Proposal Would Eliminate Sex Discrimination in Community Athletic Programs

A state legislator in Washington state has proposed a bill that would apply a Title IX-like nondiscrimination mandate to community athletic programs for children and adults. Since Title IX itself, which only applies to schools, does not cover community programs such as Little League, this new legislation would ensure that such programs provide equal access to equipment, supplies, facilities and the assignment of coaches and game officials regardless of the participants' sex.

Community recreation departments are concerned, however, that such a law could expose them to liability for discriminatory conduct of leagues that use community fields. But that is something community recreation department should already be concerned about. As government entities, they are obligated to comply with the Constitution's Equal Protection Clause, which also prohibits discrimination on the basis of sex. For example, female athletes have successfully relied on the Equal Protection Clause to challenge Little Leagues and other community supported sports leagues that denied them an equal opportunity to try out. Since this proposed legislation would clarify, but not necessarily expand, the requirement of equality to treatment as well as access, I'm don't think it's terribly persuasive to argue that such a law imposes too much additional liability on community recreation departments.

Russlyn Ali to Head OCR

President Obama has announced plans to nominate Russlyn Ali as the Department of Education's assistant secretary for civil rights (see also here). Ali, a woman of color, comes to OCR from a private, nonprofit research and advocacy organization, Education Trust, that works to promote education achievement generally with a particular focus on low-income and minority students. Ali's background also includes leadership positions in other advocacy organizations like Children's Defense Fund, a stint as chief of staff to the president of the Los Angeles Unified School District, and a legal practice in corporate and civil rights law.

Not much is known in Ali's position on Title IX issues per se, but her career-spanning efforts to secure educational equality more generally suggests she is likely to take Title IX enforcement seriously and give serious consideration to the effectiveness of OCR policy at dismantling gender discrimination.

Title IX Fact Sheet for College Activists

The ACLU Women's Rights Project and Students Active for Ending Rape (SAFER) have collaborated to produce a new fact sheet related to a college or university's obligations to deal with sexual harassment, assault and rape, and the potential liability faced by educational institutions when they are deliberately indifferent to harassment and rape occurring in their educational programs and activities. The fact sheet lays out the Title IX landscape in a way that's easy to understand and use to promote more comprehensive policies and practices regarding rape and harassment prevention at colleges and universities.

Thanks to the folks at the SAFER blog for bringing this to our attention.

A Title IX for Disabled Athletes?

In July, political efforts to enhance opportunities for disabled student-athletes reached two noteworthy milestones.

First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).

After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.

OCR Rejects Attempt to Exempt High Schools from Title IX

This was, I regret, off my radar when it happened, but a year ago, the College Sports Council petitioned the Department of Education's Office for Civil Rights to "clarify" Title IX's application to by stating that the three-part test for measuring equity in participation does not apply to high school athletics. But earlier this year, OCR denied this petition, affirming the applicability of the three-part test to high schools.

Rather than make the three-part test mandatory outside the context of intercollegiate athletics, OCR stated that the 1979 Policy Interpretation "may be used as guidance by the administrators of such programs where appropriate." Since that time, courts have uniformly referenced the three-part test as an appropriate measure of participation equity in high school athletics. Thus, OCR concluded in its denial of CSC's petition, "In light of this existing guidance, which the federal courts have applied authoritatively and unambiguously to interscholastic athletics, further clarification on this matter is not necessary."

We give Spellings and the current administration a lot of grief over the 2005 Clarification (allowing universities to set participation levels for women based on responses to an email survey), so even though this news is late, I thought it was important to acknowledge when the Office for Civil Rights does in fact live up to its name.

Source: Letter from Margaret Spellings to Steven Giseler, Pacific Legal Foundation, March 27, 2008 (.pdf).

