Friday, May 19, 2017

Iowa settles for $6.5 million

The University of Iowa will reportedly pay $6.5 million to avoid further litigation in the discrimination lawsuits filed by former associate athletic director Jane Meyer and former field hockey coach Tracey Griesbaum.  Griesbaum's lawsuit, which had been scheduled for trial next month, alleged that she was wrongfully terminated and that the athletic director had a pattern of firing female coaches. Meyer, Griesbaum's partner, successfully convinced a jury earlier this month that she was fired in retaliation for complaining about that and other examples of sex discrimination within the department. The jury had awarded Meyer $1.45 million, but this amount was subject to increase if the court decided to award punitive damages. Under the settlement, Meyer will instead receive $2.33 million, Griesbaum $1.49 million, and their attorneys, $2.68 million.

As the settlement only affects litigation, it does not affect the ongoing investigation by the Department of Education into claims that the university violated the Title IX rights of Griesbaum's athletes when it fired their coach.

Monday, May 15, 2017

Iowa Verdict in Context

Earlier this month, former athletic administrator Jane Meyer won her case and a sizeable $1.43 million jury award against the University of Iowa. I was traveling out of the country when it happened and could not blog about it until now, but my delay in posting in no way detracts from what big news I think this is. Meyer sued the university for retaliation in violation of Title IX when she was transferred outside the department the day after she submitted a memo to the athletic director describing the sex discrimination she had experienced and witnessed within the department. Some of her grievances had to do with the athletic director's decision to reassign some of Meyer's responsibilities to a newly-created deputy AD, a position filled by a male who was paid $70,000 more than Meyer. Meyer also objected to the firing of female head coaches, including her own partner Tracey Griesbaum who lost her position at the helm of the university's field hockey team even though an internal investigation cleared her of the complaints of bullying and harassment for which she had been accused. (Griesbaum's own lawsuit against the university is still pending.)

The jury agreed that the university violated Meyer's civil rights and awarded her $374,000 for back pay, $444,000 for past emotional distress, and $612,000 for future emotional distress. She is reportedly seeking an additional $2 million in reimbursement for legal fees and in punitive damages which may be allowable based on the jury's finding that the university's violations were "willful."
Meyer is not the first veteran female leader in college athletics to challenge sex discrimination and retaliation within her department. Just last fall a jury in California awarded over $3 million to Beth Burns after seeing her university's stated reason for firing her as pretext for retaliation. In another recent example, the University of North Florida paid over a million to a terminated female coach last year.  In the more distant past, we've blogged about jury awards and settlements for female coaches and administrators who endured retaliation and sex discrimination at Fresno State, Florida Gulf Coast University, Iowa State, and Cal-Berkeley, for example. Cases currently pending against Minnesota-Duluth and Griesbaum's case against Iowa could add to this list as well.

Together these cases remind us that even in this Title IX era, college athletics is a contentious workplace for female coaches and administrators. And when you consider that lawsuits are likely only filed when the plaintiff has nothing left to lose, it is easy to imagine that there are likely countless unknown other examples of discrimination that are almost as bad. When the media bemoans the dearth of female leadership in college athletics, these lawsuits hold some clues about many of the reasons why.

But the success of these plaintiffs also raise a critical question about how much litigation it will take to see athletic departments change their culture and behavior towards female coaches and administrators. Why wasn't Fresno State, for example, enough of a warning to prevent Iowa from repeating its pattern of mistakes?  It's important that the Polk County, Iowa, jury sent a strong message to college and university athletic departments that retaliation and discrimination doesn't pay, but are other athletic departments getting the message?

Thursday, April 13, 2017

Another Baylor Lawsuit Survives Motion to Dismiss

Last week a federal court in Texas ruled that Jasmin Hernandez's case against Baylor may proceed to the discovery phase of litigation, denying the university's effort to dismiss the case for insufficient pleading. The plaintiff alleged that she was sexually assaulted at a party by football player Tevin Elliott. Even though (she alleged) she reported the assault to various university officials, including the football coach Art Briles the university did not take any efforts to investigate or discipline Elliott. She also alleged that prior to her assault, another student had reported Tevin Elliott to the university's chief judicial officer for similar behavior, and that this student was told she was the sixth such student to do so. As such Hernandez claimed that Baylor was on notice of the risk posed by Elliott and was liable for the deliberate indifference that heightened the risk that she would be assaulted. Additionally, she alleged that Baylor was liable for deliberate indifference after she reported her assault, which contributed to her emotional harm.

