New York Times Examines Coach Salary Disparity in Basketball

Tonight, Baylor and Notre Dame will play for the NCAA championship in women's basketball, so the New York Times chose today to run an article about salary disparities between coaches of men's and women's teams. According to the article, the coaches of women’s college basketball teams are paid about one-half or one-third of the amount of the men’s basketball coach. There are a few exceptions, like Tennessee's Pat Summitt, whose $2.2 million annual salary is actually more than her men's team counterpart, and Geno Auriemma, who makes two-thirds of UConn men's team coach Jim Calhoun. But in most cases, men's basketball coaches (who are almost always men) are paid two- or three- times more than the coaches of women's teams, whether they are male or female.

The article then examines factors that contribute to this disparity, which defies the general principal under Title IX that men's and women's teams receive comparable resources, including coaches of equal caliber, and the Equal Pay Act, which prohibits paying women less for equal work. One source of the disparity is third-party sources of income, like endorsements and speaker fees. Men's coaches are also able to capitalize on market forces that make their summer camps a profitable endeavor, while women's team's summer camps are generally recruiting tools that break even. The article also notes that unlike the coaches on the men's side, whose teams receive favorable treatment automatically, coaches of women's teams use their employment contract to secure amenities for their teams. This presumably cuts into their bargaining power to leverage higher salaries.

The article also provides some insight into law's limited ability to address disparities in head coach salaries. Title IX's limitation in this regard is that it is student-focused. The law requires equal treatment for men's and women's teams, which includes the quality of coaching each program receives. Quality of coaching is of course a function of the compensation available. But the overall market for salaries in women's sport generally allows universities to purchase a coach of comparable quality to head their women's teams, just at discount prices.

The Equal Pay Act is also implicated by salary disparities, but limited in its ability to address the problem. For one thing, as the article notes, third-party payments like endorsements are outside the scope of the Equal Pay Act. (I do think, however, that a case could be made for including booster club payments as part of the equal pay equation, by analogizing to Title IX, which requires school districts that accept funds raised by one team's boosters to still provide equal treatment to boys and girls teams.) Another limit is that the Equal Pay Act provides a remedy to women who are paid less than men for equal work -- it doesn't apply to male coaches of women's teams who may be paid less than male coaches of men's teams. And even where the Equal Pay Act does apply, universities can justify disparities in base pay by arguing that the male coach has more job responsibilities -- even if such additional job responsibilities are seemingly manufactured for that purpose, such as requiring the men's team coach to make 20 public appearances and the women's team coach15 (an example from the article). The Equal Pay Act also allows universities to justify paying male coaches more based when their team brings in more revenue, even though this disparity is due to to external market forces rather than the respective effort that each coach puts into the job.

Reversing the Trend of Declining Women Coaches

This article on ESPN.com addresses the dearth of female coaches in a way that appropriately puts the responsibility on colleges and universities to make sure that it is reaching out to a diverse pool of candidates as well as creating a working environment that is friendly and conducive to coaches of both sexes. I have just one complaint about an obvious omission. If you want to attract female coaches, you have to make sure that your institution is doing right by lesbians. No, I don't believe that all aspiring female coaches are gay -- of course that's not true. But some are. Many are. If you want to attract the largest possible pool of female applicants, you should also be asking the following questions, in addition to the advice about that the ESPN article provides about recruiting, mentoring, networking, and supporting female coaches.

• Does your institution have employment policies that are gay and lesbian friendly? For example, do you have a nondiscrimination policy that includes sexual orientation as a protected class, and do you offer domestic partner benefits?
• What has your department done to address the problem of negative recruiting? (Negative recruiting is the practice of mentioning another coach's perceived lesbianism to potential recruits and their families in an effort to gain a recruiting advantage over that coach.) Do you have a zero-tolerance policy for coaches who engage in negative recruiting, and have you stood up for coaches against whom negative recruiting has been used?
  
