Professor Simson on Title IX, Athletics, Biological Differences, and Gender Inequality

Here is the abstract from Professor Rosalind Simson's article in the current issue of Denver University Sports & Entertainment Law Journal, "The Title IX Athletic Regulations and the Ideal of Gender-Free Society." The full article also posted on SSRN.

Some philosophers and political theorists have argued that to achieve a just society we must eliminate gender roles. Few would dispute that many of the reductions in the influence of gender over the last fifty or so years have increased justice in the U.S. Whether justice requires that our society become entirely gender-free, however, is more controversial. A common argument for retaining at least some gender roles is that some are natural consequences of biologically-determined average physical differences between the sexes. Athletics is one context in which people often make this argument. This article focuses on school athletics and the Title IX athletic regulations in order to gain insight into the implications of biological sex differences for the question of whether the creation of a gender-free society is a realistic and worthy ideal. Although Title IX has been hugely successful in increasing female participation on school sports teams, males today still dominate school athletics, and gender roles are still very operative in school sports. This article proposes a framework, based on the concept of equal opportunity, for understanding what it might reasonably mean for a society to be “gender free.” It then argues that overall equality of opportunity requires equality of athletic opportunity, and that, despite its successes, Title IX's failure to repudiate gender influences makes it unlikely that, in its current form, it will ever lead to equality of athletic opportunity. The article goes on to propose revisions of Title IX that would truly equalize opportunity in the school athletic arena. It thus suggests that the gender-free ideal is ultimately compatible with biologically determined average physical differences between the sexes.

The feminist fable and soft essentialism

The Title IX Blog is a huge fan of Dr. Michael Messner. Messner is the type of academic I certainly strive to emulate. His work is impressive and thought-provoking, practical and accessible.
And in the June 2011 issue of the Sociology of Sport Journal Messner had an article that made me say "damn, I wish I had written that"--of course I would have had to think of it first. (It also had a handy chart!)
In the piece "Gender Ideologies, Youth Sports, and the Production of Soft Essentialism," Messner uses his research on the gender ideologies he observed in youth sports, providing a theoretical context in which to understand these constructions. He calls it soft essentialism.
Soft essentialism is a gender ideology based on the perceived experiences of the professional class (though it functions hegemonically) in the United States in this era of "post-feminism." It is marked by a belief in choice--for girls and women, but leaves unexamined the possibility of choice for boys and men. It is, as Messner notes, a triumph for liberal feminism which has advocated for individual success through access to options/venues/professions from which women have been historically barred. Title IX, of course, is a product of liberal feminism.
While supportive of access to sport opportunities for women and girls, Messner writes of the problems with the "triumphant feminist tale" in women's sport history (p. 152). First--and this is something I try to explain to my students all the time--progress is not linear. The idea that "things" are better now than they were at some unnamed point in the past is too easy and not supported by history. This problematic teleology also erases differences in class, race, ability, age, geography and various other markers that greatly affect a girl's access to opportunities and "choices" generally.
Finally one of the most interesting paradigm-shifting points Messner makes is that soft essentialism leaves boys and men unmarked. Girls can choose to do sports or become mothers or work or wear heels and dresses or get married. Despite shifts in the construction of masculinity, boys are still largely deprived of the same level of flexibility (noting again that very few women have such flexibility when we take into account age, race, and class).
How does this relate to Title IX? The argument that anti-IXers proffer is often rooted in soft essentialism. Opportunities for girls--which they can choose or not--take away, the argument goes, opportunities for boys. Sports for boys are viewed as less of a choice and more innate--something they are "naturally" drawn to. Both girls and boys suffer when society interprets gender roles in this way. Boys are not allowed to be "flexible choosers." We have seen this before when people speak out against Title IX's alleged quota system. They note that girls like to do many different things (like band and drama and chorus and yearbook and newspaper and community service) while boys mostly just like sports. And, on the other side of the gender binary, when girls "choose" to do something else, this is seen as an unrestricted, freely made choice reflecting some kind of innate interest level.
Messner, in the conclusion, brings up the idea of integrating sport, noting its potential benefits and downsides and pointing to other research on the issue. I believe that in order for this to happen we need to value all versions of sport--in practice not just in theory--from recreational to professional. The competitive model of sport (in combination with hegemonic gender ideologies) that is most prevalent in our culture right now presents, I believe, the biggest obstacle to integration.

