$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.

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."

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.

Sure it'd be nice to keep all the sports...

In a recent hearing in California, a state senator strongly questioned the folks at UC Davis over their recent decision to cut four intercollegiate athletic teams. Senator Dean Florez, who serves on the senate's Select Committee on Gender Discrimination and Title IX Implementation (out of curiously, do other states have such a committee?), feared that the cuts were not bringing Davis any closer to proportionality. Davis, prior to these cuts, faced a lawsuit brought by several female students who played club sports. They argued that Davis was not providing enough opportunities in athletics for female students. The settlement in that case binds Davis to achieving proportionality within +/- 1.5 percentage points within ten years.*
This could be part of Senator's Florez's concern. And I am glad that state legislators are paying attention to achieving equity (though not surprised given how much money Title IX lawsuits have cost the state of California in the past few years). But if I was a state senator in California (and hadn't already resigned in utter frustration), I wouldn't be giving UC Davis a hard time over cuts that they--given the current economic reality--had to make. The athletic department had to cut over $2 million from its budget. You cannot do that by simply reducing athlete per diems or limiting travel budgets.
It's a very...nuanced situation. Because according to the math Erin and I just did based on EADA data, Davis is indeed moving closer to proportionality. Taking into account the opportunities lost from these recent cuts, the percentage of women's opportunities is at 52. The undergraduate population is 56 percent women. The 4 percent difference represents 14 opportunities--if we were shooting for exact proportionality (we didn't calculate the 1.5). This is better than the 22 opportunity disparity that existed prior to the cuts.
But what exactly was Senator Florez getting at? That no cuts should have been made? That seems like an impossible situation at this point. Given that programs, faculty, administrative support at California schools are being and have been cut it would seem kind of...well wrong...to exempt athletics. The Title IX Blog has many friends and colleagues in California who are taking furloughs left and right. And though they are sport-minded people, it's not fair to ask some to sacrifice a lot and exempt others.
So then is Senator Florez saying that Davis should have cut only men's sports? Maybe. It is still possible for the crew team to bring a lawsuit against the school because they have not complied, at this point, with any of the three prongs. Would Davis itself be in a "safe harbor" (a term usually used by anti-IXers to discuss proportionality, in a negative way) because they have ten years to reach 1.5 percent proportionality? I don't know. It would be interesting to see how a court interpreted the previous settlement in light of the current situation. I am skeptical that such a move will occur given that Davis is so close to proportionality even with the cuts--something I assume they carefully calculated themselves--and that they are indeed bound by an existing settlement to make progress. It is unfortunate--as it always is--that "progress" has come in the form of cutting teams.



*Note that I was wrong--yes, I was wrong!--in an earlier post dated April 17 about UC Davis having to maintain 5 percent proportionality as a result of a lawsuit from the 1980s. Only institutions in the California State System (i.e. Cal State Riverside, Cal State Fresno) are bound by that ruling.

Breaking news: Settlement in NY bullying case

In January, the federal justice department intervened in a Title IX case in Mohawk, NY involving a male teenager who has been bullied for allegedly acting too effeminate. The justice department agreed that Title IX offered protection against discrimination based on gender expression.
And according to an NPR blog, the case has settled with the Mohawk school district agreeing to pay the plaintiff, referred to only as Jacob, $50,000, as well as cover all legal fees and the cost of therapy and provide anti-discrimination training to employees (teachers and administrators were either indifferent, complicit, or part of the bullying). This settlement deal is similar to the one we reported on not too long ago.
Thus the settlement is not surprising, though at the time we reported on the potential terms it appeared negotiations had stalled somewhat.
I would like to think that the large jury award to a bullying victim in Michigan earlier this month was influential.

UC Davis case reinstated on appeal

Erin wished in May 2008 that the three plaintiffs in the UC Davis wrestling case would appeal the decision of the lower court to dismiss the lawsuit in which the student-athletes allege Title IX violations after the school eliminated their opportunity to wrestle.
And this week her wish came true. The 9th Circuit Court of Appeals reinstated the lawsuit* after disagreeing with the lower court's rationale that the students had to inform their institution of the discrimination first. But as Erin pointed out in her analysis of the case, this standard, established by SCOTUS's decision in Gebser, a sexual harassment case, isn't really applicable in the case of athletics. An institution, as it restructures and makes decisions about how to distribute monies and opportunities, should be well aware of doing so equitably. After all, every school has its own Title IX compliance officer and is called upon by the NCAA on a regular basis to provide evidence of gender equity.
UC Davis lawyers were not surprised by the court's decision, but they note that since the time of the lawsuit the school (in accordance with a subsequent settlement) has moved closer to proportionality and now, they say, are within 3 percentage points. According to the settlement, the school must be within 1.5 percent in 10 years. How these recent efforts to provide equitable opportunities factor into the renewed lawsuit remains to be seen.


