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.

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?

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.

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.]

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.

What will cheerleading investigation in SC find?

Parents filing Title IX complaints with the Office of Civil Rights might be the trend of the month.

In South Carolina, parents of a cheerleader at Lugoff-Elgin High School started wondering where the money allotted for cheerleaders was going when they were told the squad would not be able to replace their ten-year old uniforms.

Even attempts by the cheerleaders' parents to fund the new uniforms were rebuffed. So the Gogans, parents of LEHS cheerleader, started their own investigation and found that there was no money in the cheerleaders' account and no explanation of where it had gone.

First things first. This is very sketchy. There is clearly something amiss here.
And the Gogans were right to question what the heck has been going on.

But they filed the OCR complaint because they wanted an explanation and greater transparency regarding how the school treats its boys' sports versus its girls' sports. Except that it does not appear that cheerleading is a sport at LEHS. Yes, the squad does engage in competitive cheer competitions. But they also sideline cheer. Their dual purpose is apparent in what does and does not get covered by the fees students must pay to participate. The cost covers uniforms and poms but not sneakers; and cheerleaders need two pairs: one for competitions and one "to cheer in."
I know that cheerleaders and parents and probably every administrator at LEHS do consider it a sport because it is a South Carolina High School League sanctioned sport. And thus they have a right to question the distribution of funds and the quality of the experience cheerleaders have.
But the Department of Education has said that a sport cannot be a sport if it exists, even in part, to support another sport. What has happened at the intercollegiate level is that competitive cheer squads (or stunt squads or tumbling and acrobatics squads--depending on which side squads are choosing) are no longer cheering on the sidelines. Sideline cheerleaders are now a different group.
So what will OCR find when it goes to South Carolina? Will this even be an issue?
When will the rules at the intercollegiate level trickle down to high schools thus making high school state athletic associations take notice?

Complaint targets Boiling Springs HS

I'm not blogging about the recently filed OCR complaint targetting Boiling Springs High School in South Carolina because I think the story is especially unusual or raises any new issues.
It's just an example of both good coverage of the issue (for the most part) and a good complaint.
Mike Tutterow, who has two girls at Boiling Springs (why didn't my high school have such a cool name??), filed the complaint after attempting to work out some of the issues (for several years) he saw within the athletic department. Note that anyone can file an OCR complaint. One does not have to be affiliated, in any way, with the school.
But Tutterow witnessed many discrepancies including: the quality and rate of replacement of boys' and girls' soccer uniforms; girls' coaches who had to launder their own team's uniforms; access to strength training; and differences in facilities (specifically the softball and baseball complexes).
It's not just treatment of athletes, however, it's about participation as well.
Girls are 47 percent of the schools 1600-person student body. They have only 30 percent of the athletic opportunities.
OCR visited Boiling Springs last week for two days.
The school superintendent, though, believes the school is in compliance and thinks OCR will find the complaint "unfounded." Based on what I have read, this seems unlikely. But the superintendent did say the district would make whatever changes recommended by OCR should the complaint indeed be founded.

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.

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.

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.

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.

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.

Montana goes with prong three

A piece out of a local news outlet in Missoula, Montana focuses on how the University of Montana is choosing to comply with prong three of Title IX. Montana's Senior Associate Athletic Director Jean Gee said Montana has vowed not to cut sports, but must address Title IX issues (in terms of opportunities offered) in other ways at a school where male students comprise 48 percent of the undergraduate population and male student-athletes received 59 percent of the athletic opportunities. So Montana regularly surveys and interviews its female students about their interests and abilities in various sports. And it's not just CYA stuff. Montana administrators realize that the popularity of softball at the high school level and the lack of a DI program at a state school means Montana will have to add softball to its roster soon.
According to the associate director of the state's high school athletic association, JoAnne Austin, athletic administrators in the state are required to have a working knowledge of Title IX which appears to lead to an overtly pro-Title IX stance.
Said Austin:
"For a lot of schools, big time schools, football is king. Football is what makes them the money and I really think that Title IX keeps them in check to some extent. And I think that if Title IX were to go away, you'd start to see a slide back, and more and more money and funds being funneled into football...where you would literally probably have football only schools."
Not sure if there would be football-only schools, but I do think there would be some significant backsliding.

CSC and Pacific Legal fight complaints

The College Sports Council, a group advocating for Title IX reform, and the Pacific Legal Foundation, a conservative legal group, are challenging the Title IX complaints filed by the National Women's Law Center last fall in 12 of the nation's schools districts.
PLF sent letters to the district offices of OCR suggesting that the 3-prong test does not apply to high school athletics. And CSC sent letters to the actual districts, targeted by NWLC for their especially disproportionate distribution of athletic opportunities, suggesting that the districts fight complaints.
Both organizations are claiming that high schools do not have to meet the 3-prong test and that application of the test to high school athletics might be unconstitutional--specifically that it violates the Equal Protection Clause.
Responses from the Department of Education and NWLC mention that this issue is moot; that PLF already raised it--two years ago--and that some courts have already applied it to high schools.
It will be interesting to see if the hand being offered by CSC to the affected districts will be taken by any of them in a potential fight with the Department of Education.

New Jersey Presses Anti-Gay Discrimination Charges Against School District

The federal Department of Education is not the only agency trying to hold schools accoutable for their role in bullying of students who are or perceived to be gay.

The New Jersey Office of Civil Rights has reportedly filed a complaint with the state's Department of Law and Public Safety against Ridgewood Public School District, alleging that it violated the state nondiscrimination law when it discriminated against then-high school student Matthew Zimmer. The district allegedly committed discrimination against Matthew when his health teacher outed him to his class, and when school officials painted over a "gay must die" graffiti without addressing the incident with the student body. The agency believes that the district's conduct created an environment that denied Matthew of his education by forcing him to withdraw from school.

Unlike Title IX, New Jersey law enumerates protection against discrimination based on sexual orientation. This gives the state agency wider latitude than its federal counterpart to consider acts of discrimination that are motivated solely by the student's orientation, rather than only those overlapping with the student's gender nonconformity. The article does not say whether Matthew was targeted for appearing or behaving in a nonmasculine manner, but if he was not, this may have been a harder case to pursue under Title IX. It's therefore a good illustration for why it is important for state laws to include sexual orientation in their antidiscrimination laws. As this map illustrates, most states do not have such comprehensive laws.

A change of seasons

OK the title is a misleading and mostly my own projections as I get ready to go outside and shovel/plow for the third time this week.
What has really happened is that the Schuylkill League in Pennsylvania has decided to switch the days of play of the boys' and girls' basketball teams. (So change within the season.) The boys have usually played a Tuesday/Friday schedule and the girls Monday/Thursday. But after seeing a Title IX complaint filed in the nearby Tri-Valley League, Schuylkill decided to be proactive. And thus the schedule change. Hopefully there is not too much consternation over the switch. No mention of what the plans are for future scheduling: keeping the midseason switch or altnerating years, or something else entirely.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

Wilkes County Settles Title IX Complaint

Wilkes County, North Carolina, will improve the lighting and grading of its girls' softball fields by August 2012, and will create policies to improve girls' teams' access to the gym by Jan. 2011, according to the terms of a recent settlement agreement with the Department of Education. The settlement resolves a Title IX complaint filed a parent against the county school district in 2009, which triggered an investigation by the Department of Ed's Office for Civil Rights. According to the press, the parent who filed the complaint said of the settlement, "I know it states the school system is not admitting fault for not fixing things; however, these issues would not be an issue if they'd been taking care of business as they should be."