The girls' softball team in Avondale, Michigan is embarrassed by the condition of their field. And the players and their supporters are wondering where the money earmarked for the facility's improvement have gone--as they stare at the newly renovated boys' baseball facility that has a dedicated field for the junior varsity team. And even as they ask questions about where the promised improvements are, many know nothing will happen in the immediate future. So the girls are working with administrators on an arrangement that would allow the softball team to share the JV team's field. (Not sure how they will deal with the differences in the field dimensions, but I would imagine they have a plan.)
Best line of the article:
At the very least, Avondale made a mistake in timing. After all, shortchanging a female team on the 40th anniversary of Title IX isn't the best way to win plaudits from equal opportunity advocates.
Showing posts with label high school. Show all posts
Showing posts with label high school. Show all posts
Friday, April 6, 2012
Wednesday, March 28, 2012
Court Dismisses Case Challenging Title IX's Application to High School
Yesterday, a federal district court dismissed a case filed by the American Sports Council in which it attempts to appeal a 2007 decision of the Department of Education (which we blogged about here) rejecting the Council's petition that the agency repeal or amend its interpretation of Title IX's three-part test to exclude its application to high schools. The three-part test requires that school satisfy Title IX's requirement for equity in the distribution of athletic opportunities by either demonstrating that the distribution is proportionate to enrollment of students of each sex, or that the school has a history and continuing practice of expanding opportunities for the underrepresented sex, or that interests and abilities among the underrepresented sex are being fully and effectively accommodated.
The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.
To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.
Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)
The court dismissed the case after concluding that the American Sports Council does not have standing to seek judicial review of the agency's decision. Standing is a constitutional requirement that plaintiffs have a sufficient connection to the case they are trying to litigate. To have standing, the plaintiff must be injured by the challenged action in a concrete way. The injury must also be traceable to the defendant, and redressable by relief requested in court. The court rejected ASC's argument that the petition denial was itself the requisite injury to confer standing. Anyone can petition the Department of Education to reconsider its rules, but only groups or individuals with a stake in the outcome of that decision can challenge it in court.
To this end, ASC argued that it was injured by the three-part test's application to high school because of its professed interest in protecting high school athletic opportunities from being eliminated. Yet even assuming that ASC has members that are harmed when athletic opportunities are reduced, that injury is not traceable to the Department's application of the three-part test to high schools, as the standing doctrine requires, since the three-part test does not require schools to reduce opportunities in order to comply with Title IX. Quoting an earlier judicial decision involving a group's standing to challenge the three-part test, even if the court rescinded the three-part test (or limited its application to exclude high schools), " high schools 'would still have the discretion to eliminate [plaintiff's members'] programs, as necessary, to comply with the gender equity mandate of Title IX.'" This demonstrates that the injury plaintiff claims is not traceable to the Department of Education nor can it be redressed by relief requested from the court. As such, ASC does not have standing to force a court to review the Department of Education's decision not to exclude high schools from the three-part test.
Decision: American Sports Council v. Department of Education, 2012 WL 1005909 (D.D.C. Mar. 27, 2012)
Friday, March 23, 2012
No evidence of discrimination in SC high school
About nine months ago, we wrote about a complaint filed in Kershaw County, South Carolina where parents of a high school cheerleader felt the team was not being treated equally. Also there was some financial sketchiness about where the cheerleading team's money had gone.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.
At that time I noted that an OCR investigation would be interesting because cheerleading, in the way they are doing it in Kershaw County, is not recognized as a sport.
But this article, which states that the OCR investigation revealed no discriminatory treatment, does not mention this aspect at all. The complaint about access to quality coaching, funding, and facilities was apparently filed on behalf of all female student-athletes and thus, I would presume, does not apply specifically to the cheerleaders. But there was another complaint which mentioned similar issues that was filed in reference to the treatment the school gave to its softball team. The investigation into this claim also yielded no evidence of discriminatory actions or results.
Despite the confusion over which team was allegedly being discriminated against and whether cheerleading is a sport that receives equal treatment--it seems this case is closed.
Saturday, March 10, 2012
Sexual Harassment Roundup
Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.
As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).
Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).
A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).
As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).
Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).
A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).
Friday, March 9, 2012
OCR still watching Darien
A quick search of this blog for Darien High School will reveal the many issues the Darien School District has had complying with Title IX in both the areas of equal opportunity and equal treatment (facilities, practice times, etc.). Three complaints in the past six years have resulted in some changes for the better. But not everything is settled and OCR has said Darien still has work to do. The gymnastics team still lacks the appropriate facilities. And the swim team is still having issues with practice times at the local YMCA. (Though the pool at the Y is under construction and apparently, post-renovations, all should be good though there is still a lot of discussion about "pool inequities.")
