Another Title IX Retaliation Lawsuit Emerges

Source: College Sports Business News

Floodgates of litigation opening

Texas A&M’s former head diving coach, Kevin Wright, has filed a Title IX retaliation lawsuit. He was fired in September from his position as head coach. The lawsuit alleges that he was terminated in retaliation for reporting concerns about gender discrimination in athletics.  Wright has filed suit under a Texas whistleblower protection statute that protects state employees.

The floodgates of litigation seem to have opened regarding a new wave of Title IX complaints and administrators across the nation need to take notice. Multiple cases from California have been resolved recently. The prevalence of these cases has been significantly influenced by the Supreme Court’s decision in 2005 in Jackson v. Birmingham Board of Education. In that case, the Court ruled that individuals who complain about sex discrimination and are later subjected to some form of retaliatory action have a private right of action for retaliation under Title IX. Jackson involved a former girl’s high school coach who had allegedly been dismissed because of his gender equity advocacy for the girls’ teams.

The Jackson decision was a landmark ruling by the Supreme Court because the prohibition against retaliation was not explicitly set forth in Title IX.

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Since the enactment of Title IX 40 years ago, significant strides have been made in securing equality for girls and women in collegiate sports. However, compliance with the law in elementary, middle, and high schools is marginal at best. There is a similar need to ensure equal access to athletic opportunities for low-income girls through local Parks and Recreation Departments—a right afforded by California law AB 2404.

Fair Play for Girls in Sports is tackling these very issues with generous support from John and Terry Levin and the Jay and Rose Phillips Family Foundation of California.

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Boys Excluded from Field Hockey Teams

Posted: 13 May 2012 05:58 AM PDT – Source:

Yesterday we posted about a girl playing on a boys team, so today we’ll discuss a couple of stories about cross-over participation of the other variety.  Keeling Pilaro was recently excluded from the Southampton (NY) High School girls’ field hockey team, on which he had played for two years, by the Suffolk County high school athletics governing body, Section XI.  Its policy allows boys to play on girls’ teams unless doing so creates “significant adverse effect upon the opportunity of females to participate successfully.”  It appears that Pilaro, who grew up playing field hockey in Ireland, was deemed too good to be allowed to continue to play with girls. According to ESPN, he posted a “team-high 10 goals — not dominant by any means, but good enough to earn All-Conference recognition.”  Many are objecting to the decision to exclude Pilaro, who is a small guy at 4’9″ and 82 pounds — and even opposing players and coaches have supported his right to play.

Elsewhere, it was reported that eighth grader Matthew Bozdech was denied a waiver from the Missouri State High School Athletics Association’s policy that excludes boys from girls teams, which he had sought in order to play field hockey on the newly formed girls team at Eureka High School.   Bozdech has been playing field hockey for several years, and enjoys the camaraderie with his female teammates.

What does Title IX say about this?  Contrary to suggestions in both stories, Title IX is not necessarily violated by a school that allows girls to try out for boys’ teams (football, say) but denies the same right to boys playing on girls’ teams.  For one reason, when it comes to contact sports, Title IX allows but does not require schools to allow cross-over participation.  There are some quirky definitions of contact sport out there — basketball is listed as a contact sport in the Title IX regulations — so it’s arguable field hockey shares this status as well.  More importantly, Title IX regulations recognize that girls’ athletic opportunities have “historically been limited,” which justifies their crossover participation in a way that does not apply to boys, who usually have and have always had more athletic opportunities overall.

Yet, I will throw out a Title IX argument in favor of Keeling Pilaro’s case.  Courts have held that once a school allows cross-over participation in situations where it is not required by Title IX, it may not then discriminate against that cross-over player on the basis of sex.  I would argue that Section XI has elected to allow Pilaro to play even though Title IX does not require it to do so. Therefore, it may not single him out for differential treatment based on sex. Clearly it has done so, as no girls are subject to the possibility of losing eligibility for being too good at the game.  Only Pilaro, because of his sex, faces the dilemma of playing well or playing at all.