* In this article from the AP and reprinted in the LA Times, the writer refers to Title IX as "the so-called Title IX law." What is the implication here? That it's not really a law? Is the writer referring to the fact that it was renamed to honor Patsy Mink? I don't see a lot of other laws being modified by "so-called." The so-called Civil Rights Act? Makes one wonder how he really feels about Title IX.

Slippery Rock settles--again

The gender equity case against Slippery Rock University that started in 2006 and was reopened last spring when some felt SRU was not meeting the settlement's requirements has settled again. The university has promised to improve the softball stadium, commit $300,000 more than in the original settlement toward improving women's athletics, and provide Title IX training for athletes, coaches, and administrators in the athletic department.
The re-settlement brings up a few interesting issues. First, SRU president Dr. Robert Smith said that it was easy to sign the settlement because everyone was working toward the same goal. But I have my doubts about the level of sincerity in this statement. He defended the poor quality of the new softball seating and the layout of said stadium which blocked certain views of the field for fans noting that he didn't think Title IX applied to the quality of the fans' experience. True. But fans in the stands affects the quality of the athletes' experience and nice facilities in which fans can see the entire field of play help get fans in the stands. There seems to be an underlying assumption that female athletes play purely for the love of the sport; that they could play in an empty stadium and still love the game. And maybe they could; but everyone likes fans. Additionally, the alleged inferior quality of the softball stadium, as compared to the baseball facilities, illustrates the argument plaintiffs used to reopen the case: that SRU remains a little weak in its commitment to gender equity. I don't know how administrators can claim they created a first-class facility when it does not equal the quality of its first-class baseball facility. Such a statement would seem to indicate that there are different standards for the men and women.
And second, Dr. Smith discussed the university's adherence to Title IX noting that they have been in compliance with prong one for two years. Women receive 56 percent of the athletic opportunities; a percentage equal to their representation in the undergraduate student body. While we applaud this change since the 2006 settlement, it provides a good opportunity to reiterate that Title IX compliance is not only about number of opportunities. An institution might meeting that one requirement of Title IX but failing miserably in providing things like quality coaching, quality competition, access to facilities, etc. While SRU does not appear to be failing miserably, we were pleased to see them sign this new settlement and recommit themselves to gender equity in their athletic department.

School District Will Pay $25K to Settle Gay Harassment Suit

The Anoka-Hennepin School District in Minnesota recently agreed to a $25,000 settlement in response to a student's claims that he was verbally harassed by two of his teachers because they believed he was gay (additional press is here and here). According to a report by the Minnesota Human Rights Commission, which investigated the claims, a teacher named Diane Cleveland "singled him out on nearly a daily basis by making jokes, comments and innuendos about her perception of his sexual orientation" -- for example, that the student's "fence swings both ways," and that he had a "thing for older men." The second teacher, Walter Filson "would repeat, add his own jokes, and allow other students in the class to joke about the boy's perceived sexual orientation." The Commission also found that district did little to curb the harassment even after the student's mother complained. Filson was not removed from the classroom even after the district confirmed his participation, while Cleveland was only reassigned for a week and completed only 1 day of her assignment to work on curriculum development and "reflect on equality and diversity in the classroom." The student ended up transferring to another district, 25 miles from his home.

Settlement Reached in UC Davis Case

In 2007, three female students who played club sports at the University of California at Davis sued the university to challenge the lack of varsity athletic opportunities for women. They argued that Davis failed to satisfy any of the three alternative prongs for measuring compliance in this regard. The university argued that it complied with the proportionality prong, as women made up 56% of the student body, and received 50% of athletic opportunities. This difference of 6 percentage points is close to the +/- 5 percentage point difference that is commonly -- though unofficially -- recognized as acceptable to constitute substantial proportionality.

This week, the parties have agreed upon a settlement to end the litigation, in which U.C. Davis agrees to close that gap to 1.5 percentage points within 10 years. The New York Times's coverage of the settlement calls this a "stricter standard" that could influence how compliance is measured across the country. To put this point into context, I want to again point out that courts have accepted that percentage differences up to 5 percentage points qualify as substantial proportionality, this has never has this been adopted as a hard and fast rule applicable to every case.

Moreover, I don't see U.C. Davis's agreement to bring its athletic opportunity percentage to within 1.5 points of the percentage of women as acceptance of a "stricter standard" so much as an acceptance of a definition of substantial proportionality that is more appropriate for Davis -- and, frankly, which might not be appropriate at other schools. The judge in the U.C. Davis case recognized when he denied the university's motion for summary judgment that a six percentage point difference such as Davis's can represent a disparity of many opportunities or few, depending on the size of the university's enrollment and the athletic department. At Davis, the disparity represented over one hundred opportunities that would have to be added to bring the percentage of athletic opportunities in line with the percentage of women on campus and give women the same access to sports as men. At smaller schools, that same percentage point difference might only represent dozens of opportunities, rather than hundreds. It makes sense that a percentage point differential that might be acceptable in one case might not be appropriate in another, and that Davis should be striving for a difference lower, rather than just over, a 5 percentage point difference. The university should be commended for agreeing to those terms, and for its other promise to contribute $110,000 to support the development of women's athletics through club sports.

