Posts Tagged ‘Title IX’

October 9 roundup

  • Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
  • Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
  • Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
  • Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
  • “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
  • Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
  • More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
  • Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]

September 30 roundup

Next stop for boys’ team-cutting: high schools?

The quota pressures of the federal Title IX law have resulted in the axing of hundreds of men’s college sports teams, and now activists are preparing to intensify their legal campaign at the high school level, reports Jessica Gavora:

At the center of the pro-quota activists’ marching orders for Congress today is something called the “High School Sports Information Collection Act.” It’s modeled after the Equity in Athletics Disclosure Act (EADA), which for a dozen years has forced colleges and universities to annually report their athletic participation and expenses — broken down by sex — to the feds. The EADA was meant to be, and is, a one-stop-shopping list for trial lawyers and activist groups looking for schools to sue for failing to meet the Title IX quota. Now, courtesy of Senators Olympia Snowe and Patty Murray, they are about to have the same litigation hit list of high schools.

In a year in which Rutgers, James Madison, Ohio University, Butler, Clarion, Slippery Rock, and Syracuse have eliminated hundreds of men’s roster spots in full or in part due to Title IX, we have yet to see — thankfully — boys’ high-school teams eliminated under the law. But we are beginning to see boys athletic opportunities be limited due to Title IX quota creep in high schools.

(Jessica Gavora, “Title IX Trickle-Down”, National Review Online/CBSNews.com, Jun. 20)(broken link now fixed).

April 25 roundup

Title IX and cheerleading

Once again Title IX spoils the fun for kids of both sexes, this time in the realm of cheerleading, where school officials, reports the New York Times, are “redefining the role of cheerleaders in response to parental and legal pressures” — in particular, they’re requiring that cheerleaders be forced to devote half their time to cheering girls’ sports, “regardless of whether the girls’ basketball teams wanted and/or asked for” them, to quote the New York rule. It would be too much to expect actual criticism of the sacrosanct sex-equality-in-sports law, but the report does make clear that most of the kids involved, including a large share of the girls as well as the boys, don’t find the new way of doing things an improvement. “Rosie Pudish, the parent who filed the original complaint, said she did so even though her own daughter, Keri, a varsity basketball player at Johnson City High School, did not particularly want cheerleaders at her games.” (Winnie Hu, “Equal Cheers for Boys and Girls Draw Some Boos”, Jan. 14) [broken link fixed now]. More: Nov. 2, 2006, May 7, 2005, etc., as well as here and here.

Ignoring Limits on Harassment Liability

Back in 1999, in Davis v. Monroe County Board of Education, the Supreme Court laid down a test for when sexual harassment rises to the level of “discrimination” for purposes of Title IX, the federal law banning sex discrimination in schools. Recognizing the fact that students frequently insult and tease one another in ways that would be intolerable in the workplace, the court set the bar higher for plaintiffs suing schools rather than employers. Instead of having to show just that harassment was “severe or pervasive” enough to create a “hostile or offensive environment,” as employees do, students have to show that harassment was severe and pervasive enough to interfere with access to an education.

Oddly, this protection against lawsuits has been overlooked not just by some lower court judges, but also by the very schools that benefit from it. In Jennings v. University of North Carolina, the Fourth Circuit Court of Appeals is rehearing en banc a recent panel decision which ruled 2-to-1 against a harassment claim based on inappropriate sexual discussions between a male coach and female athletes, which the plaintiff witnessed.

The panel majority argued that the conduct was not “severe or pervasive” enough to create a “hostile environment,” since the discussions were seldom aimed at the plaintiff. (Courts have typically given little weight to such “second-hand harassment”). The dissent argued that the conduct was severe or pervasive enough to create a hostile environment. The University seems not to have disputed that the “severe or pervasive” standard applied, or that the plaintiff could prevail merely by showing the existence of a “hostile environment,” even though other courts have recognized that harassment of students by school employees must be both severe and pervasive enough to interfere with access to an education.

But the standard for harassment claims against schools is more exacting, by design. In the higher education context, there are additional reasons for a more demanding standard. As Justice Kennedy observed in his dissent in the Davis case, the lower courts have repeatedly invalidated college harassment codes on First Amendment grounds. Most of the cases Justice Kennedy cited involved codes that banned speech that creates a hostile environment, much like workplace harassment law.

While a single offensive utterance doesn’t create a hostile work environment all by itself, a complainant can allege a hostile environment based on the offensive utterances of many different speakers, even if none of them individually make many offensive statements or intend to create a hostile environment. That effectively forces many employers to adopt “zero tolerance” policies banning racist or sexist speech.

By contrast, the Fourth Circuit’s own ruling in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), prevented a university from prohibiting racist and sexist student speech that allegedly created a “hostile and distracting learning environment.”

Moreover, students routinely have R-rated discussions in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As the Eleventh Circuit observed in Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987), “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.”

By relying on workplace standards, the university may well lose a case it would otherwise win. As a result, colleges in the Fourth Circuit may end up having to police private sexual conversations among students in ways that are difficult to enforce, especially if the full Fourth Circuit rejects the panel’s reasoning and treats comments overheard by a plaintiff, but not aimed at her, as harassment.

Protection Against Unanticipated Lawsuits

On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.

The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.

This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.

This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)

(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).

The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.

Update: Gender equity and staggered sports schedules

The U.S. Supreme Court, sending a case back to the Sixth Circuit, has kept alive Michigan school athletic directors’ hopes of proving that they have a rational basis for scheduling some girls’ sports in different seasons than the equivalent boys’ sports (see Dec. 24-27, 2001; Jul. 10, 2004). (“Supreme Court ruling delays decision”, Saginaw News, May 3; Hope Yen, “High Court Asks 6th Circuit to Reconsider Girls Sports Seasons Ruling”, AP/Law.com, May 3). Mick McCabe of the Detroit Free Press says that based on actual results, the schools deserve to prevail; Michigan has one of the nation’s highest rates of participation by girls in sports and disproportionately graduates girls who win athletic scholarships in the relevant sports of volleyball and basketball. (“Gender equity no-brainer as Title IX case”, May 6).