Thursday, April 12, 2018

For Now 4-H Rodeo May Continue to Label Events for Boys and Girls

In South Dakota, 4-H rodeo is under Title IX scrutiny because of its practice of labeling events for boys and girls. Boys' events include riding bulls and broncs, while girls compete in goat-roping and ribbon-roping.  The USDA, which administers federal funding to 4-H programs*, has apparently taken issue with this practice since the 1970s, so it's unclear why the practice has persisted until now, nor is it clear what prompted the agency to reach out last year with a request to remove the labels "boys" and "girls" from the respective events or risk ineligibility for federal funds.

It's also unclear why 4-H has been resisting the agency's request, given that the "boys" and "girls" labels conflict with the organization's reported actual practice of permitting participants of either sex to compete in all events.  If the labels aren't signalling actual exclusion, what purpose do they even serve?  The only purpose I can see is norm-setting. 4-H is effectively telling girls, "we won't tell you you can't ride a bull, but we can tell you 4-H doesn't think that's appropriate feminine behavior." And the same goes for boys and goat- and ribbon-roping (which Wikipedia explains here).  Sex-stereotyping is a well established aspect of sex discrimination that is prohibited by statutes like Title IX.

For now, however, the Secretary of Agriculture Sonny Perdue has temporarily halted the USDA's enforcement efforts. Yesterday it was reported that the agency will embark on a "broader review" of its Title IX regulations, and the Secretary says it would not be "appropriate" to upend decades of tradition in South Dakota while this review is pending. South Dakota is one of two states that has 4-H rodeo; and New Mexico's 4-H rodeo reportedly does not label its events by gender.

*This is the first time we've blogged about 4-H and Title IX. Because it is an educational program that receives federal funds, it is subject to Title IX.  However, it must comply with the USDA's interpretation of the statute rather than the Department of Education's, because the USDA is the agency that administers its funds. 

Tuesday, April 03, 2018

Big Payouts--Not to Victims

A few weeks ago I wrote about the costs of Title IX violations focusing on the money schools are spending to defend themselves against lawsuits. I mentioned, in that post, that the costs Baylor has incurred are unknown; only that they continue to litigate several cases involving multiple plaintiffs and that they have settled one case.

But Baylor has not just been negotiating settlements with plaintiffs. This week we found out what Baylor paid a lot of money to get rid of former football coach Art Briles and former president, Kenneth Starr. In June 2016, the school reached agreements with both men. Briles received $15.1 million and Starr's severance was $4.5 million.

Baylor's settlement with one victim in the fall of 2017 was confidential. My educated guess is that it was not even close to what these men received.

I want to also note the difference in the amount of the settlements. Coaches get bought out of contracts all the time--a practice which I find infuriating but almost unbearable when the coach is being released because of bad behavior. Briles is just the latest of this group. (Technically not the latest. Rick Pitino is being paid very well for his role in the college basketball bribery scandal. The information about Briles's severance is the newest, however.)

Look at the payouts and figure out who had power and influence on that campus and think about how Baylor continues to deny there was a culture of sexual hostility on campus. Football players were not the only perpetrators, but they were definitely protected by the system. The system, if we are going based on payouts, that Briles ruled over--even more so than the university's president.

Another former president may also be rewarded for her complicity in the sexual abuse of gymnasts scandal. Lou Anna Simon, who stepped down as the president of Michigan State University could get over $1million easily if she comes back as a faculty member in addition to a slew of other perks and benefits. There was some outrage over the conditions stipulated in her contract but I have nor heard any more about whether she will be returning and under what conditions.

