problems that appear particularly acute."  I'm guessing that Butler's extreme disparity in proportionality -- a 23 percentage point difference between the percentage of female undergrads (59.5) and the percentage of athletic opportunities for women (36.5) -- is what appeared "particularly acute."  While proportionality is not the only way to measure compliance, such a low percentage of female athletic opportunities certainly raises suspicion about whether sufficient progress is being made to satisfy prong 2, and the likelihood of unmet interest in violation of prong 3.

The resolution agreement requires Butler to demonstrate by Sept. 1 that it is accommodating effectively the interests and abilities of female students. Or, if they are unable to demonstrate that, they must submit a detailed plan to increase athletic participation opportunities for women over the next three academic years.

How often does OCR initiate compliance reviews like this on its own?  According to its 2009 Annual Report to Congress, OCR initiated 1 compliance review related to Title IX athletics issues in FY 2007 and 16 in FY 2008.  This is a pretty small percentage of OCR's Title IX enforcement work, given that it receives hundreds of Title IX complaints every year.  As far as I'm concerned, OCR shouldn't have to do this; universities are already on notice of what Title IX requires, and that includes being able to demonstrate that interests and abilities are being satisfied (unless of course, they satisfy proportionality, as few do).  But until schools like Butler get the message that monitoring Title IX compliance is an active and ongoing endeavor, OCR should be doing more compliance reviews, not less.

Title IX Coverage Ramps Up in Anniversary Year

It's hard to keep up with all the Title IX news this spring.  Title IX's 40th anniversary is in June, and the media is ramping up its coverage of our favorite statute.  So far, most of what I've seen has a sports/athletics angle, much of it celebrating women's accomplishments in sports in the last 40 years.  While many of these retrospective pieces are not "news" per se, the fact of so much coverage surely is, so I want to make sure to acknowledge them here on the blog.  Here is some of the recent coverage of Title IX's 40th that I've seen:

• Sports Illustrated has a special 40th anniversary issue, including
• Ann Killion comments on the cultural change evoked by Title IX. 
• Beverly Oden comments on the impact of Title IX on women's lives.
• Holly Anderson praises Pat Summitt, Title IX, for gaining respect for women's sports. 
• And SI counts down the "top forty" female athletes.
• At Huffington Post, Judy Patrick summarizes the success of Title IX in athletics and the classroom.
• ESPNW profiles Birch Bayh, the Senator who sponsored the Title IX bill.  
• ESPNW profiles lacrosse coach Pat Genovese, 
• ESPNW demystifies Title IX with "Five Myths About Title IX."
• The Boston Globe celebrates Title IX's 40th.
• Helena Independent Record reports on how local athletes reflect on Title IX. 
• Daily Texan carries this article on Title IX's effect on women's college golf. 

So much media agrees -- Title IX is worth celebrating! There's still a long way to go, and not everyone is on board with the positive message (see, e.g.).  But it's great to see so much positive coverage in the media.  Title IX has only lasted this long due to overwhelming public support.  I think that the 40th anniversary coverage can only help as the law gears up to tackle the remaining challenges ahead. 

Firing of Transgender Student-Teacher Raises Title IX Concern

A Wilmington (Ohio) College senior student-teaching at area Hillsboro High School was dismissed in January on his second day of placement.  Recently, however, the Wilmington News Journal raised questions about the role of discrimination in that decision.  The student-teacher believes he was dismissed because he is transgender, appearing and identifying as male though assigned a female sex at birth.  School district officials cited vague concerns about a breach of ethics to explain the termination, having taken issue with the student-teacher's decision to explain his identify to the class, as a means of putting questions and rumors to rest.

The article quotes a Department of Education spokesman explaining that Title IX's prohibition on sex discrimination includes discrimination on the basis of gender nonconformity.  It also notes that the EEOC, the federal agency that enforces Title VII, the law that prohibits sex and other forms of discrimination in the workplace, recently interpreted sex discrimination to include discrimination against transgender individuals.  However, the student told the reporter that he is not planning to file a complaint against the school district.   But even though it looks like the school district won't be made to answer for this decision in court, the school district ought to take this opportunity to reexamine and recommit to its nondiscrimination policy, to avoid legal trouble in the future. 

