Friday, February 27, 2015

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status. 

Thursday, February 26, 2015

NYC Public Schools Violate Title IX With Athletic Offerings

The Department of Education's Office for Civil Rights announced this week that it has entered into an agreement obligating the New York City public schools to come into compliance after finding that the country's largest school system violated Title IX by depriving athletic opportunities to girls.  OCR had been investigating the school system in response to a 2010 complaint filed by the National Women's Law Center.

OCR found that the New York City Department of Education could not satisfy any one of the prongs in the familiar three-part test for measuring equity in the distribution of athletic opportunities.  The test allows schools to demonstrate compliance evidence of either (a)  a distribution of opportunities proportionate to the percentage of students of each sex; (b) history and continuing program expansion for the underrepresented sex (here, girls); or (c) providing enough athletic opportunities to satisfy the interests of the underrepresented sex. 

In examining the first prong, OCR found that NYC public high schools would have had to provided 3682 additional female athletic opportunities to achieve proportionality.  The second prong was also out of reach, as it was actually the over-represented sex that benefited more from program expansion, netting 125 more boys' teams that girls' teams over the time period under investigation. The Department also denied more requests to add girls' teams than boys' over the relevant period.

Finally, the Department could not satisfy the third prong, as it was unable to demonstrate that it even examined the interest level of its female students at all, let alone by any of the methods that OCR considers like surveys or participation data in non-scholastic athletics.  Moreover, the fact that the Department had denied requests from school principals seeking to add girls teams in sports like volleyball, softball, basketball, soccer, tennis, cross-country, bowling, golf, and swimming served to indicate unmet interest.

In response to this findings of noncompliance, the Department has now entered into an agreement obligating them to assess female students' athletic interests by multiple means including but not limited to surveys, and to add teams as appropriate in response to evidence of unmet interest. It must also develop a procedure by which students can formally request the addition of teams and provide Title IX training to athletic directors.

Monday, February 23, 2015

More Campus Sexual Assault Litigation Updates

Title IX lawsuits related to campus sexual assault remain in the news:
  • University of Colorado-Boulder has settled a lawsuit with a student who claimed the university discriminated against him in violation of Title IX in the process of finding him responsible for the sexual assault of a fellow student in 2013.  The university will reportedly pay the student $15,000, and the student, in turn, has promised to withdraw. Per the terms of the settlement, if asked for a reference the University will not disclose anything other than the fact that he was found responsible for two violations of the code of conduct, and that prior to his withdrawal he was in good academic standing. The university's general counsel referred to the settlement as a "business decision" to avoid the high cost of litigation, while the plaintiff's attorney was happy that the settlement preserved her client's anonymity in connection with the "false accusations" of assault.
  • A fraternity at Wesleyan University has sued the university challenging its requirement that residential fraternities become coed over the next three years; a policy change in the wake of (and presumably responsive to) accusations of sexual assault that have taken place at fraternity houses. The lawsuit, filed by the local chapter of Delta Kappa Epsilon, one of the two residential fraternities affected by the new policy, claim that it singles out male organizations in violation of Title IX.  Reports elsewhere suggest that the reason Wesleyan's only sorority was not affected by the policy is because they do not maintain on-campus houses -- a fact that could make it difficult for the DKE plaintiffs to sustain their argument that Wesleyan's policy is differentiating based on sex.
  • A female student has sued the University of New Mexico alleging that the university responded with deliberate indifference to her report that she had been drugged and sexually assaulted by two football players while other players watched and recorded it on video.  She claims that the university conducted a lackluster investigation in order to shield the players from  disciplinary action, including by ignoring witnesses and failing to consider evidence. The accused students were temporarily suspended from the football team during the off-season, but were reinstated prior to the conclusion of the investigation. Meanwhile, the plaintiff alleges that she was harassed and re-victimized as football players continued to share video of her from the night of the assault.  She suffered emotionally as a result, and was unable to attend classes. She eventually lost her academic scholarship, forcing her to withdraw from UNM and enroll at a school with higher tuition. Her lawsuit seeks damages to compensate her for those losses.
  • A female graduate student has sued the University of Stony Brook (part of the SUNY system) alleging that the university violated Title IX in the hands-off manner it handled the disciplinary process of the student she accused of assaulting her in his dorm room.  University officials conducted an investigation but when it came to the hearing required the plaintiff to present her own case against the accused student after only providing her a week to prepare her case. The accused student was found not responsible for assault because it appeared to the disciplinary committee that the sexual contact between them was consensual.