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.
But apparently OCR is staying on top of this case. Though, notably, there has been no threat of loss of federal funding or firm deadlines by OCR that we are aware of.
Thursday, March 8, 2012
Complaints Filed Against Five Wisconsin Districts
Five school districts in Wisconsin are the subject of recent complaints filed with the Department of Education's Office for Civil Rights, alleging violations of Title IX in the number of athletic opportunities for girls. The complaints, which target high schools in Kettle Moraine, Oconomowoc, Mukwonago, Waukesha and Elmbrook, use statistics from OCR's Civil Rights Data Collection as the basis for alleging that each district fails to comply with prong one of the three part test due to significant disparities -- most of them at or above 10 percentage points -- between the percentage of athletic opportunities for girls and the percentage of girls in the student body. The high schools in these districts are also alleged to fail under prong two's requirement of a "history and continuing practice" of expanding opportunities for the underrepresented sex, having added only one or two girls teams in the last 26 years. Finally, the complaints cite as evidence of unmet interest the fact that there are privately-sponsored club teams for some girls sports at some of these schools, as well as evidence that sports popular in the region are not offered.
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
OCR has initiated an investigation of these complaints. According to the press, "the school districts have expressed a willingness to resolve the issues and cooperate with OCR."
Wednesday, March 7, 2012
Settlement Ends Harassment Investigation Against Minnesota School District
This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.
Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:
Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:
- Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
- Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
- Enhance and improve its training of faculty, staff and students on sex-based harassment;
- Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
- Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
- Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
- Improve its system for maintaining records of investigations and responding to allegations of harassment;
- Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
- Submit annual compliance reports to the departments.
Castle Rock Update
We've been following the situation in Castle Rock, Washington (see prior posts here and here), where parents have been advocating for equal rights for girls teams to use the high school's lighted stadium,which has so far been reserved for the priority use by the football team. After initial complaints to the school board failed, one parent filed a complaint with OCR, alleging that it violates Title IX to exclude girls soccer from the stadium.
A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).
The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.
A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).
The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.
Monday, March 5, 2012
OCR Rejects 900 Complaints About California High Schools
Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Saturday, March 3, 2012
Softball field issues in Butte
In an attempt to remedy an "inadequate" softball field used the by high school girls' softball team in Butte, Montana, two of the team's former assistant coaches. This story caught my attention because it was confusing and curious in multiple ways.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields.
When more information/clarifications emerge, we'll be sure to post them.
First, why are the two men filing the complaint former coaches. It is clear that they have raised this issue with the school district and are trying to work cooperatively toward a remedy. So it does not sound as if they were forced out of their positions.
Second, and this harkens back to my post about media coverage of Title IX, the article states that they filed a complaint with OCR but the remainder of the initial clearly bastardized taken from the AP version of the article that I saw refers to the complaint as a lawsuit. I am pretty sure, based on the information provided, that this is a complaint. One, OCR isn't involved in lawsuits (in this way) and two, I am not sure the two former coaches have standing in such a lawsuit.
Also, there is mention of some kind of statute of limitations that the men felt forced them to notify OCR in a timely manner (60 days) even as they continue to work for a solution to the problem. The coaches had filed a grievance noting that the fields, which are not owned by the school district (the coaches would like a district-owned field), lack proper bathroom facilities, are not well-maintained, have no scoreboard or storage along with other amenities. And, according to the article, OCR is expected to get back to them within 10 days.
The last interesting moment: apparently there was 1982 case regarding opportunities for girls in Butte. In the initial grievance, the complainants asked the Montana High School Association to evaluate the condition of the fields using the conditions of that settlement as a guideline. [But a 1982 lawsuit about opportunities for high school girls--that's intriguing.]
MHSA said the fields were indeed inadequate. The school district has been working on plans for new and improved fields. They have consulted architects and have plans both for improving the current fields as well as creating fields at the high school. So it remains unclear why the need for an OCR complaint at this point. The coaches and other supporters of softball do feel they have been left out of the plans for improvements. An OCR investigation (if it happens), of course, will look at more than just the softball fields.
When more information/clarifications emerge, we'll be sure to post them.
Wednesday, February 29, 2012
Sexual Harassment Roundup
A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).
In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).
The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).
Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).
In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).
The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).
Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).
Wednesday, February 22, 2012
Castle Rock issues in front of school board
After some delays, the concerns of parents of Castle Rock High School student-athletes in Washington will be addressed by the school board in the next week and a half.
