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.

Resolution Agreement Reached at Adrian College

An anonymous reader mailed me a copy of a Resolution Agreement between the Department of Education Office for Civil Rights, and Adrian College in Michigan. In 2008, we blogged about ongoing investigation into a complaint against the college stemming from among other things the college's failure to include a women's locker room in its newly constructed "Multi-Purpose Stadium." (see here and here). Apparently, the inequities between men and women's sports at Adrian College were significant, as the college has agreed to remedies in every area covered by Title IX's athletic regulations. Specifically, the college has agree to:

• Evaluate its intercollegiate athletics program "to identify one or ore women's sport team to add in the 2012-2013 academic year."
• Develop a written replacement schedule for equipment and supplies, including uniforms, which will ensure equity by gender.
• Increase the number of competitive events for softball and women's tennis.
• Ensure that women's softball is not the only team stuck with 6 am indoor practices, but that that burden is shared by men's teams as well.
• Ensure that the head coach for men's and women's track splits his time equally between the teams, and to hire an assistant coach for women's track.
• Improve hiring practices to attract more qualified coaches to the women's program, including by increasing compensation and other conditions of employment to make the job more attractive to qualified applicants.
• Construct a new locker room for women in the Multi-Purpose Stadium.
• Renovate existing women's locker rooms in other facilities.
  
• Renovate the women's softball facility to allow for night play, concessions, changing areas, and spectator viewing.
  
• Assign the same number of "equivalently qualified" medical and training staff to men's and women's games.
• Provide equivalent publicity ("e.g., media coverage, statistics maintenance, attendance at games, and other services") to men's and women's teams.
• Provide recruitment funds to men's and women's teams "in proportion to each gender's participation rate in the athletics program" and, as needed, to the women's program at a greater rate in order to make up for the "significant" underrepresentation of women in the athletics program.
• Adhere to various reporting and monitoring requirements with respect to these promises.

OCR will continue to monitor the agreement until it determines that the College has fulfilled its terms.

Scheduling remedies in our own back yard

Several friends have informed us about a settled Title IX complaint right in our neighborhood. Amherst Regional High School has agreed to make changes in both game and practice scheduling.





Amherst resident Craig Goff filed a complaint with OCR almost a year ago about the scheduling of girls' sports, and last May* the school agreed to remedy the inequities by:

• scheduling an equal number of prime time games;
  
  



• scheduling an equal number of nighttime under the lights games;





• implementing a full schedule for girls' soccer, tennis, and volleyball (which had reduced schedules due to budget cuts; the athletic director said she had thought that--over the course of the reductions--cuts had been made equitably among boys' and girls' team; but apparently not);
  
  



• and ensuring equal access to desirable practice times in shared facilities.

And in case there is a question of why this matters (though we have spoken about it before, mostly in posts about the scheduling of girls' versus boys' basketball games), Goff makes a good point. When girls' games are scheduled exclusively during the day, fewer parents can attend. This also means, as Goff noted, that these teams get less community support. Parents are their student-athletes' biggest fans and advocates. The visibility of girls' and women's sports can be directly related to when their contests are scheduled, which is why scheduling is one of program areas Title IX covers.

This story continues our theme this week of "it's not just quantity--it's quality." Also of note, Goff is a parent of a former Amherst student-athlete. He noticed the inequities when his daughter played soccer for the school a decade ago. A good reminder that anyone can file a complaint. (But note it can be anonymous.)











* I couldn't discern from the article whether OCR actually made it out to Amherst or if the school changed their ways based on consultation with other entities before the investigation occurred.

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.

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.

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.

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).

Which came first? The rock or the hard place?