Mediation in QU case

Judge Stefan Underhill, who ordered the injunction on the Quinnipiac Title IX/volleyball case recently, has sent the case to a magistrate judge for mediation talks. No word here on what next week's talks will address, but both sides made the request to the district court. My guess as to likely topics: how QU counts and reports its number of participants; cheerleading as a sport; equitable treatment of the men's and women's program(s).

School District Settles Lesbian Harassment Case

The Vallejo City Unified School District in California will pay a former student, Rochelle Hamilton, $25,000 in a settlement to keep her from filing a lawsuit over anti-gay harassment she alleges to have experienced at the hands of faculty and staff during her sophomore year at Jesse Bethel High School. Hamilton says that teachers forced her to attend a counseling session for gay students where the counselor pressured her to disavow her lesbian sexual orientation. She also says that teachers verbally harassed her, calling her "ungodly" and telling her that she is "going to hell" and that she "can get HIV/AIDS from being gay and messing with female." She was also barred from the girls' locker room because she was not wearing stereotypically feminine attire.

The school district engaged an external investigation into Hamilton's claims; and while the investigation report is confidential, it reportedly concluded that some of the claims had merit and some did not. Apparently, however, the findings were sufficiently negative to motivate the school district to preempt the lawsuit with a settlement. In addition to the $25,000 it will pay Hamilton, the district has also agreed to revamp its harassment policies.

The benefits of precedent

As Erin wrote yesterday, FGCU has settled three of the lawsuits it had on its hands. Pat Griffin's dubbing of FGCU as Fresno East certainly became even more appropriate with the news that FGCU had settled with former volleyball coach Jaye Flood, former golf coach Holly Vaughn, and former university counsel Wendy Morris.
I don't have much to add to the news or yesterday's post, but I thought it was important to point out that if all the trouble that Fresno State went through recently had not have happened; if some of those women had not come forward, we might not have seen this settlement.
I think it's just so lovely when precedent (not in the legal sense in this situation) actually works in favor of the historically oppressed and marginalized. It is unfortunate that Flood will not be reinstated as part of the settlement, though given that both Carl McAloose and Kathy Peterson who set out to get rid of Flood are still around, I am somewhat surprised that she would want to return. She's a winning and committed coach, I hope someone snaps her up. It will certainly be FGCU's loss.
There is, though, a seemingly loose end in the FGCU situation: Gina Ramacci. Ramacci, an assistant softball coach, filed a complaint with the school regarding the non-renewal of her contract. But last we heard, investigation into the complaint had gotten held up.
Overall it's a pretty good day for female coaches. Wishing I had some FGCU volleyball or golf gear to proudly sport on a day like today.

$3.4 Million Is "The Price of Retaliation"

We just learned that Florida Gulf Coach University will pay $3.4 million to settle a lawsuit filed by two former coaches, Jaye Flood and Holly Vaughn, who allege that they were terminated in retaliation for raising concerns about gender discrimination in the athletic department (more press about the settlement here and here). Their lawyer, Linda Correia called the 3.4 million figure "the price of retaliation."

Flood will get $2.965 million and Vaughn will take $435,000. FGCU has also agreed to submit to an independent review of Title IX compliance by an independent expert.

I am anxious to get this breaking news on the blog, so rather than summarizing the background here I will point you instead to our key prior posts: see here, here, here and here.

UPDATE: It was also reported that Wendy Morris's lawsuit recently settled for $850,000. Morris is the former university counsel who was terminated after she encouraged the university president to actually look into the coaches' complaints about gender discrimination before dismissing them as baseless. Background on Morris's case is here and here.

Add to the settlement column...

...former San Diego State University swim coach Deena Deardruff Schmidt.

We can also add Schmidt to the million plus settlement club. SDSU agreed to a $1.45 million settlement in the case. Schmidt did not comment after the settlement was announced (her attorney called it a "fair and reasonable" result), but SDSU is patting itself on the back saying:
“The parties agreed that this settlement recognizes the substantial efforts by Schmidt to implement, develop and improve the women's swimming program at SDSU, and reflects her contributions as a coach,” SDSU said in a statement. “The case was settled at its early stages before any determination of liability was considered or reached.”
Of course had the university recognized her efforts and their own sexism earlier, they wouldn't be paying out $1.45 million. The article linked above breaks down the amount. It also does well to note the trend in settlements and jury awards going to coaches charging discrimination and retaliation.
You can read some of the history of the case in the article or our coverage of it here.