Preliminary Court Rulings Shape Ball State Retaliation Litigation

After Kathy Bull was terminated from her position as head coach of Ball State's women's tennis team (which we blogged about here), she filed a federal lawsuit contesting this decision as unlawful retaliation under Title IX and other laws. Last week, the federal judge in Indiana granted Ball State's motions to dismiss several of Bull's claims, resulting in a winnowing of Coach Bull's claims that could be headed for trial.

The court did not dismiss Bull's primary claim, that Ball State is institutionally liable under Title IX for firing her in retaliation for her advocacy for gender equity. But the judge did dismiss her claims against individual university officials, which she had filed both under Title IX as well as Section 1983, the statute that allows plaintiffs to seek judicial enforcement of constitutional violations. Title IX, of course, only provides for institutional, not individual liability. And while 1983 does allow a plaintiff to enforce constitutional claims against individuals who are state officials, it does not allow plaintiffs to sue individuals for money damages, as Coach Bull's complaint had apparently been framed. Further applying these protections for state officials -- known as sovereign immunity --the court dismissed individual claims against the members of the Board of Trustees, as well as state law claims against Ball State officials and trustees.

Decision is: Bull v. Bd. of Trustees of Ball State Univ., 2011 WL 6740549 (S.D. Ind. Dec. 22, 2011)

Ex-Coaches Allege Retaliation by Diablo Valley College

Two former coaches at Diablo Valley College in California, part of the Contra Costa Community College district, are reportedly suing in federal court to contest their allegation that they were retaliated against for challenging the college's decision to terminate two women's teams last year. As we have earlier reported on this blog, the coaches complained both internally with the district and externally with the Department of Education Office for Civil Rights that the cuts would violate Title IX due to the severe disparity in athletic opportunities for men and women. These complaints resulted in the reinstatement of all of the terminated teams, which include the men's and women's cross country, track, and tennis teams, but the coaches who had raised the Title IX issue were not rehired to their jobs.

As I told the reporter for this story, it is often challenging for retaliation plaintiffs to prove that the reason for the adverse employment consequences (here, not being rehired) was retaliation for complaining about discrimination, rather than for some other neutral purpose such as the financial or budgetary reasons DVC maintains. Therefore, it is significant that the coaches in this case allege that they were directly told by the athletic director that "there would be negative consequences for filing a complaint." If that evidence proves true, these coaches would prevail on what is usually the highest hurdle for plaintiffs in retaliation cases.


(N.B. In case the plaintiffs or their lawyers are reading this, please know that the aforementioned reporter had asked me about general background on the retaliation standard, not about the details of your case, which were not available to me at the time I spoke to him. Therefore, while I did tell him about the aspects of the retaliation doctrine that are generally most difficult to prove, it is entirely inaccurate to suggest, as he does, that I told him I thought you might have a "hard time" winning your case. I hope he honors my request for a correction.)

Ball State agrees to changes

Issues of gender inequity in Ball State University's Athletic Department have been actively discussed for almost five years now but the university, in an effort to end OCR's ongoing investigation of the department, has come out and said it will bring the equity to the department in 10 program areas, according to a Chronicle of Higher Education article this week. They have also agreed to investigate the departures of several coaches of women's teams. This is something we haven't really seen before. I don't know if we can truly consider this a voluntary move even if it was Ball State's idea. The cynic in me thinks it was a little CYA-ish; especially when I see that the athletic director has claimed publicly that there was no retaliatory coaching changes made during the past five years and that Ball State will not admit it was not in compliance with Title IX. Just about a year ago we reported that the firing of tennis coach Kathy Bull, who had served in the position for 22 years, was a little suspect. This all serves to fuel my healthy suspicion around internal investigations. But no doubt this case was a factor in Ball State's decision to put forward an image of transparency.