Both of these claims were sufficiently alleged in the complaint, the court ruled.  However, the latter claim for post-reporting harm was barred by the statute of limitations because the events occurred more than two years ago.  Though the heightened risk claim was also based on events more than two years old, the plaintiff could not have have discovered the university's alleged concealment of sexual misconduct by football players and other students until 2016 when the report of an external investigation in Baylor's failings to respond to a pattern of sexual violence by football players. Until then, the court reasoned, the plaintiff could not have reasonably known that Baylor's alleged indifference had lead to her sexual assault, and thus the the statute of limitations did not begin to run until that time.

Hernandez v. Baylor Univ., No. 6:16-CV-69-RP, 2017 WL 1322262 (W.D. Tex. Apr. 7, 2017).

Friday, April 07, 2017

Two Key Ed Department Positions Filled This Week

This week we learned that Carlos G. Muñiz will be nominated to the position of general counsel to the Department of Education, and that Candice E. Jackson has been appointed "acting" Assistant Secretary for Civil Rights.

Muñiz once served as a deputy attorney general to Florida Governor Jeb Bush. Later, he entered private practice with the firm McGuire Woods. Notably, he represented Florida State when it was sued by a student challenging its handling of her report that she'd been raped by football player Jameis Winston. (The case, which we blogged about often, settled for $950,000.)  Because the general counsel will advise OCR on policy related to sexual assault enforcement, I was particularly interested to read the comments of John Clune, who represented the plaintiff, Winston's accuser. Clune told the New York Times that Muñiz is "approachable" and that he listened and cared about the plaintiff's positions. However, he also noted that Muñiz was critical of the investigation the Office for Civil Rights is conducting into Florida State's handling of the case. This is interesting, since the facts alleged to OCR were pretty egregious -- essentially, that FSU officials initially concealed the accusation and failed to conduct any kind of disciplinary proceeding in order to protect their star quarterback. Even a lawyer who must dispute the truth of those facts could still recognize that allegations along those lines are worthy of investigation. So Muñiz's criticism of OCR, as relayed by Clune, could indicate his belief that OCR's role in sexual assault matters (and other civil rights issues?) should be very limited. If that's true, he would likely use his position to press for changes to OCR's current policy of insisting educational institutions engage in prompt and equitable response to charges of sexual assault.

Jackson, an attorney in private practice, also created the "Their Lives" foundation, to "give a voice to victims of those who abuse power, particularly when that abuser is another woman." Despite the general-sounding nature of this description, the foundation's website seems devoted to giving a voice to Kathy Shelton's claims that she was the victim of abuse of power by Hillary Clinton when Clinton was appointed by the court system in Arkansas to represent Shelton's rapist. Does Jackson's public record of support and concern for a rape victim mean she will maintain or strengthen OCR's policies regarding institutional response to campus sexual assault? Or are her politics more anti-Clinton than anti-rape? Given that Jackson is only known as a critic of the Clintons, her appointment by Clinton's opponent could appear to some as one motivated by political patronage rather than merit. However, Jackson's appointment to "acting" Assistant Secretary for Civil Rights avoids scrutiny on this issue, as acting officials do not need to be approved by the Senate. Notably, however, federal law limits her term of service for no more than 300 days (technically, 210 days from 90 days after the President assumes office, i.e., until approximately November 16). It also prohibits the acting official from simultaneously being the nominee for the permanent position.

