Michele Kort

Gender Discrimination Has Its Day in Court

(The full text of this article appears in the Spring issue of Ms. magazine, available on newsstands and by subscription from www.msmagazine.com.)

The first jury gave Lindy Vivas, the women's volleyball coach, $5.85 million. Diane Milutinovich, the associate athletic director, settled out of court for $3.5 million. And the third case ended with a head-spinning $19 million jury verdict for Stacy Johnson-Klein, the women's basketball coach.

All three women had complained about gender equity in the sports department at Fresno State University, situated in California's verdant Central Valley. All three lost their jobs. All three then sued for some combination of sex discrimination, retaliation and discrimination based on sexual orientation.

There have been many victories under Title IX -- the 1972 legislation that commanded federally funded educational institutions not to sex-discriminate in any area, including sports -- but the three cases that rocked Fresno State University's sports department last year stand out for their enormity.

The trials last fall were everyday news for months in Fresno, a town of 500,000 that's the gateway to Sierra mountain resorts such as Yosemite -- and the cases still haven't reached closure: Even after judges cut down the jury awards (to $4.52 million for Vivas and $6.62 million for Johnson-Klein, plus additional attorney's fees), the university appealed both. On top of that, Margie Wright, the school's legendary softball coach -- the only coach in Fresno State history to take a team to an NCAA national championship -- has hired legal counsel to deal with her longtime gender-equity complaints, whether by settlement or trial.

Meanwhile, an infuriated California state senator from the Fresno area, Dean Florez, has taken the university's president and the chancellor of the California State University (CSU) system to task during two hearings, and has threatened further action. "We were dumbfounded at the amount of insensitivity," says Florez, a Democrat. "We want the university to get it, and we don't think they get it yet."

The first to be let go was Milutinovich. In April, 2002, she was given three days to resign, retire, or move to a position outside of athletics. The reason for her termination? A supposed budget crunch. But subsequently, the athletic department added six positions and its budget increased nearly 5 percent.

"Isn't that a little obvious?" asks Milutinovich. "[They eliminated my position because] I asked too many questions and insisted on equity."

Vivas was next to be shown the door.

After having taken her team to the NCAA tournament in 2002 and being named coach of the year in her conference, she asked for a five-year contract similar to what the men's football and basketball coaches received but was offered only a two-year contract -- with performance clauses that no other coach, male or female, had to meet. When that contract was up, she wasn't offered a new one. "Which we all know in athletics means you're fired," she says.

Meanwhile, Stacy Johnson-Klein had been hired as women's basketball coach, and the glamorous six-foot-tall blonde was supposed to be the woman who made the men in Fresno State's athletic department more comfortable. The more jockish and outspoken Militunovich, Vivas and Wright -- women who didn't let any inequity go unnoticed -- obviously made them squirm.

"You'll be on our team, the 'home team,'" athletic director Scott Johnson told Johnson-Klein (no relation). "That was code for being straight," she explains.

The harassment began not long after Johnson-Klein came on board. First, Johnson made a pass at her while they were in a carwash. Then, the new associate athletic director allegedly began a running commentary on her clothing, telling her that her blouse was too low-cut, her pants too tight. Johnson-Klein also began to notice the same sort of gender inequities that grated on Vivas and Wright -- perks and monies offered to the men's teams but not hers. She started filing written complaints. In February 2005, she was put on leave without explanation, then fired -- and Fresno State, with shocking disregard for employee confidentiality, put up on its website a 380-page report of accusations against her.

"Of course no one complained of alleged improprieties at the time they occurred," says one of her lawyers, Dan Siegel (who also represents Milutinovic, Vivas and Wright). "It was only after she was suspended and they were looking for stuff to dump on her."

By the time the cases went to court, there was a new "home team": Johnson-Klein testified for Vivas, Vivas testified for Johnson-Klein and Milutinovich and Wright testified for both of them. "There was no way I was going to turn my back on somebody who was treated that way," says Wright. "I was going to stand up for her." "Now we're good friends," says Johnson-Klein.

Stung by the verdicts, Fresno State has now added two new women's sports and developed a five-year Gender Equity Plan. But Fresno State administrators remain in self-protect mode: Neither university President John Welty nor CSU chancellor Charles Reed have ever admitted any wrongdoing. State Sen. Florez has called for Welty's resignation to no avail, but has also set forth a bill that would create an independent office of gender equity under the state's attorney general.

