Saturday, July 21, 2018

Cuts at UNM Still Fall Short of Title IX Compliance

Earlier this year I posted about the University of New Mexico's decision to publish its consultant's report that, I thought, bent over backwards to reach the conclusion that cutting sports is necessary for Title IX compliance. Interestingly, however, the university's announcement today that it will cut two men's and two women's teams does not put the university into compliance.

The university will eliminate men's soccer and skiing, a total of 38 opportunities. This will bring the total number of men's opportunities from 319 to 280. On the women's side, the university will eliminate beach volleyball and skiing, a total of 25 opportunities. This will leave women with 218 opportunities, compared to the 243 they have now.  Women will therefore receive 43.8% of the athletic opportunities, but because women make up 54.9% of the undergraduate student body, the university is still a long ways off from proportionality.  In addition, by cutting two existing women's teams, the university has likely disqualified itself from compliance under either of the alternative tests. Cutting women's teams is the opposite of expanding opportunities for the underrepresented sex, the second compliance test. And it creates unmet interest and ability among the underrepresented sex, which demonstrates lack of compliance with the third test. 

The university's plan also calls for phasing out diving from the women’s swimming and diving program, significantly reducing men’s track and field participation slots, and increasing participation opportunities in some women’s programs. However, there is no way that these modest changes will close the proportionality gap. There are 5 divers on the swimming and diving team. And most of UNM's other female sport rosters already exceed the NCAA Division I average squad size. (One sport, women's soccer, has 40 players despite an NCAA average of 28!) The only two teams that don't exceed the average would reach the average by adding only 1 player to the roster. Thus, the university's roster management plan --- unless it plans to inflate rosters with opportunities that it won't legally be able to count under Title IX --- will probably involve a net loss of female athlete opportunities, rather than a gain. That means, the university would have to make up the proportionality gap by cutting over 100 men's opportunities, according to my math. Yet, the men's track team doesn't even have that many on the roster.

By cutting women's teams, UNM is making its compliance challenges worse, not better. This result is not consistent with its pointing at Title IX as a key factor in the decision to downsize its athletic programs in the first place.

Friday, July 20, 2018

What Is an Institution's Title IX Responsibility When Assailant's Victim Attends Another School?

Two items on my radar this week both address the question of an institution's legal obligations under Title IX to discipline one of its own students for sexual misconduct directed at a student of another university.

First, a recent decision of the First Circuit Court of Appeals affirmed the dismissal of a former Providence College student's case against Brown University, in which she challenged the sufficiency of Brown's response to her report of having been sexually assaulted by three Brown football players. Title IX requires plaintiffs who assert a claim for money damages on the deliberate indifference theory to prove “substantial interference with her access to educational opportunities or benefits.” The plaintiff argued that she satisfied this requirement because she withdrew from Providence College as a result of the sexual assault and Brown's allegedly insufficient response. But, the appellate court concluded that the fact she was not a student at Brown disqualified her from satisfying this requirement. The court read the Supreme Court's prior Title IX caselaw to require that the plaintiff must suffer sex discrimination "while participating, or at least attempting to participate, in the funding recipient's education program or activity." This nexus is "logical" according to the court because the "'discrimination' that Title IX prohibits is not the acts of sexual assault or sexual harassment in and of themselves, but rather the differential treatment by a funding recipient of persons of a particular sex who are taking part or trying to take part in its educational program or activity but are suffering acts of sexual harassment or assault that undermine their educational experience."  Doe v. Brown Univ., 2018 WL 3454469 (1st Cir. July 18, 2018)

It is not surprising that a court would limit a university's liability to a student seeking to impose liability for money damages. Title IX's status as a Spending Clause statute means that a university's primary compliance obligation is owed to the government, in exchange for federal funding. Students who are harmed as a result of an institution's Title IX violations are considered third-party beneficiaries of this arrangement. According to the Supreme Court, universities aren't necessarily on notice of the fact that taking government money makes them liable for damages to third parties, so it has limited such liability to situations in which the university intended the harm (or its deemed equivalent, deliberate indifference). For this reason, there are tougher liability standards in court cases than in situations where the government is enforcing Title IX.  In this spirit, I can understand why a court would not want to make a university financially liable for any sexual misconduct committed by its student anywhere in the world that happens to affect the victim's education. But, just because a university isn't liable financially to another university's student, doesn't mean that the government can't impose that requirement as part of its enforcement authority. 