The Great Lakes Intercollegiate Athletic Conference has decided to reverse the order of their basketball doubleheaders this coming season. Doubleheaders within the conference have traditionally featured a women's game followed by a men's game. But after an anonymous complaint filed with OCR and the subsequent investigation, the conference has decided to reverse the order. The order of women first, men second, the complaint indicated, gave the impression that women's games were mere warm-up acts for the main attraction.
The GLIAC is not, however, the first conference to make such a change in its scheduling. Other conferences rotate annually or some switch in midseason. Whether such scheduling is legal has not been determined because it was a complaint that was filed--not a lawsuit.
Regardless, the situation raises some issues. Lest my critics think I am all "this is super duper awesome" when any action is taken in the name of gender equity in sports, I do worry.
Let me state first that I think women's games should be the main event an equal amount of the time if main event status/time has to be shared between men's teams and women's teams. While going to women's hockey games at the University of New Hampshire on Sunday afternoons was a pleasant distraction from all that reading I should have been doing in college, it would have been nice to have the team get the primetime Friday or Saturday slot more often.
But do I worry about what the effects will be if half the audience leaves after the men's game? I do. But then again I worry about the effects when female athletes see fans trickling in at the very end of their games clearly there to watch the men.
While I do believe that the promotion of women's sports is a major problem, we're not in Iowa* in terms of basketball (greater popularity among girls' basketball than boys') and the "if you build it they will come" mantra that was born there.** Building is good. Building it is great. But there is no magical realism moment where cars are lining up, headlights blazing in the night to get to women's basketball games. What I hope is that there will be no moments of red tail lights lined up heading away from arenas as the women start their games.
This article from the NCAA that discusses the other conferences who have already changed their schedules to give women's teams more primetime opportunities does not say what the effect has been on audience numbers. I do think that putting women's sports in the spotlight will change attitudes about female athletes--but not overnight; not even in one season I would suspect. I hope that conferences, administrators, fans, and even (especially?) detractors allow us some time. Because a lot more change has to happen, and it extends far beyond start times.

* anymore but I liked it when I was there and do go back to visit.
** okay it was technically born in Hollywood, but it was delivered in Iowa.

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.

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??

Never mind

The negotiations between the Florida High School Athletic Association and Florida Parents for Athletic Equity, which is being represented by Nancy Hogshead-Makar, have apparently broken down because the announcement that was expected Friday never happened. Early reports, that we reported here, said that FHSAA would offer two options regarding reduction of interscholastic athletic conferences that would not disproportionately affect girls.
Also, apparently, Roger Dearing, director of the FHSAA, was ready to rescind altogether the whole plan to reduce contests.
Hogshead-Makar said she did not what happened. Dearing could not be reached for comment and is on vacation next week. Hogshead-Makar is still giving FHSAA until Monday, as originally agreed, to address the issue. She also has said she will not file a lawsuit if FHSAA calls an emergency meeting for June 26 or before.

Lawsuit Filed Against Canton School District

Students and parents in Canton, Illinois, have sued School District No. 66 over alleged Title IX violations. Their complaint maintains that the district discriminates against girls' athletics in the scheduling practice times and times, and by providing equipment -- like sound systems -- and facilities -- such as locker rooms -- that are inferior to those provided for boys' athletics. Additionally, the plaintiffs charge that the district discriminates in the support and publicity for girls games by deploying the band, cheerleaders, and pompom squad to boys' games but not girls' games.

Canton is in the same county as Lewistown, whose school district settled a similar lawsuit in 2008, resulting in the upgrade of softball facilities there.

High School Coach Litigation Roundup

Several basketball coaches challenging discrimination in high school athletics have made news recently.

Lamar Bryant, fired from his position as head coach of the Marshall High School boys basketball team in Chicago recently settled his wrongful termination/retaliation suit against the Chicago Public Schools. As we noted last fall, Bryant's federal lawsuit alleged that his female athletic director discriminated against him and the boys' basketball team. Bryant will receive $500,000.

In Franklin County, Indiana, girls basketball coach Amber Parker is gearing up to sue the Indiana Interscholastic Athletic Association over the Friday night schedule issue we blogged about recently. She is looking for a lawyer to help her bring the case.

And Linda Wachter, formerly the girls' basketball coach at Exeter Union High School in California, is continuing to press her claim that the school district fired her in retaliation for her complaints that the athletic department was discriminating against her team by, among other things, denying them access to priority practice times and access to facilities. (We blogged about this case when it was filed in September.) The court recently dismissed her other sex discrimination claims, but determined that the facts she alleged, if proven, would constitute retaliation. The court is now in the processing of scheduling a trial or alternative resolution.