Wednesday, April 05, 2017

Full Seventh Circuit Rules Sex Discrimination Includes Sexual Orientation Discrimination

Yesterday, the Seventh Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is a form of sex discrimination. The case that gave rise to the ruling involved an openly-lesbian adjunct professor, Kim Hively, who taught at Ivy Tech Community College in South Bend, Indiana.  She alleged that Ivy Tech rejected her applications for various full-time teaching positions and eventually terminated her adjunct status due to bias against her sexual orientation. She filed suit under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination in employment on the basis of sex and other protected characteristics, but which does not provide express protection from discrimination due to sexual orientation. For this reason, a federal district court in Indiana dismissed her case. When she appealed to the Seventh Circuit, the three-judge panel that first heard her case agreed with the district court. But, the appellate court agreed to re-hear the case "en banc" with all judges participating. The full court's decision, which came out yesterday, reinstated Hivey's case and will allow her now to try to prove to the lower court that sexual orientation discrimination did in fact occur.

Even though Hively's case continues to be litigated, it has cleared a huge hurdle and in so doing, generated a significant appellate court decision on the relationship between sex discrimination and sexual orientation discrimination. Sex discrimination is generally evident in the comparison between how an employer treats an employee of one sex versus how that employer treats another otherwise-identical employee of the other sex. Using this paradigm, the Seventh Circuit reasoned that when an employer treats positively a male employee who has a female partner (or who is attracted to women), but treats adversely a female employee who has a female partner (or who is attracted to women), that is discrimination on the basis of the employee's sex.  Though the discrimination targets the fact that the victim of such discrimination is partnered with or attracted to a person of the same sex, i.e., their homosexual orientation, such discrimination "does not exist without taking the victim's... sex...into account."  We already know that sex discrimination works in this relational way (discriminating on the basis of some characteristic, like the victim's attraction to women, in relation to the victim's sex), because the Supreme Court endorsed that way of thinking about sex discrimination when it confirmed that it encompassed gender stereotyping.  An employer's adverse action towards a female employee who exhibits a certain characteristic or appearance, but not a male employee who does the same is discrimination "that does not exist without taking the victim's sex into account." Additionally, the court considered the Supreme Court's precedent in Loving v. Virginia, which ruled that a state law banning interracial marriage was race discrimination prohibited under the Constitution. If discrimination based on the race one is oriented to is race discrimination, then discrimination based on the sex one is oriented to is sex discrimination.

The Seventh Circuit decision is the first appellate court decision to employ this reasoning (for a lower court example, see Videckis v. Pepperdine, a Title IX case). Other appellate courts in the (sometimes distant) past have ruled against the gay or lesbian plaintiff on the grounds that Congress could have, but did not, include sexual orientation as a Title VII protected characteristic. The Seventh Circuit's departure from this reasoning sets up a circuit split that gives the Supreme Court a reason to weigh in should it so choose.  Although the court's decision interprets the sex discrimination provision in Title VII, it and any Supreme Court decision that affirms it, should there be one, will no doubt be influential in the Title IX context as well, since courts routinely refer to definitions of sex discrimination from Title VII cases when analyzing what it means under Title IX.

I also think this decision, though about sexual orientation, will help support the argument that sex discrimination includes discrimination on the basis of transgender status, since transgender discrimination also targets a characteristic relative to the person's sex. Discrimination against someone because their gender identity is not consonant with their birth-assigned sex is discrimination "that does not exist without taking the victim's sex into account." I would expect the Hively decision to be cited favorably by litigants challenging exclusion of transgender students and employees from gender-consonant restrooms and other manners of discrimination.

UND and USA Hockey

The US Women's National Hockey Team is currently playing in the World Championships in Michigan. (And the team has made it through to the semi-finals.) Prepared to boycott this tournament over gross inequities in pay and treatment between them and the men's team, there was a (nearly) 11th hour resolution to the situation. (The financial terms have not been confirmed by either the team or USA Hockey but they include monthly stipends--year-round--instead of just during the Olympic year; that previous agreement amounted to a total of $6,000 over the course of four years from USA Hockey to national team members.)

It was a moment of triumph for women's sports. It was a highlight of my week--and others I know felt similarly. It was a show of solidarity and steadfastness. USA Hockey, with whom the national team had been in negotiations for over a year, initially poo-pooed the threat of the boycott and sought out other athletes--first from Division I schools, then II, III and then on to high school and rec league teams. And they never found enough players to field a team-- a team that would have been (no offense to my rec league friends) quite substandard.