Update in Montana Case

Here is an update on the complaint filed against the University of Montana charging that it has violated Title IX by failing to properly handle numerous incidents of sexual violence against female students, including many involving members of the football team.  The complaint was filed with the Department of Education's Office for Civil Rights, as we noted in a previous post.  This week it was announced that the Department of Justice will be conducting an investigation. As reported by Reuters,

The Justice Department probe will examine the inner workings of the university's public safety office, the Missoula Police Department and the Missoula County Attorney's Office.

Additionally, the department will review whether the university is complying with federal laws specifically barring sex discrimination, defined as including sexual assault and sexual harassment, in education programs, officials said.

The Department of Justice has wider jurisdiction than the Department of Education, which allows it to conduct a more comprehensive investigation that is not limited to the University, but to local law enforcement as well.  Such a comprehensive investigation, which as far as I know is unprecedented for addressing campus sexual violence, seems warranted in this case due to the arguably widespread incidents of rape in the community and on campus. The police received 80 reports of rape in the last three years, and 11 incidents involving students have come to light.  Investigating both the university and the local police together will provide unique insight into how those two entities handle related and overlapping jurisdiction when it comes to protecting students and disciplining offenders. 

Schlafly tries to side with OU

The University of Oregon is asking a federal court of appeals to overturn the ruling by a ninth circuit three-judge panel that said a former doctoral student's Title IX case against the university was worthy of a trial.
We have blogged about this case here--so I won't recap all the details.
It is not surprising that UO has asked for the panel's ruling to be overturned.
What is slightly more so--to us and to the university I think--is that the Eagle Forum, an organization headed by noted conservative Phyllis Schlafly, is trying to join in the case on the side of the university. Overturning Title IX because, they argue, it discriminates against men, has long been on the Eagle Forum's agenda.
But the university is now caught in a little predicament. Eagle Forum wants Title IX in front of the Supreme Court for an opportunity to be overturned or weakened by the conservative-leaning court. But the university doesn't want Title IX overturned--they just want this case to be re-framed: as one of academic freedom.
I don't quite buy that--especially because this incident at Appalachian State has been on my mind and given the lengths professors who teach perceived controversial material are taking to protect themselves from student allegations these days. This looks like a retaliation case. That is what the Ninth Circuit Panel saw. It should go to trial. 

NCAA Provides Model Policy to Prevent Athlete-Coach Relationships

The NCAA has come out with a very clear position on sexual relationships between coaches and student-athletes.  They are wrong.  They are a serious problem.  And they must be "unambiguously and effectively prohibit[ed] to ensure that sport programs offer a safe and empowering experience for all student-athletes."

This week, the NCAA is sending to its members a publication called "Staying in Bounds: A Model Policy to Prevent Inappropriate Relationships between Student-Athletes and Athletic Department Personnel," which is co-authored by law professor Deborah Brake and author/journalist/athlete Mariah Burton Nelson.

Off the bat, the authors make clear that they are talking about all romantic, sexual, or "amorous" relationships between coaches (or other athletic department staff) and student-athletes, even if they are professed to be consensual.  As the authors explain, there is a significant power differential between student-athletes and coaches (and athletic directors, and training staff), who spend intense and intimate time together.  As such, coaches who cross that line necessarily abuse that power, and their actions constitute sexual abuse.  It makes no difference that both parties are technically adults.

As a legal matter, many sexual relationships between coaches and athletes violate antidiscrimination laws such as Title IX, exposing schools to the risk of liability.  The power and influence coaches have over their athletes may suggest the absence of consent, which is an element of sexual harassment under the law.  And even in cases where the relationship appears "welcome," the university could be at risk of liability under Title IX due to the negative effect the relationship is likely to have on the other members of the team.  The authors suggest that prohibiting all sexual relationships between coaches and student-athletes is a prudent step to managing the risk of liability.

But even setting aside concerns for liability, banning athlete-coach relationships is necessary as a matter of professional ethics.  Other professions prohibit relationships between adults where a power difference obscures consent, such as the ethic that prohibits doctors and therapists from having sexual relationships with their patients.  Still others guard against relationships that are detrimental to the moral of a group and its trust in those with power, as in the cases of judges bound by ethics to avoid the "appearance of impropriety" including sexual relations with those who appear before them, and members of the clergy who regard it unethical to have sexual relationships with a parishioner.