And maybe, the government is considering doing just that?  According to this story in Inside Higher Education, OCR is investigating a case about a student from University of Tennessee-Chattanooga, who was sexually assaulted, off campus, by a student from University of Alabama-Birmingham. The victim filed a complaint with the assailant's institution, which found that the assailant had twice had nonconsensual sex with the victim. But when the assailant appealed, his two-year suspension was reduced to one year. When the victim appealed that decision, UAB reversed the original decision in its entirety, on grounds that it lacked jurisdiction to punish a student for off-campus misconduct that did not create adverse affects or a hostile environment for someone on campus.The fact that OCR is investigating this matter suggests that it thinks its at least plausible that the victim's complaint adequately alleges a Title IX violation by UAB. If that is indeed how OCR resolves the matter, universities might have a Title IX responsibility to adequately discipline their own students for sexual harassment and sexual misconduct against other students -- though its failure to do so could only be addressed by government enforcement rather than in the courts (at least in jurisdictions that follow the First Circuit's approach).

Two other points that are worth mentioning about these kinds of cases: there is little doubt that a university *could,* if it wanted to, have a code of conduct that prohibits its students from engaging in misconduct off campus that results in harm to other people who are not students of the university. The cases in this post are addressing whether a university *must* take jurisdiction over the subset of misconduct that falls under Title IX, sexual harassment and sexual assault.  The second point that's clear is that the victim's student's university has a Title IX obligation to respond to the threat of sexual misconduct that is posed to its own student, even if the source of that threat is another university's student. However, a university does not have power to discipline another university's student, so often the best it can do is bar the offending student from campus (which is apparently what UTC did).   

Tuesday, July 17, 2018

Baylor settles another case (and more)

One by one, Baylor is settling its Title IX lawsuits. Last week, the lawsuit brought by a former student (she withdrew after the college failed to respond properly to her report of gang rape) was settled with the terms remaining confidential.

[There is also news, quiet news, that the school has made agreements with three other students who did not filed lawsuits.]

This case, as I noted above, involved up to 8 football players who are alleged to have drugged and raped the victim, a female volleyball player. The victim's mother reported the rape to an assistant football coach and gave him names. After conducting his own investigation--and not reporting it to the proper people on campus (though as we know from previous lawsuits those people did not do anything anyway even when they received reports), the coach concluded that the sex acts, which the players reported as "fooling around," fell into a sexual gray area and did not pursue further action; and did not follow through with the victim.

This was a pretty clear cut case in terms of Baylor's failure to follow proper procedures. And yet...

Still it adds to the evidence about the culture of sexual violence on campus; one that, I argue, has not been sufficiently addressed even with the firing of head coach Art Briles, resignation of athletic director Ian McCaw* (who is now the AD at Liberty University), and demotion of president Kenneth Starr.

The school continues to have a revolving door of Title IX administrators. It refuses to admit it has a problem with sexual violence. It refuses to address the issue of athlete sexual violence, which is the result of lack of oversight of athletes and the athletics program. It has demonstrated that is values its male athletes over its female athletes. It has its most notable female, basketball coach Kim Mulkey, defending the school and disparaging those who spoke out against the sexual violence. But in its statement about the settlement, the university contends that the new leadership is committed to change.

And now we have the commissioner of the Big 12 contributing to the culture of denial by dancing around the issue at media days this week. 

Still awaiting Baylor: two more lawsuits against the Baptist university which involved a total of 15 plaintiffs; the results of the NCAA's (very late to the game) investigation; and the conference's "verification"--not an investigation--that BU is implementing the 100+ recommendations from the Pepper Hamilton report. (The university is being denied 25% of the revenues it would earn from being in the Big 12 until the verification process is complete.)


