Indiana Scheduling Practice Violates Title IX, Appellate Court Rules

Today the Seventh Circuit Court of Appeals ruled that a scheduling practice that reserves "prime time" Friday night scheduling for boys basketball games while relegating the girls' games mostly to the less preferential weeknights, violates Title IX. The case at hand was filed in 2010 by a former Franklin County, Indiana, basketball coach, Amber Parker against Franklin County school district, the Eastern Indiana Athletic Conference, and its high school members. Earlier, the district court dismissed the suit after determining -- without sufficient analysis, in my opinion -- that the scheduling disparity was substantial enough to constitute a denial of equal treatment under Title IX. But the plaintiff appealed, and today's appellate court reverses the lower court's ruling and reinstates the case.

Unlike the district court, the appellate court acknowledged that the scheduling of most girls basketball on weeknights has a negative affect on girls that constitutes a substantial deprive of equal treatment. For one thing, community members are less likely to attend weeknight games, which deprives the girls' teams of audience and community support. It also imposes on girls a larger burden that their male counterparts to balance sports with academic work during the week. Moreover, the court acknowledged that the scheduling disparity can harm female athletes in a psychological way because it casts girls' activities as inferior to boys. This inferior treatment, reasoned the court, contributes to the perception that girls' sports are "second class" and undeserving, a perception that deters girls from participating in sport, "in contravention of the purposes of Title IX." This perception is also transmitted to fans and contributes to their lack of support for girl teams.

The appellate court also reinstated plaintiff's claims that the schools' scheduling practices violate the Equal Protection Clause, which district court had wrongly dismissed on sovereign immunity grounds.

Former Coach Settles Claim for Retaliation Over Scheduling Complaint

By personal correspondence from a source close to the case, I've learned that former girls' basketball coach Amber Parker has settled her lawsuit against the Franklin County (Indiana) Community School District, in which she claimed she was retaliated against for filing a lawsuit against the Indiana High School Athletic Association to challenge the inequitable scheduling of girls' basketball games. The district will pay Parker $28,500 to drop the retaliation suit that alleges the district failed to renew her teaching and coaching contracts to punish Parker for her advocacy for equity in scheduling. My correspondent suggests that Parker was seeking comparatively modest compensatory damages, which suggests that the district was willing to pay a premium to keep the case from a jury.

Parker's lawsuit against the IHSAA, which has been handed off to another plaintiff in light of Parker's relocation to another state, is not affected by the settlement. Recall that a district court determined that the IHSAA did not violate Title IX by scheduling girls basketball games for fewer Friday night games, and that decision is on appeal to the Seventh Circuit Court of Appeals.

Indianapolis high school imposes strict segregation

Since the case in Vermillion Parish (LA) was settled last year (disallowing single-sex classrooms), there has been a spot open for the public school that could execute the strictest form of sex-segregation.
Looks like Arlington Community High School in Indianapolis has taken that spot. And most people are happy about it. But that could also be an impression created by the story I read which took a generally positive tone. It also failed to note that this so-called nationwide research that shows single-sex education is better is somewhat specious.
But there certainly are students and administrators and teachers who like that there seems to be more participation and engagement in the classroom and less drama in the hallways. Yes--everything is segregated: hallways, buses, the cafeteria. The move to such strict segregation came after the principal felt that, given the extreme underperformance of his school, he had nothing to lose by implementing the segregation. Spending less time disciplining students in and out of the classroom certainly would seem to free up some time and space for more learning. But is this the best way to do this? What are the consequences? And are we really assuming that all boys and all girls are going to get along thus freeing the school from conflict? And, of course, the underlying racial stereotypes (the majority of ACHS pupils are students of color) are problematic.
A short news piece from Ms. magazine about the school and the new policy does mention this aspect; which is good because few media outlets do when discussing any of the single-sex education cases.

Another interesting aspect: the school's lack of success actually means it will be one of four high schools in Indianapolis that the state will take over from the school district next year. That may put an end to the segregation--or not. Assuming no one(s) challenge it before then.

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.

