Friday, February 15, 2019

UMD Liable for Front Pay in Retaliation Case

Last year when a jury ruled in favor of Shannon Miller in her lawsuit against University of Minnesota-Duluth, it awarded her nearly $3.75 million in compensation for past damages after it concluded that the university terminated her with unlawful retaliatory and discriminatory motives in violation of Title IX and Title VII.

Left unresolved at the time was how the university should remedy her present and future injury of present and future remedy, which Miller argued should be addressed by an order requiring the university to reinstate her to her former position. In the alternative, she argued for a a front pay award of $3 million.  A federal court judge ruled on her motion this week. He determined that reinstatement was not an appropriate remedy due to the position having already been filled. The current coach is now in her fourth season and most of the current players have been recruited by her. Accordingly, it would be unduly disruptive to reinstate Miller to her former position. Instead, the court agreed to a monetary alternative in the form of front pay.

Front pay is an award of damages that in unlawful termination cases that requires the factfinder to determine what the plaintiff would earn from the date of the verdict going forward if they had not been fired (back pay, in contrast, compensates the plaintiff through the date of the verdict). It then takes into account what the plaintiff is earning in whatever new job they may have, and if that is less, awards the plaintiff the difference. The court did not agree with Miller's speculation that she would have worked at UMD for 12-15 more years from the date of verdict; pointing out that 30-year tenure for any Division I head coach is rare. But nor did the court accept UMD's position that Miller was fully compensated by the back pay award Miller had already been awarded. Instead, the judge found sufficient evidence that Miller would have worked at UMD for another five years from when she was terminated. Her front pay award was therefore calculated at her UMD salary from the date of the verdict through through June 2020. Then it was offset by the $30,000 Miller earns annually as the head coach of the Calgary Inferno professional women's hockey team. The total, $461,278, brings UMD's total liability to around $4.2 million.

One thing that I found noteworthy about this opinion is the particular role that Title IX played, relative to Title VII, in driving the damages award in this case. The judge's opinion on front pay noted that the plaintiff was not entitled to damages or reinstatement on her Title VII claim, even though the jury found that sex discrimination had been a motivating factor in her termination, because the jury had found evidence that UMD would have fired Miller anyway. Under Title VII, a so-called "mixed motive" finding like this limits the plaintiff to only declaratory relief and attorneys fees. Title IX, however, is not governed by the mixed-motive provision of Title VII, so damages are allowed even when university defendants demonstrate that a non-discriminatory or non-retaliatory reason would have lead them to make the same adverse employment action.

Decision: Miller v. Bd. of Regents of the Univ. of Minnesota, 2019 WL 586674 (D. Minn. Feb. 13, 2019).

Wednesday, January 30, 2019

Comment Deadline Is Today

Today is the last day to comment on the OCR's proposed Title IX regulations. I submitted my comment just now, and I was the 96,841st person to do so. Wow!

If you were waiting for the last minute like I was, here is the link to the docket, which includes the proposed regulations, the comments received, and the form for submitting your own. 
If you are curious about my comment, here it is:

As a law professor, I teach, research, and write about Title IX. In that capacity I have had the opportunity to sign on to some of the comments that are already submitted to this record, but I write separately to comment specifically on the proposed revision to 106.12(b), which provides an exemption for religious institutions. The proposed regulation not only permits educational institutions to decide for themselves whether they must comply with Title IX, but to do so in obscurity. 

I acknowledge that religious institutions have First Amendment rights not to be compelled by the government into compromising their religious tenets. This is why Title VII, for example, exempts religious institutions from the prohibition on religious discrimination, and why courts have interpreted workplace discrimination statutes to contain an exception for religious institutions when it comes to the employment of those they consider ministers. 

But in contrast to laws that impose mandatory requirements on employers—laws like Title VII, and the ACA—Title IX doesn’t compel institutions of any kind, religious or otherwise, to do anything. As Spending Clause legislation, Title IX proposes a voluntarily exchange of federal funding for an educational institution’s promise not to discriminate. Thus its intrusion on religious freedom is minimal, as religious institutions are as free in a world with Title IX as they would be in a world without it, to do whatever they want as a matter of faith. It’s only when they agree to accept the financial support of the government that they undertake an obligation not to discriminate on the basis of sex. 

With this in mind, Title IX’s exemption for religious institutions is already more protective of religious freedom than the Constitution requires. It generously permits religious institutions to accept federal funding even without fully complying with its nondiscrimination mandate. To receive this special treatment, the existing regulation simply requires that these institutions register their exemption in advance. 

