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.

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?

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.]

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.

Plan to Increase Scholarships Raises Questions About Title IX

As the NCAA considers a proposal by the Big Ten Conference to allow its member schools to increase athletes' scholarships to include living expenses, I am glad to read (here, in Sports Illustrated) that Title IX considerations are part of the discussion.

Currently, NCAA rules limit scholarships to tuition, fees, room & board, and books. This proposal would allow (but not require) schools to also provide assistance for transportation, food, laundry, entertainment and incidentals. The proposal is aimed to better compensate a student-athlete, who must go into his own pocket for the opportunity to participate in athletics. When you factor in that the university may generate revenue from this student's performance and that the student may be of limited means and lack the opportunity to hold a job due to time constraints of athletics, living expenses seem like a reasonable way to mitigate charges of exploitation. Moreover, given the reality that big-time college athletic programs are not know for high graduation rates, it can hardly be said that these athletes are adequately compensation by receiving a "free" degree. On the other hand, raising student-athlete scholarship amounts to cover living expenses would just contribute to the arms race mentality in college sports. If one school does it, its competitors would have to follow suit or suffer a disadvantage in recruiting. As a result, more collective money would get funneled into the revenue-generating (but not necessarily "profitable") sports of men's football and basketball, to the exclusion of other men's and women's sports.

Title IX would at least come in to play to provide equity to women's sports. Title IX regulations require schools to provide scholarship dollars in proportion to athletic participation. So increasing scholarships for certain men's sports would require a commensurate increase in women's scholarship dollars as well. Universities could comply by either increasing the number of scholarships or their amounts. Schools that already award the maximum number of scholarships in women's sports allowed by the NCAA would probably have to tack on living expenses awards to some female athletes' scholarships, if they wanted to be compliant. That's a big if, though. Women already receive less in athletic scholarships than men -- a $166 million disparity, according to the most recent figures from the Women's Sports Foundation. See also, here. It seems to me equally likely, if not more so, that this proposal would just widen the gap between male and female athletes rather than produce a collateral benefit to women.

Competitive Cheer Efforts Profiled in NYT

Today's New York Times includes an article on the competing proposals to the NCAA to recognize some version of competitive cheer as an emerging sport for women. One was submitted by a consortium of six universities already sponsoring varsity-level cheer, which they call "Acrobatics and Tumbling," while the other, called "Stunt" has been put forth by USA Cheer, an organization that has affiliation and common leadership with Varsity Brands Inc., the company that runs well-known competitions primarily for sideline cheer squads. According to the article,

The two proposals being considered by the N.C.A.A. share many similarities: the competitions themselves are longer and more standardized than in the past, athletes now wear uniforms more akin to those of volleyball players, and they no longer rally the crowd for another team.

However, they differ in other ways, like how to score the events and how many competitions to stage in any given season. The proposal being advanced by the handful of universities calls the new sport acrobatics and tumbling and uses a scoring system similar to that of gymnastics, with points based on degree of difficulty. The format backed by USA Cheer is called stunt and has a head-to-head format, with the competition divided into quarters.

One important distinction is the size of the teams. The proposal for acrobatics and tumbling, which was submitted to the N.C.A.A. late last year, imagines that an average squad size will number from 32 to 36 athletes, with a maximum of 12 scholarships. The proposal for stunt, which was sent in on Wednesday, envisions a squad of 20 to 30, with a maximum of 24 scholarships.

The article also addressed the potential Title IX implications of the NCAA's potential decision to award one or the other versions of competitive cheer emerging sport status. Athletic department administrators will now have another possibility to choose from in adding sports for women and to promote their institution's Title IX compliance by either satiating unmet interests and abilities or closing the disparity between athletic opportunities for men and women.