Indiana scheduling case in court

This week the 7th Circuit Court of Appeals will hear the Indiana high school scheduling case. The original lawsuit, filed in 2009 by a former girls' basketball coach charged that boys' basketball in the district got favorable treatment in the scheduling of games. (Other posts about this case can be found by clicking on the Indiana tag.]
No word on when a decision will be made.
We will make sure to note any further news out of Chicago this week.

Former coach files separate lawsuit

Amber Parker, the former coach of the girls' high school basketball team in Franklin County, Indiana, has filed a lawsuit against the district alleging that the non-renewal of her teaching and coaching contract was due to her other lawsuit claiming disparity in scheduling of girls' and boys' basketball games. Parker had to "hand off" that lawsuit when she moved to Massachusetts (to those who had standing in the case as parents of current players). It is currently under appeal in the 7th Circuit Court of Appeals in Chicago.
Parker is claiming that her firing was a direct result of her public comments (and subsequent lawsuit) about the disparities in scheduling and that the superintendent told a school board member that he wanted Parker fired. The complaint also notes that the contracts of two other varsity coaches were renewed the year Parker was let go even though their teams had worse records.

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).

Appeal in Indiana scheduling case

A summary judgment issued by a federal judge in Indianapolis is being appealed by the plaintiffs in the scheduling of girls' basketball games in Frankling County, Indiana. This is the case started by former coach Amber Parker (who has since moved out of the state). Last year the judge ruled that the schools (and IHSAA, since dropped from the lawsuit) were not in violation of Title IX. Erin noted some of the issues with the judge's rationale when the decision was released and it seems her hopes for an appeal have been realized.
The appeal will be heard by the 7th Circuit Court of Appeals in Chicago.

Indiana Scheduling Case Decided On Summary Judgment

Yesterday, federal district court judge William T. Lawrence of the Southern District of Indiana dismissed claims against the Indiana High School Athletic Association and area high schools that scheduling girls' basketball for fewer Friday and Saturday night games violated Title IX and the Equal Protection Clause. We've been following this case for a while, see prior posts here, here, here, and here.

In evaluating whether the high schools themselves violated Title IX, Judge Lawrence acknowledged that the regulations require equal treatment between boys' and girls' teams, and that the regulations specifically cite "scheduling of games and practice time" as an aspect of this determination. 34 C.F.R. § 106.41(c)(3). The judge also cited OCR's 1979 Policy Interpretation, which provides additional guidance for evaluating equality between athletic opportunities offered to each sex:

a. Whether the policies of an institution are discriminatory in language or effect;
or
b. Whether disparities of a substantial and unjustified nature exist in the benefits,
treatment, services, or opportunities afforded male and female athletes in the
institution’s program as a whole; or
c. Whether disparities in benefits, treatment, services, or opportunities in
individual segments of the program are substantial enough in and of themselves to deny equality of athletic opportunity.

Disparities in treatment, the judge concluded, must be "substantial" to constitute a violation of Title IX. In other cases involving scheduling, the judge acknowledged, courts have concluded that decisions to schedule girls' sports in a nontraditional season violated Title IX because such decisions limited the female athletes' access to role models, skills development, and team-building. But playing more weeknight games does not harm female athletes in these particular ways, so therefore, he reasoned, the high schools' scheduling decisions do not create substantial disparities in violation of Title IX.

Missing from the judge's analysis is an independent evaluation of the effect of a disparity in night-of-the-week scheduling, rather than season-of-the-year. Granted, judicial decisions to date have dealt with the former rather than the latter. But simply to conclude that the plaintiffs didn't suffer the same kind of harm as those in the season-of-the-year case is insufficient reasoning, as it fails to consider whether the harms from having more weeknight games might be substantially harmful in a different way. Greater academic challenges and a diminished opportunity to develop a fan base are two possible harms that come to mind. Another possibility -- which actually does have support in the season-of-the-year scheduling cases, is that scheduling girls' sports more often at a non-preferred time stigmatizes girls' teams with second-class status.

Another concern I have is that the factors cited by the judge from the 1979 Policy Interpretation are alternative, not conjunctive, suggesting that noncompliance might result from failure to comply with either standard independently. It seems to me, then, that the judge should have evaluated under part a. whether the schedule contains "discriminatory language or effect" as well as whether the effect of discrimination was "substantial," an element of b. and c. A schedule that relegates girls games to more weeknight games seemingly constitutes "discriminatory language or effect."