With these considerations in mind, the authors make the following recommendations to  NCAA member institutions:

• Institutions should have free-standing policies addressing amorous relationships and not leave it to be covered by a general policy on sexual harassment.
• The athletics department should have its own policy on amorous relationships, rather than assume coverage under a university's general policy on relationships between staff and students.
• The policy adopted should prohibit sexual or romantic relationships between all coaches and athletes, not just coaches and the athletes on their team.
• The policy should not create an exception for coaches who are married to an athlete.
• The ban should continue for at least two years after the athlete/coach relationship has ended.
• The policy should prohibit retaliation against anyone who reports a violation.  
• The policy should provide for enforcement and discipline for coaches who violate it.
• The athletics department should educate coaches, staff, and student-athletes about the policy. 

As the authors note, many view coach-athlete relationships as harmless and benign. For that reason, there is likely to be some initial resistance to the model policy.  This publication is the first step toward challenging society's complacency on this issue, and I'm hopeful the policy recommendations it contains will ultimately be embraced widely. Kudos to the NCAA for taking a strong stand against this demonstrated threat to athlete well-being and to the authors for presenting shedding such clear light on the issue. 

Sometimes you have to look beyond Title IX

We have been writing a lot lately about Title IX and sexual harassment and sexual assault. We noted that when judicial boards/courts consider sexual assault there is a different standard of proof than what is demanded by criminal courts.
Well, in Missouri last week, a state appeals court ruled that plaintiffs can now use the state's Human Rights Act to sue schools when sex discrimination is alleged. The ruling is in the wake of a lawsuit brought by parents of a boy who claims who was repeatedly assaulted by another male student in an elementary school. Plaintiffs lawyers are pleased because the Missouri Human Rights Act does not require, as Title IX does, for the schools to exhibit "deliberate indifference" to the situation. The HRA, which has been used in cases of sex discrimination in work places, only states that the defendant--in this case, the school district--knew or should have known about the discrimination/harassment.
It seems that the school district might appeal the ruling.
There's an interesting parallel here to the ways in which female students who wanted access to contact sports (exempted from Title IX) the federal law to their own state's Equal Rights Amendments in order to gain access.

OCR letter engenders changes

Inside Higher Ed has a piece about the changes that have occurred within the judicial bodies at various institutions in the wake of OCR's 2011 Dear Colleague Letter reminding schools of their need for Title IX compliance in regards to sexual assault and harassment.
The article specifically focuses on the honor court at the University of North Carolina (Chapel Hill) which recently decided to remove sexual assault cases from their docket. Those on the honor court, comprised entirely of students, could have been trained to specifically to handle sexual assault cases and remain in compliance with Title IX, but they opted to develop a new system for students seeking redress after alleged sexual assaults. Those involved hope that a new system will better serve the needs of victims, noting that the current honor court is likely seen as discouraging victims from coming forward.
The article also notes other schools that have adjusted their judicial boards, some of which contain faculty and staff members in addition to students. The goal, of course, is to develop a system from addressing claims of sexual assault that takes into consideration the climate and history of the institution as well as the needs of the parties involved.

Title IX Legal Scholarship Update

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

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

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


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


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

Washington Post Covers Title IX and Campus Rape

Title IX's application to campus sexual assault was in the news this weekend, as the Washington Post profiled colleges' and universities' response to accusations of rape in the wake of the Department of Education's 2011 Dear Colleague Letter (DCL) which clarified schools' obligation under Title IX to investigate charges and effectively discipline those responsible.  Most of the article focused on the letter's requirement that schools use the "preponderance of evidence" standard to evaluate the case against the accused, rather than the more onerous "beyond a reasonable doubt" standard that is reserved for criminal matters where sanctions such as prison sentences are at stake. The article frames a controversy about the burden of proof by telling two stories.  In one, a rape victim is vindicated by her university's judicial process after the police refused to press charges, as they often do, due to the difficulty in satisfying the criminal burden of proof in matters that, typically have only two witnesses, the victim and the accused.  In another story, a male student was railroaded through a university "kangaroo court" after being accused of rape by a woman with whom he'd had consensual sex.  Police later brought charges against her for filing false charges, but not before the accused was expelled from school after university officials refused to hear his side.

While not denying that false reporting (a) happens, (b) is wrong, and (c) should be guarded against in the disciplinary process, I think the article creates a false linkage between what happened to that falsely accused student and the DCL.  It sounds like the university failed to investigate thoroughly and to give equal treatment to both sides, as Title IX and the DCL require. Blaming the preponderance standard in that case is like blaming the level playing field for a game you lose due to bad call from a biased referee. It's not fair to use that story to anchor the suggestion of opposition to the DCL, given that it doesn't appear the DCL was followed in that case. 

