Evergreen School District Resolves Title IX Complaint

Evergreen School District in Washington State has reportedly entered into a voluntary resolution agreement with the Department of Education's Office for Civil Rights. Under the agreement, OCR agrees to suspend its investigation that was triggered this summer by a complaint that the school district favored boys baseball with better facilities, uniforms, and equipment as compared to softball. In particular, at two of the district's high schools, the complaint alleged that the district had neglected to repair damage on the softball fields, that the fields lacked drainage and irrigation, as well as fences, batting and pitching machines and cages, and proximity to bathrooms and drinking water.

For its part, the school district agrees to assess its baseball and softball programs along these lines and to devise and implement an action plan to address any discrepancies that the assessment reveals -- in other words, the school district agrees to do what Title IX already requires. The agreement provides deadlines by which the district shall accomplish these tasks, and affords OCR the opportunity to monitor and review the district's efforts.

Women's Baseball League Reenacted in Wisconsin

Not a Title IX story per se, but someone just sent me an article in the Milwaukee Journal-Sentinel about historical reenactments of the All-American Girls' Baseball League that is too cool not to post. Yesterday, a group called the World War II Girls Baseball Living History League staged a game between the Kenosha Comets and Rockford Peaches in authentic uniforms and using the rules and equipment of the day. What a cool project -- makes me wish I lived in Illinois or Wisconsin!

Strike IX profiles the 1999 Providence College Baseball Team

When author Paul Lonardo contacted me about his new book Strike IX, I worried I might be in for another misplaced Title-IX-is-the-enemy screed from an advocate for men's sports. But after reading a copy of the book, which Paul kindly sent me, I learned that Strike IX is the story of the athletes on the 1999 Providence College men's baseball team who went on to have the season of their lives after the college announced its decision to cut the program. Strike IX is a compelling underdog story about athletes playing for pride, playing for the love of the game when there's no tomorrow, when the "only thing left to do is to go out and win the whole $*!@ thing!" Under these circumstances, the 1999 Providence College baseball team produced the best season record in the program's history and a Big East conference championship. It was, in sum, a good sports story.

The only problem I had was the title. Calling the book Strike IX creates the impression that Title IX was to blame for the college's decision to eliminate the team. And the chapter in the book that discusses the relationship between Title IX and PC's program reduction could have done more to clarify the statute's role. I have two specific critiques. First, while the author appropriately notes that PC made its decision to terminate baseball in the wake of the Title IX litigation involving Brown University, he leaves the impression that the decision created PC's obligation to comply with Title IX. Rather, the regulatory standard that Brown so gloriously unsuccessfully challenged in the early 1990s had been on the books since 1979. Unexamined in Strike IX was what Providence College's compliance approach had been since then. With twenty years to play with, did the institution seek to equalize men's and women's athletic opportunities gradually, so as to avoid a drastic approach like cutting teams? Or did PC behave cavalierly, like many colleges did, and exacerbate inequities by continuing to grow men's sports without first bringing women's sports up to level? It's true that Title IX limits school's choices about which teams to cut when that school fails to provide proportionate opportunities to begin with. But PC's decisionmaking prior to 1999 is what created that disproportionality, and some of that should have been in the book.

My second critique is that the author accepted too quickly PC's rhetoric about why it thought it had to satisfy the proportionality standard (and thus, to do so by cutting a men's team) rather than to claim compliance with prong three. Prong three recognizes that even disproportionate athletic offerings (like PC's at the time) can still comply with Title IX, as long as there is no demonstrable unmet interest among members of the underrepresented sex (i.e., women). Generally, an institution does not have a problem with prong three unless they (1) decide to cut a viable women's team (which PC did not do) or (2) reject a proposal from a women's club team to elevate to varsity status. Thus, if PC had been receiving and rejecting requests to elevate women's teams to varsity status, its claims that it "had to" comply with proportionality might ring true. But if not, it's more likely that the university was using Title IX to scapegoat its decision to engage in program reduction that it had made for others. Title IX prohibits schools like PC from making existing disproportionality worse through program reduction, which is why PC couldn't cut a women's team once it decided to cut teams, but it does not require a school to engage in program reduction to begin with. In PC's case, then, the decision to cut baseball was likely less related to Title IX than the college would have us think. That's the reality I would have liked to read about in Strike IX. Unfortunately, that doesn't lend itself to a clever book title.