The proposed regulation extends this special treatment for religious institutions to the detriment of third-parties, prospective students and employees. At least the current approach allows students and employees to use public religious exemption records to determine prior to matriculating or accepting employment to determine whether their institution has opted out of Title IX. In fact, given that Title IX permits the government to provide financial support to religious institutions whose practices would otherwise violate the law, the only way for prospective students and employees of such institutions to protect themselves from discrimination is to arm themselves with information and use it to make decisions about where to enroll or accept employment. The proposed regulation would eliminate even this modicum of protection that such transparency allows. 

On the other hand, from the standpoint of a religious institution, the burden of complying with the existing religious-exemption regulation is minimal. If an aspect of Title IX truly conflicts with an institution’s religious tenet, it is not difficult for the institution to articulate this conflict in advance. The existing religious-exemption regulation does not require institutions to defend their religious tenets and it protects institutional autonomy to define the nature of the conflict between those tenets and Title IX. Nor does it require religious institutions to advertise or otherwise publicize the scope of their Title IX exemption. Requiring them to put it on the public record in advance is the very least the law can do to protect the rights of students and employees in the face of special treatment that allows religious institutions to discriminate with federal funds. The current religious-exemption regulation should not be modified in the manner OCR has proposed.      

Friday, January 25, 2019

Gender Disparity in Coaches' Chartered Flights at University of Iowa and Iowa State

Some good investigative reporting in Iowa led to this recent article about the gender imbalance in athletic department travel at University of Iowa and Iowa State. Both institutions benefit from wealthy donors who offer up their private planes for coaches to take on recruiting visits, to meetings, and for other work travel.  Yet these donations overwhelmingly favor the coaches of men's teams -- of UI's 54 donated charter flights in the last year, only 1 was to the coach of a woman's team. And it's not like the institutions use other funds to close this gap, paying for (non-donated) charter flights for men's teams coaches more often than charter flights for their coaches of women's team's.

I talked to the reporter for this story and shared some thoughts about the Title IX concerns raised by this disparity. I explained that the fact that the flights are donated does not absolve the university of the gender disparity that results from the donations. Because they benefit a university program, the donated flights are considered by law to be donations to the university. Though the donations themselves might be earmarked for a certain team or coach, the university is still responsible for the equal treatment of its men's and women's programs. If it uses donated money (or, as in this case, donated flights) to benefit only teams of one sex, it has to find other money to balance to provide the equivalent benefit to teams of the other sex.

There are two aspects of Title IX that may be implicated by this imbalance. First, one of the aspects of Title IX's requirement for equal treatment of men's and women's teams is the quality of the coaching they receive. A coach who takes charter flights does not have to spend time driving between Iowa City and the airports in either Cedar Rapids or Moline, factoring in extra time for the security line, waiting out layovers, enduring delays or any of the other time consuming aspects of commercial travel. This leaves the coach with more time and energy for coaching duties: he is more likely to make it back for practice, he can fit in more recruiting stops into a season, he can partake of more professional development opportunities. In short, that team gets more of their coach and thus, a higher-quality coach. A university that eases the path for men's coaches, but leaves up those obstacles for women's coaches, is treating its male athletes better than its female ones.

Second, the disparity is sex discrimination in the terms and conditions of coaches' employment. Because only men coach men's teams, men disproportionately benefit from the perk of taking charter flights. The challenges of commercial travel can create personal inconveniences as well as professional ones, and male coaches alone are spared from that grief. As a result, they may have an easier time making time for family or a personal life. Maybe, if women's coaches were paid more in base salary than men's coaches, there would be an argument that this disparity in chartered travel does not amount employment discrimination, but of course we know that is not case.

As the article notes, University of Iowa is currently under an OCR investigation into the athletic department's compliance with Title IX. Recruiting appears to be an area the agency is looking into, but no findings have yet been made.

Sunday, January 13, 2019

FSU does not care

It took me some time to come up with the (somewhat simple) title for this post. I tried to distill what was so furiously frustrating about the fact the Florida State University has hired Kendal Briles as the football team's offensive coordinator.

First, Kendal Briles was an assistant coach at Baylor during the time of the sexual assault crisis/scandal/epidemic. It was his father, Art Briles, who has been held most responsible (at least within the program) for the cover ups and culture; but son, Kendal, also had a role as one of the team's primary recruiters. One story that has emerged from the collection of evidence that has been part of the many, many lawsuits Baylor is still faced with, involves K Briles asking a recruit if he likes white women and noting their widespread availability at BU and their desire for football players.