The men's team also backed the women, suggesting that if USA Hockey did not prevent the boycott, they too would  boycott their upcoming world championships.

In addition, the women effectively utilized social media platforms and the mainstream media took notice. The story was widely covered, including on ESPN!

Sadly, with the ink on the contracts barely dried*, other news came out from the world of women's hockey. The University of North Dakota is cutting its DI women's team. This is a team that feeds the national teams of the US and other countries.A team that produced two of the US national team's current stars--sisters Monique and Jocelyne Lamoureux (who transferred from Minnesota).

This does not appear to be a Title IX issue though this very confusing article said Title IX was considered and something about funneling the budget from women's hockey to both men's and women's sports. Running the numbers--last year's reported figures--and taking into account that two teams were cut last year and, along with women's ice hockey, men's and women's swimming will be cut at the end of the year, they appear to be in compliance with participation opportunities.

In other words, there is little to be done. Because, unlike the US women's national team, they do not--like most intercollegiate women's hockey teams--have widespread support. And part of the reason support for the team might be low is because of institutional priorities. The money saved from the five sports cut in two years will be going to the school's football program--no matter what UND says. Yes, state budget cuts are likely coming and the cuts are a response. But cutting these teams to address those budgets are a choice--an institutional choice--that allows the university to maintain the financial support to football-- a program that recently (2012) joined the "big time" Big Sky Conference--a move that requires a lot of capital.

I think USA Hockey was genuinely surprised by the support the national team rallied. They pushed back hard against a team that represents them and represents them well (despite the lack of support these women receive from the organization). In other words, USA Hockey was forced  to bow to the pressure of popular opinion and a culture of community within the world of hockey.

I don't know if UND can garner that support. The Lamoureux twins have made public statements about the cut and sent a letter to the university president asking for the team to be reinstated. They have said will use similar tactics employed by the national team in its campaign. And maybe it will work.

But I had hoped that the "mere" fact that this is a highly successful team that sends its players on to the Olympics would have been enough for the administration to put it in the keep column. That they would see being the only intercollegiate women's hockey program in the state as a responsibility. That these accomplishments and status would be a source of pride and perhaps even marketing for the school.

But maybe I should not be too surprised that a university which put its own athletic teams--including football--in jeopardy by continually defying and fighting the NCAA's ban on Native American mascots, does not know how to act in its own best interests, let alone ethically.


* it seems as good a time as any to trot out this cliche.

Tuesday, April 04, 2017

Title IX Dress Code Case Survives Motion to Dismiss

We often read about school dress code controversies, like students objecting to traditions that sort students by sex into different color graduation robes, or imposing a gender dress code on prom attire or yearbook photos. I've always thought that issues like these were ripe for Title IX challenge, since this is clearly treating students differently on the basis of sex in the absence of a statutory or regulatory exception. Litigation challenging these gendered dress codes, however, is rare. I think the reason is that is that high profile cases of public school dress codes are limited to special occasions (prom, senior pictures, cap and gown) that target students who are on the verge of graduation, and therefore no longer having standing or motivation to challenge the policy. Private schools are more likely to have gendered dress codes that govern students' day to day attire, but these schools are less likely to be subject to Title IX because many if not most private secondary schools don't receive federal education funding.

Recently, however, three students, via their parents, sued a charter school in North Carolina, challenging its policy that requires girls to wear skirts, jumpers and prohibits them from wearing shorts or pants. They argue that the policy "subjects them to archaic sex stereotypes about what constitutes appropriate behavior and conduct for girls, reinforcing the notion that girls, but not boys, must dress and behave modestly, that they are less physically active than boys and that they should behave and dress in a manner that is otherwise traditionally considered appropriately feminine." 