* The more: McCaw has been in the headlines because he was recently subpoenaed in one of the remaining lawsuits. The high and mighty tone is off-putting. He said he resigned--after he was placed on probation in 2016--because he did not want to be part of a cover-up. Except he was already part of a cover-up--because there is no way he did not know what was going on in his football program.

He said the report of findings (2016) in which the football program was deemed responsible for many of the problems of sexual violence was steeped in racism and that the regents were looking for scapegoats.

I do not doubt that there is rampant racism at Baylor, including in its athletics department; because there is rampant racism in intercollegiate sports. I do not doubt--in fact I have written about this already--that the regents are part of the problem. And it is a problem that their role has not been investigated and interrogated.

And though McCaw took some responsibility for his role, this testimony read like a shunned person seeking retribution. If there was such a problem with racism in athletics and the school in general, why wasn't McCaw working to address it? He was not the most powerful person (as he came to realize), but he could taken steps. And if he felt the whole system was so corrupt, why didn't he resign earlier? I am not sure what effect his testimony will have on the lawsuits, but it has invigorated others looking to pass the buck.

Briles's attorneys have jumped on this testimony saying that the school threw the former coach under the proverbial bus. First, he deserved to be fired for reasons too great to even list. Second, if he was surprised that he--a successful white, male DI football coach was expendable, that he could be used as a pawn to mitigate the effects of a huge scandal, then he really is not knowledgeable about the system which created and then ultimately tossed him aside. Because once in a great while even powerful white men in intercollegiate athletics are sacrificed to keep the system going. Neither Briles nor McCraw should be shocked by this; they helped perpetuate it.

Monday, July 02, 2018

Advocates Petition for Correction of 2017 Dear Colleague Letter

Several Title IX advocacy organizations have teamed up to petition the Department of Education to correct several unsupported factual assertions contained in its 2017 Dear Colleague Letter withdrawing the 2011 Dear Colleague Letter. They also argue that the 2017 Dear Colleague Letter,  thus rendered baseless, should be rescinded.  

The advocates' petition relies on federal law called the Information Quality Act which, along with related regulatory guidance, requires that information disseminated by federal agencies be useful, accurate, reliable, and unbiased. The statute does not provide for a private right of action. Instead, the mechanism for enforcement is to seek correction from the agency. 

Specifically, the advocates singled out the following statements in the 2017 Letter for being unsupported by evidence, implausible, and biased.
1.“Many schools [before the Prior Guidance] had traditionally employed a higher clear and convincing evidence standard.”

2.“Many schools had previously followed procedures reserving appeal for accused students.”

3.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that lack the most basic elements of fairness and due process.”

4.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that ... are overwhelmingly stacked against the accused.”

5. The Prior Guidance “led to the deprivation of rights for many students--both accused students denied fair process and victims denied an adequate resolution of their complaints.”

6.The Prior Guidance “has not succeeded ... in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.” 
Some of the advocates' objection centered on the use of the vague word "many" -- which, they argue, indicates a majority of either the 100,000+ federally-funded educational institutions, or at least, most of the 7000+ institutions of higher education. In fact, the best evidence out there suggests only a handful of schools used the clear and convincing evidence standard or reserved the right to appeal for accused students. The letter also cites empirical research finding that schools more often have procedures that are stacked against complainants rather than accused.  

While many agencies--the EPA for instance--receive many requests for correction, the Department of Education does not often receive them. So past practice is no basis for predicting how seriously the agency will take this request. Still, it seems unlikely that the Department of Education would change course in any meaningful way on the basis of this petition.  The 2017 Dear Colleague Letter is supposed to be a temporary placeholder anyway, until the Department proposes new regulations. My guess is that the dispute over these "facts" is going to merge into the dispute over the basis for those newly proposed regulations. 

