Wednesday, September 02, 2015

Professor's Title IX Claim Against Northwestern Dismissed

A federal court in Illinois recently gave two reasons for dismissing Professor Peter Ludlow's Title IX claims against Northwestern University, arising from its decision to investigate charges by a graduate student that Ludlow had had nonconsensual sex with her during a period of time in which they were dating (the court's characterization).

First, the court determined that Ludlow was actually challenging an adverse employment action, and, as such, his Title IX claim was preempted by Title VII, the federal employment discrimination statute. The issue of Title VII preemption is not handled consistently by the courts, but there is precedent in the Seventh Circuit -- binding on the federal courts in Illinois -- that withholds Title IX remedies in cases where employees allege sex discrimination by their employer, reasoning that Congress intended the mechanisms of Title VII enforcement (which include first seeking relief from the EEOC) to apply instead.

Second, the court reasoned that even if the Title IX claims were not preempted, Ludlow had not alleged facts that suggest that the university's response in investigating the graduate student's claim had anything to do with his male sex, but instead, because the charge against him was rape. As the court put it, "That Ludlow is male is a conclusion without any link to the investigation itself and his statement that Northwestern 'needed to believe the victim' does not sustain the inference that Northwestern took the genders of the victim and accused into account."  Nor could Ludlow sustain a sex discrimination claim by arguing that men are more often burdened rather than helped by victim-friendly procedures, since there is no private right of action for disparate impact claims under Title IX.  In this way the court's decision is very similar to the majority of Title IX decisions in disciplined-student cases, such as the case against Columbia which is cited a number of times in the opinion.

After dismissing Ludlow's Title IX claim, the federal court determined that it had no basis for exercising supplemental jurisdiction over his state law claims, and subsequently dismissed those as well.

Ludlow v. Northwestern Univ., 2015 WL 5116867 (N.D. Ill. Aug. 28, 2015).

Tuesday, September 01, 2015

Michigan State's Grievance Procedure Violated Title IX

Today the Department of Education's Office for Civil Rights released the findings and conclusions of its investigation into two students' complaints that Michigan State University mishandled their complaints of sexual assault and related harassment and retaliation.  OCR determined that deficiencies in Michigan State's grievance procedure violated Title IX, as did its failure to notify students of the identity and role its Title IX Coordinator. Specifically, OCR found that even though it had notice of the alleged assault on the first student, Michigan State waited weeks before commencing an investigation because its policies at the time did not permit the university to go forward until the alleged victim filed a formal complaint. OCR determined that once the University initiated the investigation, it provided a thorough, impartial and equitable response. In the second student's case, it took the University a year from the time of report to resolve the matter, a time frame that OCR determined did not satisfy the requirement for a "prompt" resolution. 

In addition to reviewing the two complainant's cases, OCR also review three years worth of files documenting the university's response to sexual harassment and assault.  There it found more instances of delayed resolution, as well as possible failure on the university's part to notify the complainants of the final outcomes in their cases and their rights to appeal.  In one file, OCR made the "troubling" finding that the University waited until multiple sexual harassment complaints were filed to take action against a counselor who was reported to have harassed students who were seeking support for having been sexually assaulted.  In another case, the University wrongly dismissed a claim of co-worker sexual harassment because it was not sufficiently severe, despite having found credible the complaining employee's description of how the harassment had negatively affected the work environment.  There were other, similar examples of the University's inadequate handling of employee harassment. 

In response to OCR's findings, Michigan State has agreed to a number of corrective measures, including revising inadequate policies, improving notice of the Title IX Coordinator, improving staff training as well as training for students and student-athletes in particular, developing a Memorandum of Understanding with local law enforcement, and offering to address any harm students who reported sexual harassment or assault incurred as a result of the university's delay in processing their complaints.

Wednesday, August 26, 2015

Court Will Not Dismiss Disciplined Students' Title IX Claim Against Salisbury University

Two male students who were suspended from Salisbury University in Maryland can continue to litigate their claim that the university's flawed disciplinary process was the product of gender bias.  A federal court denied the university's motion to dismiss this claim, which means the plaintiffs' allegations would be sufficient to constitution a violation of Title IX in the event they are eventually proven true.  In "erroneous outcome" cases like this one, that means the plaintiff must first allege procedural flaws that call the disciplinary outcome into question.  Second, the plaintiff must allege  specific examples of gender bias that could plausibly have provided the motivation for the flawed proceeding.

