Want to get your school’s attention? Hit ‘em where it really hurts—in the pocketbook.
Despite 35 years of Title IX—the federal law requiring gender equity in educational programs including athletics—leaders at some schools still ignore or misunderstand it. Having run out of patience, female athletes and coaches who are victims of sexual harassment, retaliation or homophobia have decided to hire attorneys and fight it out in court. The outcomes are costing schools big bucks, especially in California.
Some recent highlights:
- A jury ordered California State University at Fresno to pay $19.1 million to Stacy Johnson-Klein for illegally firing her as women’s basketball coach. Her suit claimed she was fired for advocating for female athletes at Fresno.
- Another court had ordered Fresno to pay $5.85 million to former volleyball coach Lindy Vivas for sex bias.
- Fresno settled out of court by promising to pay $3.5 million to former associate athletic director Diane Milutinovich, who had also sued for sex discrimination.
- The University of Colorado has agreed to pay $2.85 million to settle a lawsuit by former! students Lisa Simpson and Anne Gilmore, who claimed they were gang raped by football players and recruits at an off-campus party in 2001.
At the National Association of Collegiate Women Athletic Administrators (NACWAA) conference held in St. Petersburg FL in October, two female lawyers discussed the legal issues surrounding Title IX and how to avoid trouble.
They were former Olympic gold medalist swimmer Nancy Hogshead-Makar, now a professor at Florida Coastal School of Law and legal advisor to the Women’s Sports Foundation, and Karen Doering, a sports project attorney at the National Center for Lesbian Rights (NCLR).
A control issue
Coaches have tremendous power over athletes. They control playing time and the purse strings, determining and renewing scholarships. They can dictate an athlete’s type of haircut, selection of friends and even their bedtimes. A gifted coach can fulfill an athlete’s destiny—or not. In a lawsuit, the courts look at whether the athlete has the opportunity to say “no” to coaches’ arbitrary rules without repercussions.
The physical aspect of athletics requires an intense focus on the body. Coaches monitor athletes for fatigue, muscle development, weight gain or loss. Implicit in a coach’s job description is intentionally touching athletes to show them a particular move or to help them stretch before a workout or game.
This focus on the body and the expectation of touch provides a rich breeding ground for sexual harassment. Because it’s easy for a coach to slip into a situation of sexual hara! ssment with an athlete, there needs to be a clear delineation on romantic relationships. Like those between professors and students, many relationships between coaches and students result in marriage. While celebrated when it’s male-female, if two same-sex athletes commit to each other, the relationship is vilified.
Hogshead-Makar highlighted Mitch Ivy as an example. Ivy, a swimming coach, has coached at five places and been let go at each one. And it’s not over his ability to produce winners, she said, since many Olympic athletes seek him out for coaching.
For courts to recognize sexual harassment, she said, three factors must be present.
- The school must have actual knowledge of the sexual harassment.
- Even with the knowledge, the school must remain deliberately indifferent to it. Here the courts don’t apply a “negligent standard” by saying the school knew or should have known about it.
- The sexual harassment must be severe and pervasive enough to deprive the victim of educational opportunity. “It’s not enough for a coach to grab an athlete once or make crude comments,” said Hogshead-Makar.
Many sexual harassment cases are the result of a “money rules” culture. There’s an athletics arms race with schools building bigger and more elaborate facilities. Many schools are tempted to lower their ethical standards just so they can compete successfully on the playing field.
Here are two examples of boys behaving badly and schools winding up in court for not taking it seriously:
- The University of Florida knew that a male basketball player had legal problems elsewhere before he began sexually harassing students and faculty there. In Tiffany Williams vs. the University of Florida, the player had called Williams and invited her to his place, allegedly culminating in rape. The court held that although the school didn’t know he was going to rape Williams, but did know of his previous legal problems, it couldn’t remain indifferent and shouldn’t have allowed him to live on campus. After the rape, the school did nothing for eight months. Although her case was originally dismissed, an appeals court reinstated it. (See WIHE, October 2007).
- In Simpson vs. the University of Colorado, the school had an official policy that football recruits be shown a “good time,” which was subtly defined as the school providing strippers, alcohol, underage women and free sex. Despite an attorney’s warnings, the school did nothing to change its policy, because it knew that high school recruits tend to enroll where they have the best time on a campus visit. While the trial court held that the school didn’t have actual knowledge of the parties, the appeals court stated that the school should have known that its policy was egregious.
The impact of retaliation
The squeaky wheel may get the grease, but it also risks getting replaced. Many athletic departments are happy with women coaches and support their goals as long as they remain quiet on women’s equity, said Hogshead-Makar. “I’ve talked with some of the best coaches in the country with 20 years or more of experience and lots of wins and TV coverage, but they are still afraid to speak out.”