UC Berkeley Cuts Five Teams

As Kris noted recently, the University of California, Berkeley athletic department has been considering eliminating sports as a cost-reduction measure. So it is sadly no surprise that the Chancellor has announced that baseball, men's and women's gymnastics, women's lacrosse, and men's rugby will be no longer be varsity sports. Men's rugby will occupy a new "varsity club" status.

I have a couple of questions about whether this decision complies with Title IX. First, what is varsity club status? It seems like the rugby team will continue to receive some university support -- more than the club teams receive but not as much as varsity teams receive. Title IX does not preclude Cal from making up new status labels for its sports, but those labels must be equitably applied. If a women's sport asks for "varsity club" status, I cannot see the grounds on which Cal would deny them.

Second, I have concerns that the resulting distribution of athletic opportunities complies with Title IX. Before the cuts, Cal could have claimed compliance with prong two or prong three, but eliminating women's teams forecloses that option. This leaves prong one: substantial proportionality. As Kris noted in her earlier post, Cal's women received about 41% of the total athletic opportunities (385/948), despite constituting about 53% of the student body. After the cuts, they still receive about 41% (385-45/948-102*). There is no way a 12 percentage points qualifies as substantial proportionality, so my question is, on what basis is Cal making that claim?

* This denominator figure is adjusted by the loss of both gymnastics teams, baseball, and lacrosse. I did not subtract the 60 terminated opportunities in rugby from the denominator because Cal's EADA report did not include men's rugby when calculating the total number of athletic opportunities.

Softball facility improvement forthcoming in NC

It does not appear that we blogged about the complaint filed with OCR in 2009 out of Richmond County in North Carolina. But the allegations of disparities in the treatment of women's athletics, specifically softball, are currently being investigated. And Richmond Senior High School has promised to improve the facilities--to make them comparable to baseball's facilities.
This is not especially ground-breaking (well except when they actually break new ground on the new facility!). We have been blogging about softball facilities pretty much since we started this blog. And there has been great success in proving disparity by comparing the treatment of softball teams to baseball teams even though Title IX does not mandate such a one-to-one comparison. [Part of the complaint though alleges that the football team gets priority on the practice field.]
But I liked this particular article for a few reasons.
First, we got the list of facility issues: lights (which every other school has apparently), dugouts, locker room facilities, and concession stands.
Also we are reminded of another Title IX compliance issue that does not get a lot of attention: publicity. It appears that boys' games are advertised on a local radio station.
And finally, the Richmond County Daily Journal has filed a Freedom of Information Act request seeking copies of the complaints from the school district and the Department of Education. Nice to see a newspaper making a concerted effort to get all the facts.

Cuts at Duquesne

Duquesne University in Pittsburgh announced the other day that it will cut men's swimming and diving, men's wrestling, men's golf, and baseball. The combined cuts will result in a $1 million savings. One report claims that the athletic director has said this money will be spread out among the 16 remaining sports. Inside Higher Ed writes that the savings are going to "offset previous budget deficiencies." University officials say that the decision was based on finances, facilities, conference affiliations and support, gender equity, potential success, and overall student-athlete experience.
The people at Collegeswimming.com seem a little miffed that although only men's sports were dropped Title IX was not mentioned in an university press release. Well, one, they did mention gender equity. And two, Title IX is not a reason for dropping sports, it is a factor in which sports are eligible to be dropped--legally. And Duquesne is a small DI-AA school with just over 5,000 undergraduates. Women outnumber men and there is a 93-person football roster. These are some of the realities that schools have to consider. For such a small school to carry 20 varsity teams was, as we see, not sustainable in these economic times.
Duquesne also maintains that the decision will strengthen the overall athletics program.

Complaint against Lebanon temporarily suspended

A complaint brought anonymously against Lebanon High School in Oregon has been suspended for now while the school collects data on gender equity in its athletics department.
At issue in the original complaint filed in November 2009 was the facilities and benefits received by the baseball team versus the softball team. Part of the disparity is allegedly due to fundraising that occurs on behalf of the baseball team which, as many of us know, does not absolve a school from providing an equitable experience.
A self-assessment, though, will look at more than just baseball versus softball. It will be--hopefully--a comprehensive examination of the school's athletic department and the experiences and opportunities it provides to its student athletes.