• What is the culture and climate of your athletic department? Are all coaches' partners and families welcome at events? Are gay and lesbian staff members as free as anyone else to talk openly about their partners and families?
  
• Do your media guides provide equal treatment to coaches' nontraditional families, or do they only mention coaches' opposite-sex spouses?
• Are recruiting materials using code words like "family friendly" or "Christian values" that may be signaling discomfort or exclusion of lesbian coaches?

See also, this article in New York Times about dwindling number of female head coaches in women's hockey. It too provides a comprehensive analysis of the problem, but fails to mention homophobia in sport as a contributing factor.

Court Dismisses Case Challenging Title IX's Application to High School

Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.

The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.

To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.

Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)

Complaints Filed Against Five Wisconsin Districts

Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.

OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."

$1.35 Million Settlement Ends UC Davis Litigation

Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.

The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.

High School Athletes Win Title IX Trial

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

University of Montana Football Players Linked to Wave of Sexual Assaults

An article in Huffington Post describes an alarming series of sexual assaults involving football players at the University of Montana. Most recently, an incident in which multiple football players are accused of drugging and raping two female students has produced felony charges and one admission of guilt. This incident has also apparently brought to light two prior allegations of rape committed by football players, that were reported to the University but which the University did not investigate or pursue disciplinary action.

The University defended its failure to respond on the erroneous belief that it is not obligated to address incidents between students that occur off campus, as well as some inexplicable belief that it is somehow prevented by law from reporting incidents of assault to local police. The university is also being criticized for following up with the football coach, but not the victims, and of helping accused football players find legal representation with a local "powerful" law firm.

An independent investigation is ongoing, which has produced preliminary findings suggesting that the University has a "gap" in its reporting of sexual assault. This week, the University hosts a public meeting on date rape. We'll have to wait and see whether this investigation and increased focus on sexual violence brings more incidents to light, and whether any of the victims pursue litigation under Title IX challenging the University's deliberate indifference to sexual assault.

How Diverse Are Women's College Sports?

Recently, the NCAA published the most recent school-year's participation data, which includes breakdowns by sex, race, sport, division, and conference. Because this data set goes back to the 1999-2000 school year, I decided to use it to look for trends in racial diversity in women's college athletics over the last decade. Several hours and few Excel spreadsheets later, I have the some questions and answers to report.

My first question was whether athletic opportunities for women in general increased during the time period in question.

• The answer, not surprisingly, is yes. Athletic opportunities for women at NCAA member institutions has increased by 31% -- from 147,683 in 1999-2000 to 193,207 in 2010-2011.
  
• Half of that overall increase is due to gains in three women's sports: indoor track, outdoor track, and soccer.
  
• Participation rates within most other women's sports increased as well. In addition to two emerging sports that were discontinued during the time frame in question -- archery and badminton -- only fencing, rifle, skiing, and synchronized swimming showed declining participation rates. All other sports gained some.
  

Next, I wondered whether opportunities for female athletes of color have increased during this time period as well.

• Again, the answer is yes. Opportunities for women of all minority races (Black, Asian/Pacific Islander, Hispanic/Latina) increased by percentages higher than the mean 31%. For instance, opportunities for Black female athletes increased from 14,001 to 21,615, or 54%. In comparison, opportunities for white female athletes increased from 117,244 to 144,598, or 23%.
• However, these gains for female athletes of color were not enough to significantly change the overall racial distribution of female athletic opportunities. In 1999-2000, 79% of female athletic opportunities went to white athletes, compared to 75% last year -- a change of only four percentage points. Meanwhile, the percentage of female athletic opportunities that went to Black women rose from 9 to 11 percent.

I then wondered whether the present distribution of female athletic opportunities by race is proportionate to racial demographics of the undergraduate population.

• The best data I could find suggests that about 8% of female college undergraduates are black (13.5% of college students are black; 59.3% of black college students are female).
  
• A total of 14,001 athletic opportunities received by Black women constitutes 11% of women's athletic opportunities, so Black women are not underrepresented in the distribution of women's athletic opportunities.
  