Saturday, March 31, 2018

Roundup of Recent Disciplined-Student Cases

A student who was suspended for sexual assaulting another student sued the University of Cincinnati alleging that the disciplinary decision violated Title IX and his constitutional rights to due process. Though the student initially prevailed in motion for a preliminary injunction, the court has now concluded that allegations of gender bias and unconstitutional process are not sufficient to sustain his case.  First, the court rejected that the plaintiff's allegations bias constitute constitutional violations. The university's professed sensitivity to the needs of sexual assault victims, for example, does not establish that anyone prejudged the outcome of this particular case. Nor do general allegations that the university was under pressure to comply with the now-rescinded 2011 Dear Colleague Letter. Finally, in response to the plaintiff's allegations that the Title IX coordinators affiliation with an organization that promotes a victim-centered response, the court quoted the Sixth Circuit, for the point that "merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased." The plaintiff's Title IX claim fared no better, as it too lacked the requisite allegation of bias on the basis of sex.  The plaintiff attempted to base his bias allegation on the fact that the university was being investigated by OCR for its sexual assault response. Thus, he asserts, the university would have been under pressure to make an example of him.  Yet, the court reasoned, no allegation claims that any of the university officials involved in his case were even aware of the OCR investigation, let alone were influenced by it. Additionally, the court rejected the claim that media and advocacy pressure to "crack down" on campus sexual assaults and address "rape culture" were sufficient articulations of gender bias, since they do not establish that the university faced pressure for how it conducted disciplinary procedures, rather than in general its sensitivity and response to rape.  Doe v. Univ. of Cincinnati, 2018 WL 1521631 (S.D. Ohio Mar. 28, 2018)


In another recent decision, however, a court concluded that the plaintiff's allegation of gender bias was sufficient and that he could continue to litigate his claim that the university's decision to suspend him for sexual assault violated Title IX:
One plausible inference from plaintiff's allegations is that the University, in an attempt to change historical patterns of giving little credence to sexual assault allegations, has adopted a presumption that purported victims of sexual misconduct are telling the truth. Indeed, that may well be the most plausible inference at this stage. To the extent that discovery shows that any bias against plaintiff stemmed from a purely “pro-victim” orientation, that bias did not violate Title IX or the Equal Protection Clause. But another plausible inference from the complaint is that the University was predisposed to believe Roe because she is a woman and disbelieve plaintiff because he is a man. That inference could be supported by, among other things, evidence that when the accused is a woman and/or when the accuser is a man, the University conducts sexual misconduct investigations and adjudications differently than it did in this case. Such evidence is, of course, practically unavailable to plaintiff without the tools of discovery. Because the allegations in the complaint support a plausible inference of gender bias, Defendants' motion to dismiss Plaintiff's Title IX and Equal Protection claims is denied. 
Doe v. University of Oregon, 2018 WL 1474531 (D. Or. Mar. 26, 2018)

Yet, a third recent decision granted a university's motion to dismiss a disciplined-student's Title IX claim based on the insufficiently of his allegations of gender bias. The court did not accept that OCR's promulgation of the 2011 Dear Colleague Letter put pressure on the university to discriminate against men. Or even, as the court pointed out, that the university made changes to its disciplinary process in response.  Doe v. University of Dayton, 2018 WL 1393894 (S.D. Ohio Mar. 20, 2018).

Friday, March 30, 2018

Plaintiff May Continue to Litigate Claims that Catholic University was Deliberately Indifferent to Her Rape

Students who sue educational institutions for failing to respond to sexual misconduct must meet a high judicial standard of proving that the institution's response amounted to "deliberate indifference." This is a high bar, as the court must find that the institution's response wasn't just flawed, but clearly unreasonable.  Because of this many plaintiffs lose on dispositive motions prior to trial. And so I make a point to blog about the cases that survive such motions, like the one I read today about Catholic University.

In this case, the plaintiff alleged that the university's response to her reported rape was deliberate indifference.  According to her allegations, the university initially declined to discipline the alleged assailant, believing there to be evidence of consent. Then the plaintiff produced a toxicology report that showed her blood alcohol level at the time of intercourse would have been three times the legal limit to drive a car. Thus, she argues, she was clearly too incapacitated to have consented, and so incapacitated that the assailant would have recognized her inability to consent.  Based on this, the university decided (eventually) to conduct a disciplinary hearing.  But, the complaint alleged, the hearing procedures limited the plaintiff's opportunity to present evidence in support of her claim that she was obviously too drunk to consent. As a result, the university found insufficient evidence to find the assailant responsible, a finding upheld on appeal.