The plaintiffs' complaint in this case alleged a number of procedural flaws including:
  • that they were denied the opportunity to ask "critical questions" of the witnesses
  • that the university withheld from them the witness statements, witness lists, and other evidence that they had the right to review before the hearing
  • that they were denied the right to have their attorney present even though university policy affords them this right
  • and that the investigators improperly influenced the disciplinary board in the way their presented their findings and conclusions
The court found these allegations sufficient of the first requirement.  The court also found that the plaintiffs' complaint contained the requisite allegations of gender bias, though it was a "close call."   Some of the plaintiffs' bias allegation was based on the university's effort to raise awareness about the problem of sexual assault on campus.  The court dismissed the idea that such bias could be inferred from program announcements presented in a "gender-neutral tone, addressed to all students, and published to improve campus safety for both men and women."  Similarly, funding a sexual assault prevention program with a grant from the Avon Fund for Women did not evidence bias, because the program was advertised "for all students."  However, the plaintiffs also alleged that "on information and belief" the university possesses communication evidencing its intent to impress the Department of Education by railroading male students accused of sexual assault. I was surprised that the court accepted this vague of allegation of bias as sufficient, but it did.  The court admitted that a general allegation of bias would not have been sufficient.  Allowing plaintiffs to proceed on an allegation like "we believe you have evidence of bias in writing" seems like a pleading tactic that would work any time a plaintiff does not have anything on which to base a specific allegation of bias, and thus operate as an end run around the requirement that allegations be specific in the first place.

In sum, the court rejected the claim that the university's sexual assault awareness programs supported the inference sex discrimination (which is probably reassuring for universities running similar programs). But it did permit plaintiffs to seek to "uncover discoverable and admissible evidence that Plaintiffs' gender was a motivating factor behind SU's allegedly flawed disciplinary procedures and wrongful conclusions." As a practical matter, Salisbury University will have to respond to the plaintiffs' requests for information, records, and depositions. If no evidence to support bias turns up, the university can later move for summary judgment.

Doe v. Salisbury Univ., 2015 WL 5005811 (D. Md. Aug. 21, 2015).

Monday, August 24, 2015

Back to school, back to reality

The new school year often brings some Title IX news. Stories that address what a girl versus a boy is allowed to wear for yearbook photos or whether the women's cross-country roster is being padded with runners from winter/spring track have made the back-to-school news in the past. This summer has not exactly been slow in the Title IX world. Court cases against various schools being brought by those who feel schools did not do enough and those who felt schools went too far continue to move through legal proceedings. (See Erin's post from last week.)

This is one the first back-to-school smh-es I have seen. And it is very bad. This morning it was local news; this afternoon national media picked it up.

An off-campus house at Old Dominion University where some members of the Sigma Nu fraternity live, had banners hanging from the windows this weekend "welcoming" female first years--and their parents--with threats of sexual assault. Rivaling a Yale fraternity's chants of "no means yes, yes means anal" from several years back, the banners, only slightly more subtle, read: "Rowdy and fun. Hope your baby girl is ready for a good time"; "Freshman daughter drop off (with an arrow pointing to the front door)"; and "Go ahead and drop off mom too..."

The outrage and condemnation was swift with the president and other university officials speaking out over the weekend against the now-removed banners. But it was not until today that Sigma Nu was suspended the university, a move that was supported by the fraternity's national organization, who said that it does indeed appear that members of the fraternity participated in the banner making and that those men will be dealt with by the organization.

This incident certainly adds to recent discussions about the role and current manifestations of sororities and fraternities on campuses. More narrowly, and more to what we think about here, it speaks to the culture that exists on campus. ODU is NOT on the list of schools being investigated by OCR and there is no Title IX lawsuit against them. This does not mean that is all is well at the university.

Last spring, a local news station spent considerable effort investigating the case of an ODU student who was raped on campus (not by an enrolled student). She contends, and evidence confirms, that the university was slow to respond to her requests--like to change housing, which they did after a month though they charged her more for her new housing--and offered very little support. Her scholarship was yanked when her grades fell in the aftermath of the rape, when she was suffering from PTSD. She did not file a complaint, as I noted, but if she had...well, things like fraternity members making public assertions about the role they think female students should play might make it into the report. In other words, though ODU may have dealt with that rape and this current situation, they need to treat these not as isolated incidents but as part of a culture marked by misogyny. 