Wednesday, February 18, 2015

Another Litigation Roundup

Here are some updates in various cases where Title IX is being used to challenge sexual harassment and sexual assault in high schools:
  • In Michigan, a former student has filed a Title IX lawsuit against the Traverse City Area Public Schools, alleging that the school district was indifferent to harassment and retaliation he faced after reporting that a teacher had engaged him in oral sex and had been sending him sexually explicit text messages.  (The teacher was later criminally convicted.) 
  • In a similar matter, a federal judge in Pennsylvania refused to dismiss a mother's claim against the Susquehanna Township School District challenging the hostile environment her daughter faced after police arrested the principal for having sex with her daughter, a 16-year-old student. (The principal has plead guilty.) 
  •  In yet another matter involving teacher-student harassment, a court refused to dismiss a student's case against the Seattle School District where the student alleged that she reported the teacher's harassing comments, stares, and touches to the principal, and that the principal did not follow up in any meaningful way, allowing the teacher's conduct to escalate to more egregious physical contact.  R.P. v. Seattle Sch. Dist., 2015 WL 418001 (D. Wash. Jan. 30, 2015).
  • The State Board of Education in Hawaii will have to continue to defend a lawsuit arising out of the repeated instances of rape of a female special-needs high school student by one of her male special-needs peers. In rejecting the state's motion to dismiss, the court agreed that the plaintiff adequately alleged that school officials failed to supervise the male student even though they were on notice of the fact that he had attacked the female student off campus, and that the lack of supervision provided the male student the opportunity to rape the female student in a coed bathroom on campus.  Kaukaho v. State Bd. of Educ., 2015 WL 470230 (D. Ha. Feb. 3, 2015).

Monday, February 16, 2015

Northwestern Professor's Title IX and Defamation Suits Dismissed

Earlier this month, a federal district court in Illinois dismissed claims filed by a Northwestern philosophy professor against Northwestern and a student who had accused him of sexual assault. 
The court dismissed Ludlow's Title IX claims against Northwestern after concluding that he had not sufficiently alleged discriminatory motive. Ludlow's complaint criticized the procedure by which the university conducted the investigation of the graduate student's complaint that he had sexually assaulted her in the context of an otherwise-consensual romantic relationship. He also challenged the university's conclusion--having found insufficient evidence to substantiate the graduate student's allegations--that Ludlow was guilty of capitalizing on an equal power dynamic, on the grounds that Northwestern had no policy against such relationships.  Yet, the court refused to infer from the fact of these allegations alone that Northwestern could have violated the professor's rights under Title IX, since the complaint contained no allegation that Northwestern officials were motivated by bias against Ludlow on the basis of sex.

The court also dismissed Ludlow's claims that the graduate student had defamed him when she directed her complaint against Ludlow to Northwestern's general counsel. Defamation is a tort that renders a defendant liable for making false statements against the plaintiff.  However, some statements are subject to a qualified privilege, meaning that the defendant cannot be liable for them, even if they prove false, unless the plaintiff shows that the defendant was acting maliciously when making the statement. The court determined that the graduate student's statement is subject to the qualified privilege because it is a statement made to an employer about alleged employee misconduct. The court recognized that the privilege is justified by the strong public interest in having misconduct reported. Accordingly, the court examined Ludlow's complaint against the graduate for evidence of malicious intent.  However, all Ludlow alleged was that her statement was untrue, and the court refused to infer malice from that alone.

(The court also dismissed a second charge against the graduate student for invading his privacy by presenting him in a false light, because the situation did warrant making an exception to the requirement that a false light claim involve the "public presentation" of private matters--a requirement not satisfied by the graduate student's communication with the university counsel.) 

When we blogged about this case while it was pending, we noted concern for the possibility that defamation lawsuits could potentially have a chilling effect on valid reports of sexual assault. The court's decision appropriately addresses that concern by recognizing the privilege afforded to statements made in the context of such complaints. While a person who makes a false report of sexual assault for malicious reasons like retaliation or spite can still be held accountable, the law does not impose liability every time a sexual assault report does not prove true. This limitation provides important protection for erstwhile whistleblowers, who may actually be telling the truth, yet fear the possibility of not being able to marshal enough evidence to support their claim, as well as in cases where the accuser turns out to be mistaken because of memory lapse or trauma.  In such cases, the accusation will not stand, but nor will it give rise to liability on the accuser's part.