• Yet when you take into account the general underrepresentation of women in college athletics, the percentage of athletic opportunities for Black women is disproportionately low, since a total of 14,001 athletic opportunities received by black women constitutes only 3% of all athletic opportunities.
  

Last, I wondered if racial diversity within particular sports has changed over time.

• In 1999-2000, there were 14,001 athletic opportunities for black female athletes. 25% of these opportunities were in outdoor track, 21% in indoor track, and 23% in basketball. This not surprising, as reporters, scholars, and advocates have noted for years about this manner of racial segregation within athletics.
  
• Unfortunately, though participation rates are rising in almost every sport, including two new emerging sports that have been added in the last ten years -- bowling and rugby -- opportunities for black female athletes are still concentrated in track and basketball in percentages nearly identical to those ten years ago.
  
• Other minority races, though receiving fewer athletic opportunities than black women, were more evenly distributed throughout various sports. Latina/Hispanic women have 7747 athletic opportunities -- 17% in soccer, 14% in softball, 10% in track. Asian women have 3999 athletic opportunities -- 12% in soccer, 11% in tennis, and 10% in track. Finally, just 716 Native American/Alaska Native women have athletic opportunities at NCAA institutions, 18% of these are in softball, followed by 13 and 12% in outdoor and indoor track, respectively.

In sum, this year's NCAA participation data suggest there's been no drastic change in the diversity of women's college sports over the last ten years. Thanks to Title IX, opportunities for women to participate in college athletics continue to increase and close the gap between participation rates for women and men. Yet even though these increases produce opportunities for Black women that are proportion to their demographic rates on campus, their opportunities still remain clustered in track and basketball. With only two sports accounting for most athletic opportunities for Black women, questions must be raised about the accessibility of other sports to athletes of color.

Slippery Rock Settles Retaliation Suit

Slippery Rock University has settled on undisclosed terms the retaliation case filed against it by two female athletics officials, which we had earlier blogged about here. The plaintiffs had alleged that their employment contracts were not renewed in retaliation for their cooperation in an earlier lawsuit against the university that challenged the athletic department's compliance with Title IX.

Like We've Been Saying...

Athletic Director Tom Osborne announced that University of Nebraska-Lincoln had no immediate plans to pay athletes the $2000 cost-of-living student stipend approved by NCAA Division I this fall. Osborne explained that there was no clear way to implement the stipends, which are only authorized for athletes on full scholarship, without violating Title IX, given that there are about half as many full-scholarship female athletes as there are full-scholarship male athletes. We recently posted about the Faculty Athletics Representatives raising a similar concern in a letter to the NCAA.

The NCAA has not provided guidance to member institutions about how to implement the stipends without violating Title IX. Perhaps if more ADs follow Osborne's lead, the NCAA will feel more motivated to address the gender equity implications of this plan.

Ann Arbor No Longer Plans to Exempt Football from Cuts

This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.

I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.

Tennessee Rejects Equal Pay for Women's Athletics Officials

The Washington Post reports that the University of Tennessee recently rejected an internal complaint filed by three employees of women's athletics, arguing that their salaries were discriminatory because they were less than their counterparts in men's athletics. The employees held the positions of Athletics Director for Women’s Sports Medicine, Assistant Athletics Director for Women’s Strength and Conditioning, and the Associate Director for Women’s Strength and Conditioning, until the recent merger of men's and women's athletics at Tennessee.

The University of Tennessee's Office of Equity and Diversity denied their pay discrimination claims after determining that these positions in women's athletics were not comparable to the equivalent positions in men's athletics to justify equal pay. Specifically, the Office stated that due to the financial importance of football to the university, the sports medicine/strength & conditioning employees in men's athletics had a more important job because it mattered more financially that male athletes were healthy:

Football overwhelmingly is the top revenue-generating sport in Athletics and the sport that generates the most fan interest,” the report says. “If the University’s football team is successful, then the entire Athletics program reaps the monetary benefits. If the University’s football team is unsuccessful even partly because football injuries are not being prevented, diagnosed, treated and rehabilitated successfully, then the entire Athletics program suffers. “With no disrespect being intended to Ms. Moshak [Athletic Director for Women's Sports Medicine], Mr. McVeigh’s position [Director of Men's Sports Medicine] is more important to athletics because of his football-related responsibilities."