Tuesday, August 18, 2015

Campus Sexual Harassment, Sexual Assault Litigation Roundup

In two recent judicial decisions, courts refused to grant university's motions to dismiss Title IX cases in which the plaintiff alleged that the university did not adequately respond to his or her report of sexual harassment or assault.
  • In the first case, a federal court in Illinois allowed a male medical student to continue to litigate his case against Northwestern University, in which he alleges that the university did not adequately respond to his report of sexual harassment by a male professor.  The professor, the plaintiff alleges, made suggestive comments and retaliated against the plaintiff in various ways for refusing his sexual advances. The court agreed that the allegations in the plaintiff's complaint satisfy the legal standard for liability under Title IX, and thus cannot be dismissed without continued litigation.  The plaintiff alleges a sexist double standard in Northwestern's policy of not investigating reports of incidents that were two years old, the time frame that lapsed between the professor's misconduct and the plaintiff's report to the university's sexual harassment office. Because the plaintiff's complaint included an example of a female complainant's case that was investigated even though the harassment was similarly out of date,  it could, if proven, subject Northwestern to liability under Title IX. The court also denied the university's motion to dismiss the plaintiff's retaliation claim, in which he alleged that the university continued to take adverse action against him after and because of his reporting of the professor's harassment.  Yap v. Northwestern Univ., 2015 WL 4692492 (N.D. Ill. Aug. 6, 2015).
  • Similarly, a federal court in Florida denied Florida State's motion to dismiss the Title IX case filed by  Erica Kinsman, who alleges that the university did not adequately respond to knowledge of her report that quarterback Jameis Winston raped her in 2012.  Though FSU disputes the allegations in the complaint, the judge ruled that it is possible that a jury could find truth in Kinsman's claims that appropriate university officials had actual notice of Kinsman's report by January of 2013, and that they did not initiate an investigation for eleven months, which would satisfy the standard of institutional liability under Title IX.  The judge set a trial date for July of 2016, though it is possible of course that the case could settle before then, or that FSU could file and prevail on a motion for summary judgment after the discovery phase which allows the parties to gather evidence. 
Also, there were developments in three disciplined-student cases worth noting.
  • A federal court in Virginia denied Washington and Lee University's motion to dismiss a male student's claim that the university violated Title IX when it expelled him for sexual assault.  The court agreed that the plaintiff's complaint contained sufficient allegations that would, if proven, constitute a violation of Title IX under the "erroneous outcome" framework.  At this early stage of litigation, a plaintiff in an erroneous outcome case must (1) cast doubt on the accuracy of the university's finding against him; and (2) allege specific facts that can establish gender bias as a motive. Here, the plaintiff alleged numerous procedural violations that resulted in evidence favorable to him being excluded from the disciplinary panel's consideration. He also alleged that gender bias could be attributed to the Title IX officer who presented the case against him, as evidenced by her public endorsement of the idea that "sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express."  Because the plaintiff's case "parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct" and because the Title IX officer wielded "considerable influence" in the proceedings, it is possible, the judge reasoned, for a jury to find evidence of gender bias.  This is a rare outcome in that disciplined-students' Title IX claims do not usually survive the university's motion to dismiss -- usually because of insufficient allegations of gender bias. Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015).
  • And, a state court judge in Tennessee reversed a decision by the University of Tennessee at Chattanooga to expel a male student and wrestler Corey Mock for sexual assault.  In that case, a female student reported to the university that Mock had had sex with her while she was unconscious.  A disciplinary panel initially determined that there was not enough evidence to find Mock responsible, but this decision was overturned on an appeal within the university.  The court took issue with the university's ultimate decision, which it interpreted as requiring Mock to prove he had obtained consent rather than requiring the complainant to prove he hadn't. Though the court's decision was based on state administrative law, not Title IX, the outcome is consistent with what is required of universities under Title IX.  Even though a complainant does not have to have overwhelming evidence (only a preponderance) that consent did not occur, it is still the complainant's burden to prove that consent did not occur.  
  • A superior court judge in Los Angeles reinstated plaintiff Bryce Dixon to the University of Southern California while his case against the university is pending.  Dixon, a football player, is challenging the university's decision to expel him for sexual assault stemming from a sexual encounter with a female trainer that he claims was preceded by implied consent, though a university disciplinary panel found otherwise.

Monday, August 17, 2015

11th Circuit Reverses Summary Judgment in "Rape Bait" Case

In 2013, we blogged about a district court decision that a school district in Alabama could not be liable under Title IX for its participation in a teacher's aid's plan to use an eighth grade girl as, essentially, bait to catch a habitually-offending male student "in the act" of soliciting female classmates for sex. The plan called for the female student to agree to the male student's proposal to meet in the bathroom, where officials would intervene before any sexual assault occurred. However, no timely intervention occurred and the female student was raped.  We noted with alarm the district court's exceedingly narrow application of the deliberate indifference standard, since there was a genuine factual dispute that the assistant principle was aware that a female student was under a serious threat of sexual assault and did nothing to stop it.

Thankfully, this decision has been reversed on appeal.  Last week, the Eleventh Circuit Court of Appeals ruled that there was enough evidence to warrant a trial on the crucial elements for institutional liability, i.e., actual notice and deliberate indifference.  There were enough facts in evidence that a jury could potentially find that shool district officials had actual notice of the threat posed by male student.  Namely, the school board admitted that officials knew of reports that the male student had harassed and assaulted other female students in past, and while it was disputed whether the Assistant Principle knew about the sting operation in progress, a jury could potentially find that this was so.

The court also thought there was enough evidence that a reasonable jury could find that school officials were deliberately indifferent -- both to the threat of rape and in their response to the rape after it occurred.  Not only was deliberate indifference suggested by officials' failure to intervene in the sting operation, but also, the court noted, its inadequate teacher training on sexual harassment, its ineffective disciplinary policies and record keeping practices, and the fact that the rapist himself was sometimes unsupervised during his in-school suspension, and the principal's failure to revise any policies after the rape had occurred. 