Moreover, if I were in charge, I would opt to move the cross-over participation regulations out of the stone ages by (1) eliminating the contact sport exemption, which is blatantly rooted in sex stereotypes, and (2) requiring schools to allow cross-over participation to both sexes unless doing so would take away an actual opportunity from the underrepresented sex. Under this formulation, only two questions would be relevant in the two cases described above: (1) do girls have fewer athletic opportunities than boys at Eureka and Southampton high schools? and (2) does letting a boy play on the field hockey team reduce those opportunities even further?  If girls are underrepresented in athletics at those schools, but the field hockey team has a “no cut” policy and would take any additional girl who wants to play (and be able to provide meaningful playing time to that girl), then having a boy on the team does not reduce opportunities for girls, and should be allowed.  In their current form, the Title IX regulations unnecessarily limit cross-over participation and deny to both sexes the benefits that come when boys and girls are allowed to play together.  As long as boys’ participation does not exacerbate existing inequalities in participation, girls’ sports don’t need protection from boys.  Good players of either sex raise the level of the game, and playing with boys helps cultivate respect for female athleticism.  We ought to get over our antiquated squeamishness about mixed-sex athletics and let the boys play.


University Of Hartford: Athletic Director Proud Of Her Successes

By OWEN CANFIELD, Special to The Courant The Hartford Courant

January 29, 2012

When Athletic Director Pat Meiser speaks of the sports programs at the University of Hartford, she wears a look that is half determination about where the program is going and half satisfaction about where it has been.

When she addresses the subject of the GPA earned by all UHart athletes combined, it’s a look of pride, as it should be. “The combined average is 3.18,” she says, across a lunch table at Max a Mia in Avon.

She’s entering her 20th year as AD at the university, on the West Hartford-Hartford border. It’s hard to believe it has been that long since Meiser was introduced by Hartford officials in front of a large crowd of well-wishers, including a good number of University of Connecticut sports people. She was coming to UHart from UConn where, for 11 years, she had served as associate athletic director for administration and senior women’s administrator.

I remember saying to Lew Perkins, than the UConn AD, “What do you think, Lew? Is Pat ready for a job like this?”
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He looked at me as if I had asked him if he thought the world would end tomorrow.

“Can she handle this? Ha. No question about it,” he said without the slightest hesitation. “She’s one of the best-qualified people I know.”

Meiser has spent the past two decades proving Perkins right, doing a job that is sometimes thankless because Hartford’s sports programs, particularly the basketball teams, are consistently overshadowed by those of UConn. But University President Walter Harrison and his predecessors recognize that Meiser is an athletic director of sound judgment and that she is made of stern stuff, two elements every AD must have.

“I was the 11th female AD in the country,” she said. “Now there are 28, still not enough but improving.”

“Do you realize,” she asked, “that this is the 40th year of Title IX? My life has been all about Title IX. I’m a product of it.”

Title IX is the NCAA legislation put in place many years ago that decreed women’s sports were to be given all the advantages that men’s sports receive.

Meiser played tennis at Penn State and later got the chance to coach that university’s women’s basketball team. The young coach was delighted when Title IX passed, but everybody in Happy Valley wasn’t. “Four head coaches resigned because of it,” she said.

That didn’t upset her. “In 1974, as head coach, I awarded the first women’s scholarship at Penn State,” she said. “It went to a girl named Margaret Strittmatter. She was 6-4, the daughter of a potato farmer from Altoona, Pa. Four years later we were a Top 20 team. Eventually we got as high as 13th.”

At Hartford, many good things have happened on Meiser’s watch. One of the best was hiring Jennifer Rizzotti as head women’s basketball coach. Many years ago, one of her Hartford Blizzard pro teammates said of Rizzotti, “That girl is like a rock star.” She still has that kind of appeal, even on the sidelines.