This is culture shaping. In a very racist and misogynist and violent moment, Briles tells this prospective player that he can access whomever he likes at Baylor. He is offering up the female undergraduates of Baylor to players. This makes me recall women's basketball coach Kim Mulkey's ill-advised and barely apologized for comments to the crowd about how it is safe to send their daughters to Baylor. I don't know if Baylor is any less safe than other campuses. I do not know how to measure this--and I don't especially care about comparisons at this moment. Briles was part of making that campus more dangerous.

Now he has a job at another school which has denied culpability in the culture of sexual violence. And so...two, Florida Sate University thinks it has moved past the Winston era. They have a new head coach (completely unrelated to the way the program and school protected the former Heisman-winning quarterback who continues to make news for engaging in harassment and assault). Admittedly, they probably have moved past that; perhaps they were never really mired in it at all. The media supported the school and the program (watch the segment in the Hunting Ground about Winston and listen to ESPN's Stephen A. Smith sarcastically mock then-anonymous victim Erica Kinsman's motives and unconditionally support, along with colleague Skip Bayless, Winston). It was, after all, only one victim (not true it turns out), and one perpetrator--who left to go pro thus making him the NFL's problem. And (deep cynicism alert), everyone knows how the NFL deals with domestic and sexual assault and violence.

It does not matter to the administration, to the fans, to the program, that FSU has hired a coach who helped perpetuate the climate of sexual violence at his former institution. And that is a problem--a dangerous one. Unchecked football cultures--like the ones that exist at Baylor and FSU--make campuses unsafe places.

Tuesday, January 08, 2019

Dr. Bernice Sandler, 1928-2019

Dr. Bernice Sandler passed away this week at the age of 90. She went by Bunny, but was even more well-known as the Godmother of Title IX.

Her obituary in the Washington Post described how she came to make advocacy for gender equality in education her life's work:
In 1969, her newly earned doctorate in hand, Bernice Sandler was hoping to land one of seven open teaching positions in her department at the University of Maryland. When she learned she had been considered for none of them, she asked a male colleague about the oversight. “Let’s face it,” was his reply. “You come on too strong for a woman.”
When she applied for another academic position, the hiring researcher remarked that he didn’t hire women because they too often stayed home with sick children. Later, an employment agency reviewed her résumé and dismissed her as “just a housewife who went back to school.”
Dr. Sandler had run head first into a problem that had only recently been given a name: sex discrimination. Knowing she was not alone, she embarked on a campaign that would change the culture on college campuses — and eventually the law with the passage in 1972 of Title IX, the landmark legislation that banned sex discrimination in federally funded educational institutions.
Sandler's efforts did not end with Title IX's passage. She continued to research and challenge sexist practices in higher education, including sexual harassment and the "chilly" campus climate. She was also a strong supporter of Title IX's application to athletics. 

RIP Dr. Sandler.  

Thursday, December 13, 2018

'Tis the season... which people start complaining about how they aren’t allowed to/are shamed for/tired of hearing about listening to Baby, It’s Cold Outside. 

I get it. I listened to that song growing up too. It’s catchy. It’s part of the canon. It’s part of the culture.

It is, in fact, a creation of that culture. And maybe it hits that nostalgic note for some in which men were men and women were women and the relations between the sexes were seen as simpler. And wouldn’t it just be great to get back to that… Romance, desire, lust even. Enjoyable things for many.
We are still there/here. Because one, things are (and were) never simple. But two, we still are immersed in a culture of sexual coercion and assault. We breathe that culture. We keep it alive. Brett Kavanaugh does not just happen. Brock Turner does not just happen. Sexual traffickers do not just happen (nor do life sentences for their victims who kill their captors). Fraternity presidents who rape women get plea deals and no jail time do not just happen. This is not Bad Apple Syndrome. This is rape culture.

Yes, I am making a connection between Baby, It’s Cold Outside and horrendous acts of violence. Is there a direct line? No. But we don’t live in a society of direct lines. We live in a matrix of power relations and interconnections.

This is sometimes an abstract concept and not everyone gets it (or wants to). Power is complicated. We are all implicated in it. Here is something a little more concrete. Every semester I assign Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. Male athletes—both intercollegiate and recreational—were more likely to engage in sexually coercive behaviors than non-athletes. It was not because of the mere fact that they are athletes—it is because they had high scores on measurements of rape myth acceptance and traditional gender role attitudes. Those things are reinforced in many sports cultures, but they are not only in sports cultures. When rape myth acceptance and traditional gender roles attitudes were controlled for there was no difference between athletes and non-athletes in terms of engagement in sexual coercion. 

In other words: 1. Culture matters and, 2. We learn these things in our social institutions. Entertainment (and sports, and law, and education, and religion) is a social institution through which cultural norms are transferred. Movies do that. Books. Television. And songs.