Decision: Ludlow v. Northwestern Univ., 2015 WL 508431 (N.D. Ill., Feb. 5, 2015).

Tuesday, February 10, 2015

Statistics: Surprising and non-existent

A short, but important editorial from this past weekend's New York Times about the statistics on campus sexual assault covering two angles.

The first is one with which many are familiar: we don't know the rate of campus sexual assault. The one in five statistic is based on a small sample size. The unreliability of that number is fodder for those who believe the problem is not as serious as the recent campus activists have made it out to be. It has also been suggested that the number is inflated because women are "crying rape" when they regret their sexual encounters and/or have a grudge against a fellow student and are using the campus judicial process to get him (usually this is in reference to heterosexual encounters when the man is the accused and the woman the victim) expelled.

We need better numbers to stop this discourse because, as those of us involved in the study of and activism around this issue know, the number is likely higher because of underreporting. The many stories that have emerged from the movement illustrate why people do not report sexual assaults. The questions about why victims don't just go to the police ignore both the poor treatment victims receive in the system including the difficulty in prosecuting rape cases. But as we have unfortunately seen, the campus judicial system is often failing these victims, too. The movement may be bringing these injustices to light, but it is hard to say if reporting will increase or decrease because of it. I would like to believe that more people would come forward to report sexual assault, but it likely depends on the campus environment and the history of the institution in its handling of cases. 

This brings me to the second angle of the editorial: the reporting of sexual assaults that colleges and universities are required to do under the Clery Act. All campus crimes must be reported but it seems that sexual assaults have been the most controversial because schools have been underreporting them. Some of the nearly 100 schools under investigation for Title IX violations in relation to the handling of sexual assault are also facing Clery Act violations.

Here is what I did not know about Clery Act reporting that the editorial shed light on:
"When the Department of Education audits universities for possible Clery Act violations, reports of sexual assault rise dramatically, by approximately 44 percent; when the period of scrutiny ends, reporting rates fall right back to pre-audit levels."

This was evidence of a study that looked at data from 2001-2012 during which time the government conducted over 30 Clery Act audits.

This is disturbing. There have long been calls for putting some teeth into Title IX as it applies to sexual assault and Assistant Secretary of Civil Rights in the Department of Education Catherine Lhamon promised that the department would indeed pull federal funding from offending schools. Tht has not happened yet.

Clery Act violators, though, already incur fines. Unfortunately they do not seem, based on the above data, to be much of a deterrent. This is from a 2014 Inside Higher Ed article about Clery Act violators and their punishments:
"In spite of that increased scrutiny, colleges facing penalties have continued to be successful in getting their Clery Act fines reduced, according to data provided by the Education Department.
Far more often than not, colleges are able to either persuade officials to lower the fines or enter into a settlement through which they pay a lower amount than the department had originally proposed. Of the 21 Clery Act fines that have actually been imposed on colleges since 2000, 17 have been lower than the department initially proposed, the agency’s data show.
Among those institutions successful in winning a discount on their fines, the average reduction was more than 25 percent and usually represented tens of thousands of dollars. The largest discount, proportionally speaking, was a $110,000 fine that the department proposed against Pittsburgh Technical Institute in 2005; the for-profit institution based in Oakdale, Pa., was ultimately fined half that amount, $55,000, in 2007."

This is a bad--as in ineffective--precedent and does not bode well for putting some force behind Title IX compliance either. 

Friday, February 06, 2015

Fired Tufts Coach Files Complaint

Though it's no longer truly "news," I recently learned that former men's tennis coach Jamie Kenney filed a Title IX complaint with the Department of Education back in December alleging that her termination from the position was illegally motivated by gender stereotypes and double standards. According to the complaint (which I have read but do not have a link for) Coach Kenney suspended two team captains for violating the team's drinking policy. As part of their suspension, a decision Kenney had cleared with the Athletic Director, the players were banned from attending the conference championship in any capacity.  The players attended anyway in defiance of their coach, so Coach Kenney confronted them, as well as a (male) assistant coach who had been in on their plan, to insist that they leave.  In response, the rest of the team rallied around the suspended players by enlisting their parents to complain to the university president. The Athletic Director then withdrew his support for the coach's decision, and a representative from human resources confronted Coach Kenney with the parents' complaints, which had been forwarded by the President, as well as the negative evaluations that the students had filled out in the wake of (and in obvious reaction to) her unpopular disciplinary decision.  Eventually, after raising gender equity concerns about the way she was being treated, Coach Kenney received notice on July 1 that she was terminated from her position.