On the issue of competitive cheer's relationship to Title IX, reporter Katie Thomas admirably conveyed the position of mainstream women's sports advocates, which is that as long as competitive cheer is truly operating as a sport, with the same level of support, the same opportunities for varsity-level competition as any other sport, it ought to be considered a sport. This position is too nuanced for many reporters who seem to delight in setting up women's sports advocates the nemeses of competitive cheer, so I was pleased that this article conveyed a difference between being against competitive cheer, and being against/concerned about athletic departments using competitive cheer to avoid having to address existing disparities in traditional sports.

Montana Adds Softball

A while ago, we mentioned University of Montana's plans to add women's softball. By way of update, here it's reported that the Regents have approved a plan to raise the student athletic fee (by $12.50 per year) thereby confirming the funding source for Montana's softball initiative. Student government also approved the fee increase, though leaders expressed reservation that the money be earmarked for Title IX compliance.

Adding softball was the right thing to do. Women make up 51.7% of the undergraduate population at Montana, but receive only 42.7% of the athletic opportunities, in a total of 6 sports. By my calculation, Montana would have to add 76 athletic opportunities for women to achieve proportionality. Softball is a start. It certainly improving their chances of demonstrating compliance with prong 3 in the meanwhile, as the decision satisfies to demonstrated unmet interested and ability.

Is Title IX Hurting Men? (No)

On Jezebel, Anna North provides perspective from Donna Lopiano on recent headlines blaming Title IX for universities' decisions to eliminate men's teams (see, e.g.). Lopiano blames the arms race in spending on men's basketball and football, which at Division I institutions receive 78% of the funding for men's sports. It's this kind of favoritism that results in schools having to cut teams in the first place, and the existing disparities in opportunities that still favor men, that put men's sports like wrestling and tennis on the chopping block. North reported that Lopiano succinctly replied "oh god no" when she asked her if Title IX should be modified. She didn't need to say more. Though the disrespect that schools show to when they choose to favor the 120-worst football player over their best male wrestlers and tennis players is deplorable, it's not a Title IX violation. It's a collective-action problem that, as Donna Lopiano points out, can be solved when Congress, the NCAA, and its member institutions agree to get it done.

Honestly, though, as much as I like reading Donna Lopiano's perspective on this issue, my favorite part of this post was in the comments at the end, when readers put the Title IX-cutting-men's-teams issue into perspective not with statistics and policy arguments, but with pop culture.

One posted: What is this, a King of the Hill episode?

Another posted back:

Hank Hill: It's all well and good to talk about equal rights until some MAN loses his job! How's that equal?
Bobby Hill: Yeah! And it's worse when they take away our favors, 'cause we're USED to getting 'em!

Competitive Cheer Article Published

Ego alert. My own article, "The Feminist Case for NCAA's Recognition of Competitive Cheer as an Emerging Sport for Women" has been published in the Boston College Law Review along with the other papers from its symposium last October focusing on the NCAA at its 100-year anniversary.

Here is the abstract:

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve Title IX compliance, in a way that would benefit women’s sports generally, by expanding the definition of sport to include those that are women-driven and by reclaiming as sport an activity— cheer—that was initially deployed to separate women from athleticism. In light of these reasons, as well as the burgeoning interest in competitive cheer at the college and high school levels, the Article concludes that the NCAA should promote the growth of competitive cheer by endorsing it as an emerging sport for women.

Court Dismisses Sexual Harassment, Retaliation Case Against Hofstra

Last month, a federal court in New York awarded summary judgment to Hofstra University, dismissing claims of sexual harassment and retaliation that had been filed by Lauren Summa, former student manager of the football team. Summa, you’ll recall from prior posts, alleged that she was sexually harassed by members of the football team on bus rides to away games and in other contexts. She also claimed that she was not rehired for the manager position or for a grad assistant position elsewhere in the university as retaliation for complaining about the incidents to the coach and others.