So listen to the song—or don’t. Listen to the She and Him version in which the “roles are reversed” and call that equality (it’s not #becausepatriarchy). But we cannot dismiss the critique just because it tempers our enjoyment. Our cultural products matter. Our continued use of them matters. 

Sunday, November 18, 2018

More than sports bras

Almost everyone heard last week about the ban on sports bras for the Rowan University's women's cross country team. There was near universal outrage about the prohibition; discussions about the double standards female athletes face, the sexualization of female athletes, and the privileges of male football players.

All true and important things to discuss. It perhaps reminded some people of the moment at the 2018 US Open when French player Alize Cornet received a warning for taking the shirt she had put on backwards off and quickly switching it, thus "exposing" her sports bra. And, of course, we could just utter the name, Brandi Chastain, and get it.

There is actually more to this story though: the Title IX implications.

First, the women were running in their own gear because they don't get practice uniforms. They also do not have a locker room. These might not be violations. One would have to go to Rowan (or perhaps nicely ask the director of athletics for the information?!) to see if there are equal numbers of men and women who are not receiving these amenities.

But the second issue is the big one. The women's team was relocated from their track--that surrounds a field where the football team practices--to a local high school track. They were removed from campus because they were distracting. And they have not been moved back!! Yes, they are now allowed to wear sports bras, but they have been kicked off campus by way of a rule that says two teams cannot use one facility at the same time. Again--we can go with speculation and say it would be ok--if other male athletes have been similarly displaced. However, the more pertinent fact is that the football team has another practice facility that they can use. (Also--do 100+ female athletes at Rowan have access to more than one practice facility??)

A friend of mine, in commenting on this story noted how the banning of sports bras because male football players were "distracted" is an example of men reasserting power that they never really lost. The quality of treatment the women's cross country receives is a perfect example of all the power that remains in the hands of men's sports.

Friday, November 16, 2018

OCR Proposes Draft Regulations

Today OCR announced the long-awaited draft revisions to its Title IX implementing regulations (see also summary, here, and press release, here). As expected, the agency is proposing to deregulate education institutions' response to sexual harassment (which includes sexual misconduct like assault).  Two key features of the proposed regulations will roll back the government's oversight of educational institutions response to sexual harassment: first, the definition of sexual harassment that the agency is proposing, which requires that it be "severe, pervasive and objectively offensive " instead of "severe or pervasive, and objectively offensive."  To be fair, the Supreme Court in Davis omitted the crucial "or" in its recitation of the standard.  However, the Court's application of the standard made clear that harassment could be offensive based on its pervasiveness alone. Moreover, the Court in Davis was applying the standard for sexual harassment that had been developed in judicial interpretations of Title VII, where the disjunctive relationship between the two concepts was already settled law.

Another key deregulatory feature is the proposed regulation's inclusion of a deliberate indifference standard, promising not to penalize an institution unless its response is "clearly unreasonable." This is a highly permissive standard that the Supreme Court developed for an altogether different purpose than regulatory oversight. Instead, the Court imported the DI standard only in cases where plaintiffs are suing educational institutions for violations of Title IX and seeking money damages. Title IX is a Spending Clause statute, so a situation tantamount to intentional discrimination is necessary to justify forcing institutions to make payment to plaintiffs, who are effectively third parties to the Title IX "contract" (federal funding in exchange for adherence to a nondiscrimination mandate) between schools and the government. OCR is wrong to say that the Court's rationale for the DI standard is persuasive in the context of regulatory oversight, since the Court was clearly distinguishing judicial and regulatory enforcement when it adopted the DI standard for Title IX cases asserting a private right of action for money damages.  

Also, as predicted, the proposed regulations contain a number of requirements that the institutions incorporate respondent-friendly features into their grievance proceedings. These due process requirements--for example, a presumption of innocence, a right to cross-examine the reporting party at a live hearing, and the possibility that clear-and-convincing standard of evidence be used--are departures from the prior administration's requirement of equitable procedures. The prior administration's OCR and all of its predecessors have refrained from micromanaging an institution's adherence to due process because the Department of Education does not have authority to enforce the due process clause, it has the authority to enforce Title IX. Title IX extends to an institution's response to sexual harassment because sexual harassment is discrimination that violates the statute. Beyond ensuring that the university's minimal response is sufficient to address the underlying violation, it has no authority to require certain procedural safeguards, beyond requiring schools to not to deny procedural safeguards to certain respondents because of their sex.   