1/11 Update: Here is a link to an article that gives the timeline and steps OCR is requiring of Lebanon in order to drop the complaint.

Title IX dads

In what is being called a love letter to Title IX, writer, editor and father Mark Schmitt penned his tribute to Title IX, his daughter, Little League and social change last week in a very nice column about the legislation in his magazine The American Prospect.
The people at Bitch magazine found Schmitt's piece compelling and blogged about it and Title IX more generally. Anna Clark included excerpts from the American Prospect piece in which we see Schmitt, an admitted sport outsider, appreciate the effects of the social change that occured in the 1970s: his daughter is now a catcher on her Little League team. This point of view--the outsider--is particularly interesting, and somewhat unique, in the discourse on girls' sports and the role of fathers. Clark cites some of this research as well: that fathers with sport-playing daughters can be vehicles for support of girls' sports. (A view I have certain issues with--but we'll save that for another time.)
What is interesting is that Schmitt identifies not as a Little League Dad but as a Title IX Dad. Title IX dads seem to understand the social change aspect of the legislation and see the broader issues. Sport dads who support Title IX are probably a little more narrow in their vision of the legislation. They see what it does for their individual daughters. We should not forget the father in Nevada who made Title IX claims when the high school athletic association attempted to move girls' soccer to its traditional season (fall) which would have put his own daughter in the awkward position of having to choose between soccer and volleyball. He was not a Title IX dad. [Not all sport dads are like this, of course.]
Clark gives us a shout-out to us and for that we are thankful. [She thinks we're fascinating--well the blog at least!] But we wouldn't be the responsible bloggers we strive to be if we didn't make one little correction to Clark's connection between Title IX and Little League. The Little League lawsuit was not a direct result of the passage of Title IX because Little League, Inc is not subject to Title IX. Certainly the passage and the lawsuit were part of the overall climate that engendered more support of girls' and women's access to sport in the 1970s.
And the women of NOW--who were integral in the lawsuit--were actually not the first to make the connection between Title IX and sports. Women's sports advocates saw the possibilities the legislation offered for increasing funding of and opportunities in women's sports in educational institutions almost immediately.

Fields of discontent in Ohio

A parent has notified the ACLU which has sent a letter to the Chillicoth school district saying that they may be in violation of Title IX due to the discrepancies between the high school's softball and baseball fields. Which are the facilities in question remains a confusion because the baseball team's usual field has been out of commission for several years during building facilities renovations. In that time they have had access to two different off-campus sites. The softball team, however, does not have an on-campus field and their off-campus facility is sub par according to the letter and the complaining parent. They apparently don't even have bases when they practice which seems odd but the lack of proper dugouts and fencing are also problems and the team does not have the authority to maintain the field themselves.
No complaint has been filed with OCR yet and the school district has not formally responded.

Also apparently, according to the story linked above, a softball/baseball facilities complaint has just been filed with OCR regarding a Toledo school district.

Another baseball/softball comparison

Add C.D. Hylton High School in Virginia to the list of schools being investigated for facility disparities. Like numerous (over 40 according to WaPo) high schools in the United States, C.D. Hylton has a great baseball facility and a sub par softball facility.
The baseball field has: press box, concessions, and locker room. (Some of these amenities were funded by donations and booster club dollars.) Softball? No access to concessions; a port-o-potty; no dedicated press box; no locker room.
A complaint was filed in March by a parents of a softball player.

Stolen Bases: Why American Girls Don't Play Baseball

The topic of women and baseball is one frequently mentioned on this blog; just recently we posted about the Indiana teenager whose lawsuit integrated high school baseball in her state. There's also been much buzz lately about the International Baseball Federation's campaign to make women's baseball an Olympic sport (see, e.g., here, here, and here). It seems like the perfect time to plug Jennifer Ring's Stolen Baseball: Why American Girls Don't Play Baseball (University of Illinois Press, 2009).