The plaintiff's Title IX claim will be allowed to proceed to trial.

The court also reinstated the plaintiff's constitutional claims against the principal, assistant principal, and teacher's aid as individuals.

For some other commentary about the case see here
For a copy of the decision, see here, or:

Hill v. Cundiff, 2015 WL 4747047 (11th Cir. Aug. 12, 2015)

Wednesday, August 05, 2015

Settlement in Oregon case

The woman who filed a Title IX lawsuit against the University of Oregon, including basketball coach Dana Altman, has dropped the lawsuit as part of an $800,000 settlement. The student, who will also receive a waiver of her tuition and fees to finish her education at the university, believed that the coach knew that at least one of the players who allegedly assaulted her had been kicked off the basketball team at Providence College for participation in a gang rape.

We have written about the Oregon case, especially in light of the larger issue of a school's responsibility for and awareness of past incidents when accepting transfer student athletes. Brandon Austin--the player from Providence--is now playing for a junior college in Florida. We were very interested to see what would happen in this case, whether some kind of precedent would be sent or warning issued about accepting student athletes with records of violent and criminal behavior. The settlement has less ability to do so because all parties are expected to appear with pseudo smiles on their faces and some words about respect for the system, or--at worst--say nothing at all. There is a similar case in Oklahoma where a University of Tulsa student has filed a Title IX lawsuit against the school after alleging she was raped by a basketball player who should have never been allowed on campus, she states, due to his charges of sexual assault at a previous institution; so perhaps we will see something different happen there.

What to take from this settlement? My initial thoughts center around the following: that's a lot of money, but it is unlikely that significant change will be effected.

As I said in a previous post (linked above) whether the woman's legal team would have been able to prove that Oregon and/or Altman knew of Austin's past allegations is something only a trial would have shown. I know that trials can be difficult in these cases, but a trial may have increased the discourse about the transfer process for student athletes that focuses not on when they can play (i.e., eligibility) but on whether they should play or be granted admission to the school. A trial had the potential to raise awareness of this issue. The question, of course, is at what cost to the alleged victim. Maybe it would have put pressure on the Pac-12 to pass a policy similar to the SEC's which bans the acceptance of transfer athletes with past incidents of domestic violence and assault. (Yes, I have noted that these policies will only work when there is greater transparency in the transfer process itself. Still, it signals an acknowledgement of the issue.)

Good news to take from this case: according to the woman's own statement (which admittedly is influenced by the settlement and the fact that this is over and the agreement that the parties not "disparage" each other), she received support from the university community--in addition to outside groups and individuals. This is very different from the situation at Florida State where Jameis Winston's alleged victim was targeted and driven off campus when her allegations against the now NFL quarterback became known. It is arguably a low bar we have set when praise goes out to a university community for not further harming a victim by ostracizing and doubting her. Still, she clearly feels comfortable remaining at OU and that is a good thing.

The not-so-good: The feeling that the $800,000 settlement is pay off. Insurance, according to one source, will pay for the settlement, which again is quite large which again suggests that someone knew something but what that is, we will never know. The settlement is not technically confidential, but details of the case do not appear to be forthcoming.

Also, the reforms the university have agreed to are quite frankly weak. They have made a very concerted effort to demonstrate Title IX compliance by hiring many new staff members with more hires on the way. The proposed reforms to the student-athlete transfer process, though, are a little concerning. The university plans to ask students if they have a "disciplinary record" at their former schools. Anyone who says yes must agree to sign a waiver giving OU access to those records if the student wants to be considered for admission. It is unclear what would prevent a student from lying given that student records are subject to pretty strict privacy laws. Also, given that most coaches do not want to know these things, I do not see this as being at all effective. (Happy to be proven wrong, though.) Will there be some kind of I-have-to-ask-but-please-don't-tell-me culture established? Would this provide coaches and the school some kind of immunity? "Well I asked and he told me there was nothing, so what was I supposed to do?" I do not see this kind of standard holding up in court. The school has a much greater responsibility to vet student athletes. They do it when it comes to stats and successes and skills, so it's time to extend that research and really prove, as the current president said in relation to this case that "the important thing is we’re not a school of athletes and students. We’re a school of students. Everybody needs to be part of this effort."

Going back to student privacy, another unresolved issue from this case is the gathering of the victim's counseling center records by university-hired lawyers. It is possible that that privacy violation was part of the reason for the large settlement. This is something else the university will need to address as it continues to revise its policies and procedures in cases of sexual assault and harassment.

Eyes will probably be off Oregon now that this case has settled, unless additional details that explain the settlement are revealed. The case in Tulsa, as I mentioned, has the same potential to contribute to a larger discussion of student-athlete behavior and the terms and conditions of the transfer process. 

Friday, July 31, 2015

LAS-ELC "Fair Play" Video

In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IX's application to K-12 athletic programs. It also helps them understand their rights under California's Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX.