Diablo Valley College to Reinstate Teams

Diablo Valley College (Pleasant Hill, California) will reinstate the men's and women's cross country, track and tennis teams cut four months ago, in settlement of a threatened investigation and review by the Office of Civil Rights. The two-year college, which has 52% male enrollment that receives s 61% of athletic participation opportunities, cut an equal number of men's and women's teams, in order to "try to remove discussion of gender equality," according to an official of the Conta Costa Community College District, which operates DVC. After the coaches of the terminated teams filed a complaint with OCR, the government announced plans to investigate, which lead to DVC's decision to reinstate the teams.

I am kind of amazed that college administrators assumed that cutting an equal number of men's and women's teams would neutralize any Title IX concerns. They clearly did not look at the law, the regulations, or any court decision in a case involving cuts, or else they would know that is a violation of Title IX to cut a viable team of underrepresented sex. I guess that whole post from the other day about Title IX "illiteracy" applies to administrators as well.

I am also amazed that DVC decided not to rehire the coaches who filed the complaint with OCR to coach their reinstated teams. One told Inside Higher Ed that he thinks this decision is clearly retaliation, and is pursuing remedies through his union. On the surface it sure does look that way. We'll be watching to see if the coaches file suit.

Teen tennis star Simona Halep has breast reduction surgery to boost her Game - 04 Pics+video

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Cal State Bakersfield cutting four sports

California State University Bakersfield announced yesterday that due to budget shortfalls it will cut four varsity sports: men's and women's golf, women's tennis, and men's wrestling. The decision was based on CSUB's desire to remain a DI institution (which means they have to maintain at least 6 men's sports and 9 women's sports) and to eventually enter the Big West Conference which requires member schools to have certain sports such as volleyball and softball and baseball. The school is also bound by a court settlement (that applies to all the Cal State system schools) to maintain proportional gender equity in its athletics program. Currently CSUB is 65 percent female undergrads and 35 percent male undergrads.

Paying it forward

I am usually pleased to see Title IX activism anywhere, and especially so when the activist(s) who files a complaints or makes known a potentially inequitable situation has no vested interest in the situation (besides a general interest in gender equity which everyone should have a vested interest in). But I was really, really pleased to read that Diane Milutinovich, one of the Fresno State plaintiffs, was getting involved in another gender equity case at another institution. Cuesta College in Can Luis Obispo, California dropped its women's tennis team this past summer (yes, we did miss that news) in an effort to cut costs. We know that California state schools are in tough shape but the rationale, that cutting the 8-member team, affected the least amount of students, is, of course, not quite legal if it turns out that the college is not offering equitable athletic opportunities for female students.
Milutinovich filed a complaint with OCR against the school this past weekend after feeling that she was not being heard by administrators at the school when she volunteered to help address the situation. Administrators are scheduled to address the issue at a February board meeting. But now that an OCR complaint has been filed I imagine any potential remedy (should one be necessary) would have to be negotiated with OCR.
Interestingly, when one visits the Cuesta College homepage there is a Title IX Notice link that is displayed fairly prominently. And it takes you here where you can find out how to reach the Title IX coordinator and that college's adherence federal antidiscrimination laws. Not sure if this is a new link, or a newly placed link, or if it is required of all California state schools given their previous issues with gender equity.

Early talk of retaliation in firing of tennis coach

Last week, Ball State University in Indiana fired its women's tennis coach. Kathy Bull was in her 22nd year as head coach of the team. The firing, according to the athletic department, is the result of NCAA violations. Ball State, until earlier this month, had been on NCAA probation due to a textbook scandal several years ago. In their two-year probation period they self-reported 27 secondary violations. Two of those concerned women's tennis. But if these are the violations in question, we do not know.
One would think that such an abrupt firing in mid-season would be the result of more than two secondary infractions. (By way of comparison, the football team had 5 secondary violations during the same probation period.)
The surprise announcement has a few people thinking retaliation.
Bull had told Ball State's student newspaper that the university was under investigation for gender equity violations.
And this editorial questions whether her firing has anything to do with her complaints about Title IX violations and gender equity within athletics.
The gender equity complaints are still under investigation and Bull has not commented on her firing let alone whether she will pursue a wrongful termination lawsuit.