"Handling this case opened my eyes," says Johnson-Klein's other lawyer, Warren Paboojian, a self-confessed former male chauvinist. "Women should have the same opportunity to compete in sports and get that enjoyment and benefit that men get, and they often don't. These women helped educate me."

The Women Who Came Before Roe

The handwritten letters are wrenching.

-- I took my 15-year-old daughter to a doctor last Wednesday and found out that she was seven and a half weeks pregnant. ... The doctor said she could never go through this mentally, and neither can I.

-- Due to circumstances and my strong belief against forced marriage, I am unable to bear the child and give it a name.

-- I am almost two months pregnant and I don't know what to do. ... It is really disgraceful that in our great country it is illegal to do a five-minute operation under completely healthy conditions.

The letters filled two walls of the REDCAT art exhibition space in downtown Los Angeles last summer, displayed as photo blowups between squares of brightly patterned wallpaper. On a video screen in the gallery, various women and men, seated next to incongruously beautiful flower arrangements, recited the pleading missives -- bringing to life words written some 40 years ago by people desperate to locate doctors who could perform safe abortions.

All of the letters requested "The List" -- names of abortion providers in Puerto Rico, Japan and Mexican border towns -- compiled and distributed by activists Pat Maginnis, Rowena Gurner and Lana Clarke Phelan. At the time, in the mid-1960s, Roe v. Wade had not yet been decided, so U.S. abortions were either illegal or highly restricted, difficult to obtain, prohibitively expensive for many and often dangerous. The California activists -- later dubbed the Army of Three -- were so appalled by the situation that they risked imprisonment in order to educate women about their options, even teaching a method for self-inducing an abortion.

"It was pretty lonely out there. There was no one else," says Maginnis, 78, one of the two surviving Army members.

When artist Andrea Bowers, who created the exhibition (now at Artpace in San Antonio through January 28, then at the Contemporary Art Museum in St. Louis, April 27 through August 7, 2007) learned about the Army of Three, she felt compelled to honor their work through hers. "I realized I knew very little about Roe v. Wade," says Bowers, 41, an art professor at the University of California, Irvine, "so I bought every used book I could find on the subject. [I realized] we've taken for granted our freedoms."

She then began a meticulous creation of images that would not only be artistically sophisticated but communicate her passion for the subject matter. She decided to present the images in several ways -- collage, a bound book, video, drawings -- so that viewers could read, listen or both.

Bowers is a welcome throwback to 1970s feminist artists, who weren't above melding formalist technique with social justice concerns. "A lot of earlier feminist artists, and artists of color, have created space so that artists like Andrea can talk about content," says Eungie Joo, director and curator of REDCAT gallery, housed in a corner of L.A.'s iconic Disney Concert Hall. "The reason [art viewers] are afraid of what they deem as political is because they're afraid to be told what to think. When people encounter Andrea's work, they feel free to think what they already think -- but to think about it more."

Bowers grew up in Huron, Ohio, a small farm town west of Cleveland. As a kid, "I was loud and outspoken and had positions that I and people of color should be treated fairly," she says.

The infamous 1970 shooting of students by National Guardsmen at Kent State occurred near her Ohio home, but Bowers says few of her peers talked about what happened there. "I'm from the generation of nihilism -- extensive partying, a sense of hopelessness that no individual person can change anything," she says.

She began to believe otherwise at the first college she attended, Bowling Green State. There, a slide librarian, recognizing her feminist promise, gave her Judy Chicago's 1975 memoir Through The Flower. Then, at CalArts, she absorbed the influence of art school dean Catherine Lord, a lesbian-feminist writer who hired a number of other women as professors. Bowers always craved more than theory, however.

"I always felt that what feminist academics do is really great, but it is completely removed from activism," she says. When she suggested to a CalArts feminist class that the students should undertake actions, only three volunteered to join her. "We need to look outside, too," Bowers felt.

For Pat Maginnis, Bowers' work has been a welcome use for the hundreds of letters she saved. "That someone is able to take these things and make a physical presentation is terribly important," she says. "I'm endlessly grateful to Andrea for having that insight."

And for Bowers, discovering the work of pioneers such as Maginnis is both personally and artistically inspiring. "I'm always looking for moments in history -- individuals doing great things and making big changes," she says. "I'm looking back to provide a model for now -- or maybe to find what's missing." A catalog of the Bowers show is available from www.redcatpubs@calarts.edu.

For the full text and a sampling of Bowers' art, visit www.msmagazine.com.

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