As we have written about before, parents of girls on the soccer team asked for and were denied access to the football field (which has lights) for games that were being cut short due to darkness. The superintendent attempted to address the concerns, but parents were not entirely pleased with her recommendations, including additional training in gender equity issues for the school's athletic director. Some involved believe that training would not work for AD Neil Williamson because he knew that his decision was discriminatory. Some also feel that the recommendation for an athletic advisory committee would just add an additional level of bureaucracy they would have to negotiate.
Additionally, in a non-Title IX issue, parents requested that the original unlit field be made handicapped accessible. But apparently the accommodations are less than ideal. A portable accessible bathroom is in a grassy area that those in wheelchairs would find difficult, if not impossible, to traverse.
While the school board has implied that some girls' soccer games will be scheduled in the football field, it seems that the discord created over the way the situation has been handled may have longer-lasting effects.
If, when the board issues its decision on the matter(s), parents are displeased with the resolution, the district will likely find itself a party in a lawsuit which, if previous cases are any indication, will likely reveal additional inequities.
As we have written about before, parents of girls on the soccer team asked for and were denied access to the football field (which has lights) for games that were being cut short due to darkness. The superintendent attempted to address the concerns, but parents were not entirely pleased with her recommendations, including additional training in gender equity issues for the school's athletic director. Some involved believe that training would not work for AD Neil Williamson because he knew that his decision was discriminatory. Some also feel that the recommendation for an athletic advisory committee would just add an additional level of bureaucracy they would have to negotiate.
Additionally, in a non-Title IX issue, parents requested that the original unlit field be made handicapped accessible. But apparently the accommodations are less than ideal. A portable accessible bathroom is in a grassy area that those in wheelchairs would find difficult, if not impossible, to traverse.
While the school board has implied that some girls' soccer games will be scheduled in the football field, it seems that the discord created over the way the situation has been handled may have longer-lasting effects.
If, when the board issues its decision on the matter(s), parents are displeased with the resolution, the district will likely find itself a party in a lawsuit which, if previous cases are any indication, will likely reveal additional inequities.
Monday, February 13, 2012
Retaliation Case Against Florida School District Survives Motion to Dismiss
In Florida, a federal district court judge has denied the Citrus County School Board's motion to dismiss claims filed by students who allege they were retaliated against after one of them reported that she was "offended and uncomfortable" by sexual behavior of their soccer coaches. As we noted in an earlier post, the case began when a female high school soccer player named Stacey Bigge and her teammate known in the complaint as A.M. reported to their parents that they were uncomfortable with their coaches' tendencies to make sexual comments, which included remakes about players' physicality and genitalia, and that on one occasion, a coach pulled down a player's pants. After their parents reported this conduct to school district officials, the coaches became threatening and intimidating to Stacey and A.M., interrogating them in front of their teammates and threatening to disband the team because of what they did. Eventually, the players quit to avoid this hostility. Later, Stacey and her sister Kathryn Bigge were ordered to be transferred to another high school after the coaches then told the school officials that the Bigges lived outside the district. This transfer order was rescinded after the Bigges' father supplied proof of residency.
Both Bigge sisters sued Citrus County School Board, alleging that the threat to transfer them to another high school was retaliation for Stacey's complaints about the coaches' harassing conduct. The school board argued that Kathryn Bigge's claim for damages on this retaliation theory should be dismissed because she was not the person who engaged in the requisite "protected conduct" by complaining about the coaches' behavior, her sister was. But the court rejected this argument, applying the Supreme Court's recent decision in an employment law case that a whistleblower's fiance could challenge the retaliation directed at him in response to the whistleblower's complaint about sex discrimination on the job. The judge concluded that the threats against Kathryn were actionable on a theory of retaliation because it was "reasonable to infer that the School Board’s threat to transfer Kathryn Bigge to another school district (a threat that was allegedly made in direct response to the Plaintiffs’ complaints) would dissuade her father and sister from making any further charges of discrimination and/or retaliation."
The case is scheduled for a jury trial in February 2013.
Both Bigge sisters sued Citrus County School Board, alleging that the threat to transfer them to another high school was retaliation for Stacey's complaints about the coaches' harassing conduct. The school board argued that Kathryn Bigge's claim for damages on this retaliation theory should be dismissed because she was not the person who engaged in the requisite "protected conduct" by complaining about the coaches' behavior, her sister was. But the court rejected this argument, applying the Supreme Court's recent decision in an employment law case that a whistleblower's fiance could challenge the retaliation directed at him in response to the whistleblower's complaint about sex discrimination on the job. The judge concluded that the threats against Kathryn were actionable on a theory of retaliation because it was "reasonable to infer that the School Board’s threat to transfer Kathryn Bigge to another school district (a threat that was allegedly made in direct response to the Plaintiffs’ complaints) would dissuade her father and sister from making any further charges of discrimination and/or retaliation."
