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

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

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

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

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

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

Lawsuit Challenges Title IX's Application to High Schools

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

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

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

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

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

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

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

78 Idaho School Districts Named in Title IX Complaint

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

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

Is Montana next?

Cheerleading Coach Files Title IX Lawsuit Against University of Alabama

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

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

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

Columnist Criticizes Sex Discrimination in State Championship Site

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

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

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

Do you feel the thrill, ladies?

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

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

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

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

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

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

100 Oregon high schools cited

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

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

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

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

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

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

[Thanks, D.R.]

Merged booster clubs in Maine

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

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

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

What are you doing to celebrate?

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

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

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

Slippery Rock back in legal trouble

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

Female Wrestlers' Case Against UC Davis Goes to Trial

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

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

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

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

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

The judge's decision is expected in July.

Vermilion Parish Ends Single-Sex Education

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

Dept of Ed Letter Supports Gay-Straight Alliances

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

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

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

Bullying, sexual assault and intent

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

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

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

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

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

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

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

Victims in TN sexual assault case receive $100,000

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

Calling all Law Professors' Papers on Harassment and Bullying

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

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

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

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

Deadline Date for Submission: August 1, 2011.

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

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

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

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

Contact for submission and inquiries:

Professor Erin Buzuvis
Western New England University School of Law

ebuzuvis@law.wne.edu

413-782-1405

Guest blogging

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