Serious Title IX Battles Ahead, But Major Victory in the Supreme Court

April 05, 2005
E-Update
Discover What's Current in Law and Policy for Women


In this issue...
1. Bush Administration Covertly Attacks Title IX by Weakening Athletics Policies
2. Ruling in University of Colorado Case Threatens Women’s Ability to Hold Schools and Universities Accountable for Sexual Harassment and Assault
3. Supreme Court Protects All Who Stand Up for Title IX Rights, Including Coaches and Teachers
4. Protect Title IX and Other Fundamental Rights for Women and Girls – Call Your Senators toll free April 6-7 at 1-866-808-0065 to Stop the “Nuclear Option”

Bush Administration Covertly Attacks Title IX by Weakening Athletics Policies

The Department of Education, without any notice or public input, recently issued a new policy that would significantly weaken Title IX as it applies to athletics. Specifically, the policy would allow schools to show that they are providing female students with equal sports participation opportunities based solely on the students’ responses – or lack of response – to an email survey asking whether they have the interest and ability to play additional sports.

This new policy threatens to reverse the enormous progress women and girls have made in sports since the enactment of Title IX, and violates the Department of Education’s 2003 commitment to respect and enforce long-standing policies mandating equal opportunity in athletics. Moreover, the policy fails to recognize that women continue to face pervasive discrimination in athletics. Even today, although women and girls make up half or more of the students in high schools and colleges, they still receive only about 41 percent of the sports participation opportunities and far less than their fair share of athletic scholarship dollars, overall budgets, or recruiting dollars.

The Department’s new policy is extremely troubling. Among the problems:

-- Schools may show that they are in compliance with the law based exclusively on the results of a survey of female students. Under longstanding Title IX policies, surveys are only one of many factors that a school must evaluate to show that it is meeting women’s interests. Other factors that the law requires schools to consider include: requests by students to add a particular sport; participation rates in particular club or intramural sports; and interviews with students, coaches, and administrators, among others. The new policy entirely eliminates the obligation to consider these important criteria.

--As courts have recognized, surveys are likely only to provide a measure of the discrimination that women and girls have faced, because interest cannot be measured apart from opportunity.

--Schools may email the survey to all their female students and interpret a lack of response as evidence of lack of interest. Given the notoriously low response rates to surveys in general, let alone to anything sent via email, this completely undermines the law and its intent to provide more opportunities for women and girls.

--Existing law places the burden on schools to demonstrate that they are in compliance with the law. The new policy shifts the burden to female students to show that they are not receiving equal opportunities.

There likely will be several opportunities over the coming weeks to weigh in with the Administration and your elected officials about changing this misguided policy. If you are interested in receiving more information about the new policy and ways to take action, please contact Neena Chaudhry at nchaudhry [at] nwlc.org.

Ruling in University of Colorado Case Threatens Women’s Ability to Hold Schools and Universities Accountable for Sexual Harassment and Assault

Civil rights activists were stunned last week when a federal district court judge dismissed, before trial, a Title IX lawsuit brought by two victims of sexual harassment against the University of Colorado. The lawsuit alleges that the University violated Title IX by failing to respond appropriately to end or prevent sexual harassment perpetrated by individuals in the football program.

The judge’s decision misapplies Title IX law and ignores overwhelming evidence that the University of Colorado (CU) fostered an environment that allowed sexual harassment to continue. Sadly, since the lawsuit was filed, numerous other women have come forward to allege that they were raped or sexually harassed by athletes and that the University failed to discourage such outrageous acts. This legal decision is particularly troubling because of its potential to affect the ability of other women – like the seven women who have come forward at CU – to hold universities accountable for sexual harassment in the future.

The plaintiffs’ attorneys have vowed to continue the fight and to seek recourse for their clients. NWLC, which is of counsel in the case, will continue to assist them with this effort.

Supreme Court Protects All Who Stand Up for Title IX Rights, Including Coaches and Teachers

Even though recent attacks on Title IX are cause for serious concern, last week the National Women’s Law Center fought off one major threat to Title IX by scoring a key victory in the U.S. Supreme Court. In Jackson v. Birmingham Board of Education, the Court decided that individuals who protest sex discrimination may sue to challenge retaliation if their schools punish them as a result. This critically important Title IX retaliation case represents a huge win for women and girls and will enhance fundamental protections
under numerous civil rights laws.

In this case, Roderick Jackson, a teacher and girls’ basketball coach, was fired from his coaching position for protesting the unequal treatment of his team at Ensley High School in Birmingham, Alabama. The inequities Mr. Jackson and his team faced were dramatic: unlike the boys’ team, for example, the girls’ team had to practice in an old, unheated, non-regulation gym and had no access to funds earned at their games to pay for game officials and equipment.

Instead of fixing the problems, school administrators stripped Mr. Jackson of his coaching duties. When Mr. Jackson sued to challenge his firing, the Eleventh Circuit Court of Appeals dismissed his complaint. The Supreme Court has now overturned the Eleventh Circuit’s decision.

The Supreme Court’s decision in Jackson makes clear that civil rights laws by their very nature include a prohibition on retaliation in order to be effective. The decision will affect not only Title IX but also laws that bar discrimination on the bases of race, disability, and age. The case also recognizes that educators are often in the best position to speak out about sex discrimination against students. Congratulations Mr. Jackson!

Protect Title IX and Other Fundamental Rights for Women and Girls –
Call Your Senators April 6-7 to Stop the “Nuclear Option”

A radical rules change that would ram judicial nominees through the Senate would put Title IX and other fundamental rights for women and girls at risk. The Republican leadership in the Senate is considering a parliamentary rule change, called the “nuclear option.” This would eliminate the right of senators to filibuster judicial nominees. The Senate Majority Leader, Bill Frist (R-TN), could choose to invoke the “nuclear option” as early as mid-April, as some of the controversial nominees come to the full Senate for a vote.

One such nominee, the controversial Thomas Griffith, is set to receive a vote in the Judiciary Committee on April 7th. As a member of the Department of Education's Commission on Opportunity in Athletics, Mr. Griffith proposed weakening the twenty-five year old standard for meeting Title IX's requirement of equality of opportunity in athletics for young women and girls. If Mr. Griffith is confirmed for a seat on the United States Court of Appeals for the District of Columbia Circuit – widely regarded as the second most important court in the country – that court’s rulings on Title IX and other civil rights issues could well be adversely affected.

The “nuclear option” would not only pave the way for a possible Supreme Court vacancy and get some of President Bush’s most objectionable nominees confirmed to the lower courts, but would also set a precedent for precluding Senators from filibustering legislation.

Take Action:
You can help protect our system of checks and balances by calling your senators toll-free at 1-866-808-0065 on April 6 and April 7 and urging them to oppose any effort to invoke the “nuclear option.”

Thank you to the Leadership Conference on Civil Rights for providing the toll free number.



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