Maryland cuts comeptitive cheer

The first DI school to raise the issue of cheerleading as a sport, Maryland decided last week to cut the team now known as acrobatic and tumbling or acro for short. The acro team is one of 8 varsity teams being cut at Maryland which is suffering from huge budget deficits.
In 2003 UMD made its cheer team a varsity sport, believing other schools would follow quickly. Others schools have followed (only 5 in DI though), but obstacles remain.
At the forefront is the "is it a sport" question. Sure--if it's treated like a sport. In other words (and in the context of intercollegiate athletics): does it exist solely to be a sport (and not a support system from other sports)?; is the team and the athletes provided the same level of support in all program areas as other existing sports? Meeting such conditions would clear the way for OCR to offer approval and thus make it count for Title IX which is what most schools are looking for: a cheap sport to even the numbers. (Though, as I have said before, I don't think a sport the highest rate of catastrophic injury will necessarily be cheap.)
But the NCAA is another obstacle. The activity formerly known as competitive cheer isn't recognized as a sport by the organization. So they won't count it yet--or sponsor a championship for it.
And the schism in the cheer community between acro and its competitor--stunt--makes NCAA approval an interesting prospect/process.
Check out the recent issue of TIME for more on the issue and to see Erin's quote.

OCR Complaint Filed Against University of Montana

It's reported this week that OCR will be investigating received a complaint filed earlier this year against the University of Montana, alleging sexual abuse and rape involving the football team. Details in the article are scarce, as the press received a redacted version of the complaint in order to protect the confidentiality of whomever filed it.

However, news out of Missoula over the last several months offers several clues as to the nature of the complaint and the likely scope of the investigation. The University of Montana football team was in the news last December, when three of its members were accused of using a date-rape drug to assault three women on campus. While one was eventually arrested and charged with rape, the University was criticized for its response, which included hiring a retired judge to conduct an independent investigation. Some saw as an unnecessary step, a delay tactic, and a public relations move. In any event, the judge's investigation eventually revealed nine cases of alleged sexual assault or attempted sexual assault involving students in the 16 months ending in December 2011. Many of these complaints were withdrawn by the victim or not pursued by the university.

Then, in February, a female student got a restraining order against the team's quarterback, and no charges were filed.

Last month, the University announced that it would not renew the contracts of its very successful head football coach Robin Pflugrad and the athletic director Jim O'Day. The University did not accuse either man of attempting to cover up a rape culture among the football team, but, reportedly, that is what many believe.

My guess is that OCR's investigation will shed some light on that very question.

Niagara cuts women's ice hockey

Found out, via Twitter, yesterday that Niagara University is cutting its women's ice hockey team because it is too expensive--and apparently underperforming. Apparently, after a strong start (the team made the Frozen Four only four years after its establishment), the team has not done well.
The school, which has (according to the latest Department of Education data) a 59% female undergrad population, has 53% of its athletic opportunities going to women. That is with hockey. Without hockey that statistic goes to 45%. The school has announced it will add women's track and field. Right now it looks like NU has cross country for both men and women. The addition of track and field for women means that there will be "new" opportunities for female student athletes, but that some of those are likely to be filled by current cross country runners--which is fine and legal and all.
It's just a little disappointing that to save costs, the university has decided to draw support from it's women's ice hockey team, but keep the men's team, and add what will likely be fewer opportunities overall because of the duplicate athletes (of which NU currently has none).

Michigan high school softball field controversy

The girls' softball team in Avondale, Michigan is embarrassed by the condition of their field. And the players and their supporters are wondering where the money earmarked for the facility's improvement have gone--as they stare at the newly renovated boys' baseball facility that has a dedicated field for the junior varsity team. And even as they ask questions about where the promised improvements are, many know nothing will happen in the immediate future. So the girls are working with administrators on an arrangement that would allow the softball team to share the JV team's field. (Not sure how they will deal with the differences in the field dimensions, but I would imagine they have a plan.)
Best line of the article:
At the very least, Avondale made a mistake in timing. After all, shortchanging a female team on the 40th anniversary of Title IX isn't the best way to win plaudits from equal opportunity advocates.