The judge also decided that the IHSAA did not violate the Equal Protection Clause, nor (in a separate decision issued last week) Title IX, reasoning that IHSAA did not determine the schedule of games; it only tells member institutions how many games it can schedule, when the season starts and ends, and limits each team to no more than two weeknight games per week. The judge did not endorse the plaintiff's argument that the IHSAA's failure to require gender equity in scheduling was "deliberate indifference" to discrimination, noting the absence of precedent for such a standard in these kinds of cases.

I am rooting for an appeal.

Decision: Parker v. Indiana High School Athletic Ass'n et al, 1:09-cv-00885-WTL-WGH (S.D. Ind. Oct. 6, 2010) (retrieved from Pacer, not yet available on Westlaw).

Indiana case switches hands

A mother of a female basketball player at Franklin County High School in Indiana has filed a Title IX lawsuit on behalf of her daughter alleging a disparity in the scheduling of boys' and girls' basketball games.
If this case sounds strangely familiar--well, it is.
Tammy Hurley filed the suit, the same one filed by Amber Parker, on Monday because it appears that Parker and her family are moving to Massachusetts thus making their case moot. So Hurley has stepped in to ensure that the issues are addressed. Hurley's case is currently assigned to a different judge, but her lawyer is working on getting it moved to Judge William Lawrence who currently is handling Parker's case.

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Indiana scheduling case on the docket

The case being brought by Amber Parker on behalf of her daughter against the Indiana High School Athletic Association and Franklin High School (where Parker is also the girls' basketball coach) is headed to summary judgment.
At issue in the case is the longstanding complaint that the boys' basketball team gets more opportunities to play their games during primetime (Friday nights). This has been an issue for over ten years (as we noted in the past).
I couldn't find an actual date on which the case will be heard but the judge's decision will come within a few months.

Indiana scheduling case moving forward

The case brought by former basketball coach Amber Parker, on behalf of her daughters, against the Indiana High School Athletic Association and Franklin County schools is moving forward. A federal district court decided the case would proceed to trial. But the defendants are still waiting on a motion they filed that argues the case violates the 11th amendment. [I'm pretty sure that's not going to work out for them, but I am not the legal expert.]

Last we had heard about the case, Parker was looking for a lawyer. She appears to have found one and is set to make the IHSAA take responsibility for their history of discriminatory scheduling.

Reaction to IHSAA lawsuit

Seems as if reaction is mixed regarding the current scheduling of boys and girls basketball games in Indiana. This also means there is mixed reaction over what schedule changes might occur if the lawsuit is successful.
It certainly does not appear that--at least for now--the lawsuit has engendered any violent or overly passionate responses that involve bashing Title IX or girls' sports generally. Always a good thing.

Scheduling at issue in Indiana

The scheduling of girls' and boys' high school basketball games in Indiana has long been an issue; an issue the Indiana High School Athletic Association has seemingly chosen to ignore. But a recent lawsuit filed by a parent will probably make them pay attention.
In the late 1990s IHSAA was told there were scheduling issues but, according to the lawsuit, nothing has been done to remedy the disparities.
At issue is the primetime scheduling boys receive while the girls play the majority of the basketball games on weeknights and Saturday afternoons.
The lawsuit was filed by a former* girls' basketball coach on behalf of her two daughters.
OCR warned IHSAA in 1997 about the scheduling problems.
Now IHSAA must respond to the charges within 23 days.


* Interestingly she was not rehired to coach the high school team in Franklin County. Wonder if there is a retaliation suit in here somewhere??

Indiana Girls May Try Out for Baseball

Earlier this month, the Indiana High School Athletic Association voted unanimously to make permanent its executive board's emergency ruling (see also here) issued in February that would allow girls to try out for baseball, even if they attend schools that offer opportunities in softball. As we've noted in prior posts, the decision was reached after a 14-year-old girl named Logan Young filed suit in federal court after she was barred by IHSAA's prior rules from trying out for her school's baseball team. Young, represented by Public Justice* and Philadelphia law firm Hangley, Aronchick, Segal & Pudlin** argued that baseball and softball are not "comparable sports" as they require different fields, different equipment, and have different rules and strategies. Now that the IHSAA has changed the baseball rule, however, Young has dropped her lawsuit.