Last year, the men’s soccer team, under first-year head coach Tom Poitrus enjoyed a roaring finish, showing the promise of future successes, and Coach John Natale’s women’s soccer club had a regular season record of 13-1-3, losing the last game of the year. The final record was 13-2-3.

The lacrosse team’s 2011 season was a great success. Coach Peter Lawrence’s team upset Stony Brook in the America East tournament to make the NCAAs, earning Lawrence the Coach of the Year honors in the Northeast region.

When the men’s basketball team began the 2011-12 season 0-12, people wondered if second year coach John Gallagher was the wrong guy for the job. Pat Meiser never entertained those doubts for a minute. She believes in him because he has shown all the right instincts and methods, despite hard times. “He starts four freshmen,” said Meiser, showing complete faith in Gallagher.

Gallagher, while young, has a strong coaching resume and like his boss, possesses skill, self confidence and patience. Four recent victories appear to be bearing out his confidence and belief in himself. The Hawks were crushed in their last game, Wednesday, but tough seasons are full of tough defeats. Better days are coming.


Title IX Still Applies: Gender Equity in Athletics During Difficult Economic Times

May 15, 2011

Scroll below for PDF version.

Some Institutions Are Making Girls Bear More of the Burden of Smaller Budgets.

Recent media reports suggest that some educational institutions may not understand their obligations under Title IX and are imposing a greater burden on girls when cutting athletic opportunities or benefits.  For example:

  • In an effort to save money, state high school athletic associations in Delaware, Florida and Nevada have implemented cuts in the numbers of games scheduled for most teams.  But these associations have specifically spared football from any cuts, thus imposing more of the burden of the economic crisis on girls.[1]
  • While the Florida High School Athletic Association reversed its scheduled cuts after parents sued, claiming the Association’s decision violated Title IX, among other laws, individual school districts have publicly stated that they will nonetheless limit their games in the same manner, thereby disproportionately disadvantaging female students.[2]

Compliance with Title IX Is Essential to Ensure that Girls and Women Are Treated Fairly in Sports.

Under Title IX, institutions cannot discriminate on the basis of sex in the provision of participation opportunities or athletic benefits and services.[3]   Nevertheless, female students at both the high school and college levels nationwide have fewer opportunities to play sports than do male students, and they are often not treated equally in terms of the benefits and services that they receive when they do play. Women and girls of color are especially likely to face barriers to play.

  • Women in Division I colleges, while representing 53% of the student body, receive only 45% of the participation opportunities, 34% of the total money spent on athletics, 45% of the total athletic scholarship dollars, and 32% of recruiting dollars.[4]
  • Females of color comprise 27% of the female student population at NCAA schools, yet they receive only 17% of the total female athletic opportunities. Comparatively, white females comprise 69% of the female student population and receive 74% of the total female athletic opportunities.[5]
  • At the high school level, girls represent half of the student body but only about 41% of all athletes,[6]and they often face inequitable treatment in areas such as equipment, facilities, coaching, and publicity.[7]
  • Less than two-thirds of African-American and Hispanic girls play sports, while more than three quarters of Caucasian girls do. Three quarters of boys from immigrant families are involved in athletics, while less than half of girls from immigrant families are.[8]   

Title IX requires that male and female students be provided with equal opportunities to play sports.

The Department of Education has established a three-part test for determining whether male and female students are provided with equal opportunities to play sports, and this test applies to both high school and college athletics programs:

  1. Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or
  2. Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or
  3. Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a continuing practice of program expansion such as that cited above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.[9]

Title IX requires that male and female athletes receive their fair shares of athletic scholarship money.

Title IX requires that the percentages of athletic scholarship money awarded to male and female athletes should be within one percent of their respective participation rates, unless an institution can show why a bigger gap is justified and not discriminatory.

Title IX requires that male and female athletes receive equal athletic benefits and services.