Still, this effort is useful, not only to administrative law professors like me, who love examples of the lesser-known requirements of regulatory process, but for its contributions to the foundation of the policy debate that is about to occur. Advocates are warning the Department that there is evidence out there that it needs to contend with as it tries to rationalize whatever new regulations it eventually proposes. And they are suggesting that vague and imprecise generalizations about supposed problems are not going to hold water when it comes time for the agency to defend those newly proposed regulations against charges that they are arbitrary and capricious. The agency is taking its time releasing the draft regulations, but advocates are not waiting to stake out some of their key positions.

Wednesday, June 27, 2018

OCR Finds Title IX Violations at UNC Chapel Hill

On the heels of investigative reporting into OCR's lower rate of enforcement of civil rights laws compared to the previous Administration comes news that OCR has found UNC-Chapel Hill violated Title IX by mishandling complaints of sexual harassment, concluding a five year investigation.

OCR found that the university's policies governing its response to sexual misconduct failed to ensure that the response was "prompt and equitable" as the regulations require. Specifically, OCR noted that UNC's policy involving complaints against students failed to provide adequate notice of certain appeal opportunities, and its policy involving complaints against employees failed to provide notice of complaint procedures, notice to both parties of the outcome of the hearing, and a right to appeal to both parties. The inclusion of that final finding directly contracts the interim policy with which OCR replaced the 2011 Dear Colleague Letter, which expressly withdrew the DCL's requirement to provide equitable appellate rights to complainants and respondents, though some reporting is calling this contradiction a "department error." 

OCR also review over 300 sexual harassment complaints that the university received since 2011. It found instances where the university employees involved in the process were inadequately trained, and noted that the university's failure to keep good records, especially in the 2011-2013 time period, prevented OCR from determining whether the outcomes and procedures were appropriate. It also found examples of unreasonably delayed proceedings, including one that took 213 days, and noted that it couldn't always tell if the university properly weighed the complainant's request for confidentiality against its obligation to provide a safe and nondiscriminatory environment.

UNC has entered into a resolution agreement in which it agrees to revise its policies for compliance and improve its response -- which OCR noted UNC has already begun to do. The resolution agreement also commits UNC to improve its training for students and employees on reporting and addressing sexual harassment.

Friday, June 08, 2018

Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

Thursday, June 07, 2018

Decision Roundup: Displined Student Edition

Here are some examples of recent judicial decisions involving Title IX's application to student discipline:

The Ninth Circuit Court of Appeals ruled that a male student's Title IX claim against University of California at Santa Barbara should be dismissed because the plaintiff did not exhaust the administrative remedies available to him as a matter of state administrative law. The plaintiff should have first challenged the university's decision by filing a petition for administrative mandamus before challenging the decision in federal court without any other .  Doe v. Regents of the University of California, No. 17-56110, 2018 WL 2709728 (9th Cir. June 6, 2018).

A student at a performing arts high school who was suspended for sexual harassment could not proceed on a Title IX claim containing "conclusory" allegations that the school's decision to initiate the disciplinary proceeding was motivated by the student's gender as opposed to the allegations of sexual harassment made by his peers. Nor were his claims that the school treated other female students more favorably sufficient to support a claim of disparate treatment due to sex. In re the matter of John Doe, v. Saint Paul Conservatory for the Performing Arts, No. CV 17-5032 (DWF/FLN), 2018 WL 2431849 (D. Minn. May 30, 2018).

A student suing the New School over having been suspended for sexual assault did not sufficiently plead a Title IX claim because the complaint lacked particular facts sufficient to cast some "articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Moreover, the plaintiff supported his allegation that the proceeding was tainted by gender bias by pointing to the panel's finding that he "lacked empathy." The court rejected the contention that this statement indicated the panel was relying on gender stereotypes, noting that the empathy finding lacked a "bona fide connection to gender." B.B. v. The New School, No. 17 CIV. 8347 (AT), 2018 WL 2316342 (S.D.N.Y. Apr. 30, 2018).