For more on LAS-ELC's "Fair Play" initiative, see here.

Wednesday, July 29, 2015

Title IX Claim Dismissed in (Yet Another) Disciplined Student Case

A federal court in North Carolina is open to the possibility that Appalachian State University denied a male student procedural and substantive fairness by suspending him for 20 days for sexual assault before the hearing panel ultimately exonerating him on appeal. However, this does not constitute a violation of Title IX, the court ruled, because there is no allegation to support the claim that the university was biased against him because of sex.  In granting the university's motion to dismiss the plaintiff's Title IX claim, the court rejected the plaintiff's reliance on Yusef v. Vassar College, a 1994 decision and one of the only examples of a disciplined-student's Title IX claim surviving a motion to dismiss.  In that case, the plaintiff alleged that male students were "historically and systematically" found guilty when accused of rape, and the court found this allegation of bias sufficient.  But the court ruled that similar allegations do not satisfy today's higher standard for more specific pleading, which was imposed by two Supreme Court cases, Twombly and Iqbal, in 2007 and 2009, respectively.  In so doing, this court joins a long list of other courts who have rejected Title IX's applicability to disciplined-student cases. 

That said, the court was open to the plaintiff's arguments about procedural and substantive fairness as protected by the Constitution's due process clause.  Namely, the court acknowledged that the university's decision to hold a second hearing in the sexual harassment matter after the first hearing panel found him not responsible violated his right to procedural due process, as did the fact that he was provided less than 24 hours notice that a sexual harassment charge had been added to the hearing as well.  The plaintiff will be allowed to continue to litigate these claims, as well as his claim that the "arbitrary" decision of a university official to overturn an initial hearing panel's decision in his favor without any basis for doing so, was substantively unfair. 

(For the record, many of the plaintiff's other arguments about procedural fairness were in fact dismissed, including: the fact that he had a graduate student represent him while the complainant had a lawyer, the fact that the university did not tell him about potential witnesses that could have helped his case, the fact that the university excluded a potential witness who would have testified about the complainant's sexual history, the fact that the hearing panel included a member who had found against his co-respondent in a prior matter, and the fact that no one informed him of his right to have a separate hearing from that of his co-respondent.)

Decision: Tanyi v. Appalachian State University, 2015 WL 4478853 (W.D.N.C. July 22, 2015).   

Tuesday, July 28, 2015

Judge Dimisses Title IX Claim in Bathroom Case.

At a hearing in federal court yesterday, Judge Robert Doumar dismissed the Title IX claim filed by a transgender student against the public schools in Gloucester, Virginia. The student had alleged that the school district's policy of excluding him from the male restroom and facilities violated Title IX, arguing with the Department of Justice's support that sex discrimination has been broadly interpreted to encompass gender-related considerations as well, and thus ought to cover discrimination targeting a student because his gender does not match the sex he was assigned at birth.

From the sound of it, the judge did not give the Title IX argument much of a chance.  According to this article describing yesterday's hearing, the judge announced his decision to dismiss the Title IX claim in the middle of the ACLU attorney's argument on behalf of the student, stating "your Title IX case is gone by the way....I decided that before we started."  He made this announcement without even giving the attorney from the Department of Justice, who had intervened on the student's behalf, an opportunity to present his arguments.

The judge went on to make some other confounding statements, including repeatedly characterizing transgender as a mental disorder -- which is not only insensitive and inaccurate, it completely misses the point about sex discrimination. He also took the opportunity of the DOJ attorney's eventual presentation (which was, by that point, futile) to grind an ax about the agency's agenda in unrelated matters. “Where the U.S is going scares me....It really scares me.” the judge reportedly said, bringing up the agency's policy of not strictly enforcing marijuana as another example of something his opposes. "Maybe I am just old fashioned,” he admitted before reportedly turning his contempt to Congress -- too quick to pass new laws, in his opinion -- and finally closing the hearing with the statement, "Oh well, things are changing."

It certainly sounds to me like a bizarre day in court.  But will the judge's odd behavior effect the outcome of the case?  It is rare that judicial decisions are overturned because of the judge's bias or impartiality, since courts require evidence of some specific connection between the judge and one of the parties, witnesses, or subject matter of the case. It is unlikely that a judge's insensitivity, breach of protocol, irrelevant tangents, and admission of being "old fashioned" will meet that standard. But if the judge's irrelevant considerations and failure to engage with the arguments presented are reflected in the order dismissing the claim, as his hearing demeanor might suggest, then his decision is certainly vulnerable to appeal on the merits. An appellate court does not have to defer to a lower court's interpretation of the law, and is less likely to agree with a decision that is not well-reasoned.