Research on attitudes toward girls' participation

A recently published (June 2011) research note on  attitudes toward participation opportunities for girls in sports found that high school students are generally supportive of providing sport opportunities for girls. The research, done by Marni Brown, Erin Ruel, and Stephanie Medley-Rath and published in the Sociology of Sport Journal, examined the attitudes of high school sophomores all over the country. They found that girls are significantly more supportive than boys with competitive male athletes being even less supportive. Racial minorities (with the exception of Latinos) demonstrated greater support for opportunities for girls than did their white peers. When they examined attitudes using socioeconomic class as a variable, the researchers found that as class status increased, support decreased. And lest we think that the northeast is most liberal enclave of all, the study found that support of opportunities for girls by northeasterners was not significantly different than that of southerners.
But again, and in contrast to similar studies of younger students, there was a finding of general support among all demographic groups. The authors speculate that one possible reason for this support is both age and the effects of Title IX in increasing opportunities for girls.

Article Proposes Scrutiny for Schools' Prong One Compliance by Contraction

In a new article in the DePaul Journal of Sports Law and Contemporary Problems, three authors propose that OCR should strictly scrutinize schools' decisions to comply with prong one by cutting men's teams. As the authors explain:

The first prong of the Title IX compliance test is currently abused and should not serve as a safe harbor for institutions unwilling to fund additional female participation opportunities. Strict scrutiny review of all Title IX compliance grievances would better protect educational student-athlete experiences. A “2011 Clarification” implementing this standard would hold financially capable schools responsible for meeting the viable athletics interests of all students rather than cutting educational opportunities to divert funds for football and basketball. The option of reaching Title IX compliance through reduction of men's non-revenue generating athletic programs should be used only as a last resort by athletic departments that truly cannot afford them. Under this standard, if male student-athletes' opportunities are cut, they can file a Title IX grievance requiring the university to prove the action furthers the compelling interest of increasing female opportunities and that no less restrictive means exist. The use of strict scrutiny in a Title IX setting would not always prove fatal to compliance measures because legitimate cuts would survive the standard. Instead, the use of a strict scrutiny standard for Title IX would provide much needed protection against the use of illegitimate and unnecessary means under the guise of remedying past discrimination.

My understanding is that under the authors' proposed standard, a university's decision to cut an inexpensive men's sport like track would not survive "strict scrutiny," because it doesn't free up any money to re-allocate to address existing disparities in women's sports. That would leave universities seeking to comply with the proportionality prong with the choice of either adding women's teams, or cutting back on the doesn't-generate-as-much-revenue-as-you-probably-think sports of football and basketball. Option A would be good for women's sports. Option B would still be bad for the men's teams that would be targeted instead, but the scrutiny on those sports could help curb rampant commercialism and arms-race spending in big-time college sports. It's an interesting thought.

Article is: Jesse M. Rappole, Thomas A. Baker III, and Kevin K. Byon, Exposing the Shell Game: The Need for a Narrowly Tailored Approach to Title IX, 8 DePaul Journal of Sports Law and Social Problems 1 (2011).

Article Critiques Massachusetts's Anti-Bullying Statute

New England School of Law professor and Title IX lawyer Wendy Murphy recently published an article in the New England Journal of Crime and Criminal Confinement that analyzes and critiques anti-bullying statute that Massachusetts enacted last year. The statute requires school districts to enact bullying prevention policies that include “clear procedures for students, staff, parents, guardians, and others to report bullying or retaliation; . . . clear procedures for promptly responding to and investigating reports of bullying or retaliation; . . . the range of disciplinary actions that may be taken against a perpetrator for bullying or retaliation; . . . [and] a provision that a student who knowingly makes a false accusation of bullying or retaliation shall be subject to disciplinary action." School officials are also required to report any instance of bullying to the principal, who is then required to investigate the claim, report to law enforcement if the criminal in nature, take disciplinary action against the perpetrator, and notify the parents of all students involved.

According to Murphy, the law lacks meaningful enforcement. Specifically, by precluding a private right of action for victims, the law insulates school officials from legal action when they fail to comply with the law. At the same time, students have the right to sue school officials for discipline that curtails their constitutional right to free speech -- which may cover verbal harassment and cyberbullying. Thus, school officials are have stronger incentive to over-protect bullies to avoid the risk of liability under the First Amendment.

She also criticizes the statute for failing to address the overlap between bullying and civil rights. This omission tends to frame bullying and harassment as separate categories of conduct, which may steer victims of bullying from pursuing remedies under civil rights laws like Title IX. She argues that, in addition to amending the statute to provide a remedy against school officials for failing to address bullying in the manner required by law, the legislature should also incorporate "a clear cross-reference to federal and state civil rights laws in anti-bullying statutes."