The plaintiffs claim that because the charter school is a statutory defined public school, its gender-based dress code violates the U.S. Constitution.  The school moved to dismiss this claim, arguing that the students knew about the dress code when they voluntarily enrolled at the charter school. However, the court pointed out, there is no doctrine of waiver when it comes to constitutional rights. The plaintiffs will thus be able to continue to press their argument that the dress code is rooted in generalizations and stereotypes and thus impermissible under the standard of heightened scrutiny articulated in U.S. v. Virginia

Additionally, the plaintiffs' Title IX claim survived the school's motion to dismiss. The plaintiffs properly alleged in their complaint that the school receives federal funding, that the policy discriminates by sex, and that the plaintiffs are harmed by the policy. In support of its motion to dismiss, the school argued that in 1982, the Department of Education repealed a Title IX regulatory provision that prohibited gendered dress codes. The school argued that the repeal constitutes evidence of the Department of Education's position that gendered dress codes are, therefore, permissible. However, while courts generally defer to agencies regulations that fill in gaps and details of broadly-worded statutes, this court understandably hesitated to defer to the school's argued inference that repealing the prohibition constituted permission for gendered dress codes. Title IX, notably, is a blanket ban on sex discrimination except where statutory and regulatory exceptions permit. Given the statute's structure, I don't think that a court is obligated to infer that the agency's repeal of an earlier provision about dress code is tantamount to creating an exception.

The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.”  The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.

Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).

Tuesday, March 28, 2017

Title IX Extends to Rapes at Fraternity, Court Rules

A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.

These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.

The two decisions are:

Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).

Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)

Monday, March 27, 2017

OCR Continues to Open and Resolve Investigations into Institutions' Sexual Harassment and Sexual Assault Response

Whether and how the new presidential administration will alter the Department of Education's existing policies interpreting Title IX's application to sexual harassment and sexual assault remains to be seen.So far, however, there has been no discernible change in the agency's enforcement approach. Since the inauguration on January 20, the agency has continued to open new investigations -- a total of 13 according to the Chronicle of Higher Education's Title IX Tracker -- and has concluded several others that began under the prior administration by issuing findings and resolution  agreements that are similar to those we've seen in recent years.

Most recently, the Office for Civil Rights announced last week that it resolved Title IX violations by Whittenburg University in Ohio. The agency's investigation had been triggered by two complaints, filed in 2011 and 2013 respectively.  In addition to finding flaws with the university's written policies, it also determined that the university violated Title IX requirements in the way that it handled specific students' cases. For instance, it found the university officials told the family of one student who had reported being sexually assaulted that they would suspend the university's disciplinary process if the family pressed criminal charges. They also included information about the student's prior, unrelated sexual history in its investigative report that was distributed to the hearing panel.  In another case, the university's investigation was unreasonably delayed and the student who reported having been raped was not offered interim measures such as academic accommodations or counseling.  Failure to offer interim measures was also a deficiency in yet another case, one that OCR also criticized for having been insufficiently investigated.

Earlier, on March 9, the agency announced a resolution with Palo Alto Unified School District after finding violations of Title IX's requirement that educational institutions respond promptly and equitably to reports of sexual harassment and sexual violence. In one example, an assistant principal in the district received 25 reports from staff and faculty about sexually harassing behavior by the now-former principal, as well as a report that the principal had engaged in unwelcome physical contact with students. These reports accumulated for three years before the assistant principal finally addressed them with the Title IX coordinator. Though the district investigated and responded at that point, it treated the matter only as a personnel issue and did not investigate with Title IX compliance or obligations in mind. Another time, the school district failed to conduct its own investigation of  a student's report of having been sexually assaulted by a fellow student off-campus (though it did assist the student in filing a police report and offered other support). Nor did the district investigate the subsequent sexual harassment that the student reported she was subjected to for having reported the initial assault. 

Prior to that, on February 16, the University of Alaska agreed to revisit 23 cases of reported sexual harassment or assault that the university failed to adequately address, according to OCR findings. In some of these cases, the university failed entirely to conduct an investigation, such as a case in which faculty members learned that one of their students had been accused of sexually harassing middle school students at the site of his student teaching placement.  Even when the student was arrested for similar misconduct, the university continued its inaction, apparently because no university students had been victims. Other examples of the university's failure to investigate included a case in which a student reported a professor's sexual harassment, and where a student reported being assaulted in a university residential building by a non-student.  Besides failing to investigate, unreasonable delay was another frequent problem cited by OCR.  On the Fairbanks campus, the average investigation in 2013-14 lasted 122 days and the longest was 567 -- far longer than the 60-day timeframe that should normally occur.  At Anchorage, the longest was 403 and average of 97.  OCR's investigation also cited cases where the university failed to prevent retaliation, failed to provide the complainant with notice of the outcome, failed to provide complainants with interim measures, and other problems. 