The court analyzed Summa’s sexual harassment claims under Title VII as well as Title IX, after concluding that as a student manager she was an employee within the meaning of the employment discrimination law. The court determined that several of the events Summa included in her description of a “hostile environment” consisted of “gender neutral” harassment -- that is, not motivated by her sex -- and thus did not qualify as sexual harassment. For instance, the court described an incident when football players holding shut the door while she was in the bus bathroom as “boorish” and “immature,” but not motivated by sex. Also, the screening of a movie with sexual themes on the team bus did not count as sexual harassment because there was no evidence that it was shown to target Summa. The fact that players responded to Summa’s complaint about the movie (which prompted the coach to turn it off) by shouting “we want boobies” and that one of them yelled at Summa to “sit down and shut … up,” while gender-motivated, did not “by itself” evidence of a severe and pervasive hostile environment.

As my employment discrimination students know well, there’s a lot of subjectivity in the “severe or pervasive” standard in sexual harassment law. Had I been the judge, I would have likely viewed Summa being physically entrapped in the bathroom of a bus full of hostile football players as not only severe, but also gender-related given that none of the men on the bus were apparently subjected to that kind of intimidation. Moreover, while the court concludes that Hofstra responded appropriately to the incidents of harassment that Summa reported (for example, the football player who yelled at Summa after the movie incident was suspended from the team by operation of the coach’s third strike policy) there is no indication that the coaching staff addressed the bus bathroom incident or the “we want boobies” chant which also would have rated with me as evidence of hostile, sexual harassment.

For a variety of reasons, the court also rejected Summa’s claims that she was retaliated against by the University for complaining about the harassment she experienced in her position as student manager. According to the court, Summa did not demonstrate that the person in charge of hiring student managers had knowledge of her complaints, a required element for any retaliation claim. The court also accepted Hofstra’s articulation of a legitimate, nondiscriminatory reason for its decision to deny her a graduate assistant position, one relating to certain misstatements on her resume, which Summa did not demonstrate to be pretext of a retaliatory motive.

Decision is: Summa v. Hofstra Univ., 2011 WL 1343058 (E.D.N.Y. Apr.7, 2011).

OCR Trades School District Complaints for Statewide Review

The Department of Education's Office for Civil Rights has received more than a hundred complaints against school districts in Washington state since fall, all alleging violations of Title IX in the schools' athletics departments. Recently, however, the federal agency has closed its pending complaints against Washington schools, choosing instead to investigate the state office in charge of gender equity in education. Notably, Washington state law requires schools to annually audit their athletic programs for compliance with state and federal gender equity laws. The large number of OCR complaints filed against those schools certainly suggests some weaknesses in the scope and enforcement of that state requirement.

As far as I can tell, OCR's decision to close school district complaints in favor of state agency review is a highly unusual move. I'm not quite sure what to make of it. On the one hand, it looks like OCR has recognized some systemic problems in the state, and the possibility that those problems might be attributable to the state agency's failure to hold those schools accountable. Moreover, by turning its attention to the state education agency, OCR sends a message to every state that they have a role to play in ensuring that gender equity problems do not keep mounting up around the state.

On the other hand, school districts and state education agencies have concurrent responsibilities to comply with Title IX, so OCR's decision to let the schools off the hook for now smacks of abdication of enforcement duty. For this maneuver to sit well with me, I'd like to see OCR take the enforcement resources that it presumably saves by consolidating hundreds of individual school district investigations into a single investigation of the state education agency, and use those resources to open up compliance reviews of other state education agencies around the country. Such a move would produce better support of Title IX at the state level and make it so that OCR is not the only cop on the block, so to speak. If this is about getting more bang for the proverbial buck, how about going for a really big bang?

If you happen to be interested in OCR's own description of its decision to replace school district investigations with a compliance review of the state education agency, here is an excerpt from its letter closing some of those complaints:

OCR is currently conducting a compliance review of the Washington State Office of the Superintendent of Public Instruction (WA OSPI) under Title IX (OCR Case No. 10115004). The review will examine the methods and procedures that WA OSPI uses to evaluate the reports on interscholastic athletics programs that each school district in the state is required to submit to OSPI annually. In particular, it will investigate how WA OSPI ensures the accuracy of the reports on interscholastic athletic programs submitted by the districts.