Citation: Wendy Murphy, Sexual Harassment and Title IX: What's Bullying Got to Do With It?, 37 New England J. of Crime and Criminal Confinement 305 (2011).

Law Review Article Addresses School Officials' Individual Liability Post-Fitzgerald

An article in the recent issue of the Wisconsin Journal of Law, Gender and Society examines the Supreme Court's 2009 decision in Fitzgerald v. Barnstable School Committee, which held that Title IX does not preclude a concurrent claim for Equal Protection violations under 42 U.S.C. 1983. The author, attorney Jennifer Kirby Tanney, explains that one potential consequence of this ruling is that school officials may be held individually liable for violations of Title IX, including in the peer harassment context. This is because while Title IX only covers institutions and not individuals, the 1983 remedy allows plaintiffs to sue individual defendants unless immunity applies. Tanney argues, however, that while the Court was right to hold that Title IX does not preclude relief under 1983 as a general matter, the Court should not in future cases extend this holding to allow for the individual liability of teachers and administrators, a consequence she argues that Congress did not intend.

For more see: Jennifer Kirby Tanney, A Back Door to Individual Title IX Liability? The Implications of Fitzgerald v. Barnstable School Committee on the Liability of Teachers and Administrators for Peer-to-Peer Harassment, 26 Wis. J. Law, Gender & Soc'y 23 (2011).

Calling all Law Professors' Papers on Harassment and Bullying

This is a call for papers on the application of Title IX to bullying and harassment in schools. Selected papers will be presented at the American Association of Law Schools' annual meeting in January and published in the Western New England Law Review.

Title IX, the federal law prohibiting sex discrimination in federally-funded educational institutions, turns 40 years old in 2012. At the 2012 Annual Meeting of the AALS in Washington D.C., the Section on Education Law and the Section on Sports and Law, with a co-sponsorship from the Section on Sexual Orientation and Gender Identity Issues, will sponsor an extended program to look at the current state of Title IX’s application to a variety of issues including bullying and harassment, the subject of this call for papers.

In 1999, the Supreme Court confirmed Title IX’s application to peer harassment and defined the scope of liability for educational institutions that fail to respond appropriately to known occurrences and risks. Yet recent instances of severe sex- and gender-based harassment, in particular those related to the victim’s later suicide, have raised questions about both schools’ and the law’s effectiveness and preventing such abuse.

We are soliciting proposals for papers addressing the application of Title IX to bullying and harassment, including but not limited to: Title IX’s application to harassment motivated by the victim’s perceived sexual orientation or gender identity; judicial decisions applying the Court’s deliberate indifference standard for institutional liability; harassment contexts that have proven particularly challenging for schools and universities, such as online bullying and sexual abuse by and among student athletes; and the role of public enforcement, including the effectiveness of recent guidance from the Department of Education addressing institutional response to sex-, gender-, and sexual orientation-based bullying and harassment and sexual violence and abuse.

Deadline Date for Submission: August 1, 2011.

Proposal Requirements: There is no requirement as to the form or length of proposals.

Eligibility: Faculty members of AALS member and fee-paid law schools are eligible to submit papers. Foreign, visiting and adjunct faculty members, graduate students, and fellows are not eligible to submit.

Selection: Papers will be selected after review by a joint committee consisting of members of the Section on Education Law, the Section on Sports and Law, and the Section on Sexual Orientation and Gender Identity Issues.

Presentation and Publication: Accepted papers will be included in a symposium published in the Western New England Law Review. One or more papers will also be selected for presentation during the Sections’ joint program at the AALS Annual Meeting. Program participants will be responsible for paying their annual meeting registration fee and expenses.

Contact for submission and inquiries:

Professor Erin Buzuvis
Western New England University School of Law

ebuzuvis@law.wne.edu

413-782-1405

Competitive Cheer Article Published

Ego alert. My own article, "The Feminist Case for NCAA's Recognition of Competitive Cheer as an Emerging Sport for Women" has been published in the Boston College Law Review along with the other papers from its symposium last October focusing on the NCAA at its 100-year anniversary.

Here is the abstract:

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve Title IX compliance, in a way that would benefit women’s sports generally, by expanding the definition of sport to include those that are women-driven and by reclaiming as sport an activity— cheer—that was initially deployed to separate women from athleticism. In light of these reasons, as well as the burgeoning interest in competitive cheer at the college and high school levels, the Article concludes that the NCAA should promote the growth of competitive cheer by endorsing it as an emerging sport for women.