The last issue I want to point out here is OCR's proposed deregulation of the religious exemption.  Currently, OCR requires institutions whose religious tenets conflict with an obligation under Title IX to notify the agency of its claimed exemption, but the proposed regulations remove this obligation. The agency argues that the registration requirement is not necessary because the First Amendment is self-executing.  But the is no inherent First Amendment right to take federal money and use it to discriminate on the basis of sex, other than discrimination that falls within the so-called ministerial exemption.  But the religious conflicts institutions seek Title IX exemptions for are more than just permission to discriminate against women who are or are seeking to become ministers, they apply to issues like reproductive freedom and LGBT civil rights, that have nothing to do with the hiring and training of ministers.  Not only is this proposed deregulation constitutionally unnecessary, it is also harmful. Without a mechanism to keep track of exemptions, prospective students and employees have no way to know if their civil rights will be protected at a given institution.  They can be completely blindsided by the lack of legal recourse against an institution that discriminates against them in a way that would be prohibited of a secular institution.  

What will happen next is a 60-day comment period (not 60 days from today, but 60 days from whenever the draft regulations are officially published in the Federal Register, which would presumably be any day).  The agency will review the comments and finalize the rule in a manner that should take those comments into account.  Then the agency will likely have to defend the rule in court, fending off challenges that it is arbitrary and capricious in light of comments on the record, and that it goes beyond the agency's authority to enforce Title IX.

Wednesday, October 24, 2018

Two Recent Summary Judgment Decisions in Disciplined-Student Cases

When a university is sued by a student who has been disciplined for sexual misconduct, it will typically file a motion to dismiss, arguing that the allegations in the plaintiff's complaint -- even if true -- are not legally sufficient to sustain a claim under Title IX or whatever source of law the plaintiff is alleging to have been violated. If the university wins on this early-stage motion, the case goes away before it ever really gets off the ground. But if the university's motion does not succeed, the plaintiff has the opportunity to take discovery: to gather evidence that it will use to support the allegations in the complaint when the case gets to trial. This includes taking depositions of university officials and requesting documents from them as well. At the close of discovery, the university can again seek to have the case thrown out -- this time, on a motion for summary judgment -- but the discovery process itself can be enough of a hassle that universities will chose to settle before the case gets this far.  That is why the volume of decisions on motions to dismiss is so much higher than decisions on motions for summary judgment.  When summary judgment decisions come out, this blogger takes notice!  Here are two recent ones: one where the university loses, and one where the uni
university wins.

Rossley v. Drake University (university loses). Drake University in Iowa moved for summary judgment to end litigation over a former student's claim that the university violated Title IX when it expelled him for sexual misconduct. The district court granted summary judgment on the plaintiff's erroneous outcome claim, rejecting all of plaintiff's arguments that university officers were biased against him because of his sex. The mere fact that the university found against him, a male, is not evidence of gender bias. Though some courts have said that a disciplinary decision that goes against the weight of the evidence can be a plausible basis for an allegation of gender bias, summary judgment is where the plaintiff must stop alleging and start proving. The court also rejected the notion that a university's use of "victim-centered" or "trauma-informed" process is per se gender biased, when such university uses gender neutral language in its policies. Additionally, the court rejected the idea that the 2011 Dear Colleague Letter served as evidence of gender bias, since there is no evidence that the letter motivated university officials to react in ways that were biased against male students.

However, the court denied Drake's motion for summary judgment on the plaintiff's Title IX claim based on selective enforcement.  In this case, the plaintiff alleged that the university deployed its investigatory and disciplinary process in response to the complainant's allegations against him, they failed to the same in response to his allegations against her. The court affirmed that if the plaintiff and his accuser were similarly situated in their respective allegations, than the different treatment they received would violate Title IX. However, there are disputed facts about whether the plaintiff and the accuser were similarly situated, thus precluding a summary judgment decision and necessitating fact-finding by the jury. He did not file a formal complaint against her, which could explain why they didn't take his allegations seriously, except that he alleges university officials dissuaded him from filing a complaint. To get to the bottom of these disputed facts, the jury needs to hear the relevant testimony and decide for itself whether the university treated his allegations less seriously than hers despite their material similarity.

Ayala v. Butler University.  Butler University, on the other hand, won summary judgment of Title IX (and other) claims filed by a student challenging his expulsion for sexual misconduct. Though the male plaintiff argued that the university's process was tainted by gender bias, the court found nothing in evidence that could convince a juror of that. The investigator's "persistent questions... about verbal consent" at most suggest bias towards victims, not bias towards women or against men. And evidence that Butler treated a male respondent in another case with a lesser sanction doesn't suggest any kind of pattern of treating male respondents differently because of their sex. The court easily dismissed this plaintiff's case against Butler.