It will further examine how WA OSPI addresses reports indicating that districts are not in compliance with Title IX in order to determine whether WA OSPI is aiding or perpetuating discrimination by providing significant assistance to districts that do not comply with Title IX.

OCR has received more than 125 complaints since November of 2010 alleging that school districts throughout the state of Washington are violating Title IX by failing to provide female students equal opportunities to participate in interscholastic athletics compared with opportunities that are provided to male students. Considering the number and scope of similar allegations, OCR has determined that a compliance review of the state education agency is appropriate.

Under OCR's procedures, OCR may close a complaint that raises allegations that are being addressed in a compliance review. Since OCR is conducting a statewide compliance review that will address the allegation raised in your complaints against the above districts, OCR is closing the complaints against these districts as of the date of this letter.

NCAA Gender Equity Issues Forum

Greetings from Bethesda, where I'm attending the NCAA's Gender Equity Issues Conference. This is a great annual event that brings together gender equity experts and athletic department staff from colleges around the country to talk about Title IX and gender equity issues. Yesterday I had the pleasure of participating on a panel about how to count participation opportunities for the purposes of demonstrating proportionality. My co-presenter Tim O'Brien and I used the court's decision in the Quinnipiac case as the starting point for a discussion about the importance about looking past the numbers and assessing whether those numbers reflect actual, meaningful athletic opportunities. We also talked about some of the egregious examples of reporting violations and roster manipulation that the New York Times wrote about last week. We definitely addressed those issues as well. David Moltz covered the presentation for Inside Higher Education, so even if you couldn't attend, you can read all about it!

Other panels have addressed such hot topics as pay equity, prongs two and three compliance, diversity and inclusion, retaliation, and emerging sports. We also had a brilliant keynote address by Mariah Burton Nelson on the importance of implementing and enforcing policies against sexual abuse by coaches. And I had the pleasure of learning about the Athlete Ally initiative to eliminate the use of sexist and homophobic language in sport, and meeting its founder, a former student-athlete and All-American wrestler, Hudson Taylor. All in all it's been a great conference!

Universities Cheat to Show Title IX Compliance, NYT Reports

When the Quinnipiac litigation last year exposed certain instances of roster manipulation -- adding male players and cutting female player after the reporting deadline -- I kept hearing people ask "how common is this?" My gut was that Quinnipiac was not the only school to engage in roster shenanigans that make their women's teams appear larger and their men's teams smaller, in efforts to create the illusion of compliance with the proportionality prong of Title IX. But I didn't know which other schools were doing it nor the extent of the problem.

After reading today's groundbreaking story in the New York Times, I now know, cheating is far more prevalent and even more egregious than the Quinnipiac example. The University of South Florida, for example, included many athletes from other sports on its 71-member women's cross-country team roster-- athletes who never competed in meets, practiced, or some case even knew that they were listed as members of the team. Other schools invite walk-on women to "join" the team, but tell them not to bother showing up to games and practices even though they are listed on the roster. Still others -- including the national champions Texas A&M women's basketball team -- count the women's team's male practice players as opportunities in women's sports. All of these examples are meant to create the illusion, on paper, of gender equity.

Title IX requires that universities offer a balance of athletic opportunities that reflects the percentage of men and women in the student body, or alternatively, to at least offer enough athletic opportunities to meet the interests and abilities of the underrepresented sex. Title IX will also give credit for trying, as another compliance option is to show continuing progress of expanding opportunities for the underrepresented sex. But rather than putting in the real effort to show continuing progress, or to ensure that there is no unmet interest, universities are manipulating the data to give the appearance of compliance under the first prong. And lest anyone be concerned that these are "innocent" universities "forced" into this situation because they can't afford to add real opportunities for women, let's consider whether this same ostensible financial hardship applies when it comes to adding men's sports. Apparently, it does not. According to the article, South Florida's egregious roster manipulation was a response to its decision in 1997 to add 100 new opportunities for men, in the sport of football. Rather than investing in a leveling-up approach, South Florida took an existing imbalance and made it worse by adding opportunities -- expensive ones -- for the overrepresented sex. So of course there's less money now to add opportunities for women. But that's never a justification cheating, and it rings particular hollow when the university's own decisions to create or exacerbate the disparity is at the root of its compliance problem.