Article Seeks Title IX's Application to Transgender Student Harassment

A law student's article in the Texas Review of Law and Politics Journal seeks to leverage Title IX's prohibition on sex discrimination to offer fully protection against harassment to transgender students. Citing statistics from GLSEN, the author, Tina Sohaili, points out that transgender are the targeted for bullying and harassment more frequently than any other student group. Such harassment frequently target the students' personal characteristics, such as appearance, clothes, and voice, as not matching the masculine or feminine stereotypes associated with the transgender students' assigned sex.

Drawing on analogous employment discrimination law, Sohaili argues that the liability Title IX imposes on school districts that ignore sexual harassment between peers covers peer harassment motivated by transgender students' gender nonconformity. She supports this argument by pointing out that some lower courts have already recognized harassment on the basis of gender nonconformity a subset of sex discrimination in cases that do not involve transgender students.

Importantly, while Sohaili argues that courts should construe Title IX to afford this protection to transgender students, she recognizes that courts have not universally recognized sex discrimination law's application to gender nonconformity in the employment context. Therefore, while this interpretation affords the best protection to transgender students under federal law, even stronger protection would result from changes to the law -- such as that proposed in the Student Nondiscrimination Act -- which expressly prohibit discrimination on the basis of not only sex, but actual or perceived sexual orientation, gender identity, or expression.

Citation: Tina Sohaili, Securing Safe Schools: Using Title IX Liability to Address Peer Harassment of Transgender Students, 20 Tex. Rev. L & Politics 79 (2011).

More Title IX Scholarship

Here is a roundup of articles and chapters about Title IX that have been published recently:

Attorney Kristen Galles -- known for her victories against Quinnipiac and the Michigan HS Athletic Association-- published Title IX and the Importance of Reinvigorated OCR in the journal Human Rights. In this brief essay, she explains the role that OCR plays not only in enforcement, but in educating schools and universities about their obligations under Title IX. She argues that OCR has the potential make an even greater difference combating sex discrimination in school, and is hopefully optimistic that the newly-recommitted agency can one day work her, a Title IX litigator, out of a job. Citation: Kristen Galles, Title IX and the Importance of Reinvigorated OCR, Human Rights, at 37 (Summer 2010).

Michelle Gaugh published an article about Title IX's application to discrimination against parenting and pregnant students in the Michigan Journal of Gender and Law. In it, she points out that such discrimination persists despite a clear regulatory prohibition against treating pregnant students any differently from others who may have a temporary medical condition that requires accommodation. She also explains that there have been relatively few efforts to address this discrimination in court, primarily because victims lack awareness of their rights and socially and legally marginalized. She argues that increasing awareness about Title IX's application to pregnant and parenting students, including educating teachers and other advocates, as well as increased enforcement and oversight from OCR, can help curb this variety of sex discrimination. Citation: Michelle Gaugh, Parenting and Pregnant Students: An Evaluation of the Implementation of the "Other" Title IX, 17 Michigan J. Gender L. 211 (2010).

Professor Deborah Brake has posted to SSRN a chapter called Sport and Masculinity: The Promise and Limits of Title IX, which will appear in the book Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper and Ann C. McGinley eds. 2011). Brake points out that, "[w]hile Title IX has greatly expanded the range of culturally valued femininities for women, and broadened the social category of "woman" in the process, it has not broadened the masculinities that sport constructs for male athletes, nor has it made significant inroads into the hyper-masculine ethos that pervades the most-valued men’s sports." Title IX reinforces the hegemonic masculinity replicated through in several ways, "including Title IX’s default rules approving of sex-segregated teams and its limited integration rights, and an equal treatment standard that accepts as a baseline the hierarchies within men’s sports that privilege the most masculine sports, football and basketball." Then she addresses how Title IX might nevertheless be used to "intervene in the production of masculinity," in light of a trend of "recent cases in which Title IX has held educational institutions accountable for the harms caused by extreme performances of hyper-masculinity, including sexual assaults by male athletes of women and of other male athletes."

Student Scholarship Addresses Contact Sports Exception

I recently came across two student-written articles that critically examine Title IX's contact sports exception -- the regulatory provision that requires schools allow cross-over tryouts, (e.g., a girl trying out for a boys' team, when there is no girls' team in that sport) but only when the sport is not a contact sport.