The case is scheduled for a jury trial in February 2013.
Saturday, February 11, 2012
High School Athletes Win Title IX Trial
A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.
The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.
It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.
The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.
It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.
Tuesday, January 31, 2012
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.
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.
Wednesday, January 18, 2012
Teacher Harassment Case Settles for $600K
The Susquehanna Township School District in Pennsylvania will reportedly pay $600,000 to settle a lawsuit filed against it by a former student who alleged she was sexually assaulted by a drivers education instructor, and who thereafter was harassed at school for filing charges against him. We have blogged about this case before when the court denied the defendant's motion to dismiss and motion for summary judgment. In the latter, the judge determined that the instructor's violation of school policies in the past should have put it on notice that female students were at risk. The judge faulted the school district for taking a “lackadaisical approach” to disciplining the instructor, noting that if officials had followed up to ensure that he was complying with, for example, the policy prohibiting him from being alone with students during "behind the wheel" instruction, it could have prevented plaintiff's assault.
The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.
The article linked above notes that Susquehanna lacks the legally-required Title IX Coordinator -- a person designated to receive Title IX complaints from students and oversee the districts implementation of the law. And the superintendent "doesn't know of any district that does" have one. (Hello? OCR?) It's not clear from the article whether that is an issue being addressed by the settlement, but hopefully the district appoints a Title IX coordinator as part of its reported efforts to improve sexual harassment policy going forward.
Friday, December 16, 2011
Sexual Harassment Roundup
Here is a roundup of some recent sexual harassment cases.
- Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).
- A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).
- A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).
- A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).
Wednesday, December 14, 2011
Mississippi High School Coach Sues District
Catherine Papagolos, former softball coach, filed suit against the Lafayette County School District in Mississippi, claiming that she was fired in retaliation for complaining about gender equity in her salary. Specifically, it is reported that she alleged she was fired after questioning why her salary was not comparable to that of the high school baseball coach.
While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.
While Title IX does not require coaches in similar sports to be paid the same -- factors like experience and other qualifications, size of team, and size of staff may justify differences -- it is important that for protection from retaliation to kick in, all that is required is Coach Papagolos's reasonable belief that a violation had occured. No one should get fired for complaining in good faith about the gender equity of a district's policy or decision.
Monday, November 28, 2011
Ann Arbor No Longer Plans to Exempt Football from Cuts
This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.
I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.
I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.
Monday, November 14, 2011
Remaining Idaho Complaint Closed with Voluntary Resolution Agreement
I just received a copy of a Voluntary Resolution Agreement between OCR and the Meridian Joint School District in Idaho, which closes OCR's investigation into complaint against Meridian alleging Title IX violations in the distribution of athletic opportunities between girls and boys.
Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.
Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."
If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.
So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.
Last week, we posted that the complaint against Meridian was the last one standing ofter OCR closed 77 out of 78 complaints that had been simultaneously filed against school district across the state of Idaho. We wondered whether, lacking the resources to conduct 78 investigations, OCR was at least trying to make an example out of one school district for the other districts to follow. But by closing that complaint with a friendly agreement, rather than conduct an investigation, OCR signals that making an example out of Meridian was never its intent.
Under the terms of the Voluntary Resolution Agreement, Meridian must assess its compliance with prong one by gathering and submit to OCR documentation of its enrollment and participation rates. Recalling that the complaint had alleged that Meridian was over-counting athletic opportunities by including cheerleading and dance activities that do not have a varsity-like competitive schedule, I note that the VRA instructs Meridian to "not include participants in intramural, club, nor non-competitive athletic activities."
If Meridian's athletic opportunities are not proportionate to enrollment, as required by prong one, Meridian (which is not disputing that it does not comply with prong two's requirement of a "history and continuing practice" of expanding opportunities for girls) is supposed to assess whether it complies instead with the third prong, and can show that there is no unmet interest among girls, the underrepresented sex. The district must use a combination of participation rates in club and intramural sports as well as P.E. class, interest surveys, and an assessment of what sports are popular in the district's competitive region to determine if there are sports that girls would be interested to participate in if offered. If this analysis reveals unmet interest in sufficient numbers, the district must add those opportunities.
So, Meridian is supposed to figure out if it is in compliance with Title IX, and if not, to comply with Title IX. In other words, except for having a couple of deadlines by which to submit documentation to OCR, the district's legal obligations are really no different under the VRA than they were before. OCR has responded to the mass complaints in Idaho in the weakest way possible.
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