All three resolution agreements imposed familiar requirements on the educational institution in question: assessing past reports of sexual harassment and sexual violence to determine whether the institution's response satisfied Title IX requirements; correcting problems where possible; revising policies and procedures to bring them into compliance; and improving training opportunities for relevant staff.  Alaska's agreement also included requirements to assess the campus climate, conduct informational sessions with students and otherwise improve the dissemination of information about the process for addressing sexual harassment and sexual assault, improve coordination with local enforcement, and other requirements. 

Sunday, March 26, 2017

Equal Protection Likely to Ensure Transgender Student's Bathroom Rights, Court Rules.

Last month a federal judge in Pennsylvania granted a preliminary injunction to a trio of three transgender students who sued to stop the Pine-Richland school district from enforcing a new policy that would have banned them from the bathrooms at the high school that correspond to their respective gender identities. The decision is notable because in its analysis of the plaintiffs' likely success on the merits (the judge's foremost question when deciding to issue a preliminary injunction) the court determined that the school district's policy violated their right to Equal Protection under the Constitution. The court determined that the plaintiffs' claim warranted intermediate scrutiny because transgender people fit the criteria by which courts have extended intermediate scrutiny to other groups -- such as having historically been vulnerable to discrimination, being identifiable by immutable characteristics, and constituting a minority lacking political power. This aspect of the court's reasoning is groundbreaking. Other courts have applied intermediate scrutiny in transgender discrimination cases, but only to the extent that such discrimination overlaps with sex discrimination. Here, the court predicts that discrimination based on one's transgender status itself warrants intermediate scrutiny.

If this reasoning takes hold, public schools and employers (as the Constitution only applied to government action) will have a much more difficult time enforcing bathroom bans. This is because the consequence of intermediate scrutiny is that the defendant, here the school district, must demonstrate persuasive (as opposed to merely rational) reasons for treating transgender students differently from others. The school district could not satisfy this requirement by speculating that permitting gender-consonant bathroom use by transgender students would lead to non-transgender students causing disruption in bathrooms designated for the opposite sex, which is what the school board claimed to fear. The fact that the three students in this case used the bathrooms that corresponded to their gender identities prior to the ban's enactment without causing any such problems negated the argument that such a justification was persuasive. Nor was the school board's privacy rationale persuasive, since the presence of bathroom stalls already ensured the privacy of all users. Along these lines, the court also rejected the school district's argument that a non-transgender bathroom user might decide to change clothes inside the bathroom but outside of a stall, risking an invasion of privacy should they encounter a transgender person, since the school could not produce any evidence that students used the bathroom for such a purpose. It thus concluded that when reaching the merits of the case the court would likely find in favor of the plaintiffs, thus warranting a preliminary injunction against the school district's policy while litigation is pending.

However, the court did not determine that the plaintiffs would likely succeed on their simultaneous Title IX claim.  Unlike the Equal Protection Clause, which is flexible in the discrimination that it covers, Title IX only prohibits discrimination because of sex. Though some courts have found that Title IX covers a transgender student's right to use the bathroom that matches their gender identity, these decisions deferred to the now-withdrawn interpretation of the previous administration's Department of Education. The court determined there was too much uncertainty in this matter to satisfy the requirement of "likely" success on the merits. This part of the decision did not affect the ruling's bottom line, however, since the court already determined that the plaintiffs were likely to succeed on Equal Protection grounds.

Thursday, March 09, 2017

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Monday, March 06, 2017

Supreme Court Cancels Hearing in Transgender Bathroom Case

Today the Supreme Court announced that it would not hear oral arguments in Gloucester County School Board v. G.G., the case asserting a transgender student's right under Title IX to use the bathroom that matches his gender identity, as it had been schedule to do later this month. Instead, the Court decided to vacate the Fourth Circuit Court of Appeals opinion that had been appealed to the Court and order a rehearing in the case. The Fourth Circuit court had earlier held that the plaintiff in the case, high school student Gavin Grimm, had the right to use the boys' bathroom at his high school.  However, the Fourth Circuit decision deferred to the Obama administration's interpretation of Title IX in reaching that result. Now that the current administration has withdrawn that guidance, the deference argument is moot, and it is up to the appellate court to decide for itself whether Title IX supports the right that Gavin Grimm claims. Whatever the Fourth Circuit does decides could eventually be appealed again to the Supreme Court, but for now, the battlefield of this case has shifted from D.C. to Richmond.

