Settling can mean victory

Reflections on the Rene Portland - Jen Harris Lawsuit Settlement

(This story was published in 2007).

By: Pat Griffin

Editor's Note: Penn State and former Nittany Lion basketball player Jennifer Harris on Monday announced a settlement of Harris' case regarding anti-lesbian actions of head basketball coach Rene Portland. Harris was represented in the case by the National Center for Lesbian Rights. Terms of the settlement were not disclosed.

At first reading I was not sure what to think about the settlement of theJennifer Harris lawsuit against Penn State and women’s basketball coach Rene Portland. As an educator and advocate for lesbian and gay people in athletics for many years, I am hungry for change and this case represented a huge opportunity to call attention to a persistent problem in athletics: discrimination on the basis of sexual orientation. The terms of settlement are confidential so it is impossible to know what agreements were made. The joint statement released to the press by both parties in the lawsuit was so carefully crafted that, at first, I could not tell whether to be pleased or upset about the settlement.

I am not a lawyer (and I don’t even play one on TV), so I consulted a friend who is a lawyer to help me interpret what the settlement statement means. She helped me to understand that agreeing to a settlement can often be the most positive outcome and that making the terms confidential, a common legal provision, actually can facilitate more far-reaching positive changes. She told me that in a case like this, where Jen Harris is no longer a student at Penn State, the only thing that litigation could achieve would be a financial settlement. A settlement, in contrast, probably means that Penn State, in addition to agreeing to a financial payout to Jen Harris, has also agreed to other terms that have far greater potential to change the climate at Penn State for future students. My lawyer friend also pointed out that going to litigation exacts a huge financial and emotional toll on all participants, a consequence that often overshadows the outcome. One thing seems clear though after reading the report of the settlement: Rene Portland is still the women’s basketball coach at Penn State and that does upset me despite feeling much better about the settlement after talking to my friend the lawyer.

When I first learned about the lawsuit against Rene Portland and Penn State, my initial reaction was, “Finally, something will be done to stop 20 some years of rumored bigotry that have reigned unchecked in the PSU women’s basketball program.” I admit it – I was excited by the possibility that Rene Portland was finally going down. I thought that this would be the most powerful way to send a message to all coaches, parents and student-athletes that anti-lesbian discrimination, long accepted in athletics, will no longer be tolerated.

Everyone I know who is familiar with women’s college basketball has heard the rumors or has talked privately to former PSU basketball players or recruits who confirmed the stories: Rene Portland has enforced a “no lesbian” policy for over 20 years. I myself talked to a mother and daughter years ago who told me that Portland had announced, unasked, during a home visit that she did not allow lesbians on her team. Taken aback by this blatant bigotry, the family crossed Penn State off their list of prospective schools. If only all families responded this way. Portland herself affirmed her policy in a 1986 Chicago Sun-Times article. Jen Harris’ charges against Portland were more of the same, but she was the first athlete to take legal action.

In 1991, a Philadelphia Inquirer article included reports that some unnamed former Lady Lions confirmed Portland’s “no lesbian” policy. The mainstream press reaction to this article was soundly critical of Portland and Penn State, which at the time did not include sexual orientation in the school non-discrimination policy. Campus protests jammed the athletic department phone and fax lines and rallies condemned Portland. Later that year, Penn State added sexual orientation to the school non-discrimination policy. I was called in by the Penn State Administration to work with the athletic department on addressing lesbian and gay issues at Penn State. The workshop was difficult and it was clear to me that there was no real departmental or institutional commitment to challenging anti-gay discrimination at Penn State. I felt like a pawn in the university’s attempt to cover its hind quarters by requiring the standard one off “diversity” training.

So, it’s no surprise that I’m disappointed that the settlement does not include the demand that Rene Portland step down as the Lady Lions coach. That said, however, I believe that the Portland-Harris-Penn State law suit is a huge step in the on-going effort to make athletics more inclusive and respectful for lesbian and gay people.

In the joint statement released by both parties in the lawsuit Penn State, Athletic Director Tim Curley and Rene Portland “deny any liability with respect to the complaints filed against them.” Jennifer Harris agrees to “permanently withdraw and end her legal actions against all parties.” She also stated that she is “proud to have brought the case and thrilled that we have been able to resolve it.”

Karen Doering, the NCLR lawyer representing Harris, said that the university has taken additional steps “to further protect all students who have experienced discriminatory treatment at Penn State.” What do these statements mean? This is where my friend the lawyer advised me to “read between the lines.” It is standard for the defendants in a case (Penn State and Rene Portland) to deny liability. What is important is that Jen Harris and her lawyers from theNCLR are happy with the settlement. I don’t believe they would be happy if the settlement did not include significant agreements that can change the landscape of athletics. Did the university agree to a substantial financial settlement to make the lawsuit go away? Probably. Did they agree to more careful oversight of Portland’s practices and regular training for all staff, athletic and academic, at Penn State? I think that is what Doering’s quote is telling us.

