By Gary Davis
This paper is focused not on the art of mediation, but rather centered on Title IX issues in the collegiate and university setting. However, given the tremendous timeliness and complexity of the topic, it may be helpful to revisit a limited portion of my December 2007 Daily Journal Publication, as follows:
“Title IX, enacted in 1972, was at the forefront of ensuring equal footing for women’s sports by declaring: No person in the United States, on the basis of sex, be excluded from participating in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
“These 37 words have become the basis of lawsuits alleging discrimination, breach of contract, wrongful termination and everything in between.”
“Mediation, an effective alternative to litigation, is a powerful tool to resolve Title IX disputes. Because these cases are often highly emotionally charged, mediation provides a superior forum for ensuring that all parties, no matter the grievance, are heard and that effective resolutions can be crafted.”
“These highly charged disputes draw wide media attention that can damage the public reputation of such entities, particularly educational institutions that try to recruit high caliber students. Mediation can provide resolution of difficult cases that respect and protect the image of all litigants.”
Incredibly, within two days of the above-cited Daily Journal article, and after an 8-week trial, a jury returned a verdict in favor of former Fresno State women’s basketball coach Stacy Johnson-Klein in an amount over $19 million against Fresno State University. Johnson-Klein had sued saying the University investigation of her was launched only after she complained about gender discrimination, sexual harassment and Title IX violations at the school.
The emotional aspects of Title IX litigation are clearly reflected by quotes from each side of Johnson-Klein litigation which appeared in the December 7, 2007 edition of the Modesto Bee, excerpts of which read as follows:
“Johnson-Klein told the Fresno Bee the jury’s unanimous verdict was a victory for women in general and proof the legal system works. . . . It’s long, it’s hard, it’s not for the weak of heart” Johnson –Klein is quoted as saying out of court.
The Bee article further contains the following language: “The University’s lawyer portrayed Johnson-Klein as a self-centered manipulator who ignored her players’ welfare and ran roughshod over University policies in her pursuit of money, fame and power.”
Any impartial review of Fresno Bee daily reports of the trial would conclude that the trial itself was filled with testimony that can only be categorized as demeaning and damaging to the reputations and character of both the plaintiff and the University.
The Johnson-Klein verdict was the second judgment against Fresno State in a sexual discrimination lawsuit within a year’s period of time.
In July, 2007, a jury awarded former volleyball coach Linda Vivos $5.85 million – which a judge later reduced to $4.52 million, in a lawsuit claiming she was fired because of her advocacy for gender equity. Vivos was fired in 2004, two years after coaching her team to its best record in history.
University officials had argued Vivos was fired because she didn’t meet Fresno State performance goals and ran a team that often played in empty arenas.
According to language at page 10 of the February 2008 edition of “Legal Issues in Collegiate Athletics,” four law makers criticized Fresno State University officials in January 2008 suggesting that the school streamline its response system for gender-equity complaints as well as hiring a full-time compliance officer to handle such complaints in the future.
This author’s comments should not be construed by any reader as being critical of the University in either the Johnson-Klein or Vivos cases. Hindsight is always 20-20. One must assume that Fresno State and its officials had good-faith reasons for taking the cases to trial. Having said the same, the February 2008 edition of Legal Issues in Collegiate Athletics quotes the Fresno Bee as reporting “all told, the University could be on the hook for about $27 million in damages from the 1three cases; about 10 times as much as the entire 23-campus system has paid out in similar cases in the past five years.”
One need only compare the above discussed recent Title IX type history at Fresno State with how the University of Hawaii handled allegations of Title IX violations brought by the women’s track and field coach to conclude that the suggestions of the above mentioned four lawmakers were probably well based in law and in fact.
In Hawaii, Carmyn James, the University of Hawaii women’s track and field coach withdrew a lawsuit, which alleged that her employer violated Title IX when it provided similarly situated men’s programs with preferential treatment.
James is quoted in the Honolulu Advertiser as saying that, “After having positive and productive meetings with the Athletic Department and as a result of the progress that we’ve made, I have great faith that our administrative staff will do the right thing and they don’t need a jury’s input in order to do so.”
It is also interesting to note that James was represented by attorney Dan Siegel, who was also Johnson-Klein’s and Linda Vivos’ attorney.
Issues were also resolved in a win-win manner involving Karen Humphries and the Regents of the University of California in July 2007. Humphries, a gold-medal winner in the 1972 Olympics, was employed by UC Berkeley for 26 years as women’s swim coach. A lawsuit arose out of Humphries’ claim that she was laid off after “blowing the whistle” on a hostile work environment toward the women in the athletic administration.
In addition to the parties’ reaching a substantial monetary settlement (Verdict Search California, August 13, 2007, issue) Humphries was reinstated to her former position, with an agreement to retire in 2008. Humphrey’s was quoted as saying, “I look forward to returning to the University community and continuing to contribute to the mission of integrity and excellence in athletics and gender equality.”
Title IX issues are being raised in every state of the United States and are not endemic to the State of California. No matter the venue, it seems clear that policy makers involved in the education system should heed the advice of those who advocate the streamlining of a response system by educational institutions, to complaints based on gender discrimination.
Title IX type cases can be very complex. Often, the educational facility has compelling reasons to justify hard positions. These cases are rarely clear-cut, and normally include issues that involve personal pride, and personalities, rather than being limited to monetary issues.
At the earliest time possible, every avenue of communication and accommodation should be explored. Not every claim can be compromised, but it is clear that a proper system should be in place to have a full and fair resolution of these cases that are amenable to compromise or accommodation.
Gary Davis is a full time mediator and arbitrator with JAMS, The Resolution Experts, based in Sacramento, CA. His general mediation practice has been increasingly focused on legal issues involved in the litigation of school districts as well as collegiate and university matters. He is also author of Mediation of Title IX Disputes (Los Angeles Daily Journal).