Jessica Constance Caggiano's note in the University of Pittsburgh Law Review criticizes the exception as both the product of a contributor to stereotyped notions about girls' and women's physicality and athleticism. She calls for a policy change that would eliminate this limitation.

Marielle Elisabet Dirkx's comment in the Mississippi Law Journal addresses the unconstitutionality of the contact sports exception in light of courts' decisions that prohibiting cross-over participation violates the Equal Protection Clause when it is based on over-generalization and stereotypes.

These articles are:

Jessica Constance Caggiano, Girls Don't Just Wanna Have Fun: Moving Past Title IX's Contact Sports Exception, 72 U. Pitt. L. Rev. 119 (2010).

Marielle Elisabet Dirkx, Calling an Audible: The Equal Protection Clause, Cross-over Cases, and the Need to Change Title IX Regulations, 80 Miss. L.J. 411 (2010).

Intersex Athletics, Roster Floors Addressed in Law Student Notes

The current issue of the Brooklyn Law Review contains two Title IX-themed articles written by students.

In Policing the Policing of Intersex Bodies, author Laura Zaccone lays out a regulatory approach to "preventing the gender inquisition that befell Caster Semenya from occurring in the educational context." She urges the Department of Education to

issue Title IX regulations--or, failing that, a policy interpretation--making a student's self-identified gender determinative of eligibility to compete in school athletics. If a student lives and identifies as a female, there should be no other eligibility criterion for participation on a female team. Under this policy, the perspective of the individual student is the deciding factor. But an individual's self-identified gender is not always readily discernable to others. Some basic guidelines, then, are needed to ensure that this policy is administered fairly.

Above all, students should not be subjected to gender-identity tests. Procedures seeking to establish gender identity are just as pernicious as those purporting to verify biological sex. The DOE should make clear that testing of this nature is likely to violate Title IX.
To determine a student's gender identity, there are a numbers of factors that school administrators can consider. Substantial weight should be accorded to the gender self-identified by the student at enrollment.

Administrators might also consider the gender marker on identification documents, such as passports, driver's licenses, or birth certificates. These records should not be regarded as conclusive, however, given the adverse implications for transgender students, who often face obstacles in modifying the gender designation on personal documents even after sex reassignment surgery.Whatever factors are used to show self-identified gender, the DOE should require that school officials apply them consistently across the board. A case-by-case approach risks that athletes appearing more “masculine” than others will be subjected to more vigorous scrutiny.

76 Brooklyn Law Review 385 (2010).

A second article, Leave It On the Field, student author Carolyn Davis criticizes the federal court's decision in Biediger v. Quinnipiac, which rejected the university's claim to satisfy the proportionality standard because the university had counted several athletic opportunities for women that were not meaningful in comparison to other varsity opportunities (specifically, those in competitive cheer, winter track for some athletes for whom it was an extension of the season for other running sports, and opportunities on teams with a roster inflated for Title IX purposes). Davis criticizes the court's analysis as "part of a worrisome trend" that courts are interfering with athletic department's spending decisions. In this spirit, she argues that the use of roster floors ought to be an acceptable practice, and that courts should not scrutinize the "subjective" question of whether those rosters offer meaningful participation opportunities. Interestingly, however, Davis's defense of the practice of expanding/inflating the size of women's teams by arguing that it is most acceptable when it is accompanied by commensurate increases in support for the team. Yet, by using an example the inflated roster of Quinnipiac's softball team, which did not receive commensurate additional support, Davis demonstrates that without judicial oversight, universities facing budget problems will solve them by very means she agrees are problematic.

76 Brooklyn Law Review 265 (2010).

Koller on the Title IX "Interest Paradox"

Professor Dionne Koller from the University of Baltimore School of Law has recently published an article, "Not Just One of the Boys: A Post-Feminist Critique of Title IX's Vision for Gender Equity in Sports" in the current issue of the Connecticut Law Review. In it, she examines why women and girls are relatively less interested than their male counterparts in pursuing and remaining involved in athletics. Rejecting both the explanation that women are inherently less interested in sports, as well as the theory that the absence of opportunity alone diminishes interest, Koller posits that disparity stems from Title IX itself. By requiring that schools provide opportunities for female athletes with an "interest and ability" to compete in varsity sports, the law operates to only provide opportunities for those interested in "assimilating" to a particular, male-driven brand of sport. She argues that, in this way, the law creates an “interest paradox” -- on the one hand, creating opportunities believed to be the foundation for building interest (the "if you build it they will come" theory) while on the other hand, "extinguishing the interest of those girls and women who would engage in sport, but are not willing to assimilate into the current model." To be competitive, athletes have to adopt the values of the existing model of sport: specialize early, risk injury from overtraining, prioritize winning over academics and other values, and strive for commercial success. While many women are interested in this model of sport, a different sports paradigm might have generate a better balanced interest among male and female participants. To this end, Koller proposes a more inclusive policy that requires education-based athletics to adhere to values and priorities like encouraging participation and fitness, inclusion, and increase of participation opportunities and choices for younger students. At the very least, Koller urges us to acknowledge the interest paradox, "so that discussions of gender equity in sport can move from polarizing, and ultimately unproductive debates about whether women are, or are not, inherently interested in athletics, to a more nuanced discussion of exactly what models of athletics a greater population of women might be interested in. Thus, it is only when women have an equal opportunity to participate in creating and defining the social construct that is athletics will we have realized gender equity in sport."