With this statement, the University of Tennessee declares its true intentions in running an athletic department -- not, as its mission statement conveys, to enrich the education of student athletes, but to exploit the revenue-generating potential of certain sports. Aside from being hypocritical and morally void, this position also suggests that the University is (or was in the recent past prior to the merger) violating Title IX with respect to its athletes, as the law requires equal treatment when it comes to "medical and training facilities and services." And the law contains no exception for football or any sport because of its capacity to generate revenue.

Nor is it clear whether football's revenue justifies paying men's medical and training staff more. If this case made its way to the EEOC, the federal agency that enforces Title VII and the Equal Pay Act, it would consider whether the medical and training staff that McVeigh oversees is comparable in size to Moshak's. Yes, it may take more work to keep the football team healthy, but if you get a larger staff as a result, you can't use "football takes more work" as a justification for unequal pay. Another factor that the EEOC would consider is whether men's and women's athletics received equal opportunity to generate revenue. If the university allocated fewer resources to market and promote women's teams, it can't use the fact that men's teams bring in more revenue to justify pay disparities between men's and women's athletics.

The article does not suggest what's next for this case. Now that the university's decision is final, having been approved by the President on internal appeal, it will be interesting to see if the employees press their claims with the EEOC. And though its less likely, it would be even more interesting to see if someone presses the disparity in medical training as a violation of Title IX.

Title IX and Penn State

In a two-part column at Justia.com (see here and here), Hofstra law professor Joanna Grossman and Pittsburgh law professor Debbie Brake examine whether Penn State is liable under Title IX for the sexual abuse committed by former Assistant Coach Jerry Sandusky, who used Penn State facilities to anally rape boys he associated with under the auspices of charity that Sandusky founded.

In yesterday's column, Grossman and Brake describes the facts of the case as detailed by the Grand Jury Report. This report will be the basis for criminal prosecutions against individuals involved, including Sandusky and those Penn State officials who participated in the cover-up. As she explains, this case could also give rise to institutional liability against Penn State. It's important to hold the university liable as an institution, she argues, in order to send the message that football programs are not "impervious to the normal rules of a university."

For an institution to be liable under Title IX, the case must involve sex discrimination that is "severe or pervasive." Sexual abuse is a form of sex discrimination because it is unwelcome and motivated by the victim's sex. Moreover, the more severe the incident, the less ongoing it needs to be in order to satisfy this requirement. Courts have held that cases where a particular victim is severely abused, such as by rape, satisfy this element even it only happened to that victim one time.

Next, school officials must have actual notice of the harm and respond with deliberate indifference. If the charges in the jury indictment prove true, these elements can also be satisfied by the fact that a graduate assistant witnessed Sandusky raping a boy in the shower and reported it to head coach Paterno, who in turn reported it to Athletic Director Tim Curley. The university president and vice-president also had knowledge of Sandusky's conduct. Yet despite the fact that they also knew about a previous incident in which Sandusky bear-hugged a boy in the shower in 1998, the officials did not report this incident to the police or do anything else calculated to end the abuse. Grossman and Brake call this "textbook" deliberate indifference.