The complaint alleges that the university's response to the complaints about Coach Kenney's decision to discipline her players was discriminatory on the basis of gender, in that male coaches are afforded greater freedom to engage in coaching methods that female coaches are scrutinized for.  Additionally, she alleges that Tufts tends to ignore complaints made against male coaches and to support male coaches' decisions to discipline their players.

I am hopeful that OCR will investigate this complaint and expose some of the under-examined obstacles facing female coaches in general (see also Kris's post from yesterday about the Iowa complaint), and female coaches of male athletes in particular.  As the complaint points out, gender stereotypes create the expectation that women, including female coaches, embody a "caretaker" role.  When they step out of that role and into a stereotypically male"leadership" role, they are often penalized for it in overt and subtle ways.  This puts female coaches in a double bind, because the leadership model is generally more valued that the caretaker model, and may be particularly so when the athletes in question are male. It is no wonder that women constitute a mere 2-3% of the head coaches of men's teams, while men, in contrast, are the majority of coaches of men's teams. This matter, therefore, provides OCR with a rare opportunity to address a concrete, individualized example of conduct that contributes to a widespread problem.  

Thursday, February 05, 2015

Iowa complaint & coaching behavior

Two pieces of news from two of my alma maters today. One, four field hockey players at  the University of Iowa have filed a Title IX complaint with OCR in conjunction with the firing of field hockey coach Tracey Griesbaum. The second: University of New Hampshire fired women's ice hockey coach Brian McCloskey signed an admission of wrongdoing in a case of assault against a player during the course of a game.

Regarding Iowa, we were expecting something Title IX related to come out of this situation, but we presumed it would be a lawsuit from Griesbaum. (This still could happen, of course.) So it was a pleasant (in that unfortunate kind of way) surprise to hear about the four student-athletes taking the initiative and filing the complaint. The premise of the complaint is that the firing of Griesbaum, a highly successful coach, disadvantages female athletes, i.e, they are not receiving treatment equal to that of their male peers. They also contend that there is unequal treatment of female and male coaches within the department noting that the alleged abusive behavior committed by Griesbaum (based on student exit interviews) is tolerated when it is done by male coaches.

This relates to the case at UNH. The original story from McCloskey, who did have a lawsuit pending against the university for a while, was that he grabbed a player's shirt after she came off the ice and spoke back to him when he reprimanded her for her performance. He contended that this would have been tolerated if he were a female coach and/or coaching men. And he was probably right. This does not excuse his behavior or make it acceptable. It does point to the double standards that exist around gender and coaching styles--the same ones that the Iowa complaint points out.

McCloskey, as part of the admission--which includes more details (he pulled the player's shirt which caused her to fall and hit her head; he then grabbed her face mask)--will attend anger management classes.

I was about to suggest that all coaches take anger management classes or that there be better training programs for coaches, but I do not think the solution is that simple. We chastise coaches who engage in abusive behaviors, but the paradigm never shifts away from the idea that harsh disciplinarians and tough love and other such euphemisms are the key to creating a successful team. We justify these behaviors by pointing to athletes who say they are motivated by such tactics.

I believe there is more (there always is!) to both the Iowa and UNH situations that resulted in the dismissal of these two coaches. Even if it was the only reason, there are gendered implications to the bad behavior rationale.

Still, there is a huge positive to take out of, at least, the Iowa complaint. The four student-athletes are challenging their department, a pretty bold move given that three of the four will be returning athletes next season. I suspect there may be a Title IX whisperer somewhere in Iowa City. Regardless, I hope the activism is contagious. Maybe it will head north towards Duluth??