Citation: 43 Conn. L. Rev. 401 (2010).

Professor George on "Opportunity, Choice, and Discrimination Theory Under Title IX"

In the current issue of the Yale Journal of Law and Feminism, Professor B. Glenn George from the University of North Carolina School of Law proposes that/how Title IX proponents should reshift their focus from proportionality compliance to more holistic reform. Her article, "Forfeit: Opportunity, Choice and Discrimination Theory Under Title IX" takes as a starting point that proportionality test for measuring equity in the distribution of athletic opportunity, has been ineffective and even counterproductive in generating true equality, as evidenced by the "leveling off"of women's participation in college sports. Though she does not call outright for regulatory reform that would eliminate the proportionality interpretation, I read her to be suggesting a policy and advocacy agenda that moves away from proportionality as a goal.

For one thing, she points out that the proportionality standard does nothing to prevent colleges from adopting the "JMU model" of compliance, and leveling down women's and men's athletics to the bare minimum that Title IX and NCAA requirements allow. Such response does nothing to support the ostensible goal of promoting and enhancing opportunities in women's sports.

For another, creating opportunities at the college level, without more, won't necessarily increase participation. Female college students report lower interest in athletic participation than their male counterparts, and Professor George warns against writing this data off as the product of lack of opportunity that can be solved by pursuing a proportionality objective. Female college students' lack of interest in athletics must be examined for related context, which may include their higher rates of involvement in community and extracurricular activities, more time devoted to academic pursuits, lower financial security upon entering college and greater likelihood of seeking a part time job, and lower likelihood to self-identify as "competitive."

Finally, pursuing proportionality in college sports draws the focus away from other things that might be just as valuable, or even more so, to the project of dismantling inequality. For example, a goal of attaining proportionality doesn't encourage anyone to promote younger girls' athletic participation in popular and established sports. (Colleges aren't going to add a second women's basketball team, for example, just because interest in that sport has doubled.) Proportionality also draws resources and focus to the most elite level of sport, away from other contexts, like club and intramural sports, which are more accessible to a wider range of abilities, and capable of generating new interest in athletics.

Professor George offers a couple of ideas of how, instead of pursuing proportionality, we should seek to restructure sports more generally in ways that promote equality. For example, rather than eradicate the statistical disparity in athletic participation, we could try to neutralize the disparity in privilege that results from the disparity in athletic participation, for example, by taking athletic scholarships off the table. For another, we could change the nature of participation in ways that allowed athletes to simultaneously hold a job if they needed one, to devote time to their school work or community service or otherwise have a more well-rounded life. In addition to other benefits, such reform would change the definition of "athletics" to fit women's interests, rather than the other way around.

In sum, I found Professor George's article to be compelling. Though I believe it is necessary to retain the proportionality standard in order to protect women's athletic opportunities, it is good to be reminded of its shortcomings and the tradeoffs that such a standard requires. There's no easy way to balance the pros and the cons of incorporating proportionality into our measure of equality, but for starters, this Article makes clear that we can't let Title IX and the goal of women's sports advocates be reduced to just that.

Citation: B. Glenn George, Forfeit: Opportunity, Choice, and Discrimination Theory Under Title IX, 22 Yale J. of Law & Feminism 1 (2010).

Globe Profiles Stevenson's Study on Title IX's Beneficial Effect

We blogged about this last December, but today's Boston Globe has a profile of Professor Betsey Stevenson's research on causal effects of athletic participation on girls' educational and professional attainment.