But according to Young's lawyers, the IHSAA's remaining restrictions on girls' participation on boys teams continue to violate Title IX. Specifically, Title IX regulations require schools to allow girls to try out for boys teams in non-contact sports -- such as cross country, golf, swimming and diving, tennis, and track and field -- when there is no girls' team offered in that sport. Yet, this is prohibited under IHSAA rules as they currently stand. It will take another Logan Young to come along and pave the way for crossover participation in those sports.

* represented FGCU coaches
** represented Jennifer Harris against Penn State

Indiana HS OK's Girl's Tuxedo

An update on the prom story we blogged about last week: Indiana's Lebanon High School has lifted its requirement that girls wear formal dresses to the prom. The ACLU had challenged the policy in court on behalf of a lesbian client who intends to wear a tuxedo in consistency with her sexual orientation and preferred gender presentation.

It's Prom Season Again, Bring on the Lawsuits

Every year around this time it seems we get to post about a student's lawsuit challenging a school district's gender-based prom policies. This year's lawsuit targets Lebanon (Indiana) School District, which has refused to allow a lesbian student to wear a tuxedo to her high school prom. The student, represented by the ACLU, claims that the restriction violates her First Amendment right to freely express her sexual orientation, and is an illegal sex discrimination in violation of Title IX. A legal scholar quoted in the article points out that gender-based dress codes, such as those prohibiting boys from wearing earrings, have been upheld by courts, but that prom-specific dress codes have not received definitive treatment.

The fact that this policy appears to target the student because of her sexual orientation could help the ACLU distinguish it from the typical dress code case and may underscore her free expression claims in a way that a more general gender-based dress-code policy (such as one prohibiting all girls from wearing pants to school?) would not.

Moreover, as a student interviewed in the story pointed out, there is a certain irony in morals-based opposition to girls in tuxedos, which is more "conservative" attire than the often revealing and sexually-suggestive dresses that girls are allowed to wear. On the other hand, she aptly stated, "A tuxedo's not hurting anybody. Why should it matter?"

More on Indiana baseball

As we noted the other day, the Indiana High School Athletic Association has changed its rule barring girls from trying out for baseball when their school offers a softball program--likely because of the legal pressures of Public Justice and the ongoing attention being brought to the association by repeated challenges to the rule.
Here is a link to the AP story.
The association's commissioner, Blake Ress, basically said it was a cost-benefit analysis that resulted in the decision to change the rule (as in it was going to cost a lot to try to win a case there was little chance of winning). But he's not really on board. He still contends that the sports are comparable (and this is from the writer, not a direct quote from Ress) "because each involves a bat and a ball, similar positions and baselines on the diamond, and six outs in an inning." Of course there are different field dimensions, size of balls, pitching styles, and rules--just to name a few differences.

And here is the story of the origins of the IHSAA rule. Pretty interesting that it was established after another female baseball player, Kim Satterly, in 1980 was banned from the team. But she had no softball option because her school, at the time, didn't offer it. The growth of softball in Indiana is actually attributed to the rule. In fact, Satterly had to play softball her senior year when her school did decide to start a team. So growth from fear of female infiltration--a fear that clearly still exists.

Update on Indiana Baseball

The Indiana High School Athletic Association (IHSAA) passed an emergency ruling allowing girls to try out for high school baseball teams, even if their schools offer softball. Public Justice, a public interest law firm, gets tremendous credit for filing a complaint that prompted the rule change.

As we've blogged previously, the old rule precluded Indiana high school girls from trying out for baseball if softball was available at their schools. If an individual student had threatened a lawsuit, the IHSAA often granted waivers to them, but did not change the overall rule. It looks like the Public Interest lawsuit likely caused the IHSAA to reconsider their rule and open up opportunities to all girls, whether they were planning to litigate or not.