The element of Title IX liability that could prove most complex in this case is the requirement that discrimination must occur in an "educational program or activity," given that Sandusky's victims were not Penn State students and Sandusky's contact with them was through a program called Second Mile which is technically not part of the university. On this issue, it first bears noting that Title IX does not only protect students, by its terms it applies to "any person" who experiences sex discrimination in the context of an educational program. Second, even though Penn State was not officially running the Second Mile program, there may enough connection between the two to render Penn State liable. As the columnists point out, Sandusky had unfettered access to Penn State facilities even after he retired, and he used this access to provide Penn State facilities as a site for Second Mile activities. Sandusky also administered Second Mile from his Penn State office. Penn State was therefore in a position, having learned of the abuse, to exert its control over the situation once it found out about the abuse. Instead, it facilitated the abuse by allowing Sandusky to continue to use his coaching position and its privileges to provide the setting for abuse.

While the criminal charges in this case take "center stage," it will be interesting to see whether Penn State itself is also held liable under Title IX and what such a lawsuit would reveal about the relationship between sex, power, and football in society.

Remaining Idaho Complaint Closed with Voluntary Resolution Agreement

I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.

Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.

Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."

If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.

So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.

Women's Sports Foundation Reports on Participation Trends in High School Athletics

The Women's Sports Foundation has published a new report called “Progress Without Equity: The Provision of High School Athletic Opportunity in the United States, by Gender 1993-94 through 2005-06.” Using data from the Civil Rights Data Collection and the National Center for Education Statistics, the report authors, Professor Don Sabo from D'Youville College and Phil Veliz from SUNY Buffalo, examine gender differences in athletic opportunity in a sample of 24,370 public high schools across three school years, 1993-94, 1999-2000, and 2005-06. The authors measured the number of athletic participation opportunities, the number of teams, and the number of sports in the sample school districts during these years, and then controlled for a variety of factors about those schools including geographic region, level of resources, and whether urban, suburban or rural. As described in the report's abstract, its key findings include:

• While high schools gradually increased their allocations of athletic participation opportunities between 1993-94 and 2005-06, progress toward closing the gender gap slowed after 2000.

• Boys received a larger proportion of athletic participation opportunities than girls did for each school year in all communities (i.e., urban, suburban, town, and rural). The lowest percentages of athletic participation opportunities occurred in urban schools, whereas the highest percentages were issued in rural schools.

• Schools with greater economic resources provided more athletic participation opportunities for their students—both girls and boys—than their less fiscally sound counterparts.

• Girls were provided proportionately fewer athletic participation opportunities than boys during each school year and in all geographic regions (i.e., Northeast, Midwest, South and West.

To me, this report provides an answer to those who would curtail Title IX's enforcement at the high school level. By proving that girls' opportunities are still lagging and progress towards equality waning, this report should encourage regulators and lawmakers to strengthen Title IX's application to high school athletics such as by taking seriously those seeking OCR enforcement against continued disparities, and by passing legislation that would standardize participation data and make it available and easier to find for those seeking to file a complaint or a lawsuit.

OCR Drops All Idaho Complaints But One

The Office for Civil Rights will reportedly drop the complaints against 77 of the 78 Idaho school districts cited in the mass-complaint filed over the summer. Only the Meridian School District, the largest in the state, remains subject to OCR investigation for claims that it violated Title IX by failing to provide an equitable number of athletic opportunities for boys and girls.

There does not seem to be a legal distinction for singling out Meridian. The allegations against that district are supported by evidence of the same type and quality as the allegations against the other school districts. Specifically, the complaint against Meridian alleges that the district does not comply with any prong of the three-part test: First, its participation data reflects a 6.3 percentage point disparity between the percentage of athletic opportunities for girls and percentage of girls in the student body, a disparity that translates to 42 athletic opportunities. Also related to prong one, the complaint alleges that Meridian's participation numbers are "padded" because they include cheerleading and dance numbers, despite the fact that cheer and dance teams in Idaho do not have the same kind of competitive schedule as other varsity athletics and therefore should not be counted according to OCR's published standard for determining what counts as a sport for Title IX purposes.

Second, the complaint cites the trend of increasing or continued participation gap as evidence of the absence of "history and continuing practice" of expanding athletic opportunities for the underrepresented sex. And regarding the third prong, the complaint cites the fact that there are girls' sports sanction by the state high school athletic association that are not offered at Meridian--specifically, bowling, golf, gymnastics, water polo, crew, and lacrosse -- as evidence of "unmet interest" among the underrepresented sex.