New volleyball coach at Quinnipiac

Apparently hedging some bets about whether the court will lift the injunction against the school cutting women's volleyball, Quinnipiac has hired an interim head coach for the program. As you might recall, coach Robin Lamott Sparks was fired and escorted off campus a couple of months ago for reasons that remain unspoken. Yes, there was the bad record--but bad records don't generally warrant security escorts.
Meanwhile, QU has been trying to cut the team, but has been prevented by an injunction that stemmed from the case that became famous for addressing the "is cheerleading a sport" question. QU has requested the injunction be lifted; that issue will be determined later this spring.
Meanwhile, the university has brought on board Kristopher Czaplinski who had been serving as an assistant coach at Post University. He has also been involved in Junior Olympic program.
Not quite sure how the university convinced him to give up an actual job for one that might be gone by the summer. It's possible he will get a shot even if the injunction is lifted. We shall see...

New York Times Examines Coach Salary Disparity in Basketball

Tonight, Baylor and Notre Dame will play for the NCAA championship in women's basketball, so the New York Times chose today to run an article about salary disparities between coaches of men's and women's teams. According to the article, the coaches of women’s college basketball teams are paid about one-half or one-third of the amount of the men’s basketball coach. There are a few exceptions, like Tennessee's Pat Summitt, whose $2.2 million annual salary is actually more than her men's team counterpart, and Geno Auriemma, who makes two-thirds of UConn men's team coach Jim Calhoun. But in most cases, men's basketball coaches (who are almost always men) are paid two- or three- times more than the coaches of women's teams, whether they are male or female.

The article then examines factors that contribute to this disparity, which defies the general principal under Title IX that men's and women's teams receive comparable resources, including coaches of equal caliber, and the Equal Pay Act, which prohibits paying women less for equal work. One source of the disparity is third-party sources of income, like endorsements and speaker fees. Men's coaches are also able to capitalize on market forces that make their summer camps a profitable endeavor, while women's team's summer camps are generally recruiting tools that break even. The article also notes that unlike the coaches on the men's side, whose teams receive favorable treatment automatically, coaches of women's teams use their employment contract to secure amenities for their teams. This presumably cuts into their bargaining power to leverage higher salaries.

The article also provides some insight into law's limited ability to address disparities in head coach salaries. Title IX's limitation in this regard is that it is student-focused. The law requires equal treatment for men's and women's teams, which includes the quality of coaching each program receives. Quality of coaching is of course a function of the compensation available. But the overall market for salaries in women's sport generally allows universities to purchase a coach of comparable quality to head their women's teams, just at discount prices.

The Equal Pay Act is also implicated by salary disparities, but limited in its ability to address the problem. For one thing, as the article notes, third-party payments like endorsements are outside the scope of the Equal Pay Act. (I do think, however, that a case could be made for including booster club payments as part of the equal pay equation, by analogizing to Title IX, which requires school districts that accept funds raised by one team's boosters to still provide equal treatment to boys and girls teams.) Another limit is that the Equal Pay Act provides a remedy to women who are paid less than men for equal work -- it doesn't apply to male coaches of women's teams who may be paid less than male coaches of men's teams. And even where the Equal Pay Act does apply, universities can justify disparities in base pay by arguing that the male coach has more job responsibilities -- even if such additional job responsibilities are seemingly manufactured for that purpose, such as requiring the men's team coach to make 20 public appearances and the women's team coach15 (an example from the article). The Equal Pay Act also allows universities to justify paying male coaches more based when their team brings in more revenue, even though this disparity is due to to external market forces rather than the respective effort that each coach puts into the job.

Reversing the Trend of Declining Women Coaches

This article on ESPN.com addresses the dearth of female coaches in a way that appropriately puts the responsibility on colleges and universities to make sure that it is reaching out to a diverse pool of candidates as well as creating a working environment that is friendly and conducive to coaches of both sexes. I have just one complaint about an obvious omission. If you want to attract female coaches, you have to make sure that your institution is doing right by lesbians. No, I don't believe that all aspiring female coaches are gay -- of course that's not true. But some are. Many are. If you want to attract the largest possible pool of female applicants, you should also be asking the following questions, in addition to the advice about that the ESPN article provides about recruiting, mentoring, networking, and supporting female coaches.