McCain gets another "fact" wrong

Not much attention is being paid to John McCain's campaign these days. But occasionally we get to hear about some misinformation the Republican candidate for president has been perpetuating, usually involving some confusion over Iran versus Iraq. But this time he's really done it:
The U.S. Department of Education under President Clinton took liberties in interpreting the law and without debate determined that universities must fund men's and women's sports programs in proportion to the ratio of male to female students, or else lose federal funding for any part of the university including financial aid. In doing so, the adverse consequence of this interpretation unfortunately has been that many schools have adopted policies of strictly equal funding for male and female athletic programs. Unfortunately, many popular athletic programs have been cut because the overall amount of funding available for athletics programs will not sustain identical men's and women's programs in every sport.
This wasn't even an on-the-spot response at a news conference. USA Today writers posed the same questions to each of the remaining candidates. I guess, as I have pointed out so many times before, if sports writers across the country cannot accurately explain Title IX, it shouldn't be expected that the guy who wants to be the next leader of the country can either.
I would really like to ask McCain to list all the athletic programs that equally fund their men's and women's athletic programs. Most athletic programs do not even obtain a 50/50 split let alone a proportional one, which, technically, is okay because THAT'S NOT WHAT TITLE IX CALLS FOR nor has that ever been the interpretation under any presidential administration.
What the other candidates had to say: Obama supports the High School Sports Information Collection Act, does not support the survey policy, and believes the growing number of complaints filed with OCR is indicative of ongoing sex discrimination. Clinton's answer was a little more nebulous. She supports the continued enforcement of Title IX and disagrees with the survey policy.

We Support Fair Pay

Today, our friends at National Women's Law Center are asking bloggers to help raise awareness about the Lilly Ledbetter Fair Pay Act, which is currently pending in the Senate and is possibly up for a vote in the near future.

As the AAUW recently reported, women still only earn 69 to 80 cents on the dollar for comparable work as men. On our blog, we've written about salary disparities affecting female coaches, teachers, professors, and others employed in the education sector.

The Lilly Ledbetter Fair Pay Act (formerly the Fair Pay Restoration Act) would help ensure that the courts remain open to plaintiffs with pay discrimination claims. Last year, the Supreme Court ruled in a case called Ledbetter v. Goodyear Tire that pay discrimination plaintiffs must file suit within 18o days of the employer's initial decision upon the discriminatory salary in question. But because it understandably takes plaintiffs a couple of pay cycles -- often more than 180 days -- to realize their pay is unfair relative to that of men in similar positions, it may be too late to pursue a legal remedy once they do. The Fair Pay Restoration Act would restore what many lower courts had believed to be the law prior to the Ledbetter decision -- that each discriminatory paycheck creates a new 180 day window for the plaintiff to bring her claim. As such, it would eliminate the rigid and unnecessary obstacle to plaintiffs' claims that currently gives incentives to employers to conceal discriminatory pay policies for the statutory period and quickly immunizes them from suit.

Please urge your Senators to support the Fair Pay Restoration Act. All you have to do visit the NWLC's website -- it's quick, it's easy, and it's important.

Elsewhere in the blogosphere

David Cohen posts at Feminist Law Profs about Cal Poly's efforts to evade Title IX by sponsoring men-only engineering classes in Saudi Arabia.

-and-

At Womenstake.org, Neena Chaudhry of the National Women's Law Coalition reflects on the three-year anniversary of the Department of Education's 2005 Clarification, which allows schools with grossly inequitable particpation opportunities to satisfy Title IX using the results of a web-based survey of female students' interests and abilities.

Student Note Criticizes EADA

In 1994, Congress passed the Equity in Athletics Disclosure Act, which requires colleges and universities subject to Title IX to report information about the number of athletic opportunities it provides to both sexes as well as certain information about athletic department expenditures (and revenues) for men's and women's programs. In a note in the Journal of College and University Law, student Kathryn Keen criticizes the EADA and argues for its repeal.

First, Keen argues that the EADA is failing in its purpose of helping prospective student-athletes decide on a college, since student-athletes are not aware of the information it makes available and don't factor it into their decisionmaking. Personally, I have never heard that helping prospective student-athletes was the purpose of the EADA and the only support for this idea is a buried statement on the Department of Ed's website. The real value of disclosing gender equity data is much broader -- it is to help the public ensure that federal dollars are not funding discrimination. The EADA makes private enforcement of Title IX possible by exposing schools with gender equity problems and by giving individuals with grievances the information they need to decide whether a violation has occurred. When similar reporting requirements don't apply, violations are more easily concealed because compliance information is so difficult to acquire. This is why legislation is pending to expand these reporting requirements to high schools, which are not subject to the EADA.