A court refused to enjoin the plaintiff's suspension from George Washington University on grounds that his Title IX claim was not sufficiently "likely to succeed on the merits." The student alleged in his complaint that the university was biased against males because it was under investigation from OCR, as well as under pressure from student protestors, over its alleged failure to discipline perpetrators of sexual misconduct.  The court conceded that this allegation could be sufficient to withstand dismissal, but did not rise to the level of likely success required for a preliminary injunction to issue. Doe v. Geo. Wash. U., 2018 WL1972461 (Apr. 25, 2018).

Tuesday, June 05, 2018

University of New Mexico's Athletic Department Scrutinized for Title IX Compliance

Last week the University of New Mexico released a report prepared by a consultant that it hired to evaluate the Title IX compliance of its athletic offerings.  The report determined that UNM was in compliance with the three-prong test, specifically the third prong, but nevertheless recommended that the university strive for compliance with the proportionality prong through a combination of roster management and elimination of some large-roster teams.

The third prong requires a university to show that for whichever sex is underrepresented in athletics, the university is fully satisfying their interests and abilities to play. At UNM, women are the underrepresented sex, making up 55.4% of the student body, while only receiving 43.8% of athletic opportunities -- a disparity that disqualifies UNM from complying with the first prong of the three-prong test, i.e., proportionality. The consultant evaluated women's interest in sports that the university does not currently offer, and found indicators of interest in such sports as rugby and water polo. Additionally, the consultant correctly considered sports that the NCAA recognizes as championship or emerging sports, but which UNM doesn't offer, like Acrobatics and Tumbling, gymnastics and field hockey. For all of these sports, however, the consultant concluded that either recruiting or competition opportunities were sufficiently limited for UNM such that it could justify a decision not to add these teams. The consultant even says, "If UNM chose to argue (to OCR) that it meets the requirements for Test 3, they could do so," adding that this requirement option is challenging in that it requires continued monitoring of the interest levels and popularity of these sports, and possibly the eventual adding of teams at some point.

Nevertheless, the consultant has recommended a strategy for compliance with prong one that the university seems eager to embrace. This is is not surprising, as the university faces a multi-million dollar accumulated and projected deficit. My guess is that the athletic department hired the consultant in the first place to set itself up to make a Title IX argument down the road in defense of what will surely be an unpopular decision to cut some men's team. When the time comes, it will handily hold up the consultant's report and say, "we had to cut teams, Title IX says so!" The university's decision to publicize the consultant's recommendation and make the report easily accessible on its web site is consistent with this strategy.

If that happens, that will be an oversimplification and distortion of what is really going on. If OCR were ever called to investigate athletic offerings at UNM, it would be unlikely to find the university noncompliant. At most, it would require them to conduct interest surveys (which the consultant notes the university hasn't done) and continue to monitor the interest and popularity of sports it doesn't offer. It's possible at some point in the future the university would be compelled by prong three to add a new team for women or else cut an existing men's team for proportionality compliance, but that's not the moment the university seems to be in now. It is unfair to blame Title IX for the elimination of teams when that's not what the law is requiring UNM to do right now. Instead, the university should own this decision.

 (As as side note, I disagree with the consultant's conclusion that the university complies with prong two, for now, as a result of adding a women's team in 2015. Prong two requires a history and continuing practice of adding opportunities for the underrepresented sex -- not a history and recent practice.  Prior to 2015, the last time a women's team was added in 1993, and this gap of 22 years is much larger than any gap I've ever seen the OCR bless as evidence of a continuing practice.)

Wednesday, May 23, 2018

District Court Sides With Gavin Grimm

Gavin Grimm's litigation against the Gloucester School District challenging its refusal to let him use the boys' bathroom because he is transgender has had many ups and downs. In one sense, "ups and downs" describes the case's procedural posture, as it bounced between and among the lower, appellate, and U.S. Supreme Court. "Ups and downs" also describes the mood of Title IX and transgender rights advocates, as Grimm's case was first dismissed by the lower court, then reinstated by the appellate court, then added to the Supreme Court's docket, then canceled after the Trump Administration withdrew OCR's prior position on Title IX on which the appellate court had relied when it ruled in Grimm's favor. This led the case to be remanded to the appellate court, to see what it would do without the benefit of OCR's guidance that favored Title IX's application to transgender rights. But the appellate court, in turn, sent it back down to the lower court... Whew!