Perhaps the biggest loser in this case is Penn State University. The university’s reputation has been tarnished by their tepid response to the lawsuit and their support of Portland. Penn State’s own internal investigation of the Harris charges found that Portland had indeed created a “hostile, intimidating and offensive climate.” Unfortunately, Penn State chickened out when it came to punishing Portland for her actions: A slap on the wrist $10,000 fine, required participation in (another) personalized “diversity” training session with an unnamed consultant, closer monitoring of Portland’s practices and promised dismissal for further discriminatory actions.

After the lawsuit was filed in 2005, the National Center for Lesbian Rights lawyers announced that, following Jen Harris’ lead, several former players and PSU athletic staff were ready to testify to Portland’s history of anti-lesbian discrimination. These witnesses added to the damning findings of PSU’s own internal investigation. Clearly, Portland can no longer credibly claim that this is about one disgruntled athlete or that she has not discriminated against athletes in the past.

I assume (and hope) that Jen Harris received generous financial relief. If PSU doesn’t have the integrity to dismiss an employee whom they found in violation of their own non-discrimination policy, at least the school should feel the pain of their choices in the institutional pocketbook. The bigger the financial aspects of the settlement the better so that, at the very least, the message to other institutions is that discrimination is expensive. In a time of educational budget crunches, what school wants to spend many thousands of dollars in settlement and legal defense costs?

In addition to the financial costs, PSU has received mountains of negative press over the lawsuit and the inconsequential punishments they meted out for the findings of their own investigation of Portland’s practices. I am sure that administrators in other schools have taken note and probably shudder at the thought of finding themselves in the middle of this kind of public relations nightmare. For the most part, polls show that the general public does not condone discrimination on the basis of sexual orientation and response to the press coverage of the Penn State situation confirms this perspective.

It is difficult to imagine how PSU officials think that all of the negative publicity and expense is worth keeping Portland on. She must have some powerful support in well-heeled places among PSU alumni and other powerful people at Penn State. The reactions of the university to the allegations have tainted PSU ’s reputation and integrity and will continue to affect the women's basketball team’s reputation as long as Portland is the face of the Lady Lions. It is probably no coincidence that last season and this season have been sub-par for the team. The Lady Lions face organized protests at away games and the ongoing negative publicity swirling around Portland leaves a stink on the team and the university that will not go away until Portland does. Until then, perhaps Portland is the coach that PSU deserves.

I am hopeful that one of the most significant far reaching results of the Penn State affair is that other schools will be smarter and more proactive about avoiding the mess that Penn State has been mired in for the last two years. I don’t think any university president or athletic director will want to take a call from NCLR in the future. They will be more likely to educate their staff about institutional policy and legal requirements, monitor staff more closely and respond to accusations of discrimination more seriously.

Another positive outcome of the settlement is that Jen Harris, the courageous young woman who decided to challenge what she experienced as the discriminatory practices of a powerful coach, will finally be able to get on with her life. She can try to pick up the pieces of her basketball and academic career at James Madison University where she is now enrolled.

She and her family, with the legal guidance of the National Center for Lesbian Rights, took on a major university and a powerful coach. It is important not to lose sight of the courage this action took. Many young athletes facing similar situations do not have the strength or support to challenge unfair treatment at the hands of an established coach. Instead they quietly transfer to another school hoping to find a place to play ball in a more accepting climate. The cost of silence is high for these young people, in self-esteem and in athletic opportunities forfeited.

The stress, visibility and responsibility accompanying Jen Harris’s decision to fight back must be crushing for a 20-year-old African-American woman who surely envisioned her college athletic career being very different from the one she has endured over the last two years. Her lawsuit shone the light of day on Portland’s unethical practices and a university’s “head in the sand” tolerance of “hostile, intimidating and offensive” actions that violate its own non-discrimination policy. Jen Harris chose to fight back and everyone who cares about respectful treatment of all athletes should be grateful for her courage in challenging Portland and PennState. The national dialogue and platform for discussion of discrimination issues in athletics that this case sparked has already encouraged actions for positive change.

In October 2006, NCLR and the NCAA co-sponsored a national think tank on negative recruiting based on sexual orientation in collegiate athletics. This first-of-its-kind meeting was attended by athletic leaders from all over the United States and the action initiatives that came out of that meeting hold great promise for positive change. I am not sure that, without the lessons from Portland-Harris lawsuit, the momentum and support needed to make this think tank happen, or the overwhelmingly committed interest among attendees, would have been as high. I believe that one of the positive outcomes of the Harris case is that university and athletic leaders are increasingly clear about the necessity of developing policy and instituting education programs that protect student-athletes from the discriminatory practices apparently tolerated at Penn State for over twenty years.

Jen Harris represents a new generation of student-athletes and their families who are willing to challenge discrimination rather than suffer in silence as so many have in the past. I also believe that Penn State and Rene Portland represent the last generation of institutions and coaches that tolerate or practice discrimination against athletes on the basis of their presumed or actual sexual orientation.

Thank you, NCLR, and thank you, Jen Harris, for leading us further down the path toward sports equality for all.

Pat Griffin, Director of It Takes A Team! Education Campaign for LGBT Issues in Sport, Author of "Strong Women, Deep Closets: Lesbians and Homophobia in Sport."

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