Under Title IX, male and female athletes must be treated equally overall in the benefits and services they receive, including, but not limited to: equipment and supplies; scheduling of games and practice times; travel; coaching; locker rooms, practice and competitive facilities; and publicity.[10]  Equal treatment in these and other areas must be provided regardless of the source of funding.  In other words, schools cannot provide better facilities or uniforms for boys’ or men’s teams because outside, private sources pay for the better treatment.  All the funds and in-kind contributions that a team receives, regardless of their source, are subject to Title IX’s requirements.[11]

Institutions Must Comply with Title IX if They Choose to Make Cuts in Their Athletics Programs.

If a school decides to reduce athletic participation opportunities or benefits for its students, it must ensure that any such cuts do not discriminate against girls and women in violation of Title IX.

The first step is for a school to assess whether it currently provides equal athletic opportunities and benefits to its male and female students.  If members of one sex are not treated equally, then any cuts to their opportunities or benefits are likely to aggravate the existing inequality and violate Title IX.  If members of both sexes are currently treated equally, then disproportionate cuts to one group’s opportunities or benefits could create an inequality and violate Title IX.  The following examples help illustrate this point:

  • High School A has a student body that is 50% male and 50% female, 60% of the participants in the athletics program are male and 40% are female, and it has not added any girls’ teams in the last 10 years.  In order to save money, High School A elects to cut the girls’ and boys’ lacrosse teams.  Because High School A is not in compliance with Title IX’s three-part participation test before any cuts are implemented, instituting the proposed cuts will only add to the existing inequality, even though the cuts may appear to treat girls and boys equally.  Therefore, High School A’s cuts would violate Title IX.
  • College B decides that it cannot afford to provide as many benefits and services to its athletes as it has in previous years, so it chooses to cut back on benefits in the areas of travel, equipment, and publicity for all teams except football, whose players constitute 30% of all male athletes.  This decision disadvantages a greater percentage of women (100% of female athletes) than men (70% of male athletes) and would violate Title IX.
  • High School C, which provides equal benefits and services to its girls’ and boys’ teams, decides that because of budget woes, it will not install lights and batting cages for its softball and baseball fields as it had planned.  An outside donor informs the school that it will contribute these amenities for the baseball field.  If High School C allows the donor to do this without finding a way to provide the same benefits to the softball team, it would be in violation of Title IX.  While schools may accept gifts and other outside funding or support for their athletics programs, they are responsible for treating their male and female athletes equally and may not evade this responsibility by pointing to outside sources as the cause of unequal treatment.


[1] Katie Thomas, “Florida Drops Budget Plan That Favored Prep Football,” The New York Times, July 16, 2009.

[2] See Eduardo Encina, “Hillsborough County to Retain Number of Sponsored Contests,” Blogs, Jul. 29, 2009 (quoting officials saying they will follow FHSAA’s proposed cuts); Buddy Collings, “FHSAA Votes To Rescind Cuts in High School Game Schedules,” Orlando Sentinel, July 15, 2009 (citing four counties that independently decided to lower schedule limits without touching football).

[3] 34 C.F.R. §106.41.

[4] NCAA, 2005-06 Gender-Equity Report 9, 22 (Sept. 2007).

[5] Cheslock, John, “Who’s Playing College Sports? Money, Race and Gender.” 29  (East Meadow, NY, Women’s Sports Foundation 2008)

[6] National Federation of High School Athletes, NFHS, 2009-10 High School Athletics Participation Survey (2010).

[7] See National Women’s Law Center, “The Battle for Gender Equity in Athletics in Elementary and Secondary Schools,” August 2008.

[8] Sabo, D. and Veliz, P. Go Out and Play: Youth Sports in America, 14-15, 161 (East Meadow, NY: Women’s Sports Foundation, 2008).

[9] United States Department of Education, Office for Civil Rights, Title IX of the Education Amendments of 1972; a Policy Interpretation; Title IX and Intercollegiate Athletics, 44 Fed. Reg. 71,413, 71,418 (December 11, 1979) [hereinafter Policy Interpretation].

[10] Policy Interpretation at 71,415.

[11] Chalenor v. University of North Dakota, 291 F.3d 1042, 1048 (8th Cir. 2002).


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