Yesterday the lower court in Virginia sided with Grimm (so, that's a DOWN in terms of procedural posture, but UP in terms of mood!). Specifically, the court denied the school's motion to dismiss, ruling that both Title IX and the U.S. Constitution's Equal Protection Clause protect Grimm's right to use the boys bathroom. Sex discrimination includes discrimination motivated by an individual's sex stereotypes, and, the court found, that is what Grimm alleges the school district's policy does: "isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics believed that a male or female student should have."

So what happens now?  Are we going UP again to the Fourth Circuit? That depends on whether Gloucester School District appeals. If that happens, will we stay UP in terms of mood?  That's up to the judges in Richmond. Last time, they ruled in Grimm's favor but, as I mentioned, did so in specific reliance on OCR's then-existing interpretation of Title IX. Whether the court will reach the same interpretation of Title IX on its own is a different question, but it helps that the district court has already laid out the argument for reading Title IX to protect the right of transgender students to use the bathroom that corresponds to their gender identities -- as have a number of other district court and one appellate court in similar case.

One final observation: those following closely might recall that one of the reasons the appellate court sent the case back down to the lower court this most recent time was to address whether Grimm's graduation from high school rendered the case moot. According to the parties' briefs, Grimm agreed to voluntary dismissal of his claims for an injunction and other prospective relief, which were unquestionably moot after his graduation. But litigation proceeded on his remaining claims for "nominal damages and retrospective declaratory relief." Retrospective declaratory relief is not something I've seen in Title IX litigation before, but clearly it's something all student plaintiffs should be including in their complaints!

Monday, May 21, 2018

A Roundup of Recent K-12 Discpline Cases

We often blog about discipline cases that involve college students who have been suspended or expelled for sexual misconduct. But secondary school students also use Title IX challenge discipline, as three recent examples show:

A female student in Louisiana was dismissed from the cheerleading team as punishment for "unacceptable behavior while in uniform" after she posed for picture with her uniform skirt raised and this photo was posted to social media. The student and her parents challenged the punishment, arguing that it violated Title IX because male student athletes were not punished as harshly for comparable behavior. The Fifth Circuit Court of Appeals affirmed the lower court's dismissal of her claim for lack of evidence indicating that the punishment was motivated by sex.  Specifically, the court focused on the lack of a cheer-specific male comparitor instead of comparing female and male students athletes more generally. The cheerleading team's "acceptable behavior" policy "did not contain language that could be construed as only applying to female cheerleaders" nor were there allegations that male cheerleaders were disciplined less harshly for similar infractions. Arceneaux v. Assumption Par. Sch. Bd., 2018 WL 2271077 (5th Cir. May 17, 2018).

A male student was suspended after he was reported to have threatened various harm to teacher who had given him a grade lower than he believed he deserved. The student sued, alleging among other claims that the discipline he received constituted gender bias in violation of Title IX. The court denied the school's motion to dismiss and permitted the claim to go to trial because there was evidence that a jury could conclude demonstrates gender bias-- namely, the fact that the other student who participated in the same conversation and also threatened to harm the teacher, who was female, was not suspended, as well as disputed evidence that the vice-principal who disciplined the plaintiff had once mocked the plaintiff for possibly being gay and failing to conform to masculine stereotypes and was allegedly biased against him for that reason. Gentry v. Mountain Home Sch. Dist., 2018 WL 2145011 (W.D. Ark. May 9, 2018)

A school prevailed on its motion to dismiss a Title IX claim filed by a male student who was challenging discipline he received for allegedly "groping" a female student a school dance. The court found that the plaintiff's allegations of sex discrimination were conclusory and lacked sufficient basis to warrant discovery. However, the plaintiff's claims of race discrimination in violation of Title VI were allowed because the plaintiff, who is mixed race, included specific allegations of white students who were not disciplined for similar misconduct. Doe v. The Blake School, 2018 WL 2108204 (D. Minn. May 7, 2018).