Wednesday, February 04, 2015

Litigation Roundup

Two separate Title IX lawsuits have been filed recently, one challenging disparities in athletic opportunities at a high school, while the other alleges a college mishandled her complaint of having been raped by a fellow student.
  • A parent in Englewood, Tennessee, is suing the McMinn County Board of Education on behalf of his daughter, a freshman at McMinn Central High School who participates in softball and volleyball.  He alleges that disparities in the athletic opportunities for girls violate Title IX. In particular, he alleges that the softball team has to pay itself for field maintenance and equipment, amenities that are provided to boys' teams from the school budget.  Also, the school does not provide the softball team with a lighted field, which limits the team's scheduling options for practices and games. The complaint also notes that the boys' baseball team is provided superior quality locker rooms, dugouts, field house, storage facility, playing surface, and warm up and practice areas. The lawsuit seeks an injunction against continued discrimination and damages to compensate the plaintiff for out-of-pocket expenses and other costs. 
  • A former student is suing the West Virginia School of Osteopathic Medicine, claiming that she was forced to withdraw after she reported to school officials that she had been raped by a fellow student at an off-campus party.  She alleges that school officials responded to her report by advising her to leave school, since they could not guarantee her safety. Additionally, she claims that they did not administer a drug test, leaving her on her own to discover that her assailant had drugged her with diazepam, that they failed to protect her from further contact with him, that they threatened to sue her if she spoke out, and that they breached her confidentiality. Moreover, she alleges that she experienced a sexually hostile environment after a school employee who was dating the alleged, disclosed details of the incident to the campus community.  Her complaint demands damages to compensate her for emotional distress and other costs, as well as an injunction that would require the school to do a better job responding to victims in the future by implementing drug tests and protecting them from harassment and retaliation.



And in another story, a Title IX lawsuit was partially dismissed.
  • The Bibb County School District in Georgia prevailed in dismissing part of a student's Title IX claim seeking damages for a 2012 rape she suffered at the hands of a gang of fellow students who had orchestrated a plan to attack her in a school restroom.  The student alleged that two prior instances of gang rape at the school, one in 2008 and another in 2002, should have put the school on notice of the threat, one of the required elements for institutional liability to attach in cases of sexual harassment and sexual violence among peers. But the court ruled that the two earlier gang rapes could not serve as notice because they were sufficiently different, having been conducted by different gangs than the one that raped the plaintiff. In imposing this requirement for gang-specific notice, the court rejected plaintiff's argument that the school's notice of a gang rape problem in general should suffice.  The plaintiff's other argument, that the school also responded to her own rape with deliberate indifference, continues to be litigated.  The remaining claim could potentially result in damages attributable to the school's indifferent response, which itself could have been the source of some independent emotional distress. However, the dismissed claim was likely considerably more valuable to the plaintiff, as it would have made the school liable for damages arising from the rape itself.   Doe v. Bibb County Sch. Dist., 2015 WL 403320 (M.D. Ga.  Jan. 28, 2015).

Saturday, January 24, 2015

OCR to Investigate University of Minnesota Athletics

The Department of Education's Office for Civil Rights will investigate a Title IX complaint directed at the University of Minnesota athletics department, according to an article in the local press yesterday. The complaint alleges that the department does not provide comparable facilities to women's programs, as evidenced by the women's cross-country and track teams' exclusion from a proposed $190 million athletic "village" that will provide facilities for football and men's and women's basketball.  The running sports, which account for almost half of the opportunities offered in women's athletics, will actually be losing their existing track to make way for the new village.  The team, along with its men's team counterpart, may even be relocated to a facility four miles away in St. Paul.

OCR's investigation would presumably focus on the overall treatment of men's and women's athletic programs in comparison to each other. At first blush, it seems problematic that the new facility will benefit a far greater number of male than female athletes and that its construction seems to be disrupting a far greater number of female athletes than male (running sports account for 227 opportunities for women and 145 for men). Depending on the level of quality of the facilities for other women's sports, however, it's theoretically possible for OCR to determine that the programs receive equal treatment in the aggregate.  We shall see what the investigation reveals. 

Friday, January 23, 2015

Court Clarifies Pleading Standard for Title IX Cases Challenging Campus Disciplinary Outcomes

Earlier this month, a federal district court in Ohio considered Miami University's motion to dismiss a lawsuit filed by a male student whom the university had expelled after a disciplinary board found that he had committed sexual assault on another student.  The court found that the student had not sufficiently alleged a Title IX violation in his complaint, though it granted him the opportunity to amend his complaint and try again.  In evaluating the student's first attempt, the court provided an analysis that is useful to understanding the scope of institutional liability under Title IX in cases challenging universities' decisions to discipline students for sexual assault or other misconduct.