In sum, the NYT is the bearer of bad news when it exposes the extent and scope of universities' false reports of gender equity. I wish that we could believe universities who report gender equity in athletics. But at least the good news is that after this public exposure, investigators, complainants, plaintiffs, bloggers, and other watchdogs are less likely to be duped by false numbers going forward. We'll dig below the surface of universities' reported data and demand stronger evidence in support of universities' claims to gender equity. When they realize that their false numbers will not protect them, maybe they'll start reporting the real ones.

Washington School District Enters Voluntary Agreement to Comply with Title IX

The Office for Civil Rights accepted a voluntary agreement from Federal Way School District, one of the 26 school districts in Washington State named in Title IX complaint recently accepted by the agency. The complaint alleged that a participation gap of -12.1 percentage points exists between the percent of Federal Way high school students who are female and the percent of athletic opportunities they receive -- the equivalent of 76 actual opportunities -- and that this disparity has been widening, not shrinking, in recent years. A somewhat smaller 8 percentage point gap is reported in the press.

Federal Way has agreed to conduct immediately a detailed analysis of its compliance with the athletics' regulation under each of its three prongs. It also agreed to add new athletic opportunities for girls in the coming year, if the results of its analysis reveal compliance with neither.

On the one hand, it is frustrating to see a school district enter into a formal agreement to do exactly what the law already requires it to do, comply with Title IX under one of the three prongs. But on the other hand, the complaint process has effectively put Federal Way's feet to the fire (along with a couple dozen other districts in the state) to come into compliance in the coming year and under the monitoring of OCR, which will review the districts' analysis and decisionmaking at multiple steps in the process. While the voluntary agreement does not produce a finding of noncompliance or related penalties, it is the mechanism that will most swiftly and fully end the disparity in opportunities that exists for girls in Washington state.

School Not Liable In USA Swimming Sex Taping Case

Last year, the media revealed numerous instances of sexual abuse by coaches affiliated with USA Swimming. One of the most notorious cases was that of Brian Hindson, who had arranged a secret video camera to tape female swimmers to whom he had given permission to change clothes in his office. After the video tapes were discovered years later, Hindson was convicted of criminal abuse and sentenced for 33 years in federal prison.

One of his victims, Brooke Taflinger, also brought a lawsuit against USA Swimming and the Indiana school district, Westfield-Washington, whose pool was the venue for Hindson's club team's practices and competitions. Recently, however, the federal district court in Indiana dismissed the Title IX claims against the school district. Though Hindson's team used the school district's pool, it was not part of Westfield-Washington's educational activities. Moreover, the plaintiff did not sufficiently allege that school district officials had notice of Hindson's secret taping, nor did she allege any facts on which they reasonably should have known such abuse was going on. The school district could have have been expected to know that this abuse was going on, where Hindson "deliberately sought to and did in fact conceal his criminal activity from everyone, including the school," said the court. In fact, Hindson successfully concealed the videotapes of plaintiff from everyone for 8 years; they were only revealed after Hindson sold his computer that still contained recorded footage. Based on these facts, the school district could not have known that Hindson was taping his swimmers, and should not be liable for it.

Decision: Taflinger v. Hindson, 2011 WL 304699 (S.D.Ind. January 26, 2011).

26 Washington School Districts Named in Title IX Complaint

The Department of Education's Office for Civil Rights recently accepted a complaint that cites 26 school districts in state of Washington for failing to provide equitable opportunities in girls' athletics. The school districts recently received notice of the complaint and have been asked to provide information to OCR, so it can decide whether to investigate further. According to the Bellingham Herald, officials from area school districts were surprised to have learned about the complaint and professed to having "no idea" about any gender disparities in the district -- which is, of course, usually how those disparities get to be there in the first place.