Friday, May 18, 2018

Florida Atlantic Accused of Fudging Athletic Participation Data

Florida Atlantic University inflated its female athletic participation data that it submits annually to the Department of Education. This report mislead the government and the public that the institution satisfied its Title IX obligation to provide equitable athletic opportunities by distributing them proportionate to the gender breakdown of the student body, when in fact this was not the case.

According to an article published today by the Palm Beach Post:
In 2016, women represented more than half of the Boca Raton school’s enrollment but only 31 percent of its athletes. The percentage was the lowest of all 127 schools participating in [Division I].
Just one year later, FAU claimed it had erased its female participation gap. It told the U.S. Department of Education in 2017 that 51 percent of its athletes were women.
Specifically, the Post noted that FAU overcounted female track athletes, reporting a team of 98 in 2017, which was more than double the number reported in 2016. The reported number was also considerably higher than the number of the roster, 43, and in the team photo, 38.  FAU reported a total of 222 female athletic opportunities for the combined total of indoor track, outdoor track, and cross country, which if accurate would have made it the largest women's track program in all of Division I.

For its part, FAU acknowledged the inaccuracy but called it accidental, and blamed an employee who no longer works at the university.

It's been a few years since we've seen a story like this one, but today's news suggests that the practice of reporting inflated data still occurs. It also underscores that the way we find out about these problems is when the media goes digging for the truth behind the numbers. 

Wednesday, May 16, 2018

Michigan State Settles With Nassar Victims for $500 Million

We will never know if a jury would have concluded that Michigan State should have known earlier that athletics department doctor Larry Nassar was a sexual predator and responded accordingly to prevent his continued abuse of university athletes as well as those on the Olympic gymnastics team for whom he also worked. We do know, however, that it was worth $500 million dollars to Michigan State not to have to find out: Today comes news that the university has settled for that amount with the 332 alleged victims who have sued the university and other defendants for damages stemming from the sexual abuse they endured from Nassar. $75 million of that will be placed in trust for victims that haven't yet been identified, while the remainder will be divided among the plaintiffs.

The settlement only affects claims against Michigan State University and individual university defendants. USA Gymnastics, the United States Olympic Committee, and other individuals involved with the national team remain parties to the suit. Nassar himself is serving an effective life sentence in prison. He plead guilty to nine counts of assault as well as federal child pornography crimes.

Wednesday, May 02, 2018

Eighth Circuit Rejects University's Sovereign Immunity Defense

A student sued the University of Arkansas, alleging that its response to her report of sexual assault on campus was deliberately indifferent in violation of Title IX.  The university sought dismissal on the grounds of sovereign immunity. Sovereign immunity is the constitutional doctrine that protects states -- including arms of the state, like state universities -- from being sued in federal courts. The exception, however, is when states consent to be sued or waive their sovereign immunity.  Traditionally, courts have agreed that accepting federal money amounted to a waiver of sovereign immunity.  Predictably, the federal district court in Arkansas denied the university's motion to dismiss on sovereign immunity grounds.

But the university fought this decision by appealing to the appellate court for the Eighth Circuit. It solicited support from five other states, who submitted an amicus brief asserting the same theory, that sovereign immunity protects a state university from being sued, at least for damages, under Title IX.  The states argued that a 2011 Supreme Court decision called Sossamon v. Texas changed the test for evaluating whether a state waived its sovereign immunity by requiring "clear declaration" by the state of its intent to so waive. Applied to cases arising under spending-clause statutes like Title IX, that means, the statute itself must contain "unequivocal" language that accepting federal money constitutes waiver.