Keen's more persuasive critique of the EADA is that the data schools submit is inaccurate and/or fails to conform to a uniform standard that allows for meaningful comparison. Because the statute does not require schools to employ standard accounting practices, schools have some flexibility to generate a more favorable fiscal picture. For example, they may distinguish, and thus exclude, capital expenditures, which makes capital-intensive sports (like football) appear more profitable. Even when schools aren't deliberately manipulating financial data, by innocently assigning a particular expenditure to a different budget category than other schools, they make it difficult to make comparisons and spot trends. (Compare, for example, a school that accounts for utilities as a department expense and a school that apportions the bill to its men's and women's athletics programs based on their relative use.) Moreover, there is also no audit process or other mechanism for the Department of Education to catch and correct even obvious, plain errors, such as a $34 million data entry mistake in a report filed by the University of Texas. And, though Keen looked at the reporting of financial information, not the reporting of number athletic opportunities, we've had opportunity to note, there are even reporting discrepancies there as well.

But while I agree with Keen that the EADA is flawed in this regard, I don't agree with her conclusion that the statute should be scrapped. I think that the transparency the statute provides is enormously valuable, not necessarily to prospective students (though this is probably somewhat and increasingly so), but to the public at large. Information is the foundation for private enforcement, which has been demonstrably more effective than agency enforcement at bringing about real improvements in gender equity. To that end, it is crucial for reported data to be accurate and standardized. Rather than calling for its repeal, we could seek to improve the EADA along these lines, by requiring standard accounting practices, imposing an audit system or one of peer review, by clarifying schools' obligations to include and apportion particular expenses. The NCAA, Keen points out, has already implemented a more stringent, meaningful, and accurate reporting obligation for its members (this is not a substitute for the EADA, though, since NCAA does not make its reports public). This could provide a model for the Department of Education to follow -- not to mention a retort to schools who might otherwise object that enhanced reporting requirements increase the the workload of their number-crunchers.

Citation: Kathryn Keen, The Equity in Athletics Disclosure Act: Does it Really Improve the Gender Equity Landscape?, 34 J. of College & Univ. L. 227 (2007).

NCGWE Reports on "Title IX at 35"

The National Coalition for Girls and Women in Education has released a report on the status of gender equity in several aspects of education to which Title IX applies. The report, Title IX at 35: Beyond the Headlines, demonstrates that while progress toward gender equity has been made, many challenges still remain. Among its conclusions:

• Colleges and high schools have significantly increased the number of athletic opportunities offered to women and girls, but female athletes still receive proportionally fewer opportunities, resources, and scholarships than men. Women also are also significantly underrepresented among head coaches and athletic administrators.

• While the number of girls taking high school science and math courses has increased, women are much less likely to earn a bachelor's degree in many technical fields, including math, physics, and computer science, and engineering. The report attributes this trend to stigmas and stereotypes that female students internalize early on, as well as direct discrimination in which schools are complicit.
  

• Schools are also complicit in gender-stereotyping students in vocational programs, resulting in near absolute sex segregation in programs such as, for example, welding (95% male) and cosmetology (98% female).

• The report made several findings about employment discrimination in education, including the absence of women in positions of leadership (such as principals, only 44% female despite women making up 79% of public school teachers), a greater percentage of women holding part-time/adjunct than full time positions, and persistent wage discrimination against female teachers, instructors, and professors.
  

• Sexual harassment targets girls and boys, and is prevalent at all levels of education. 62% of female college students and 61% of male college students report having been harassed at their universities. Among K-12 students, 4 out of 5 report they had experienced some type of harassment.

• That public schools are increasingly segregating classrooms (and in some cases, entire schools) on the basis of sex, even though gender is not an accurate or consistent determinant of a student's learning style. Sex-segregation perpetuates the educational stereotypes at the root of many of the educational inequities already described, and its careless implementation could undue many of the progress that has already been made.

These are just the highlights; the full report offers much greater detail on all of these points, including citations to the research on which it bases its conclusions. For each of these areas, the report also and it includes recommendations for legislators, regulators, and educational institutions.

California Christians' Referendum Effort Falls Short

As we've noted, several conservative Christian organizations are challenging new amendments to California's anti-discrimination law that clarify its coverage of GLBT students. But their efforts to force a referendum vote on the new law recently feel short, as the organization leading these efforts, Save our Children Kids, secured only 350,000 of the 433,000 necessary signatures. However, the group vows to keep trying to force a public voice to repeal the law and its allies continue to seek an injunction against its enforcement.

Religious Conservatives Continue to Challenge California Antidiscrimination Law

California's newly-enacted Student Civil Rights Act (a/k/a "SB 777") is under attack by conservative, religious organizations, who have not only initiated a referendum that would repeal the law, but are now also challenging the law in court.

