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!

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).

Lawsuit over football attacks in New Mexico

Parents of an alleged victim of sexual assault in Albuquerque, New Mexico have filed a lawsuit against the Los Lunas school board, the superintendent, the high school principal, and five football coaches. News came out last fall (we missed it--sorry) that incidents of hazing had occurred within the Valencia High School football team. There are three alleged victims. It is the parent of one of these three who has filed the lawsuit. There was a criminal investigation of the incidents, but it does not appear that any formal action has been taken since the findings of that investigation were turned over to the District Attorney's office. Someone from the DA's office said decisions about charges would be made at the end of this month. The lawsuit alleges that the victim experienced physical and sexual abuse at the hands of three senior members of the team while other members of the team looked on and cheered. It is being referred to as a hazing incident--again one of several that occurred last fall within the team. The lawsuit alleges both Title IX and due process violations. The coaches were allegedly in another part of the locker room while the incident was taking place and two of the five named coaches are the parents of two of alleged perpetrators. So it will be interesting to see if there is enough evidence to prove that school authorities had awareness of the harassment and failed to remedy it.

West of the Mississippi...

Teams are being added and dropped, and schools are conference hopping.
Not sure if it's the conference hopping that is encouraging institutions to the get their houses in order in terms of Title IX compliance, but it is certainly having that effect.
The University of Montana has slightly-more-than tentative plans to add women's softball to their roster of intercollegiate sports. The state of Montana has no DI softball, which isn't especially surprising given the limitations the weather puts on spring sports, but recent survey data show that softball is the sport undergraduate women would like to see added. Though Montana administrators maintain that they didn't think they "were close to being out of compliance" they knew that they couldn't keep administering the annual interest survey and not do anything. (Not sure why they held that belief in the first place. Simply collecting data does not make one compliant.) Not sure if the NCAA held similar beliefs about Montana's compliance. In the university's last reaccreditation administrators were apparently told that adding another women's sport would be "the right thing to do." Montana is able, it seems, to read between the lines. And its plans to move to the Big Sky Conference likely pushed forward the plan for softball. The Big Sky needs one more softball-playing school in order to hold a conference tournament. But softball is still a ways off, at least three years according to the athletic director. The program is estimated to cost about half a million dollars annually so funds need to be raised, a coach hired, and players recruited.
A different conference hop is forcing another school to do the drop/add shuffle. University of Nebraska-Omaha, a DII school (except for men's hockey), is making the move to DI. It has been invited to the Summit League and given the NCAA's lifting of the ban on division hopping that will happen in June, and that conferences hold the power to invite, UNO has decided to make the leap, something they apparently have been considering for a while now. Not knowing when another such opportunity will come along, the university is making sure everything is in order for the 2012 move.
But unfortunately football and wrestling will not be coming along. The university cited the immense costs of football and the inability to bring wrestling up to DI levels without a large amount of cash as the reason for the cuts. Good news though for a couple of the so-called men's minor sports: UNO will be adding men's golf and soccer.

Booster Club Can't Pay Football Athletes' User Fees

School and city officials in Haverhill, Massachusetts understand Title IX. That is why they denied the request of the Touchdown Club, the booster club for the Haverhill High School football team, to use its fundraising proceeds to defray the cost of participating in football. This would violate Title IX, because boys would have the opportunity to play a sport for free (football) while girls would have no such option -- Haverhill charges $275 for all varsity and $175 for all freshman teams. Title IX does not consider the source of funds in determining whether it is equitably spent. If a school accepts money -- whether it be from private funds or public money, it may not use that money to fund disparate treatment for male and female students.

Touchdown Club officials were reportedly disappointed -- though not surprised -- that their request was denied. Hopefully there is a way they can use their money -- a donation of $15,000 was planned -- in a way that benefits athletics as a whole, and could maybe bring down the user fees for all students. I wonder if the boosters considered a "scholarship fund" that would cover the costs' of athletes' user fees based on their financial need, regardless of their sex and regardless of their sport. While it would be illegal to designate this fund just for football players, I don't think it would be illegal to designate the fund for "needy students," even if that criteria happened to help more football players than other athletes. As long as the boosters use sex-neutral criteria as the basis for making the awards, and boys and girls have equal opportunity to apply and be considered based on need, it would not be required that an equal number of awards be made to girls and boys. This solution would seem to be in line with the football boosters' goal of gaining back athletes who have had to drop out since the fees were implemented (the team has gone from 70 to 40 players in the last ten years). So it actually may be that there are more football players eligible the scholarship than players in other sports.

Pay-to-play is controversial in a lot of schools, as user fees operate to limit athletic participation to students who are already financially privileged. Certainly, class-based discrimination in athletics is a troubling as sex-based discrimination; but the solution to the former must not implicate the latter. I think that booster clubs have tremendous potential to help reduce financial barriers to participation, and there are opportunities to do so in a sex-neutral way.