Monday, July 20, 2015

EEOC Ruling on Sexual Orientation Discrimination Could Influence Title IX Cases

Last week, the Equal Employment Opportunity Commission issued a ruling that asserted its jurisdiction under Title VII over an employee's case in which he alleged he was denied a promotion because of his sexual orientation. The Commission acknowledged that Title VII contains no express prohibition on sexual orientation-based discrimination. But it ruled that a complaint about discrimination because of one's sexual orientation is "necessarily" a complaint that the employer took sex into account, as is thus proper to consider under Title VII. Here is some of its reasoning:
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women.  Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.
The Commission continued to explain that if an employer fires a man for being in a relationship with another man, but would not fire a woman for being in a relationship with a man, that is treating the male employee differently because of his sex.  It's also a natural extension of the "sex stereotyping" theory because heterosexuality is a sex stereotype.

The EEOC's conceptualization of sexual orientation discrimination as entirely within the ambit of sex discrimination is a broader definition of sex discrimination than has been applied by most courts.  Courts are generally willing to accept that sex discrimination covers discrimination on the basis of an employee's gender-nonconforming appearance and behavior in the workplace, which may include (for example) claims by gay male employee targeted for feminine mannerisms, or a lesbian employee discriminated against for masculine appearance.  But the EEOC's recent interpretation goes beyond this and confirms that discrimination targeting the employee's sexual orientation per se  is actionable.

This decision is directly binding only on future enforcement decisions by the EEOC in the context of cases involving the federal government. But, the EEOC's interpretations are often influential on the courts that consider the meaning of sex discrimination under Title VII's application to the private sector, as well what it means as used in other statutes, like Title IX. Thus, even though it doesn't govern the education context, the EEOC's decision helps strengthen arguments by students or school employees who may have been excluded from participation, or fired, or denied admission, or harassed because of their sexual orientation, by giving courts and attorneys a roadmap of persuasive reasoning to follow.

FSU: Treating symptoms not changing cultures

They say that the first step to solving a problem is admitting you have a problem. So how does Florida State go about solving violent behavior among its student athletes? The football players are now banned from bars. The bars have not banned them--the coach has.

Jimbo Fisher, reports say, has told his players no more bars.

This is neither admitting to a problem nor solving one.

The directive was issued after a second FSU player was punished for assaulting a woman. Dalvin Cook was suspended from the team after he hit a woman outside of a bar. The first (?) incident resulted in quarterback De'Andre Johnson being kicked off the team after he hit a woman in a bar.

Bars are not the problem here. The problem is the culture at FSU and the precedent that has been set by the mishandling and outright denial of problems within athletics. I would suggest that the bar ban is simply treating the symptoms, but I don't even think bars are the symptom. As others have already noted, plenty of people go to bars--athletes, non-athletes, students, and others--without ever hitting women or anyone.

Counselors are also coming in, according to a statement by Fisher. This appears to be a treating of the symptoms, though arguably I do not know what the counselors will address or their methods and if there will some digging into the roots of these issues. Because as Fisher himself as already noted, student-athletes go to a lot of sessions about things like assault and drinking. Some of my male student-athletes (not at FSU) have reported being in workshops where they are taught how to interact with women. So is FSU not doing these things? Are they not doing them well enough? Or are they sending contradictory messages? Don't do this! (but if you do we may be able to get you off by ignoring the problem, keeping it out of the press, withholding evidence, questioning the reputation of your accuser in such a way that leads to her harassment, and assorted other methods.)

I think the counselors should be brought in for the staff, too.

Another matter: what will happen to De'Andre Johnson? Will he transfer--and when? (is he even still enrolled at the school?) Under the new SEC rule preventing transfers of student-athletes who have been punished for violence against women, he will not be headed to cross-state rival University of Florida or perennial powerhouses such as Alabama and Auburn. Johnson said he was provoked by the woman, alleging that she shouted racial epithets at him, but regrets his actions. This might be the opening to another spot at a non-SEC school. The second chance discourse. He had many offers from top football schools. Will one of them come back for him?

Will Cook be kicked off the team? He was a more highly touted recruit than Johnson. What is going to happen to this indefinite suspension? Do we have to wait for video evidence like the kind that caught Johnson hitting his victim? Not kicking him off the team for doing what appears to be the same thing might send a mixed message. Apparently President Thrasher addressed the football team and told them that playing for FSU is not a right but a privilege. Will some players receive more privileges than others?

Saturday, July 18, 2015

OCR and Fayetteville State Enter Resolution Agreement over Athletics Complaint

The Department of Education's Office for Civil Rights has reportedly entered into a resolution agreement with Fayetteville State University in North Carolina, resolving a Title IX complaint that alleged inequitable treatment of women's sports.  The complaint was filed by the parent of a former softball player whose chief concern was a disparity in access to the trainer and other medical care. The resolution agreement requires FSU to assess compliance with Title IX's requirement for equal treatment regarding equipment and supplies, scheduling for games and practices, travel and per diem allowance,opportunities for coaching and academic tutoring, assignment and compensation of coaches and tutors, provision of locker rooms, practice and competitive facilities, provision of medical and training facilities and services, provision of housing and dining facilities, and publicity. The university has a 2018 deadline to correct disparities revealed by the assessment. 
The complainant was pleased about the agreement but was also quoted as questioning why university officials "weren't making decisions [about compliance] all along?"  It seems she shares my frustration for this weak, generic version of Title IX enforcement that lets universities get away with avoiding compliance until a resolution agreement occurs.  Title IX regulations about equal treatment have been on the books since 1975. The time to "start" the process of compliance was forty years ago.

