Legal Exam 2

What is Title IX?

prohibits gender discrimination in education

When Does Title IX Apply?

gender discrimination, federal funding, educational program

Athletic Program Areas Covered by Title IX

• participation does not require identical programs; equal opportunity to play

• scholarships does not require - should be proportional to athlete’s participation

• other benefits, “laundry list”

Benefits

• equipment and supplies

• scheduling of practice and competition

• travel and per diem

• opportunities for coaching and academic tutors

• publicity

5 Factors to see if school is providing equal opportunity

• the number of competitive events per sport

• the number and length of practice opportunities

• the time of day competitive events and practices are scheduled

• the opportunities to engage in available competition

Three ways to enforce the law

• institutional Title IX officer

• office of civil rights

• file federal lawsuit

Compliance

selection of sports and levels of competition effectively accommodate the interests and abilities of both sexes

Three Prong test

• prong one- providing athletic opportunities that are substantially proportionate to the student enrollment

• prong two- demonstrate a continual expansion of athletic opportunities for the underrepresented sex

• prong three- full and effective accommodation of the interest and ability of underrepresented sex

1984- Grove City v Bell

• private city college

• accepted NO federal assistance

• students receive Federal Financial Assistance

• Removed the applicability of Title IX

• Title IX is program specific

• Title IX effectively eliminated

1992- Franklin vs Gwinnett County Public Schools

supreme court rules unanimously that plaintiff’s filing Title IX lawsuits are entitled to receive punitive damages when intentional action to avoid Title IX compliance is established

1993- Cohen v Brown

Brown University cut funding to Women’s gymnastics and Volleyball, and Men’s golf and waterpolo, women filed suit

• series of decision in favor of Cohen

• Brown was told repeatedly that it violated Title IX

2000- Title VI

intimidatory or retaliatory acts are prohibited, no recipient or other person shall intimidate, threaten, coerce or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this par

Cutting Women’s Teams

• men from cut teams have never won a lawsuit against a school

• cutting of women’s teams is never allowed, because women tend to be the underrepresented sex

• existence of women’s team is evidence of interest and ability

Limitations of Women’s Opportunities

• men’s athletic program still outspend women’s programs two-to-one

• women only receive 34% of the average athletic operating budget… even though they are 53% of the student body

• only 29% of recruiting budgets are spent on recruiting women

• since Title IX was enacted, for every new dollar spend on women’s sports, two new dollars have been spent on men’s sports

NCAA and Cheerleading

• failure to sponsor a national cheerleading championship

• absence of nonprofit governing body that sets standards of scoring competition

• problems with counting cheerleading as a sport

• gives an easy “out” to schools that otherwise offer too few female sports to comply with Title IX

Civil Rights Restoration Act of 1987

• reversed the finding in Grove City College and applied Title IX institution-wide

• If any part of an institution received federal funding, the entire institution was subject to the specifications in Title IX

Stanley vs USC

• Head coach of Women’s Basketball Team

• negotiation of new contract with athletic director, but Stanley rejected the offers

• couldn’t come to a decision and got let go

• sued based on Title IX, Equal Pay Act, etc.

Jackson v Birmingham Board of Education

• Held that the private cause of action in Title IX does not include claims of retaliation

• On appeal, the Eleventh Circuit affirmed the district court decision

Application

• Constitutional law involves the application of the federal and state and local governments and whether their actions violate one or more terms of the U.S. Constitution

• Purely private entities are generally not subject to constitutional claims

• State action must be shown in order to proceed with a claim

When Private Entities are State Actors

• the law is less clear when private actors are involved

• sometimes private parties can become state actors through their actions

Private Actors or State Actors

• high school athletic associations typically are state actors

• NCAA is not a state actor

• professional sport leagues and teams are not state actors

Establishment Clause

prohibits the establishment of a church by the state as well as the endorsement or preference of religion and coercion of religious practice

Free Exercise Clause

prohibits the government from standing in the way of private religious exercise; government actions that infringe on religious exercises are subject to strict scrutiny

Establishment Clause Tests

there is no overriding test to determine whether government acts violate the establishment clause

• lemon test

• coercion test

• endorsement test

Lemon Test

• three part test

• government practice is unconstitutional if one of the following is true

  • it lacks a secular purpose

  • its primary effect either advances or inhibits religion

  • it excessively entangles government with religion

• test has not been applied by the court in years

• its continued validity has been questioned by scholars, but it has not been overruled by the court

Coercion Test

• the government directs a formal religious exercise in such a way as to obligate the participation of objectors

Endorsement Test

• seeks to determine whether the government endorses religion by means of the challenged action

• government endorses a religion when religion when religion is favored, preferred, or promoted over other beliefs

School Prayer

• classroom prayer is not permitted

• school typically picks student speakers

• school can’t direct the process that results in prayer

• the prayer must truly be student initiated

Political Speech

• strong protection for political speech unless it causes imminent lawless action (strict scrutiny)

• in a school setting, the right is more limited

Freedom of the Press

• same as for political speech

• exception is defamation

Commercial Speech

• defined as expression related to economic interests of the speaker and audience

• is protected, but less than other types of speech (ex. political speech)

De jure discrimination

policy with a discriminatory purpose

De facto discrimination

policy that lacks expressed discriminatory purpose but has discriminatory effect

Affirmative Action

programs designed to reverse the effects of past discrimination

Due Process

a course of legal proceedings that have been established for the protection and the enforcement of private rights

Life

a person’s life or freedom

Liberty

• those privileges recognized as essential to the orderly pursuit of happiness by free men

Property

all valuable interests that can be possessed outside of oneself, which have an exchangeable value or add to an individual’s wealth or estate

Substantive Due Process

requires the rules and regulations to be fair and reasonable in content and application

Due Process Requirements: Minimal

• statements of the specific violation

• notice of the sanctions that will be imposed

• an opportunity for accused to comment

Due Process Requirements: Maximum

• written notice of hearing

• written statement of the charges

• provision of adversarial hearing

• written or taped record of proceedings

• right of appeal