From Stolen Bases, I learned that contrary to popular mythology, baseball was not invented in Cooperstown by Civil War hero Abner Doubleday. Rather, it evolved from the British sport of rounders, which was played by males and females alike. But in the early 1900s, the efforts of Albert Spalding -- of sporting goods fame -- to promote baseball as the "national passtime" positioned the sport as a means of masculinization and colonialism. ("He articulated a mission for American baseball men: use the sport to teach men from nonwhite races and non-European cultures to become civilized and rational on a while American middle-class model.") In fact, Spalding himself promoted the Doubleday myth to make the sport more uniquely American and exclusively masculine.

Meanwhile, men invented softball as a way to play baseball indoors during the winter. But the indoor version was so obviously a "pale imitation" of the real thing that it could be inclusive of women without tainting the association of baseball and manhood. Early physical educators endorsed also softball as a sport for appropriate for girls, which, Ring explains, "solved the problem of how to get exercise to the average, nonathletic girl without running the risk of supporting 'games of strife' that make America's girls too competitive, brave, strong, and passionate about something not in the service of men and family. And it was played indoors, discretely out of the view of spectators." Moreover, promoting softball for girls had the effect of redirecting women's documented interest and enthusiasm for baseball into a different sport, insidiously marginalizing them from the "national" passtime. Softball has come a long way since its early days as a safe, indoor game; women can now play the sport for college glory and on the Olympic stage (until 2012, anyway). But as a sport it clearly doesn't rival baseball in terms of its cultural significance. Baseball is the sport that receives media attention, that provides the backdrop for family bonding and business meetings, that serves its players as role models for boys and girls, and that offers salaried employment to thousands of athletes.

The paradigm of baseball/boys: softball/girls is so ingrained as to be rarely questioned or challenged. There are no legal restrictions to women's participation in baseball, as Ring explains. Lawsuits invoking the Constitution's Equal Protection Clause lead to the integration of Little League in the 1970s, and Title IX's regulations do not allow schools to exclude girls from trying out for baseball as they do for some contact sports. It is simply a matter of "preference" that keeps girls and women interested in softball instead of baseball. Of course, after reading the history of both sports as presented by Ring, it is clear that this "preference" has been, and continues to be, constructed by social forces that operate with the interests of men, not women, in mind. The few girls who defy the gendered convention and play baseball in Little League and even into high school likely "choose" to switch to softball in order to play at the college level. Women could, collectively, assert their right to participate visibly in baseball, and for college and Olympic opportunities to do so. But because there is no critical mass of women in the sport, individual women have little incentive to sacrifice the opportunity to participate in the established sport of sotball in order to do so.

Ring's final point is that, despite channelling effect of softball, women do play baseball -- "you just have to look hard to find them." There are regional leagues playing in obscurity (Ring calls it an "underground") and a women's national team that plays under the aegis of USA Baseball, the sport's national governing body, in a biennial women's world cup (a literal "world series"). It won't be easy to create -- or even envision -- a world where girls and boys can make a free and legitimate choice between two different sports, but after reading Ring's Stolen Bases, I believe that support and exposure to the girls who already do or want to play the game is a necessary first step.

Indiana Girls May Try Out for Baseball

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

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

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

NC county trying to comply

Not sure how reliable all the facts provided in this article are given that the writer(s?) thought that OCR stands for Office of Civil Review.

It's probably true, though, that the county schools of New Hanover have a list of Title IX violations most of which relate to facilities. But they are not news either because OCR--that's the Office for Civil Rights--has already paid a visit to North Carolina. In fact, this past Monday was a deadline for remedying some of the disparities. And some have indeed been remedied.

At one school what was once the boys' baseball locker room has been divided in half (wall down the middle) for the girls' softball team, which previously did not have its own dedicated locker room.

Other improvements are apparently on the way with renovations to fields being high on the list.

Also appears that the ABC affiliate in NC is running a series about the Title IX issues. So stay tuned. There may be more.

UMass cuts skiing

In an attempt to deal with budget woes, University of Massachusetts has cut its men's and women's ski teams. The teams, which did not offer scholarships, will become club teams.
Rumors swirled at the Amherst campus that it was baseball in jeopardy. But yesterday's announcement put those on the team at ease.
AD John McCutcheon would not say what the criteria were for cutting. It did not, apparently, take operating budgets into consideration. The Boston Globe found that skiing costs about $30,000 while baseball costs...well that's also not readily apparent. McCutcheon says $185,000 but the Globe says department minutes from a 2007 meeting about cutting sports cites costs being close to $400,000.
I wish McCutcheon had been more transparent about the process because when you're talking about an $850,000 budget shortfall, $30,000 seems like loose change in your pocket.