The student's argument in this case is that he did not commit sexual assault, but rather, had consensual sex with the female student who later accused him.  He thus charges the university disciplinary board with having reached the wrong conclusion in his case.  Accordingly, the court refers to this claim as an "erroneous outcome" claim, as earlier court decisions have done.  Citing twenty-year-old precedent* the court explained that a complaint alleging an erroneous outcome in violation of Title IX must include allegations of (1) facts sufficient to cast doubt as to the accuracy of the outcome of the disciplinary proceeding and (2) causation, i.e., that the errors were the result of gender bias.  The second requirement is important because it separates conduct that could possibly give rise to liability on other grounds, like negligence or breach of contract, from conduct that constitutes sex discrimination in violation of Title IX.

At the pleading stage, it is not difficult for plaintiffs to satisfy the first requirement, as the student in this case easily did by alleging his version of the facts as they relate to the matter of consent. The second requirement is typically met if the complaint alleges "statements by members of the disciplinary tribunal, statements by pertinent university officials" or "patterns of decision-making that also tend to show the influence of gender." In this case, the complaint included neither type of allegation.  It is not a sufficient "pattern" allegation to point out, as the student in this case did, that “[i]n virtually all cases of campus sexual misconduct,” the accused student is male and the accuser is female.

The court addressed another recent case, also from Ohio, in which a plaintiff like the one here sufficiently pleaded erroneous outcome in violation of Title IX, and thus survived the university's motion to dismiss. In that case, Wells v. Xavier University, the plaintiff alleged that bias stemmed from the fact that Xavier was being investigated by the Office for Civil Rights for failure to adequately protect sexual assault victims, and as a result, was motivated to use him as a scapegoat to improve their image. The court  was satisfied that such an allegation could, if proven serve as evidence of gender bias on Xavier's part.**

In the present case against Miami University case, the plaintiff's complaint did not contain allegations of the "scapegoat" theory that had been present in Wells v. Xavier University, though the court indicated that if the plaintiff amends his complaint along these lines, he may be able to withstand dismissal as well and continue to litigate his Title IX claim.

The court gave the plaintiff a month to re-file an amended complaint. We shall see what happens.
Sahm v. Miami Univ., 2015 WL 93631 (S.D. Ohio Jan. 7, 2015).

*the age is worth noting, in light of common misconception that Title IX's application to sexual assault is something brand new.  The decision the court relied on is Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994).  That case also set forth selective enforcement model as an alternative to the erroneous outcome model for framing Title IX challenges to university disciplinary decisions. In selective enforcement cases, the plaintiff does not need to allege his innocence, only that the university engages in a pattern of disciplining only members of one sex and ignoring complaints of similar violations by the other sex.

 ** The parties in Wells v. Xavier University decided to settle rather than go to trial, so it does not serve as an example for how to prove bias, only how to plead it.


Monday, January 19, 2015

College Rec Sports Has New Policy of Transgender Inclusion

The National Intramural-Recreational Sports Association (NIRSA) has announced a new policy of inclusion for transgender athletes, which will take effect this spring. NIRSA governs a series of regional and national "extramural" championships for college students in a variety of men's, women's, and coed sports.

The policy allows encourages transgender athletes to self-identify as male or female for purposes of participation:
NIRSA recognizes and celebrates the transgender student population among their tournament participants. Through the guiding policies of the NIRSA Championship Series tournaments, NIRSA empowers students to participate in intramural sports and sport club divisions based on their expressed gender identity.
The policy does not require the participant to undergo hormone treatments, sex reassignment surgery, or any kind of legal process in order to participate consistently with one's gender.  In this way, the policy distinguishes itself from the NCAA's policy for its championships in women's sports, which requires transgender female athletes to undergo hormone treatment for a year prior to competing. With an increasing number of high school athletic associations adopting or considering NCAA-type policies, NIRSA's policy serves as an example that more inclusive policies are possible and more appropriate for sport organizations that are striving to maximize athletic participation.  On its website, NIRSA acknowledges that the new policy will not "noticeably impact the experience of the majority of tournament participant organizers and participants." Yet, it underscores the value of its efforts "if these changes make participation more inviting and inclusive for even one more individual."  

Another thing I like about this policy is that it imposes no additional burdens on transgender athletes, in contrast to some high school athletic association policies that allow gender-identity based participation only after a committee of sorts has investigated and affirmed the student's gender.  NIRSA's policy simply requires that the campus official who signs off on the team's roster should include transgender athletes as participants on a single-sex team, or denote their sex for purposes of a coed sport that specifies a particular ratio of men:women, based on that player's good faith representation of their gender identity. The policy specifically instructs the campus official not to designate the player according to the sex listed on the player's school records if that designation is in conflict with the player's affirmed gender identity. And it provides a work-around for any player who is not comfortable discussing their gender identity with that particular campus official.