SB 777 amended the antidiscrimination provisions of the state education code by adding sexual orientation and gender identity. Many consider this legislation to be a mere clarification, since other, generally applicable antidiscrimination laws already contain those protections. However, as we've noted before, opponents of the new law are arguing that the new law will mean all kinds of changes to the education policies, facilities, and curriculum that will infringe the rights of Christian kids to endure a publicly-funded education without coming into contact with the reality that some people are gay and/or don't adhere to rigid gender stereotypes.

In November, the opposition to SB 777 entered the legal arena when Alliance Defense Fund and Advocates for Faith and Freedom filed a lawsuit in federal court, challenging the law as a violation of the due process rights protected in the federal and California constitutions. Specifically, they argue that by abandoning the biological category of sex in favor a social category of gender, the law imposes a vague nondiscrimination mandate, since educators can't be expected to "read the minds of individuals to determine the individual’s self-defined sexual identity so as not to inadvertently discriminate against an individual based upon their self-defined sex."

Two gay rights groups, Equality California and the Gay-Straight Alliance Network, recently filed motions to intervene in the lawsuit (which would allow them to make arguments in support of the law, even though they are not the named defendant). The groups are represented by NCLR, Lambda Legal, the Transgender Law Center, and two private firms. According to Equality California's executive director Geoff Kors, the intervenors' position is that the law is not vague, it simply clarifies what the courts have already determined: that schools can be liable for discriminating against students, including gay, lesbian, and gender-nonconforming students. I expect they will also point out, in response to the gender = vague = chaos line of reasoning that plenty of states have similarly constructed antidiscrimination law, and that federal courts are increasingly interpreting sex discrimination to include gender and in some cases, sexual orientation, and schools have not experienced the parade of horribles that ADF and AFF apparently fear.

Conservative Californians Seek Referendum to Repeal Law Protecting LGBT Students

Earlier this month, Governor Schwartzenegger signed into law SB 777, the Student Civil Rights Act, which adds sexual orientation to the enumerated grounds for nondiscrimination in California's public schools. Laws like this, which have already passed in thirteen other states, are necessary to ensure that schools take appropriate measures to protect against the high instances of bullying and harassment of students who are or perceived to be gay or gender nonconforming.

Now, conservative groups have begun a ballot initiative that could, if successful, repeal the law before it takes effect in January. On Monday one such group filed referendum papers with the state attorney general. Once the attorney general gives the proposed referendum an official title and summary, those groups will set about garnering the 400,000+ signatures required to put the question on the ballot.

SB 777's opponents apparently believe that a law protecting LGBT students from discrimination will indoctrinate students into deviancy by banning references to mothers and fathers in textbooks and ordering schools to allow boys to use girls' locker rooms. This is really conjecture, as locker rooms are not mentioned in SB 777, nor are there are examples from other states with similar antidiscrimination laws of locker-room gender anarchy. As for erasing mothers and fathers from textbooks, this hyperbole traces back to the bill's prohibition on adopting textbooks that "contains any matter reflecting adversely upon persons" because of their sex, race, national origin, handicap, religion, or sexual orientation. Interpreting references to mothers and fathers as disparaging to a student's sexual orientation makes about as much sense and is as unlikely as an interpretation that textbooks referencing white, male, able-bodied, Christian Americans are disparaging against individuals in the statute's other protected categories.

Despite its absurdity, judging by the results of a Google News search for "SB 777", this rhetoric has taken off like wildfire in the conservative and religious publications in California. I'm sure these articles of distortion and fear-mongering will easily convince the requisite number of people to sign the petition to put the question on the ballot. Hopefully, though, California voters will realize that to oppose a law that opposes bullying is, quite simply, to support bullying.

California holds hearings on Title IX Compliance at UC schools

The Contra Costa Times reported on last Friday's hearing in the California state legislature regarding Title IX compliance at the University of California. State Senator Dean Florez, who heads the Senate Select Committee on Gender Discrimination, questioned university administrators on the history of lawsuits alleging gender discrimination at various campuses. Senator Florez discussed the possibility of passing a state statute mirroring Title IX's mandate, in order to increase pressure on universities to bring their athletic programs into compliance with the proportionality prong of Title IX.

University administrators maintained that their ongoing difficulties stemmed primarily from a limit to the number of sports played by women at west coast universities. This last claim is a curious one, and I wonder if other west coast schools have claimed to struggle with the proportionality prong of Title IX for the same reason.