• Does your institution have employment policies that are gay and lesbian friendly? For example, do you have a nondiscrimination policy that includes sexual orientation as a protected class, and do you offer domestic partner benefits?
• What has your department done to address the problem of negative recruiting? (Negative recruiting is the practice of mentioning another coach's perceived lesbianism to potential recruits and their families in an effort to gain a recruiting advantage over that coach.) Do you have a zero-tolerance policy for coaches who engage in negative recruiting, and have you stood up for coaches against whom negative recruiting has been used?
  
• What is the culture and climate of your athletic department? Are all coaches' partners and families welcome at events? Are gay and lesbian staff members as free as anyone else to talk openly about their partners and families?
  
• Do your media guides provide equal treatment to coaches' nontraditional families, or do they only mention coaches' opposite-sex spouses?
• Are recruiting materials using code words like "family friendly" or "Christian values" that may be signaling discomfort or exclusion of lesbian coaches?

See also, this article in New York Times about dwindling number of female head coaches in women's hockey. It too provides a comprehensive analysis of the problem, but fails to mention homophobia in sport as a contributing factor.

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

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

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

Court Dismisses Case Challenging Title IX's Application to High School

Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.

The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.

To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.

Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)

Tite IX claim survives in sexual assault case

In Allentown, Pennsylvania a judge has a ruled that a Title IX claim against the school district can go forward. Judge Paul Diamond dismissed civil rights claims brought by five alleged victims of sexual assault by an older student at Central Elementary School, but has ruled that the Title IX claims of four of the victims--all boys--can proceed, calling the school's response to the alleged sexual assaults "wholly inadequate." This lawsuit began in 2006 with one boy coming forward to say he had been assaulted. Last year, four others joined the lawsuit. Lawyers for the boys say the school did not take enough measures to ensure the assaults stopped even after being made aware both of the initial assaults and the alleged perpetrator's own history with sexual assault and misconduct.

No evidence of discrimination in SC high school

About nine months ago, we wrote about a complaint filed in Kershaw County, South Carolina where parents of a high school cheerleader felt the team was not being treated equally. Also there was some financial sketchiness about where the cheerleading team's money had gone.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.

Ninth Circuit Reinstates Grad Student's Retaliation Case

Monica Emeldi, a graduate student in the University of Oregon's Department of Education, sued her institution under Title IX after the faculty chair of her dissertation committee resigned in ostensible retaliation for her complaints about gender equity within the department. A federal district court had earlier granted summary judgment in favor of the university, but yesterday, an appellate panel of the Ninth Circuit Court of Appeals reversed that ruling and reinstated her case.

According the Ninth Circuit's analysis, Emeldi satisfied the basic elements of a retaliation case under Title IX, including that she engaged in "protected conduct" when she presented a memo to department officials summarizing graduate students' complaints about the department's bias towards male graduate students and failure to hire female faculty members. Soon thereafter, Horner, the chair of her dissertation committee resigned, a consequence that the court agreed was a consequence that a jury could find "materially adverse" that "might have dissuaded a reasonable [person] from making or supporting a charge of discrimination."

Last, the court determined that Emeldi presented sufficient evidence on which a jury could conclude that Horner's resignation was related to her complaint, including evidence of the proximity in time between Horner's resignation and Emeldi's complaint, that Horner knew about Emeldi's complaint, Horner's gender bias in other contexts, such as favoritism to male graduate students, that Horner resigned without helping Emeldi secure a replacement chair, that Horner had in the past praised Emeldi's work, which suggests that Horner did not resign for nondiscriminatory reasons that he claimed, and that Emeldi was unable to find a replacement chair even after asking fifteen other members of the department.

One judge, however, dissented from the majority's conclusion that Emeldi's case should have a chance to reach a jury, basing his objection primary on Emeldi's failure to provide corroborating evidence by other witnesses and relying instead on her own affidavits and testimony. The dissent concludes, "Title IX's worthy antidiscrimination objectives notwithstanding, to let Ms. Emeldi's claims go to a jury will serve only as a precedent-setting example of how little it takes to turn a failed supervisory relationship between a professor and his Ph.D. candidate into a federal case of gender discrimination."

Emeldi v. Univ. of Oregon, 2012 WL 933821 (9th Cir. Mar. 21, 2012).