The policy also affirms that "for many, coming to know one’s gender identity is not something that happens in an instant; it is a complex process that can occur over an extended period of time." This language appropriately preempts any requirement that a player consistently identify as a single gender over the course of their time in college.  The policy is also sensitive to issues of confidentiality ("Under no circumstances should a student-athlete’s identity as a transgender person be disclosed without the student’s express permission"). 

Along with announcing a new policy for participation, NIRSA has updated its code of conduct, which already prohibits "verbal or non-verbal profanity, disrespectful language, and obscene gestures or behavior" to also ban "bullying" and "homophobic and transphobic expressions of any kind." And, it  includes a set clear and straightforward "best practices" for facilities:
Transgender student-athletes should be able to use the locker room, shower, and toilet facilities in accordance with the student’s gender identity. Every locker room should have some private, enclosed changing areas, showers, and toilets for use by any athlete who desires them. When requested by a transgender student-athlete, schools should provide private, separate changing, showering, and toilet facilities for the student’s use,but transgender students should not be required to use separate facilities.
The policy stops short of requiring such facilities as a condition for hosting a NIRSA-governed competition, but it does require host institutions who do not meet this standard to "work with NIRSA to make comparable accommodations."  Ideally, this language will encourage institutions that are not already thinking about incorporating principals of universal design into their facilities and locker rooms to begin to do so.

Sunday, January 18, 2015

Minnesota-Duluth digs hole deeper

When I give my sport management students scenarios about sport organizations and their responses to or creation of various controversial situations, I do so for several reasons. One is to present examples of non-compliance with laws or policies and ask them to think critically about what went wrong, why, and how. Another is to demonstrate lack of leadership and the consequences of ignorance and/or ego. I ask them (as an example) "do you want to be the athletic director under whose watch multimillion settlements had to be made with victims of retaliation/abuse/discrimination?" Hopefully they get it.

Of course the real test is what they do when they gets jobs in athletics. This is a test that University of Minnesota Duluth Athletic Director Josh Berlo is failing. Last month, as we noted, he announced that women's ice hockey coach, Shannon Miller, would not have her contract renewed because, as the highest paid coach in women's ice hockey (at just over $200,000) the cash-strapped university could not afford her anymore. After considerable outcry--which is ongoing--the chancellor issued a vague statement suggesting that there are other issues:
"The decision to not renew Coach Miller's contract was difficult, but was made thoughtfully after a full review of a number of factors. It's the right decision for the program and I support it. While the decision is sound, we did not communicate it publicly as clearly as I would have liked. We could have communicated this in a less narrow way, and more clearly explained our desire to see the program go in a new direction."

I have already noted how the money rationale was not so much "narrow" as discriminatory. But I am curious about the always-vague but at least equally applied "new direction." The team has won 12 of their 13 games this season. Miller has produced over 20 Olympians and was the national team coach for Canada in the first Olympics that offered women's ice hockey. What direction is UMD looking to take their program? Down? 

I have, as I am wont to do, buried the lead. The latest news out of UMD is that a second female coach has been told her contract will not be renewed. Softball coach Jen Banford, who is also very successful and has been at the university for a decade, will no longer be the softball coach.

There seems to be confusion over Banford's dismissal, though. Berlo told ESPNW that the coach would remain the softball coach; it was her position as Director of Operations for women's hockey (i.e., part of Miller's staff) that was being terminated. But a copy of the letter Banford received (which can be found via the above link to Kate Fagan's ESPNW article) very explicitly states that it is both positions. Banford herself confirmed this with Human Resources.

Banford believes she is being retaliated against for her support of Miller and the women's ice hockey program. She too has retained lawyers. The he said/she said is playing out in the media--not in the athletic department offices. Berlo said this is a paperwork issue and that he plans to retain Banford as the softball coach and is merely restructuring her position. Banford told ESPNW: "Josh has not spoken with me in six weeks. To me, it's obvious why he's saying he's in the process of writing a renewal, but if he wanted to give me a renewal, he would have given me that on Dec. 11."

I could never have devised a scenario like this for my students. Two female coaches' contracts not renewed within weeks of one another and with specious rationales for the dismissals; it just would not have been believable. But here we are.

