By Wendy Murphy
WeNews contributing editor
Wednesday, December 15, 2010
Title IX has been pigeon-holed as a sports-equity law for schools. Wendy Murphy says an unconscionable case of sex harassment against a Texas cheerleader shows how this widespread misunderstanding of the law hinders justice.
(WOMENSENEWS)--Title IX requires schools to take "prompt and effective" steps to redress sexual harassment, sexual assault and any other form of sex discrimination. It also forbids schools from exacerbating a situation by creating or allowing a hostile environment to develop on campus in the aftermath of a reported sexual assault.
An unconscionable situation in Silsbee, Texas, has unfolded, thus far, completely unaffected by either of these two federal law mandates.
Two years ago, a 16-year-old high school cheerleader was raped by a star athlete at a house party following a football game. The guy was ultimately convicted. But not only was he not punished by the school in any way before that, he was allowed to keep playing sports while the criminal investigation was underway.
Didn't supervisors know federal law forbids schools from delaying discipline just because a criminal case is pending?
The victim continued to cheer for the school's teams in general, but she refused to cheer specifically for her attacker. When he did something worthy of individual recognition during a game, she stepped away from the rest of her squad and crossed her arms.
For this act of defiance, the victim was berated and sent home by the school's principal. Days later, she was kicked off the squad completely and banned from cheerleading for the duration of her high school career.
Her parents filed a lawsuit in federal court, claiming their daughter's free speech rights had been violated. The judge dismissed the case on the grounds that the school had no duty under the First Amendment to allow the victim to cheer--or not to cheer. The judge also ordered her parents to pay tens of thousands of dollars in legal costs to the school's lawyers.
On the limited matter of whether this amounted to a free-speech violation the court probably got it right.
But the ruling would have gone the other way if the case had been filed under Title IX. That the victim's parents did not sue under Title IX is unfortunate but not surprising given how little has been done to educate anyone about the connection between Title IX and sexual assault.
This story has sparked loads of commentary, but so far I have yet to see a single mention of Title IX even though the law has been around since 1972.
Title IX expressly forbids sex discrimination, which includes sexual harassment, the most severe expression of which is sexual assault. Yet 9 out of 10 people asked say they believe Title IX only requires equality in athletics, as in making sure girls can try out for boys' teams.
Other federal laws that cover discrimination against other "types" of students haven't morphed and narrowed like this into sports-equity rules.
Schools aptly emphasize that laws forbidding racial or religious discrimination are primarily aimed at preventing targeted violence and harassment--not equal distribution of soccer balls. Presumably this is because being free from violence is far more important than scoring baskets if the goal is to achieve an equal educational opportunity.
Exposing the importance of Title IX as a violence-prevention tool is not easy when so many counter forces want girls thinking about Title IX as a sports-equity rule.
When I filed a Title IX complaint in a sexual assault case involving Harvard about 10 years ago, nobody at the university had a clue that Title IX was implicated. In fact, when the Office for Civil Rights at the Department of Education announced in my case that it was opening an investigation of Harvard, then-president of Harvard, Larry Summers, publicly suggested that rape has nothing to do with Title IX.
If the president of a leading university didn't understand the connection, what are the chances sexual assault victims at other schools even know they have rights under Title IX?
My complaint against Harvard was a success, but the Office for Civil Rights did little to use the case to show the legal power of Title IX to redress sexual assault on campus. This failure of information sharing and education is why victims and parents of victimized students often end up frustrated in their quest for justice.
In the Texas case, the victim's parents are no doubt horrified about what happened to their daughter, not only because of the violence but also because of the responses of a high ranking-school official and a federal judge. What kind of educational or legal system exacts punishment on people trying to achieve justice for a girl who was raped?
When protective institutions have things so backward, it's time for people to rise up. As a former NFL cheerleader, I'd like to see college and professional cheerleaders take a stand in this case.
Cheerleaders claim to be serious women who don't tolerate sexual exploitation and who care about social issues. They should come together in a show of unity and support for the girl in Texas by crossing their arms and turning their backs on the field for one minute--at halftime. Cheerleaders should want to send a very clear message that there's a big difference between cheering for a team and making a hero out of a criminal.
It would be great if guys on the sidelines and in the stands joined in, too.
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Wendy Murphy is an adjunct professor at New England Law/Boston where she teaches a seminar on sexual violence. She's a former sex crimes prosecutor and author of "And Justice For Some." An impact litigator who specializes in violence against women, Murphy consults and lectures widely on sex crimes, violence against women and children and criminal justice policy.