Student Scholarship Addresses Contact Sports Exception

I recently came across two student-written articles that critically examine Title IX's contact sports exception -- the regulatory provision that requires schools allow cross-over tryouts, (e.g., a girl trying out for a boys' team, when there is no girls' team in that sport) but only when the sport is not a contact sport.

Jessica Constance Caggiano's note in the University of Pittsburgh Law Review criticizes the exception as both the product of a contributor to stereotyped notions about girls' and women's physicality and athleticism. She calls for a policy change that would eliminate this limitation.

Marielle Elisabet Dirkx's comment in the Mississippi Law Journal addresses the unconstitutionality of the contact sports exception in light of courts' decisions that prohibiting cross-over participation violates the Equal Protection Clause when it is based on over-generalization and stereotypes.

These articles are:

Jessica Constance Caggiano, Girls Don't Just Wanna Have Fun: Moving Past Title IX's Contact Sports Exception, 72 U. Pitt. L. Rev. 119 (2010).

Marielle Elisabet Dirkx, Calling an Audible: The Equal Protection Clause, Cross-over Cases, and the Need to Change Title IX Regulations, 80 Miss. L.J. 411 (2010).

Fourth Circuit Affirms JMU Cuts

Equity in Athletics has been battling in court James Madison University's decision to cut 10 teams since the cuts were announced in 2006. On behalf of the affected athletes and other interested parties, the organizations sued the University and the Department of Education, challenging both the cuts and the Department of Education's policy interpretation that provides the three part test for measuring equity in athletic opportunities. After failing to attain a preliminary injunction against the cuts, EIA continued to pursue permanent relief. Last year, a federal court in Virginia rejected EIA's claims, and yesterday, a three-judge panel of the Fourth Circuit Court of Appeals affirmed.

Though the appellate court agreed that EIA had standing to bring its case, the rest of the decision rejected EIA's arguments in their entirety. In particular, the court rejected EIA's argument that the three-part test is an unauthorized use a disparate impact standard of discrimination. For one thing, the court cited specific language in Title IX that allows regulators to consider statistics when defining and measuring equity. ("Provided, That this subsection shall not be construed to prevent the consideration in any hearing or proceeding under this chapter of statistical evidence tending to show that such an imbalance exists with respect to the participation in, or receipt of the benefits of, any such program or activity by the members of one sex." 20 U.S.C. § 1681(b).) For another, the court said EIA "misconstrues" the three-part test as a mandatory disparate impact standard. Consistent with every other court that has considered this question, the court recognized that the three-part test does not mandate proportionality. Rather, it allows evidence of proportionality create a presumption of compliance. Institutions with disproportional athletic opportunities can still show compliance under either of the alternative prongs.

The court then went on to affirm the district court's rejection of EIA's other claims, affirming the constitutionality and procedural validity of the three-part test as well as the constitutionality of JMU's decision to cut more men's teams than women's teams -- a decision that affected more male athletes, but produced a result that "ensure[d] that the student body as a whole was “substantially equally” represented in the availability of opportunities for athletic participation." Relatedly, the court "unhesitatingly [made] clear " its rejection of the idea that athletic opportunities should be distributed in proportion to percentages of male and female students who are interested in athletics, citing the First Circuit's oft-quoted language that "[i]nterest and ability rarely develop in a vacuum; they evolve as a function of opportunity and experience."

According to a press release, EIA plans to appeal, either to the entire Fourth Circuit en banc (which can, in rare cases, reverse a three-judge panel) or to the Supreme Court. So we are not yet done blogging about this case!

Decision is: Equity In Athletics, Inc. v. Department Of Educ., 2011 WL 790055 (4th Cir.(Va.) Mar 08, 2011).

Intersex Athletics, Roster Floors Addressed in Law Student Notes

The current issue of the Brooklyn Law Review contains two Title IX-themed articles written by students.