Re-shuffling the program in West Virginia

The athletic department at Salem International University in Salem, WV has had some problems with ineligible players and institutional control. So while they are on NCAA and conference probation (including no post-season eligibility), administrators are doing some reorganization. The university, which has stated that is currently in good standing with Title IX, will drop four sports: men's and women's golf, women's volleyball, and men's tennis. The athletic director has said these four squads are mostly made up of athletes from other sports--sports that said athletes consider to be their primary ones. In other words, the dropped sports have had to do some heavy recruiting from within the athletic department and not very successfully. And though winning isn't everything, it does not seem that many of the sports--dropped or saved--have had a lot of success. So the university is also using this time to beef up the program. Forthcoming is a discussion of bringing back football. The SIU considered it in 2003 but decided to focus on restructuring academics, but now it is back on the table with a potential on-campus stadium that would also serve soccer and softball--both of which currently use off-campus facilities. Costs to start up and maintain a football program will be central to discussions as well as how to increase the participation opportunities to female students.

Indiana State suspends tennis

Cut has become the latest dirty word in intercollegiate athletics. Perhaps that is why Indiana State University has "indefinitely suspended" men's and women's tennis. Budgetary issues was the reason behind the suspension of the two teams which were chosen because they would have the minimum amount of impact on student-athletes and coaches.

The athletic director has said the cuts will not affect the university's Title IX compliance. We shall see. The student population is nearly 50/50 women and men but women receive only 41 percent of athletic opportunities, at least according to data from 2007-08.

Serena praises Title IX

I don't get to write much about tennis here given that much of the tennis news comes from the professional ranks. So even though this isn't much of a story, I still wanted to mention that Serena Williams, who just won her 10th Grand Slam title down in Australia this past weekend (and in doing so become the highest-earning female athlete ever) gave a shout-out not only to Billie Jean King but also Title IX.
BJK and both of the Williams sisters are close and they definitely seem to have learned from her activism, but neither Serena nor Venus directly benefitted from Title IX in terms of getting an opportunity to play given the somewhat unique road elite junior tennis players take. Nevertheless, it was nice that Serena sees the larger picture: the growth in numbers of women playing sports and to credit BJK and Title IX for that.
It's certainly a switch from the response another American female tennis player gave in her phenom days. When Jennifer Capriati was asked about Title IX, she had to say she didn't know what it was.

Henin and Sorenstam Retiring

Tennis star Justine Henin and golf star Annika Sorenstam both recently announced their retirements. The story was covered today on National Public Radio's Morning Edition, with the commentary that although the sports of tennis and golf will miss these two athletes, the advent and success of Title IX has ensured that there is no dearth of exceptional women athletes coming up through the ranks in these two sports (or a host of other sports, I would add).

Arizona State budget issues lead to cuts

In an effort to fully fund and support its student-athletes and sports teams, ASU has decided to cut three sports: men's tennis, wrestling, and swimming. ASU had been carrying 22 sports--quite a few for a big-time DI program. Now they are down to 20 (they are keeping men's diving which had been combined with the swim team). The decision seemed swift and firm--probably a good thing in stemming backlash--though signs indicate that an uproar is inevitable. The VP of Athletics decided that cutting teams was preferable to taking away bits and pieces from all teams. No one has ruled out the possibility of the cut teams raising enough money for endowments but in an effort to be fair to student-athletes and give them an opportunity to transfer, the department opted to announce the cuts before fundraising began.
No one at ASU has mentioned Title IX. And rightly so. But members of the local wrestling community have already spoken out and blamed Title IX.
Said one wrestling booster who was particularly irate because he had hoped that ASU would never use Title IX as an excuse to cut wrestling (they haven't, by the way), "all these schools have a book on how to drop sports."
I wonder if that book includes instructions on how to deal with all the anti-Title IX backlash.