Besides postponing an eventual Supreme Court showdown over transgender rights, today's move by the Supreme Court cancels another one over the more general question of whether courts should defer to guidance documents issued by government agencies -- though this results may have been ordained (and some might suggest, orchestrated) by the administration's decision to withdraw the guidance in the first place. While many have criticized the former administration's tendency to issue clarifying guidance documents rather than create new rules, it may be that current administration plans to do rely on a similar strategy at least as often. In any case, the president benefits from the fact that doctrine of judicial deference to such interpretations remains in tact.

Friday, March 03, 2017

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.

Disciplined-Student Litigation Roundup

Here is a summary of some recent judicial decisions in cases brought by students who were disciplined for sexual assault.

1. Colorado State University-Pueblo.  A federal magistrate rejected the university's motion to dismiss a case filed by a student who alleged that he was suspended for sexual assault in a biased and erroneous disciplinary proceeding conducted by university officials. The magistrate agreed that the plaintiff's allegations could support liability under Title IX if they eventually prove true. The complaint's allegations that university officials ignored exculpatory evidence, including statements by the complainant that their sexual encounter was consensual, evidence suggesting that the complainant and the respondent had consensual contact after the alleged assault, and evidence that could have indicated complainant's motive in filing the complaint was to conceal and avoid being punished for a prohibited relationship (she was a student in the athletic training program and he was a member of the football team).  The magistrate acknowledged that ignoring such  evidence indicates bias, but not necessarily gender bias which is required for institutional liability under Title IX.  However, the complaint's additional allegations about the investigator's gender bias, particularly, bias about football players' propensity to rape, could if proven satisfy that requirement, the magistrate determined. Importantly, another aspect of this decision dismissed the plaintiff's direct challenge to the Department of Education's Dear Colleague Letter.  Here, the magistrate reasoned that the plaintiff lacked standing to challenge the DCL because it did not cause the injuries that he alleges.

2.  Amherst College. Title IX and breach of contract claims against Amherst College filed by a student expelled for sexual assault survived the college's motion to dismiss. Like the case described above, the plaintiff here also alleges that the disciplinary proceeding failed to take into account evidence that would have shown consent, including some text messages sent by the complainant immediately following her their sexual encounter in which she describes herself as the initiator of sexual activity. The court determined that the plaintiff satisfactorily alleged that this and other procedural errors were motivated by bias by including claims that his accuser was known by the college to be part of a "student-led movement" pressuring the college to change the way it handles sexual assault complaints, and that this pressure motivated the college to make procedural errors in the plaintiff's case in order to expel a male student for sexual assault. In addition, the plaintiff's selective enforcement claim also survived because the plaintiff alleged that male and female students were treated differently by the disciplinary process.  The college allegedly failed to encourage him to file a complaint against her when they discovered the text messages suggesting she may have initiated sexual activity with Doe while he was “blacked out,” and thus incapable of consenting, but on the hand, encouraged her to file a complaint against him upon discovery of her belief that she was assaulted by him. Notably, the plaintiff's complaint was one of the few I've seen that alleged a contemporaneous claim of race discrimination in the pattern of enforcement against black men. However, this claim was dismissed as it was not supported by sufficiently specific allegations.

3. St. Thomas University. In contrast to the two cases above, a federal court in Minnesota did grant St. Thomas University's motion to dismiss a Title IX claim alleging gender bias and mishandling of a sexual assault complaint. Here, the plaintiff's only support for his allegation that procedural errors resulted from gender bias was "pressure from the federal government to punish male students accused of sexual assault." The court rejected the sufficiency of this allegation, noting the absence of "targetted stress" imposed by the government on the university, that would have caused it to engage in unfavorable treatment of male students accused of sexual assault. However, this decision notably denied the university's motion to dismiss the plaintiff's claim of negligence (though the court was skeptical that the factual record would provide evidence necessary for liability on this claim).

