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

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

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

Calling all Law Professors' Papers on Harassment and Bullying

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

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

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

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

Deadline Date for Submission: August 1, 2011.

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

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

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

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

Contact for submission and inquiries:

Professor Erin Buzuvis
Western New England University School of Law

ebuzuvis@law.wne.edu

413-782-1405

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.

Article Seeks Title IX's Application to Transgender Student Harassment

A law student's article in the Texas Review of Law and Politics Journal seeks to leverage Title IX's prohibition on sex discrimination to offer fully protection against harassment to transgender students. Citing statistics from GLSEN, the author, Tina Sohaili, points out that transgender are the targeted for bullying and harassment more frequently than any other student group. Such harassment frequently target the students' personal characteristics, such as appearance, clothes, and voice, as not matching the masculine or feminine stereotypes associated with the transgender students' assigned sex.

Drawing on analogous employment discrimination law, Sohaili argues that the liability Title IX imposes on school districts that ignore sexual harassment between peers covers peer harassment motivated by transgender students' gender nonconformity. She supports this argument by pointing out that some lower courts have already recognized harassment on the basis of gender nonconformity a subset of sex discrimination in cases that do not involve transgender students.

Importantly, while Sohaili argues that courts should construe Title IX to afford this protection to transgender students, she recognizes that courts have not universally recognized sex discrimination law's application to gender nonconformity in the employment context. Therefore, while this interpretation affords the best protection to transgender students under federal law, even stronger protection would result from changes to the law -- such as that proposed in the Student Nondiscrimination Act -- which expressly prohibit discrimination on the basis of not only sex, but actual or perceived sexual orientation, gender identity, or expression.

Citation: Tina Sohaili, Securing Safe Schools: Using Title IX Liability to Address Peer Harassment of Transgender Students, 20 Tex. Rev. L & Politics 79 (2011).

More Title IX Scholarship

Here is a roundup of articles and chapters about Title IX that have been published recently:

Attorney Kristen Galles -- known for her victories against Quinnipiac and the Michigan HS Athletic Association-- published Title IX and the Importance of Reinvigorated OCR in the journal Human Rights. In this brief essay, she explains the role that OCR plays not only in enforcement, but in educating schools and universities about their obligations under Title IX. She argues that OCR has the potential make an even greater difference combating sex discrimination in school, and is hopefully optimistic that the newly-recommitted agency can one day work her, a Title IX litigator, out of a job. Citation: Kristen Galles, Title IX and the Importance of Reinvigorated OCR, Human Rights, at 37 (Summer 2010).

Michelle Gaugh published an article about Title IX's application to discrimination against parenting and pregnant students in the Michigan Journal of Gender and Law. In it, she points out that such discrimination persists despite a clear regulatory prohibition against treating pregnant students any differently from others who may have a temporary medical condition that requires accommodation. She also explains that there have been relatively few efforts to address this discrimination in court, primarily because victims lack awareness of their rights and socially and legally marginalized. She argues that increasing awareness about Title IX's application to pregnant and parenting students, including educating teachers and other advocates, as well as increased enforcement and oversight from OCR, can help curb this variety of sex discrimination. Citation: Michelle Gaugh, Parenting and Pregnant Students: An Evaluation of the Implementation of the "Other" Title IX, 17 Michigan J. Gender L. 211 (2010).

Professor Deborah Brake has posted to SSRN a chapter called Sport and Masculinity: The Promise and Limits of Title IX, which will appear in the book Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper and Ann C. McGinley eds. 2011). Brake points out that, "[w]hile Title IX has greatly expanded the range of culturally valued femininities for women, and broadened the social category of "woman" in the process, it has not broadened the masculinities that sport constructs for male athletes, nor has it made significant inroads into the hyper-masculine ethos that pervades the most-valued men’s sports." Title IX reinforces the hegemonic masculinity replicated through in several ways, "including Title IX’s default rules approving of sex-segregated teams and its limited integration rights, and an equal treatment standard that accepts as a baseline the hierarchies within men’s sports that privilege the most masculine sports, football and basketball." Then she addresses how Title IX might nevertheless be used to "intervene in the production of masculinity," in light of a trend of "recent cases in which Title IX has held educational institutions accountable for the harms caused by extreme performances of hyper-masculinity, including sexual assaults by male athletes of women and of other male athletes."

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).

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).

Koller on the Title IX "Interest Paradox"

Professor Dionne Koller from the University of Baltimore School of Law has recently published an article, "Not Just One of the Boys: A Post-Feminist Critique of Title IX's Vision for Gender Equity in Sports" in the current issue of the Connecticut Law Review. In it, she examines why women and girls are relatively less interested than their male counterparts in pursuing and remaining involved in athletics. Rejecting both the explanation that women are inherently less interested in sports, as well as the theory that the absence of opportunity alone diminishes interest, Koller posits that disparity stems from Title IX itself. By requiring that schools provide opportunities for female athletes with an "interest and ability" to compete in varsity sports, the law operates to only provide opportunities for those interested in "assimilating" to a particular, male-driven brand of sport. She argues that, in this way, the law creates an “interest paradox” -- on the one hand, creating opportunities believed to be the foundation for building interest (the "if you build it they will come" theory) while on the other hand, "extinguishing the interest of those girls and women who would engage in sport, but are not willing to assimilate into the current model." To be competitive, athletes have to adopt the values of the existing model of sport: specialize early, risk injury from overtraining, prioritize winning over academics and other values, and strive for commercial success. While many women are interested in this model of sport, a different sports paradigm might have generate a better balanced interest among male and female participants. To this end, Koller proposes a more inclusive policy that requires education-based athletics to adhere to values and priorities like encouraging participation and fitness, inclusion, and increase of participation opportunities and choices for younger students. At the very least, Koller urges us to acknowledge the interest paradox, "so that discussions of gender equity in sport can move from polarizing, and ultimately unproductive debates about whether women are, or are not, inherently interested in athletics, to a more nuanced discussion of exactly what models of athletics a greater population of women might be interested in. Thus, it is only when women have an equal opportunity to participate in creating and defining the social construct that is athletics will we have realized gender equity in sport."

Citation: 43 Conn. L. Rev. 401 (2010).