NY Times on Girls in Baseball

The New York Times ran a story earlier this week about girls who aspire to play high school baseball. The article points out that even for girls who have the skills and strength to qualify for the boys' team, they often face an even greater obstacle in the assumption, rooted in stereotypes, that baseball is not a girls' sport. The positioning of softball as the "equivalent" girls sport contributes to this belief, which is rejected by female ballplayers like Marti Sementelli, a sophomore pitcher in Burbank CA. She told the NY Time assuming that baseball and softball are the same because they are both played with bats and balls "i[s] like saying Ping-Pong and tennis are the same sport. ”

The numbers of female high school baseball players is low, just over 1000 last year, according to the National Federation of State High School Associations. Girls are either steered into softball or prohibited outright from trying out baseball when a softball team is offered, as is the case in at least one state -- Massachusetts. Yet, associations in Indiana (most recently) and Nebraska have dropped similar bans out of concern for their likely illegality. Title IX requires schools to allow girls try out for a boys team if the sport is not a contact sport and if there is not a girls team in that same sport. In light of this rule, the commissioner of the Indiana State Athletic Association told the Times he was advised that his odds of successfully defending a prohibition on girls in baseball were "zero to 50/50."

The financial deterrent effect

The initial threat levied against schools not in compliance with Title IX was revocation of federal funding.
It's a threat that has never been realized--never. As in never, ever.
But financial repercussions are certainly being felt by colleges and universities as we have noted in cases such Fresno State, University of Colorado, and Florida Gulf Coast University in which institutions pay out settlements or jury awards.
But high schools are also feeling the economic hit and in a time of budget cuts and tightening, being forced to pay attorney fees in addition to the costs of remedying the existing discrimination.
This is the situation that Ramona school district has found itself in. Parents sued the district in 2007 arguing that the softball team was not receiving equitable treatment under Title IX. The district has built a new field with amenities comparable to the baseball team--under the order of a federal judge. But the bigger cost--larger than the $200,00 on said field--is the court order to pay the legal fees the parents incurred, around $350,000. Ramona, like the rest of the state of California, is having some budget issues. They are being forced into discussions with the plaintiffs' attorneys about a payment plan. Perhaps the incursion of fees was part of the decision not to appeal the decision. Ramona may have taken a lesson from Michigan High School Athletic Association which was, as you may remember, ordered to pay the attorney fees from its lengthy battle against a parents group seeking equity in high school athletics.

UVM to cut sports

Probably not surprising that eventually we would report on sports being cut. With all the additions of sports, we were growing a little incredulous that athletic departments were actually feeling the economic downturn.
But UVM's announcement that it will eliminate softball and baseball after this season included a lot about the need to deal with the budget crunch. The cuts will save over $1 million annually. And the department will likely remain in compliance with prong one--a consideration in the decision of which sports would be cut.

More on Indiana baseball

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

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

Update on Indiana Baseball

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

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

Stepping up to the plate

Who's stepping up to the plate? Me, this week, as the others are off in sunny CA conferencing.
But also Logan Young, the Indiana teen who, along with her parents, filed a lawsuit against the Indiana High School Athletic Association which has a rule that bars girls from playing baseball when a school already has a softball team. Young, as part of an agreement between Young and her high school, will be allowed to try out for the team this coming March.
But her trying out was never really an issue. IHSAA had previously granted a waiver to another girl and had said it would do so for Young. The Youngs' lawsuit against IHSAA seeks to eliminate the rule. Thus that part of the lawsuit remains unsettled and, of course, unsettling. If the organization will just keep granting waivers when someone whispers "lawsuit" in their ears, why not just get rid of the silly rule.
There seems to be some fear about girls flooding the baseball fields and leaving boys to...play softball I guess. Horrors!
At least that's the impression I get from this headline: Lawsuit's impact may limit opportunities. Unfortunately it's from the Herald Times out of Bloomington and it requires a subscription. [If anyone has one we would love to see the whole article/editorial.]