Gender Equity Concerns at the High School Level

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• Gender Equity Concerns at the High School Level

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Gender Equity Concerns at the High School Level

• New battleground for Title IX
• Can create huge financial questions

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NFHS Compliance with Title IX

• No discussion of whether Title IX applies or not
• Written for Associations underlying assumption
  Title IX covers them
• Definition of a Sport (importance?)
• Keeping one Step Ahead of OCR Investigations
• Participation Opportunities (Accommodation test)
• 1 (3 effective accommodation) / 2 (2 history
  and practice) / 3(1 proportionality)

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WI Pupil Nondiscrimination Law

• Handout where how to file a complaint
• Requirements for school board
• Recognition follow state law and federal law
  (keep in mind federal law may not always apply)

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WI Pupil Nondiscrimination Law

• WIs civil rights statute including protection by
  gender
• Stat. 118.13 no person shall be denied
  participation in extracurricular programs because
  of the persons sex
• School board must develop written policy to
  comply (2)
• Appeals to state superintendent
• Penalty for intentional discrimination note more
  than 1,000 (4)
• State law so applies to all schools does not
  matter public or private

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WI Pupil Nondiscrimination Law

• Administrative Rule procedures for compliance
  with the statute
• 9.02 definitions Extracurricular program or
  activity / recreational program or activity
• 9.03 Policies school board develops
• Facilities must be comparable
• Opportunity for participation in athletic
  programs or activities
• must be comparable
• Can be separate
• 9.04 complaint procedure
• 9.06 Self - Evaluation every five years must
  be done
• (e) participation trends included
• 9.07 reporting annual compliance report
• 9.08 state superintendent appellate body

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WI Pupil Nondiscrimination Law

• 9.06 self evaluation
• (e) measuring participation trends, patterns and
  school district support of athletic,
  extracurricular, and recreational activities
• Guide from Department of Public Instruction
• Consider whether all of the protected groups
  participate and are encouraged to participate
• Identify factors might be causing or influencing
  these trends
• Where activities provided that meet the interests
  and needs of all students
• Consider whether equitable support is provided to
  athletic programs
• ANY DISPARITY GREATER THAN 5 SHOULD BE
  CONSIDERED SIGNIFICANT
• SUGGESTED QUESTIONS
• Also must include recommendations for increasing
  participation

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WI Pupil Nondiscrimination Law

• Benchmarks for equitability
• Students have a variety of athletic and
  extracurricular activities available
• Athletic programs for boys and girls are
  comparable in type, scope and support
• Extracurricular and recreational activities meet
  the interests and abilities of students (evidence
  in interest survey)
• Emblems, mascots, team names are free from
  racial, ethnic, gender, disability or other type
  of bias

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Guidance from WIAA

• Separate athletic programs are allowed but must
  be comparable in facilities, equipment, coaching,
  schedules, training, awards and publicity
• Levels of competition for boys and girls must
  meet interests and abilities
• Peripheral activities (cheerleading, pep band)
  must be assigned to specific games on the basis
  of school plan that does not include sex of
  either athletes or support activity participants
  as a factor
• Administrators, coaches, parents and athletes
  will understand the legal and philosophical
  implications of discrimination in athletics

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Guidance from WIAA

• Girls can be allowed to play on boys team if
  opportunities have been limited in the past and
  is no girls team. Reverse is not allowed.
• Equal expenditures on different sports is not
  necessary. However, for comparable sports
  spending must be equitable
• WIAA Constitution
• Article VI Powers and Duties of Board of Control
• Section 6 Co-ed Competition
• A. The Board of Control shall prohibit all types
  of interscholastic activity involving boys and
  girls competing with or against each other
• Participation questions

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Scheduling of sports

• Heightened awareness in past 10 years
• McCormick v. School District of Mamaroneck and
  the School District of Pelham (2nd Cir.)
• Issue - scheduling of girls high school soccer in
  spring while boys is in the fall
• District Court
• Second Circuit
• Points to Dep. Educ. Regulations Policy
  Interpretation
• disparity in one program component (scheduling)
  can alone constitute a Title IX violation if it
  is substantial enough in and of itself to deny
  equality of athletic opportunity to students of
  one sex at a school
• Accommodation (3 part test relating to
  participation opportunities) vs. Levels of
  Competition (2 part test competitive schedules
  and opportunities for men and women)

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Scheduling of sports

• Minn. Stat. 121A.04 (2003)
• 1. Provide equal opportunity for members of both
  sexes to participate in athletic programs
• 2. Lists 8 factors to measure equal opportunity
  (close to Regulations)
• 3. Exceptions
• Can still have single sex teams if opportunities
  previously limited
• Teams in same sport / different sexes take out
  revenues in equation for equality
• Wrestling tams may be restricted to members of
  one sex
• 4. If interest is there must provide teams

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Scheduling of sports

• Mason v. MSHSL (Greg)
• Issue
• Facts
• District Court 1
• District Court 2
• Policy Interpretation
• Minn. Stat. 121A.04
• Equal Protection
• Application to case