In Policing the Policing of Intersex Bodies, author Laura Zaccone lays out a regulatory approach to "preventing the gender inquisition that befell Caster Semenya from occurring in the educational context." She urges the Department of Education to

issue Title IX regulations--or, failing that, a policy interpretation--making a student's self-identified gender determinative of eligibility to compete in school athletics. If a student lives and identifies as a female, there should be no other eligibility criterion for participation on a female team. Under this policy, the perspective of the individual student is the deciding factor. But an individual's self-identified gender is not always readily discernable to others. Some basic guidelines, then, are needed to ensure that this policy is administered fairly.

Above all, students should not be subjected to gender-identity tests. Procedures seeking to establish gender identity are just as pernicious as those purporting to verify biological sex. The DOE should make clear that testing of this nature is likely to violate Title IX.
To determine a student's gender identity, there are a numbers of factors that school administrators can consider. Substantial weight should be accorded to the gender self-identified by the student at enrollment.

Administrators might also consider the gender marker on identification documents, such as passports, driver's licenses, or birth certificates. These records should not be regarded as conclusive, however, given the adverse implications for transgender students, who often face obstacles in modifying the gender designation on personal documents even after sex reassignment surgery.Whatever factors are used to show self-identified gender, the DOE should require that school officials apply them consistently across the board. A case-by-case approach risks that athletes appearing more “masculine” than others will be subjected to more vigorous scrutiny.

76 Brooklyn Law Review 385 (2010).

A second article, Leave It On the Field, student author Carolyn Davis criticizes the federal court's decision in Biediger v. Quinnipiac, which rejected the university's claim to satisfy the proportionality standard because the university had counted several athletic opportunities for women that were not meaningful in comparison to other varsity opportunities (specifically, those in competitive cheer, winter track for some athletes for whom it was an extension of the season for other running sports, and opportunities on teams with a roster inflated for Title IX purposes). Davis criticizes the court's analysis as "part of a worrisome trend" that courts are interfering with athletic department's spending decisions. In this spirit, she argues that the use of roster floors ought to be an acceptable practice, and that courts should not scrutinize the "subjective" question of whether those rosters offer meaningful participation opportunities. Interestingly, however, Davis's defense of the practice of expanding/inflating the size of women's teams by arguing that it is most acceptable when it is accompanied by commensurate increases in support for the team. Yet, by using an example the inflated roster of Quinnipiac's softball team, which did not receive commensurate additional support, Davis demonstrates that without judicial oversight, universities facing budget problems will solve them by very means she agrees are problematic.

76 Brooklyn Law Review 265 (2010).

Cal Berkeley Could Restore Women's Teams

Perhaps some folks at University of California--Berkeley read our questions about the Title IX compliance problems posed by the university's decision to cut two women's teams (gymnastics and lacrosse) four months ago. As we explained in that earlier post, the decision to terminate women's teams seemed a likely violation, as women were and remained underrepresented in athletics, even factoring in the men's teams also cut. The New York Times reported this week that Cal is apparently considering reinstating some of all five teams that were cut last fall, though the athletic director, Sandy Barbour, explains that the reconsideration was motivated by the outcry by the teams' supporters, as well as pledges of financial support. She denies that this has anything to do with Title IX, though I have to believe they are reading the writing on the wall and acknowledging the fact that the cuts backed them into a corner of having to achieve proportionality. Cal is so far from proportionality, that they would have to add 50 women's opportunities and cut 80 men's opportunities, according to the Times article.

But I'm not so sure that Cal can simply unring this bell by undoing last fall's decision. After all, they weren't any closer to proportionality back then. And even restoring women's gymnastics and lacrosse, it is still far from certain that it is achieving compliance by the alternative method of demonstrating no unmet interest in women's athletics. As the Times article notes, the athletic department denied a request to elevate the women's rugby team to varsity status. If those disappointed athletes sue or complain, they would have a strong case that could produce an obligation on Cal to add them, or come into compliance some other way. Cal's decision to cut teams brought the university into a compliance spotlight, and that spotlight will be very hard to shake.