Monday, January 12, 2015

Lawsuit filed against University of Oregon

The University of Oregon Ducks will take the field shortly in the first College Football Playoff National Championship. This event has likely overshadowed last week's news that a student has filed a Title IX lawsuit against the university and the basketball coach, Dana Altman. The woman alleges she was raped by three basketball players multiple times in one night in early March 2014.

All three were dismissed from the team and barred from the university for a period of 4-10 years. But the disciplinary action did not occur until May 2014--after post-season play had concluded. At the time, the dismissal of these players inspired protest on behalf of the student-athletes citing sex discrimination. But the only Title IX complaint filed with OCR was about the university's failure to respond to the report and to the lack of notification to the campus community about an accused sexual perpetrator on campus.

Yes, one of the accused Brandon Austin, was a transfer from Providence College where he never played after being dismissed from the team as a first year after accusations of his participation in a gang rape there. We wrote about this last summer here and here. Oregon continues to maintain that it did not know why Austin transferred from PC. I continue to maintain that this seems highly implausible. Whether there is evidence to prove this will be revealed during a trial--if it gets to a trial.

The importance of this aspect of the lawsuit though should not be underplayed. Austin is now at a junior college in Florida. Administrators there know of his past. So the question that may be addressed in this lawsuit is: what does a university have to know? when? and how must they handle similar situations? Will a court find that Oregon--if they knew of Austin's prior indiscretions--exhibited deliberate indifference that lead to the rape of the plaintiff?

It is well past the time that some of these questions be answered. Misbehaving student-athletes have been passed around from school to school for far too long. Someone has to be held responsible when they re-offend.

Regarding the timeliness of the school's disciplinary action, to a cynical outsider this might look like the university was trying to keep the student-athletes in good standing until the end of the semester thus not damaging the overall academic standing of the team in terms of progress towards graduation and overall GPA--markers the NCAA uses to determine post-season eligibility.

This case has not received nearly the amount of attention of FSU, perhaps because Oregon did some things right (despite the increase in awareness the bar remains very low). Or maybe the lack of coverage is because this is the basketball team and not the football team. Some of lawyers on the FSU case are also handling this one, and I expect as it goes forward and all the pieces are revealed, it will get more attention.


Montana HS assocation debating transgender policy

In Montana, we have shades of Minnesota.

The controversy last fall over the transgender policy in Minnesota has moved westward. The Montana High School Association has written a policy to address the participation of transgender student athletes in sports.

The association will vote later this month on the policy. A difference between the Montana and Minnesota situations is the voting. In Minnesota a board of 20 voted on the policy. In Montana all the member schools--179 of them--will vote. Passage of the proposal, which is considered a change in policy, requires a 2/3 majority.

This is my first concern. That's a lot of people in a fairly conservative state, and the conservative religious groups--as they did in Minnesota--have mobilized. The rhetoric and misinterpretations are similar. There are the "privacy concerns"--again, not those of transgender children, but of cisgender children. There are the outrageous statements based on complete ignorance, arguably willful, regarding transgender lives; including this one from a recent podcast by the Montana Family Foundation: “Will your high school be forced to put boys and girls together in a hotel room overnight? What about sharing a locker room? And what about putting a 6-foot-5, 220-pound guy on the girls’ basketball team? They may have to if the Montana High School Association gets its way.”

This does not sound like the libertarianism that Montana conservatism trends towards. 


The policy does not address locker rooms or accommodations. What it does say is that transgender students seeking to compete on a team consistent with their gender identity must "apply for eligibility" which will be determined by a panel consisting of "medical experts," members of MHSA, and a student advocate (unclear exactly who gets to fill this position). This group makes a recommendation to the association's executive board which makes the final decision.

Concerns about the policy itself:
There is nothing in the policy that sets clear guidelines on locker rooms or shared hotel rooms during travel. So, as in Minnesota, we have a lot that can go wrong in terms of outing transgender children as well as ostracizing and isolating them from teammates. 

Also, the policy does not have guidelines that state what this committee will be looking at. What are the criteria? I fear this is more of the "case-by-case basis" trend that I discussed in the New Jersey bathroom case. This means that in addition to a committee sitting in judgement about a child's gender identity, there is nothing guiding that decision, meaning that children who come to the committee are putting themselves at risk of rejection on terms they have not been made aware of. Perhaps this will change if the policy does indeed get passed; but right now everything seems too vague for comfort.