Tuesday Title IX tidbits

In Indiana it appears that not too much has changed since the state's high school athletics association got a letter over a decade ago from the Department of Education about scheduling boys' basketball games. Girls' basketball, at that time, had 10.5 percent of their games scheduled on Friday nights. Today it is at 19.2 percent. Boys who play b-ball in Indiana have 41 percent of their games scheduled for Friday nights. Fridays are considered an optimal day and the preferential scheduling in favor of boys' teams is an issue. In addition to opportunity for ticket sales and other revenue-generating ventures, games scheduled on Fridays are good for players who do not have to worry about getting homework done that night and going to school the next day. No formal complaints, legal or otherwise, have been filed, but the availability of the above statistics suggests it wouldn't be hard to prove inequitable treatment.

Niagra University is adding women's golf to their list of varsity sports. No word on why--especially given the economic realities most insitutions of higher education are facing. A quick look at the insitutional data shows women comprise 61 percent of the undergraduate student body and have 51 percent of the athletic opportunities. There is already a men's golf team. Not sure if that was a factor as well. But good opportunity for female golfers in the region.

And speaking of tough economic times, some schools--especially DIII schools--are using athletics to boost enrollment, and thus bring in some tuition dollars, according to an article in Inside Higher Ed. Of course, it's not as easy as bringing in athletes. Some schools are adding football. Over 100 new student-athletes equals a nice boost to tuition revenues. But it also adds a lot more participation opportunities for men. There's also the issue of where recruiting dollars are coming from--for men and women. Athletic administrators attest to the success of bringing students to campus after they have had some contact with athletic department people--but recruitment costs money.

NYC Schools Contemplate Fall Season for Girls' Soccer

In New York City's Public School Athletic League, girls' soccer is a spring sport. But parents, coaches, and gender equity advocates are urging the League to move the sport to the fall, the season it is played in the rest of the state. They have already complained to the Office for Civil Rights, and according to this article, a lawsuit may be looming.

If the League is smart, it will not wait to be sued to change the season for girls' soccer. Federal courts have already ruled that nontraditional seasons can violate Title IX, if one sex is singled out for the less advantageous season. Soccer in the spring causes problems for female athletes. In addition to precluding them from participating in the state tournament, it also makes it harder for the athletes to get year-round play, a necessity for elite players seeking to develop their skills to the college level. Many development programs run in the spring to avoid conflict with and to supplement the high school season. For NYC girls, these two opportunities overlap, taxing their schedules and their bodies during the spring and leaving them with limited soccer options in the fall. Since the League schedules boys' soccer in the fall, in sync with the rest of the state, it seems this disadvantage is borne only by female athletes.

Resistance to Title IX's application here would be both futile and costly. The Michigan interscholastic athletic association litigated for years to keep girls' basketball in the spring and 5 other girls' sports in nontraditional seasons. In the end, it not only lost, but had to pay $7.4 million to the plaintiffs' attorneys. Hopefully the Public School Athletic League will avoid taking a similar approach.

South Dakota reflects on season changes

The Michigan High School Athletic Association was forced to switch six sports to their traditional seasons this year. The case, which we wrote about frequently, created a level of discord and acrimony that was a little bit shocking. Given how recent the decision was, I assume there is still a fair amount of bitterness in Michigan. And how well the transition proceeds may depend on the efforts of people (like athletic directors) who were not in favor of the switches.

But if South Dakota is any kind of indicator, it will not be all bad as opponents have proclaimed. The Argus Leader out of Sioux Falls has taken a look back at the past five years since the state was compelled, by the threat of a Title IX lawsuit, to switch basketball and volleyball. People in South Dakota saw the writing on the wall (the other states that had lost similar cases) and opted to switch the seasons in 2002-2003.

The benefits have been great for volleyball which has seen tremendous growth in interest. More girls are coming out for the sport and this has lead to better competition statewide. Fan interest has also increased. About 5,000 spectators showed up to the state tournament this year.

What many schools are still dealing with though is scheduling. Gym space is limited which means scheduling becomes a nightmare for athletic administrators. It is likely Michigan will experience the same problems. It just seems par for the course, though. What public school has plenty of time and space for all its activities from sports, to classes, to music and drama programs? Everyone in public education is doing a lot of improvising these days. I hope people in Michigan look at what has happened in South Dakota and see the possibilities.