URI makes cuts

As anticipated, the University of Rhode Island has been forced to cut teams to compensate for a large university-wide budget deficit. In addition to women's gymnastics which had already been told this would its last season, the university's athletic department has said it will also be eliminating women's field hockey, men's tennis, and men's swimming and diving. Also women's lacrosse will not be elevated to varsity status as had been promised when gymnastics was cut earlier in the year. Title IX expert Janet Judge helped the university as it made its final decision regarding which programs would be cut. Before the cuts URI maintained substantial proportionality. And even with the elimination of gymnastics they were not going to be too far away from that, especially given the plan to elevate lacrosse. I didn't crunch any numbers myself but I assume that Judge did and that these cuts have been made in such a way as to maintain proportionality.

Another Thing in Common

Fresno State and Florida Gulf Coast University have been compared for evoking similar claims of widespread sex discrimination in their athletic departments. So it is worth noting another thing they have in common. They both hired female head coaches this week.

Fresno State announced that it has hired Lauren Netherby-Sewell, formerly of Hofstra, as its new volleyball coach. The other two finalists for the position were men. Netherby-Sewell succeeds Ruben Nieves, who went 18-71 in three seasons after taking over for Lindy Vivas in 2005. This brings the total number of female head coaches at Fresno State to four (out of fourteen): Margie Wright (softball), Becky Malmo (equestrian), and Angie Cates (golf).

On the other coast, FGCU announced that Jennifer Magley, a woman of color currently serving as an assistant coach at Wichita State, would be new head coach of it women's tennis team. She takes the reigns from Webb Horton, the men's tennis coach, who had doubled as the interim women's team coach for the last two seasons. Also, it has hired LPGA veteran Terry Jo Myers to coach the men's and women's golf team. She replaces former women's golf coach Holly Vaughn, who "resigned" last fall, and men's golf coach Jim Suttie, who will "remain with the program and provide instruction." With these new hires, FGCU now has two female head coaches (not counting Carry Lundy, who is serving as the interim women's volleyball coach in the wake of Jaye Flood's termination) out of 12.

Hopefully, with these new hires, both universities are on the way to establishing a critical mass of female head coaches in their respective athletic departments. This would be a step in the right direction if these univerities want to mitigate and move beyond the hostile and retaliatory environments that female coaches have been subjected to, or allegedly subjectly to (in FGCU's case), there.

A tennis player's woes

Tennis player and Brigham and Young University sophomore Bradley Ferguson has a column in BYU's student paper about how unfair Title IX is. A regular varsity contributor to the tennis team, Ferguson receives no scholarship money. When asking his coach about this, the response he received was essentially "Blame it on Title IX." And he has, despite the facts that he himself reveals about the number of scholarships and opportunities that BYU football usurp.

Ferguson writes that there are women on the tennis team (which received 8 scholarships to the men's 4.5) who have never played a varsity match. [This is information he received second-hand, however.] He does not receive anything and plays all the time. He finds this unfair. He does not seem to question all the football players who are on full scholarship (and receive all the "perks" that big-time football programs provide) who will never see a minute of playing time. There are far more of these than there are non-playing women's tennis players.

Once again we see a situation where someone supports the "intent" of Title IX because "it's in the right place" but ultimately concludes that men's participation is ultimately more important.

Althea Gibson Honored at US Open

The opening day of this year's US Open tennis tournament was marked by a ceremony honoring the life and achievements of Althea Gibson, the first African American to win the United States National Championships, the tournament that would become the Open, fifty years ago. Gibson, who died in 2003, was a trailblazer in her field, breaking racial and gender barriers throughout her career.

For an in-depth description of Gibson's life and achievements, check out the USTA website, here.