Also, the resolution agreement apparently does not address the disparity in the number of athletic opportunities for male and female students, at least, no mention of that appears in the article linked above.  This omission is noteworthy because according to public data, FSU's student body is 67% female, but women receive only 69 out of the university's 179 athletic opportunities -- under 39%.

Friday, July 17, 2015

Racial implications of the Chicago Public School District agreement

On Monday, I wrote about the agreement between the Chicago Public School District and OCR that will hopefully move to immediately increase the number of sport opportunities for girls in the district. The 10% gap between opportunities by sex and proportion of enrolled female students is equal to just over 6,000 spots.

What none of the coverage of the agreement mentioned was the huge (potential) racial impact of this agreement. This spring, The Boston Globe published an article about the discrepancy in sport involvement between white girls and girls of color focusing on Massachusetts were 27 percent of heavily minority schools (I did not see a definition of this categorization) had large gaps (also not definition) in athletic participation between boys and girls versus 6 percent of heavily white schools.Scholars have been talking about these gaps and disproportionate racial effect of Title IX for many years. Recent survey data show that across the country 40 percent of heavily minority schools have large participation gaps.

Chicago is clearly part of that statistic. Recent demographic information shows that African-American students comprise nearly 40 percent of the district and Hispanic students 45 percent. So when opportunities to play sports are being created for girls it should follow that these spots will be filled by minority girls. This is a positive given, of course, the known health and social benefits of sports.

My worry regarding Chicago, and potentially other similarly situated school districts, is that a reliance on prong three may have a disparate racial impact. It is true that the Chicago Public School District is seeking proportionality, but one of the provisions is that a certain number of schools must show compliance with only one of the prongs in the immediate future. The district will also be surveying students regarding their interests. But in heavily minority schools, there may be lots of unmet interests but also certain inabilities to participate based on situations which reflect the intersection of gender, class, and race. For example, cash-strapped schools across the country are instituting fees for sports. Students in poorer neighborhoods may not be able to afford such fees or a family may not be able to afford fees for both a son and daughter. (Yes, waivers based on income are sometimes available in pay to play situations, but they are not always taken advantage of due to the stigma of poverty and a host of other reasons.) In families where older children have care taking responsibilities for siblings and other family members, participation in sports may be desired but not possible. Girls in a family are more often called on in these situations.

In other words, Chicago, and really any school district interested in racial equity, must go beyond simply creating opportunities. There need to be structures in place to enure that girls with the desire to play are not facing additional impediments to participation.

Another Disciplined Student's Title IX Case Dismissed

I recently posted a round-up of disciplined-student cases in which courts rejected Title IX claims filed against universities by students accused and sanctioned for sexual assault.  Today there is another to add to that list. A male student sued the University of Massachusetts-Amherst challenging his expulsion for sexual assault.  He claims that the the sexual encounter he had with the complainant was consensual, but the Student Conduct Hearing Board determined that she was incapacitated by alcohol and did not consent, a finding -- along with the a sanction of suspension -- upheld on appeal.  The plaintiff alleges that the procedures employed by the university were unfair.  As the court put it,
Plaintiff points to difficulties getting information, deficiencies in the investigation, limits placed on his ability to cross-examine witnesses, the exclusion of some documentary evidence he wished to introduce, and the misuse of witness testimony by the hearing board. He also asserts the student member of the hearing board had a conflict due to an earlier internship within a criminal prosecutor's office. 
But, even though the court acknowledged that these allegation would be sufficient to raise questions about whether the outcome of his proceeding had been correct, the court found lacking any allegation that these procedural errors had occurred because of the plaintiff's sex.  Disparate treatment because of one's status as a student accused of assault is not the same thing as disparate treatment because of sex.  Nor did the plaintiff allege facts that could result in a Title IX violation based on selective enforcement, which occurs when a university sanctions members of one sex more harshly than the other for similar misconduct. 

The plaintiff had also attempted to bring state law claims (unspecified, but presumably breach of contract) but the court rejected them on grounds that the 11th Amendment protects states (including state universities) from being sued without their consent.