An excerpt:

[N]ow, for the first time, new research has begun to document a measurable benefit to girls playing sports, sweeping away any fuzzy, feel-good reasons why girls athletics matter and showing that sports can truly change the lives of the young women who get the opportunity to win, lose, and just play. A study released earlier this year, examining the impact of Title IX, the federal law that opened the door for greater sports opportunities for girls, offers hard evidence that playing sports leads to greater educational and employment opportunities. Most notably, it found that up to 40 percent of the overall rise in employment of young women in recent decades can be attributed to the increased opportunity to play ball.

The findings are significant for one key reason: They take the conversation about sports out of the realm of abstraction and into the world of clear benefit. It has long been speculated that sports can teach young people qualities of character, or life lessons, that they might not learn otherwise, but now there is evidence that the games can be transformative — not only to the participants, but also to the workforce and even the country at large.

Inside Higher Ed takes notice

Erin's recent publication in the Duke Journal of Gender Law and Policy got the attention of the editors at Inside Higher Ed. They published a synopsis of her article on the Title IX whistleblower cases, the impact of the high success rate of the cases brought by coaches and administrators who take issue with the ways in which athletic departments are (or are not) enacting gender equity, and even talked to Eric Pearson, chairperson of the College Sports Council, a group with whom we "Title IX lemmings" (a term used to describe me recently--NOT by Pearson) usually butt heads. But Pearson is all for protection against discrimination and notes the difficulty coaches have speaking out against their respective administrations.
If you want the highlights, check out the column. If you want the whole thing and don't have access to the DJGLP, email Erin about getting a copy of her article.
Good work, Erin!

Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics

My own article by that title was recently published in the current issue of the Duke Journal of Gender Law and Policy (.pdf). In it, I examine the retaliation cases at Fresno State, FGCU, Berkeley, Montana State, Feather River College and others. I argue that:

The current spate of retaliation cases is... a relevant source of information about an important social problem [that of obstacles to women's leadership in college athletics]. Moreover, the fact that plaintiffs in Title IX retaliation cases against college athletic departments are enjoying new levels of success provides an opportunity to speculate optimistically about the power of law to effect positive change in the culture of college athletics. Following the Supreme Court’s recent validation of a private right of action to challenge retaliation in Jackson, coaches and athletic administrators have never before had more legal remedies with which to tackle sex discrimination in college athletics. Together with the recent high-profile multi-million dollar jury verdicts and settlements, these legal remedies create a strong incentive for athletic departments seeking to avoid liability to monitor for and address institutional practices that drive and deter women from coaching.

Citation: Erin E. Buzuvis, Sidelined: Title IX Retaliation Cases and Women's Leadership in College Athletics, 17 Duke J. Gender Law & Pol'y 1 (2010).

"To Lynch a Child"

Via Feminist Law Profs, I learned that Professor Michael Higdon of Tennessee has posted a working paper called "To Lynch a Child: Bullying and Gender Nonconformity in Our Nation's Schools." Below is the abstract, and here is a link to the full article.

In January 2010, a 9-year old boy named Montana Lance hung himself in a bathroom at the Texas elementary school he attended. Although certainly shocking, such acts are unfortunately becoming less and less unusual. In fact, the suicide of Montana Lance is very reminiscent of what happened in April 2009 when two 11-year-old boys, one in Massachusetts and one in Georgia, likewise committed suicide just days apart. What would cause these children to end their lives? The answer in each case is the same: all three suffered extreme levels of victimization at the hands of school bullies—bullying that others have described as involving “relentless homophobic taunts.” And, as we can see from the fate of these three little boys, this form of harassment was obviously very traumatic.

In this article, I look at the growing problem of school bullying in America today. Now, almost all children are teased and most will even face at least some form of bullying during their childhood. However, studies reveal that some children will unfortunately become chronic victims of school bullying. Chief among that group are those children whose gender expression is at odds with what society considers “appropriate.” As my article explores, the gender stereotypes that exist within our society are frequently to blame for the more extreme levels of bullying currently being carried out in our nation’s schools. And the impact this bullying has on its victims is staggering. Earlier I mentioned three children who took their own lives as a result of bullying. These are but three examples of those who have lost their lives to gender-based bullying. However, there are countless other victims who, although not paying with their lives, are nonetheless paying dearly in other ways. Specifically, the psychological literature on the emotional impacts that befall these chronic victims of bullying reveals a whole host of resulting problems—debilitating consequences that can last a lifetime.