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Scheduling of sports

• Communities for Equity v. MHSAA (Kate)
• Issue
• Facts
• DC discussion of sport specific harm
• Classification of MHSAA
• DC holdings
• Sixth Circuit
• Classification of MHSAA
• Equal Protection

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Sexual Harassment

• Definition
• Unwelcome, unsolicited, non-reciprocal or
  uninvited behavior of a sexual nature that
  interferes with a persons work or education
• Quid Pro Quo where a coach grants or withholds
  benefits as a result of the athletes willingness
  or refusal to to submit to the coachs sexual
  demands
• Issue is not voluntariness but whether conduct is
  unwanted
• Hostile Environment coachs conduct is so
  severe that it creates and intimidating, hostile
  or offensive environment that interferes with the
  athletes ability to perform
• Sex of the harasser or athlete does not matter

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Sexual Harassment

• Regulation
• Title VII in workplace
• More in college context
• Title IX
• Sexual harassment of students can be a form of
  discrimination prohibited by Title IX.
• The Office for Civil Rights has long recognized
  that sexual harassment of students engaged in by
  school employees, other students, or third
  parties is covered by Title IX
• Office of Civil Rights
• SEXUAL HARASSMENT GUIDANCE HARASSMENT OF
  STUDENTS1 BY SCHOOL EMPLOYEES, OTHER STUDENTS, OR
  THIRD PARTIES
• Schools are required by the Title IX regulations
  to have grievance procedures through which
  students can complain of alleged sex
  discrimination, including sexual harassment

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Sexual Harassment

• School liability for conduct of coach (from OCR
  regulations)
• school will always be liable for even one
  instance of quid pro quo harassment by a school
  employee in a position of authority, such as a
  teacher or administrator, whether or not it knew,
  should have known, or approved of the harassment
  at issue
• Vicariously liable for actions of employee/agent
• school will also be liable for hostile
  environment sexual harassment by its employees if
  they
• (1) act with apparent authority (i.e., because of
  the school's conduct, the employee reasonably
  appears to be acting on behalf of the school,
  whether or not the employee acted with
  authority)or
• (2) was aided in carrying out the sexual
  harassment of students by his or her position of
  authority with the institution
• school will be liable if a teacher abuses his or
  her delegated authority over a student to create
  a hostile environment, such as if the teacher
  implicitly threatens to fail a student unless the
  student responds to his or her sexual advances,
  even though the teacher fails to carry out the
  threat

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Sexual Harassment

• Athletic organizations should
• Establish grievance procedures for sexual
  harassment complaints
• Publicize the procedure and full sexual
  harassment policy
• Watch employees to avoid vicarious liability

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WI Nondiscrimination Law

• Rules 9.02(6) defines pupil harassment
• 9.03. Policies must include standards of behavior
  including harassment
• 9.06 self evaluation
• Trends in discipline and handling of pupil
  harassment
• Pupil Nondiscrimination Guidelines Understanding
  Pupil Harassment (DPI)
• Districts must adopt pupil nondiscrimination
  policies that include harassment
• Adopt complaint procedures
• Publish annually
• Designate employee to take complaints

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Important cases

• Franklin v. Gwinnett County Public Schools,530
  U.S. 60 (1992)
• HS student sued saying she was harassed by coach
  and teacher and school officials failed to stop
  it
• Asked her about sex life, asked if she would
  sleep with older man, and took her out of class
  for coercive sexual contact
• School had investigated him, knew of conduct, did
  nothing
• Discouraged her from pressing charges
• Hill resigned at end of school year on condition
  investigation would be dropped
• She filed complaint with OCR
• OCR found school violated her rights subjecting
  her to sexual harassment
• But failed to act when school said it would
  implement grievance procedure to prevent conduct
  in the future
• She sued under Title IX
• SC held Title IX placed duty on school to not
  discriminate on the basis of sex, and when
  supervisor sexually harasses subordinate on the
  basis of sex, that supervisor discriminates on
  the basis of sex
• Same rule applies when a teacher or coach
  sexually harasses and abuses a student

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Important cases

• Gebser v. Lago Vista Independent School District,
  524 US 274 (1998)
• Student was harassed by teacher
• May not sue institution unless an official of the
  institution who has authority to institute
  corrective measures on the institutions behalf
  has actual notice of, and is deliberately
  indifferent to the employees misconduct

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Important cases

• Davis v. Monroe County Board of Education, 526
  U.S. 629 (1999)
• 5th grade student sued school board and officials
  due to classmates sexual harassment
• SC private cause of action for damages may lie
  against a school board under Title IX in cases of
  student-on-student harassment, but only where the
  school acts with deliberate indifference and the
  harassment is so severe that it effectively bars
  the victims access to an educational opportunity
  or benefit

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• Next Class Recreational Immunity, Volunteer
  Protection and Protection of Sports Officials
• Readings
• Meyer
• Auman
• Miller
• Gaudet