The plaintiff also apparently tried to argue in opposition to the university's motion to dismiss that his constitution right to due process had been violated.  But because the plaintiff had not included this claim in his original complaint, the court could not consider those arguments later in the case.  I was recently asked by a reporter why plaintiffs in disciplined-student cases continue to make Title IX arguments even when they are largely unsuccessful, and I said I suspect there is some attraction to that theory on a symbolic level.  It might be extra-satisfying for them to use the same weapon against the university that had resulted in their expulsion in the first place. But this attraction to Title IX seems to be harming disciplined-student plaintiffs who might have valid claims under other sources of law. If this plaintiff had not been so enamored of using a reverse discrimination argument, perhaps due process would not have been an afterthought?

Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521 (D. Mass. July 14, 2015).

Wednesday, July 15, 2015

Court Rules UC San Diego Unfairly Sanctioned Student for Sexual Assault

A Superior Court judge in California recently invalidated the University of California at San Diego's decision to suspend a student for sexual assault after finding that the university denied the student a fair hearing and lacked the evidence to find him responsible. The student challenged the university's decision under a provision of California law that requires state agencies -- applicable as well to state universities -- to use fair procedures and reach evidence-based decisions. Because this is the Title IX Blog, I'm going to analyze the decision with particular attention to whether it creates a conflict between a university's obligation under Title IX to respond to sexual assault, and its other simultaneous obligation to protect the rights of a student who is accused.

Procedural errors. The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault.  According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused.  In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them. 

Notably, the court's ruling on this issue does not conflict with a university's responsibilities under Title IX to effectively respond to sexual assault complaints.  The Department of Education's guidance is agnostic on the question of whether to permit cross-examination of witnesses and parties, only that the rights of both parties be the same in that regard.  And while the Department endorses the practice of conducting cross-examination through an intermediary like a hearing administrator, that practice itself was not the problem in this case. In fact, the court didn't seem to have a problem in general with the practice of weeding out questions "to prevent additional trauma to potential victims of
sexual abuse." It was just that, in this case, the chair took that too far and redacted a whole series of questions about ostensibly exculpatory text messages exchanged by the parties after the alleged assault.  In so doing, the university denied the plaintiff a meaningful opportunity to be present a material aspect of his defense.

Next, the court found that the plaintiff should have had the opportunity to cross-examine the investigator who prepared a report that was introduced at the hearing.  Because the investigator was not a witness at the hearing, the plaintiff had no opportunity to challenge the content of the report or counter the report's conclusion that he was guilty.  Again, this ruling does not create any conflicts with Title IX, which nowhere endorses denying students the right to challenge an investigators' findings. 

However, another problem the court had with the hearing was the fact that the committee allowed the complainant to testify against the plaintiff from behind a screen. This objection is less persuasive to me than the others, since the court's only rationale was that a screen was unnecessary because the plaintiff had not be hostile towards the complainant.  (The court also pointed out that a screen prevents the fact finder from evaluating facial expressions and non-verbal communication, which may be relevant to credibility.  However, there seemed to be some uncertainty, which the court did not resolve, about whether only the plaintiff could not see the complainant or whether the committee's view of her was blocked as well.)  In terms of Title IX, the Department of Education endorses (though it does not require) the practice of sequestering the complainant to spare her additional trauma of being in the same room as the person she is accusing of rape, and still having her participate "by using closed circuit television or other means." Schools, at least public schools in California, should be wary going forward of considering screens as such "other means."

Lack of evidence to support decision.  In addition to committing procedural errors, the university also failed to base its decision on "substantial evidence" as required by California law -- a standard of evidence which (despite word "substantial" in its name) only means "evidence that a reasonable mind might accept as adequate to support a conclusion."  If there is a difference between this standard and the preponderance standard required by the Department of Education's Title IX guidance, I believe it is a negligible one.  Yet, in this case, the court determined that such evidence was lacking.  Because the investigator's report was not subject to cross examination, it should have been excluded from consideration. Therefore, the complainant's hearing testimony was the only relevant evidence the committee should have considered, and the court viewed this testimony as ambivalent on the matter of consent.

Change of sanction with no explanation. The final error committed by the university was to respond to the plaintiff's appeal of the committee's decision to the Dean by increasing his sanction from one quarter to one year. There was no basis for this decision nor any explanation provided. It probably goes without saying, but of course a university is under no Title IX obligation to take a similar course of action.

In sum, I think this decision is important because it reminds institutions who are increasingly aware of their Title IX obligation to address sexual assault of their of their concomitant obligation to provide fair and meaningful hearings to students who are accused.  Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well. It is possible to hold fair hearings and comply with Title IX and that is what colleges and universities should be striving to do. 

Louisiana Tech Removes Discriminatory Fee

Last week we posted about a challenge to Louisiana Tech practice of charging female students a fifty cent fee to fund the budget of the Association of Women Students.  By way of update, we now see that the fee has been discontinued.

A student senator filed a complaint with the Departments of Education and Justice, having taken on the fight on behalf of female constituents who objected to the fee.  The discriminatory nature of the fee was particularly galling because the university also pressured the AWS to spend its budget on improvement projects to benefit the campus as a whole, like campus lighting and golf-cart transit projects.