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Title IX Awards Raise Colleges' Bias Liability

Monday, March 10, 2008

A string of jury awards in Title IX cases at Fresno State, part of California's state university system, should serve as a warning sign for other schools. But women's sports advocates say the legal battle is far from over, as a case in Florida shows.

Subhead: 
A string of jury awards in Title IX cases at Fresno State, part of California's state university system, should serve as a warning sign for other schools. But women's sports advocates say the legal battle is far from over, as a case in Florida shows.



Donna Lopiano

(WOMENSENEWS)--Amid complaints a few years ago from a women's volleyball coach at California State University, Fresno, that her team wasn't receiving equal treatment with men's programs at the school, some members of the athletic department decided to have a party.

In April 2000 administrators hung a banner in an office, complete with pictures of female athletes with cutouts of male heads attached to them. And they sipped drinks under the banner that read: "Ugly Women Athletes Day."

Weighty payouts from lawsuits based on Title IX--the 1972 law that bans discrimination on the basis of gender in educational institutions that receive federal funds--have since followed.

Lindy Vivas, the women's volleyball coach who made the complaint, did not get her contract renewed in 2004. When she filed suit against Fresno State for violating the federal antidiscrimination law, "Ugly Women Athletes Day" became part of the evidence. Last July a jury awarded Vivas $5.85 million in compensation and damages.

At the time, it was considered an eye-catching amount for a Title IX case even though a judge later reduced the award to $4.52 million.

But those figures were dwarfed in December when another jury, ruling in the dismissal of Fresno State women's basketball coach Stacy Johnson-Klein, awarded the coach $19 million in a suit also involving Title IX. That was since reduced to $6.6 million by a judge.

Still, those recent jury awards--coupled with multi-million-dollar settlements at the University of Colorado and University of California, Berkeley--have raised the possible upside for those willing to risk a Title IX legal reprisal.

But will it inspire real change in the treatment of women's teams and coaches moving forward?

Erin Buzuvis, an assistant professor at Western New England College School of Law in Springfield, Mass., who teaches sports law and has a Title IX blog, says it can only help.

Buzuvis says discriminatory conduct continues in many athletic departments. "But the fact that two separate juries in Fresno were willing to award multi-million dollar verdicts as a way to penalize a major university for discriminatory treatment of its female staff is definitely an example of some movement in that direction."

History of Complaints

Fresno State has been a hotbed of Title IX complaints in recent years.

In addition to the volleyball and basketball coaches, Associate Athletics Director Diane Milutinovich settled a Title IX case for $3.5 million in October 2007. Women's softball coach Margie Wright filed a Title IX complaint with the Department of Education Office of Civil Rights in 2004 and is mulling a lawsuit.

"In the early 1990s, there were violations of Title IX which led to a corrective action plan and I think those were resolved," Fresno State President John D. Welty said in a telephone interview. "I think unfortunately it created tensions within the department that have contributed to these cases and I think it's complicated. When we did take employment actions with regards to two coaches, the issues really became blurred between whether it was a Title IX issue or an employment issue."

But Dan Siegel, the attorney who has represented Milutinovich, Wright, Johnson-Klein and Vivas, said the problem is with the leadership at Fresno State.

"The issue of why Fresno State has had so many cases is actually the big question here," he said in an e-mail. "I have argued that the reason is that its president, John Welty, had demonstrated poor leadership by allowing an atmosphere of hostility and harassment towards women who have fought for gender equity to continue."

String of Title IX Cases

Still, Fresno State is not an aberration, according to those who have monitored Title IX cases. It is merely the most penalized case in recent years.

"They are all over-the-top obvious," said Donna Lopiano, who worked for a sports advocacy group for 15 years and followed Title IX legal disputes. "I swear, I've testified in at least 20 or 30 cases and I am constantly amazed at how obvious these cases are. That's why the plaintiffs never lose; because it is so extreme."

Lopiano recently left the East Meadow, N.Y.-based Women's Sports Foundation, which advocates for women in athletics. She is forming a consulting company and will advise universities on how to handle Title IX cases in light of the recent Fresno State awards.

"I think there are a couple of things that are really significant about this," Lopiano said. "One is, they're going to precipitate more cases. They are going to increase the bravery of coaches who are not being treated well, who are being discriminated against because of their sex."

Lopiano said state university presidents will also likely see the cases as a warning to steer their schools clear of cases that could put them under legislatures' watch and possibly damage financial support. Welty already has had to answer to a California state legislative committee about the suits.

"There's just nothing good that comes out of this," she said.

In the interview, Welty said the large jury awards could spur a push for legislative relief to cap the amounts awarded in Title IX cases in the future.

NCAA Working with Colleges

The Indianapolis-based National Collegiate Athletic Association has been helping universities prevent Title IX abuses with a certification process that audits their policies and practices.

"The NCAA has become a very big supporter of Title IX," said Nancy Hogshead-Makar, a professor at Jacksonville's Florida Coastal School of Law, an Olympic gold medal swimmer and past president of the Women's Sports Foundation. "There was a criticism for a number of years that they sort of had a defense lawyer's mentality, like what's the least that you can do in order to be able to be in compliance," Hogshead-Makar said. "And that's shifting now."

Welty said there has been a shift at Fresno State, too. Although the university is appealing the Vivas case and is considering an appeal of the Johnson-Klein verdict as well, a gender equity task force has been created. The school also will add some women's sports to the program to meet Title IX requirements.

But the battles continue. At Florida Gulf Coast University, in Fort Myers, volleyball coach Jaye Flood filed a lawsuit in January against the school after she was fired following complaints about gender equity in the athletic program. According to reports, the school claims Flood was dismissed for an improper relationship with a student. A court date has not yet been set.

Already, the ugly confrontation has inspired some to call Florida Gulf Coast the "Fresno State of the East."

"I think it's a repeat of Fresno," said Lopiano, who points to similarities in the accusations made in each of the cases. She believes universities would be better off settling to avoid the public scrutiny that comes from a trial. "Every case is different, but you would hope that people would learn from these things and I'm hopeful that they are."

Viv Bernstein is a freelance writer based in Charlotte, N.C., and a frequent contributor to the New York Times. She is a former staff sports reporter for the Detroit Free Press, the Hartford Courant and other newspapers and has written for numerous publications.

Women's eNews welcomes your comments. E-mail us at editors@womensenews.org.

For more information:

Title IX Blog:
http://title-ix.blogspot.com/

Women's Sports Foundation:
http://www.womenssportsfoundation.org/cgi-bin/iowa/index.html

NCAA, Title IX Resource Center:
http://www.ncaa.org/wps/ncaa?ContentID=1488

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