An athletic director or school that treats a coach differently for complaining about women athletes receiving fewer resources and citing Title IX is retaliating. The past few years have produced an avalanche of cases based on retaliation; the courts overwhelmingly have ruled in favor of the coaches.
For example, Karen Humphreys, a former Olympic gold medal swimmer who coached at U.C. Berkeley, won a $3.5 million settlement and reinstatement with back pay. In the case of Johnson-Klein, the jury knew her coaching career was over and gave her the large award.
Although they may result from California’s state law that protects Title IX, those kinds of payouts have gotten the attention of schools with even the deepest of pockets.
Politically, Title IX is not the hot potato it once was. Surveys find that 80% of Democrats, Republicans and Independents agree with its premise. While the courts are less sympathetic to injuries or torts, juries overwhelmingly support suits brought to protect a woman athlete or coach. People want to see equity in athletic departments.
Unfortunately, when a woman coach complains of inequity to her AD, one of three things is likely to happen: she gets demoted, moved to another job or fired.
Whether you’re a straight woman or a lesbian, you’re not safe either on the field or as a coach. Sex continues to reign. Homophobia pervades the sports field, said Doering: “If you’re a single woman, men will ask you to prove you’re straight by sleeping with them.”
As an attorney at the National Center for Lesbian Rights (NCLR), a law firm that stresses education and policy change, Karen Doering and her colleagues want to help athletic administrators and coaches support the athletes so they can give 100% on the field. “If they (lesbian students) have to hide or feel unsafe, it will have an effect in the classroom and on the court,” she said. While many realize their orientation early on, they’re afraid to come out for fear of retaliation or worse. They don’t feel safe in speaking to their coaches because of the obvious power imbalance between them.
These days, lesbian and gay students come out at a much younger age, some as early as junior high and most in high school. When they come to college, lesbian athletes don’t expect to be told to dress more femininely or wear their hair longer. But coaches want their teams to have a good image, so they create rules that may be unfair to lesbians.
Some coaches feel the answer to homophobia is to just avoid recruiting lesbians. So! me parents are afraid to let their daughter compete because they’re afraid she will be labeled as a lesbian. “But guess what,” said Doering, “everybody thinks you’re all lesbians anyway.”
Parents should be told that while playing sports, their daughter will meet a variety of people, just like the mix she’ll encounter at her first job. Playing sports enables young women to judge people on their skills and abilities, not on other irrelevant factors such as race, sexual orientation, religion or ethnicity. That’s a great reason, said Hogshead-Makar, for straight women to support lesbians.
“This is where negative recruiting will come back and kick you in the butt,” Doering warned. “The one with long hair, who’s pretty and cute, may be a lesbian.” And the myth that lesbians and gays prey on straight people is just that, a myth. “Actually, the stereotype is to stay away from straights because they'll break your heart and go back to men,” she added.
Case law has evolved so that discrimination based on sexual orientation is sexual discrimination under Title IX. Dress codes and grooming standards must be consistent for the whole team, lesbians and straights.
Schools can create an “affirmative defense” if their nondiscrimination policy includes gender identity. But paper policies alone won’t provide protection. Leaders must make it known that homophobia is not tolerated. Mandatory training for all athletic department personnel is a great way to send a loud and clear message.
If a coach or athlete brings a complaint or concern, take it seriously, they advised. Attorneys hear many complaints, but they recognize those of substance.
ADs must make the environment safe for both players and coaches. Straight young coaches can feel intimidated and claim a hostile work environment because they’re not included in the culture. This is particularly prevalent among those with strong faith beliefs who see homosexuality as an aberration.
Whether an incident is big or small, ADs should take appropriate remedial action. It’s important to treat everyone the same: black or white, women or men, gay or straight. You can make rules against players dating each other. But if it’s OK for straight female players to hold hands with their boyfriends, it must be OK for lesbian players to hold hands with their girlfriends.
If an incident occurs, acknowledge it and say that it’s not appropriate. Litigation is the last resort. “Most players want to make sure that nobody else has to endure what they went through” in terms of discrimination, said Doering. “They’ve sacrificed their childhoods to be the best and now they’re going to lose everything they’ve worked for.”
Asked her opinion on the dearth of women going into college coaching, Doering said, “I think it’s because of the environment in the athletic department. The jury in the Vivas case was outraged. It gave her more than she had asked for. It’s a lose-lose scenario when it goes adversarial.” So leaders are asking themselves, “Why take the chance?”
Retaliation against coaches for supporting equity for women athletes is protected under case law. When you stand up, you’ve got protection. You’ll also need courage. It’s a risk to stand up but people will come to your side eventually. Or you’ll win millions in court.
- Nancy Hogshead-Makar at firstname.lastname@example.org or 904.680.7884.
- Karen Doering is at email@example.com or 727.490.4260.