As I said, the claims against Meridian are not substantially different from those against the other Idaho districts, or, for that matter, those against the Washington or Oregon schools that were named in mass complaints that OCR declined to pursue. To me, this suggests that OCR does not really have a problem with the type of evidence used to support the allegations of Title IX violations, it just doesn't like dealing with a massive, 78 district complaint all at once. And while maybe the agency has reasonable basis for not wishing to devote scare agency resources to 78 simultaneous investigations, I wish the agency would communicate better that that's what's going on. When the press reports that 77 school district were "cleared" of any Title IX violations when (if) the complaints were not dismissed for reasons related to the merits of the complaints, it sends the false message that things are fine when they are not necessary so.

Florida High School Reinstates Coach After Retaliation

In June, school officials at Jensen Beach High School in Martin County, Florida, terminated girls' lacrosse coach Michele Ruth, who had advocated for her team's access to the district's best athletic facility, the stadium built for the football team, but which is otherwise used during the spring lacrosse season. This week it was reported that the school district agreed to a settlement with Ruth to keep her from filing a lawsuit. As part of the settlement, Ruth is reinstated to her coaching position, and the girls lacrosse team will have their home games in the stadium. The settlement agreement (available here) also provides that the district will reimburse Ruth's attorneys, including Linda Correia and the law firm Public Justice.

Reportedly, the district had claimed that it terminated Ruth for coaching without shoes, in violation of a school policy necessitated by the dangerous condition of the field used for lacrosse, due to the presence of "glass and nails and snakes." Two problems with this explanation probably influenced the district's decision to settle rather than face a jury: first, the coach's shoes only became an issue after she raised the Title IX implications of the athletic director's decision to exclude the lacrosse team from the stadium, and thus appear to be pretextual. Second, the unsafe conditions of the field, which the district would have to emphasize as part of its defense, not only underscore Ruth's request to play in the stadium, but raise separate questions of liability, including under Title IX.

One local columnist is calling Ruth a role model to her students for having the "courage and conviction to stand her ground."

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.

School District to Renovate Softball Fields

The Kennett Consolidated School District in Chester County, Pennsylvania, will improve its girls' softball field, having voted this week to retain a contractor to design and conduct the renovation, at an estimated cost of $30,000. Reportedly, the boys' baseball fields have better playing surfaces, dugouts, and a scoreboard, and the school board wants to bring the girls' fields to the same level in order to comply with Title IX.

No Investigations into Oregon Complaints

The Department of Education has announced that it will not conduct investigations into the complaints filed against 60 school districts in June.

No reasons for this decision appear in any news report available at this time. My understanding, however, is that OCR dropped the complaints because they did not contain evidence to support allegations that the districts were violating all three prongs of the three-part test, as is required for a Title IX violation to occur. Specifically, OCR required more evidence to support allegations that the districts were in violation of the third prong, which measures whether school districts have satisfied all unmet interest of the underrepresented sex. Generally, the complaint based allegations of unmet interest on the fact that districts offered fewer girls' sports than are sanctioned by the Oregon State Activities Association.

Under normal circumstances, I think that basing a prong three allegation on evidence that schools don't offer girls' sports that are popular in the state, as evidenced by their recognition by the state athletic association, is a viable one. Remember, the complainant isn't required to prove that a violation exists -- that's OCR's job -- just give the agency a reasonable basis for conducting an investigation. Moreover, the Oregon complainant isn't the first to rely on state athletic association's list of sanctioned sports to support allegations of prong three violations; the National Women's Law Center did so when it filed 12 complaints against schools across the country earlier this year, and those complaints have not been dismissed. Perhaps when faced with the prospect of a single regional office having to investigate 100 schools at once, OCR is requiring more of complainants than it ordinary would?