4. San Diego State University.  While a Title IX claim was not at issue in this case, a plaintiff prevailed against San Diego State on grounds that the university's failure to provide him with an "adult adviser" constituted procedural unfairness in violation of the state administrative law. In contrast to the plaintiff, who was required to speak for himself in the hearing, the court noted that the complainant received the assistance and advocacy of the university official who had initially investigated the case. The court made clear that it is not requiring universities to furnish respondents with a lawyer, but that respondent needed some kind of adult advocate, like a faculty member, to level the playing field.  Further litigation is required to determine if the plaintiff, who had been expelled, must be reinstated.

Thursday, February 23, 2017

More on the Rescission of OCR's Transgender Guidance

Following up on Kris's post from yesterday about the rescission of OCR's prior clarification about Title IX's application to transgender students, I wanted to contribute some additional points. First, in light of the existing injunction against the application of the guidance to "intimate spaces" like bathrooms and locker rooms, rescinding the guidance highlights the Department's lack of support for transgender students' rights and safety even outside of that context.  It is saying, essentially, that it will turn a blind eye to students who might be rejected or expelled from college because of their transgender status, and that it doesn't care if school district officials ignores bullying and harassment of transgender students. This is a harmful position for the federal government to take, especially in light of the fact that fewer than 20 states provide protection for transgender students facing harassment and discrimination.

That said, I need to emphasize that Title IX's dual enforcement mechanism give victims of sex discrimination two choices to assert their rights -- to complain to the Department of Education and/or to file a lawsuit.  Therefore, it is still possible for the courts to interpret Title IX to protect transgender students rights and to subject school districts/universities to liability for violating those rights.  This would not require an extreme or unusual interpretation of the law in most cases, as evidenced by numerous courts that have found that the the sex discrimination provision of Title VII protects transgender employees and job applicants who experience some forms of employment discrimination.  Even in the most challenging context, that of sex-segregated spaces like bathrooms, courts are capable of reading sex discrimination to mean discrimination based on transgender identity, which is an evaluation that takes sex into account, in that it considers of one's gender identity relative to one's (natal) sex.  Lawyers have their work cut out for them, but this is definitely not "game over" for transgender rights and Title IX.

Wednesday, February 22, 2017

Transgender protections to be eliminated

The rollbacks are beginning. It was--unfortunately--not very surprising to read that the current administration will not uphold the clarification which grants transgender students protection under Title IX.

Also unsurprising is that the meaning of this announcement is unclear. The current president stated, through his press secretary, that use of bathrooms and locker rooms in public schools should be an issue decided by the states. Because apparently the previous regs were too confusing and too hard to implement.

 However, there is some indication that the anti-bullying protections will remain. This would theoretically protect trans and gender non-conforming students; but not allow them to use the bathroom of their choice. But backlash could easily threaten these as well.

So that puts us back to the pre-clarification days of angry PTA meetings and offensive ads by "family values" groups.

Truthfully, of course, those angry meetings, the heartbreaking stories of students who are bullied, who are not supported by their communities and sometimes by their families, have persisted. But now those students cannot look to the government to protect them. They cannot gain validation from the fact that the actions of those around them are banned by the government. The misinformed ads will persist. They may, as we have seen in other arenas, become more overt, more vitriolic, more misinformed.

This is just the first move to weaken (possibly dismantle?) Title IX. We have a secretary of education who would not comment on Title IX enforcement (it's unclear if she knows what it is) and what appears to be the pending nomination of an OCR chief (assistant secretary for civil rights) who thinks the previous administration overstepped in regards to campus sexual assault provisions.

Here is the good news: we have a vibrant movement committed to reducing campus sexual assault and instituting and maintaining proper policies and procedures for dealing with the crime. In regards to protecting trans students, the fight will be more local. We have seen the backlash to HB2 in North Carolina. We can pressure state and local officials to make schools (and other spaces) safe for trans people. We can work within our own institutions to create gender inclusive environments.