Here, the relevant statute is the Remedies Equalization Act of 1986, which expressly provide that "a State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court" for a violation of Title IX and other enumerated federal civil rights laws.  The University of Arkansas's argument is that this statute, despite its clear language, does not clearly declare whether a state waives sovereign immunity for damages claims. In ruling against the university's appeal, the Eighth Circuit pointed out that the Remedies Equalization Act clearly stated that states shall be liable for "remedies at law and equity."  Remedies in equity are things like injunctions and declaratory judgments. Remedies are law, the court explained, are damages. The court also found evidence that Congress intended the waiver to apply to claims for damages.  Thus, the court of appeals concluded:
The Remedies Equalization amendment clearly and unambiguously expresses the University’s consent to Title IX suits for damages. By accepting federal funds, the University in fact consented to suits for compensatory damages for violations of Title IX.
Though the university's argument was a long shot, it generated a lot of attention and concern over its potential to seriously curtail the effectiveness of Title IX as a remedy for state university students whose reports of sexual assault generated the institution's indifferent response. These cases are usually driven by a damages claim (as opposed to, say, Title IX athletics cases where the plaintiff is trying to get more resources, or to reinstate a discontinued team).  A university's indifference to sexual assault causes emotional distress, creates expenses (if it causes the student to transfer or otherwise interrupts their education), and may even subject the student to subsequent sexual harassment or misconduct, with its own resulting damages.  If the court had somehow ruled in favor of the university on this matter and prevented state university students from seeking this relief, those students in the Eighth Circuit would have experienced a serious curtailment of their civil rights. The court's rejection of this argument, however, preserves the federal courts as a forum where Title IX claims arising from sexual misconduct can be addressed and where compensation, if warranted, be awarded.

Monday, April 23, 2018

OCR Will Now Dismiss Complaints By "Frequent Flyers"

The Department of Education has recently revised its Case Processing Manual to permit OCR to dismiss complaints in the interest of efficiency. Section 108 of the Manual lists the grounds on which the agency can dismiss a complaint in lieu of, or an any point during, an investigation. These grounds have long included things like: lack of jurisdiction, failure to state a violation of law, insufficient factual allegations, and duplication of an ongoing enforcement action in a state or local agency. But the Department now also permits OCR to dismiss a complaint that is "a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients" as well as complaints filed for the first time against multiple recipients that "viewed as a whole, places an unreasonable burden on OCR’s resources."  According to the New York times report on this change, the agency justifies this new policy on grounds that it permits them to set priorities for enforcement and to use resources efficiently, by addressing the problem of activists, so-called "frequent flyers," clogging up the enforcement docket with routine filings and mass complaints. 

While this may be new language in the Manual, OCR's aversion to routine and mass complaints is not new in practice. I've seen examples in which OCR dismissed complaints by routine filers on grounds that wouldn't have applied to other complaints. For instance, the agency has dismissed Title IX complaints filed by individuals who routinely challenge inequitable distribution of athletic opportunities in public schools.  In my observation, the rationale for these dismissals -- particularly, in requiring complainants to produce an unreasonable and illogical amount of evidence of unmet interest -- are not consistent with the agency's overall practice.

I suppose it is better that the agency has added a provision expressly permitting the dismissal or mass complaints than to distort the legal standard in ways that could create harmful precedent for all complaints. But I still find it troubling. Because of the way that Title IX and other civil rights laws are structured, the only penalty OCR can impose or threaten is the loss of federal funding -- but it must provide the institution notice of its noncompliance and an opportunity to correct the problem before any funding is withdrawn. As a result, the threat of administrative enforcement does very little to inspire institutions to proactively comply. Why would they?  Compliance is often expensive and unpopular. If you have the choice between doing it now, or maybe having to do it later because OCR has shown up and said, "this is what you have to do in order to comply," why would anyone choose now? Thus, activists filed mass complaints not to be annoying, but because they are the only thing that gets institutions to focus on their compliance obligations.

So while I see the agency's point of view about efficiency and maintaining control over their own enforcement priorities, I am concerned that this new enforcement policy simply makes it even easier for institutions to put off compliance. By cutting off enforcement at the knees, it sustains the persistent gap between what the law clearly requires and what educational institutions actually do in practice.