As a result, my article argues that bullying on the basis of gender non-conformity is, in essence, a form of lynching. First, both are driven by unwritten social codes—in one instance, white supremacy; in the other, gender stereotypes. Second, both are carried out by perpetrators who do not act in isolation but with the support and sometimes involvement of the larger community. As I explain, one of the reasons gender-based bullying is so frequent is the degree to which peers and school administrators ignore such behavior and, in some instances, even become active participants. Third, both result in extreme harm—lynching, in its most basic form, resulted in dead bodies; however, a lynching need not be defined so narrowly. In the case of segregation, for example, we had living children with “lynched” spirits. As one commentator describes, “these children . . . were truly lynched spiritually, emotionally, and mentally.” As noted above, and as discussed quite extensively in my article, chronic bullying on the basis of gender stereotypes carries similar results. Finally, both lynching and gender-based bullying achieve maximum effectiveness by the way in which they generate fear in others. The clear message of both is the same: obey the “code” or become the next victim.

Although other scholars have addressed the topic of bullying, none have taken the approach that it is 1) heavily based on gender stereotypes and 2) as such, is in essence a form of lynching given the extreme harms it can cause. As a result, many articles propose remedies that focus more on the need for greater legal intervention. I argue that, first, only by recognizing this form of bullying for what it is—a form of lynching—can we even attempt to craft a solution to the problem. Second, given the degree to which social norms relating to gender animate this form of bullying, legal solutions alone will be inadequate absent some means of changing society’s adherence to these rigid and unforgiving stereotypes. Accordingly, I conclude by discussing ways in which litigation, legislation and education can work together to help try and effectuate some form of social change.

Study Links Title IX and Health Benefits in Women

New research suggests that the nearly 600% increase in girls' sports participation following the passage of Title IX has contributed to health benefits for women. In the current issue of Evaluation Review, Robert Kaestner and Xin Xu report that "adult women who were affected by Title IX and had greater opportunity to participate in athletics while young had lower body mass index (BMI) and lower rates of obesity and reported being more physically active than women who were not afforded these opportunities." (The researchers also note that while the results were statistically significant, the effect size was small, which I'm told means that there's a modest trend toward improvement, rather than a major change.)

Citation: Robert Kaestner & Xin Xu, Title IX, Girls Sports, and Adult Female Activity and Weight, 34 Evaluation Rev. 52 (2010).

[thanks AG]

Article Makes Case for Punitive Damages under Title IX

A student note in the University of Pittsburgh Law Review argues that Title IX punitive damages should be available to plaintiffs seeking relief from school districts that have discriminated on the basis of sex in their allocation of athletic opportunities and resources. Author Katina Pohlman explains that school districts -- for example, those in her native Western Pennsylvania -- have gross disparities in athletic opportunities for boys and girls, suggesting that private enforcement efforts must be strengthened to motivate schools toward gender equity.

Moreover, she argues, the courts have erred in construing punitive damages to be unavailable. In Franklin v. Gwinnett County Public School System, the Supreme Court acknowledged that Congress, in passing Title IX, made "all appropriate remedies" available to plaintiffs since it did not specify otherwise -- a statement of ostensible support for punitive damages as well. However, a subsequent Supreme Court decision, Barnes v. Gorman, cast doubt on that inference when it ruled that punitive damages were not available under various other civil rights statutes that were passed pursuant to Congress's Spending Clause authority. The Barnes Court refused to assume that entities that accept federal funding subject to Congress's conditions (such as a nondiscrimination mandate) has expressly bargained for possible punitive liability. Other courts, most notably the 4th Circuit in Mercer v. Duke University, have applied the reasoning in Barnes to Title IX cases because it too is a Spending Clause statute. However, Pohlman argues, there is good reasons to treat Title IX cases differently, particularly in the athletics context. A bar on punitive damages should not be inferred because punitive damages are integral to enforcement. Participating in athletics does not have economic value (except for athletes with scholarships) so courts are unlikely to assign high compensatory damages to remedy disparities in opportunity. Injunctive relief is also particularly ineffective in the Title IX context, because plaintiffs are likely to be students, whose cases become moot when they graduate. Finally, administrative remedies available under Title IX, i.e., withdrawal of federal funding, is not an effective deterrent against discrimination because this remedy is only threatened, never invoked. Pohlman argues that these enforcement challenges are unique to Title IX, the only civil rights statute that is particularly focused on education, so courts should be leery about applying Barnes's foreclosure of punitive damages under other civil rights statute to foreclose punitive damages under Title IX.

Citation: Katrina Pohlman, Have We Forgotten K-12? The Need for Punitive Damages to Improve Title IX Enforcement, 71 U. Pitt. L. Rev. 167 (2009).