Pregnancy Discirmination Lawsuit Filed in New Mexico

Last week the ACLU filed a federal lawsuit on behalf of an eighth-grade student at Wingate Elementary School in Fort Wingate, New Mexico, for discriminating against the plaintiff, Shantelle Hicks, on the basis of her pregnancy in violation of Title IX and constitutional law. According to the complaint, school officials initially told Shantelle. that she could no longer attend school after she told them she was pregnant. They encouraged her to enroll in an alternative high school with a program for pregnant teens. However, when Shantelle asserted her right to remain in school -- Title IX regulations allow students to enroll in special programs for pregnant students, but only on a voluntary basis--school officials endeavored to drive her out by humiliation. At an assembly of the entire middle school, school officials announced Shantelle's pregnancy, which had been private matter until then.

The complaint alleges violations of Title IX arising from both the school's decision to exclude Shantelle from Wingate and from the announcement of her pregnancy as retaliation for asserting her rights to remain in school. The complaint also alleges that the school's disclosure violated her due process right not to have private information revealed, as well as violating her First Amendment right by attempting through retaliation to deter her from asserting her right to continue to attend school. The lawsuit seeks damages from emotional harm, declaratory relief, and an injunction requiring school officials to attend training about pregnancy discrimination.

Wingate Elementary is a boarding school run by the federal Bureau of Indian Affairs.

Staurowsky Cheers NCAA's New Title IX Compliance Guide

Recently, the NCAA published Equity and Title IX in Intercollegiate Athletics: A Practical Guide --- available here and now permanently added to our blog's resource links. The authors of this guide are attorneys Janet Judge and Tim O'Brien.

As Professor Ellen Staurowsky humorously notes in a column at College Sports Business News, this is what sports fans are waiting for in March -- the opportunity to pour not over brackets, but over a step-by-step compliance guide addressing all three prongs, the entire laundry list, pregnancy, harassment, retaliation, and equal pay. Well, she admits, announcement of this new compliance manual probably did not invoke spontaneous applause, but it is something worth cheering about. As Staurowsky explains,

This generation of young professionals coming soon to an athletic department near you as future employees will not have the latitude as their predecessors once did to wave off responsibility to affirmatively comply with Title IX... The hand of the ticking clock of Title IX compliance has struck the hour of “no more excuses”.

Staurowsky encourages college athletic departments not to deterred from tackling their compliance responsibilities, now clearly laid out before them, by claiming other priorities or lack of funds. Indeed, she surmises, an internal review of Title IX compliance might be "the opportunity to devise and adopt financially sustainable college sport budgets responsive to those enduring problems associated with the financial arms race." It's the Title IX-avoidance mentality that creates the bad spending habits that eventually, after costly litigation, result in "facial cutting of programs that did not result in an interruption in the spending patterns that created problems to begin with but were traumatic nonetheless." By getting out ahead of Title IX compliance, schools can implement balanced priorities that take women's and men's athletics into account and do right by student-athletes for whose sake college sports exist in the first place.

More coaches in PA?

Parents of student-athletes on the girls' cross-country and softball teams have gone to the Daniel Boone School Board (in Pennsylvania) asking why their teams do not have assistant coaches. The boys' baseball team has an assistant coach. Worried about the safety of the members, parents are asking for funds to pay for assistant coaches for these teams and wondering if the lack of assistants currently is a Title IX violation.
We cannot say based on the information in this brief article. Do other girls' teams have assistant coaches? How many of the boys' teams have assistant coaches?
These are the things the school board--and the parents--will want to investigate when the issue comes up next at a board meeting.
I found this situation interesting in light of the recent trend in complaints where schools are being cited for multiple violations at once. This is a very specific complaint. I surmise that parents felt the absence of assistant coaches is an issue that needs remedying and sought a legal and persuasive way to remedy it--and they found Title IX.

Sexual Harassment Roundup

Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.

As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).

Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).

A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).

OCR still watching Darien

A quick search of this blog for Darien High School will reveal the many issues the Darien School District has had complying with Title IX in both the areas of equal opportunity and equal treatment (facilities, practice times, etc.). Three complaints in the past six years have resulted in some changes for the better. But not everything is settled and OCR has said Darien still has work to do. The gymnastics team still lacks the appropriate facilities. And the swim team is still having issues with practice times at the local YMCA. (Though the pool at the Y is under construction and apparently, post-renovations, all should be good though there is still a lot of discussion about "pool inequities.")
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.

Complaints Filed Against Five Wisconsin Districts

Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.

OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."