The plaintiff's charge of deliberate indifference was supported by allegations that the university's resolution of the case was unreasonably delayed, that its investigation procedures were flawed and lacking, that she was denied procedural rights at the hearing, such as having adequate notice of the date and time, and an opportunity to call certain witnesses. Additionally, she alleged that university officials involved had already made up their minds about the case, and that they treated her with hostility.  And, she claims that the University failed to maintain and to enforce a no-contact order and thus exposed her to continuing harassment throughout her time in college.

The court needed to consider only two of these claims before reaching the conclusion that she had adequately plead deliberate indifference. First, the court reasoned that a jury could find deliberate indifference if the plaintiff proves her allegations of delay -- primarily, the allegations that the university took eight months to hold the disciplinary hearing. This is notable because the lower courts are pretty mixed about whether delay can qualify as deliberate indifference.  The other allegations that the court credited were the ones about university's failure to enforce the no-contact order; these too could give rise to liability under Title IX if they prove true. With two reasons to deny the motion to dismiss, the court decided it did not need to evaluate whether any of the plaintiff's remaining allegations of deliberate indifference would have independently support liability as well.

Of course, surviving a motion to dismiss is only a preliminary victory for the plaintiff. As the court pointed out, she is still vulnerable to dismissal at summary judgment if evidence to support these allegations does not emerge.  And of course, the jury would have an opportunity to decide if the evidence supports the conclusion that the university was deliberately indifferent.  But enough cases stumble on that preliminary step that this one is worth noting.

 Cavalier v. Catholic Univ. of Am., 2018 WL 1524743 (D.D.C. Mar. 27, 2018)

Wednesday, March 28, 2018

NPR's Story on Title IX and Religious Institutions Lacks Context

Yesterday NPR ran a story on All Things Considered addressing the conflicts some religious institutions face between upholding their religious beliefs and respecting/including LGBT individuals and identities. I liked that the story, and its counterpart on yesterday's Morning Edition, captured some of the nuance and avoided the reductionist narrative of Christians versus Queers. Listeners heard from college administrators at Christian institutions that respect and support LGBT students, as well as from LGBT students who, as Christians themselves, appreciate and genuinely feel included by their Christian college communities.

But when ATC's segment turned its focus on the supposed fear and worry on the part of some Christian institutions that they could lose federal funding if they do not endorse LGBT rights, the framing of this story started playing into Christian propaganda.  The report neglected to include important context that shows there is no actual reason for religious institutions to worry.

First, OCR has never revoked any institution's federal funding in the entire lifetime of Title IX. Though general, that seems like kind of an important point to make when specifically discussing concern that this could happen.

Second, thanks to the current presidential administration, OCR will not enforce Title IX's application to transgender rights. This was mentioned briefly in the report, but its significance was not addressed. Religious institutions have zero reason to fear that OCR is going to start requiring institutions of any kind, religious or not, to house transgender students or let them use facilities according to their gender identities. (Courts are another story, but courts do not have the power to revoke federal funding.) 
 
Third, even confining religious institutions' fear to the anticipation that OCR could in the future return to its former position on LGBT rights, it still needs to be emphasized that Title IX exempts religious institutions from any part of Title IX that conflicts with their religious beliefs.  All a religious institution has to do is send in a letter that explains what part of Title IX conflicts with what religious tenet.

Fourth -- and this was completely missing from the story -- since 1976, OCR has handed out these religious exemptions like candy.  Not one single exemption request has ever been denied. Even the previous administration granted all the exemption requests it received from Christian colleges seeking to preserve their right to discriminate against LGBT students.  There is absolutely no reason to think that OCR would pick this moment to break with 40+ years of precedent and start denying or revoking those exemption requests.

The framing of this story bothered me because the current administration has done everything it can to support religious freedom, and everything it can to roll back LGBT civil rights. Yet somehow the narrative of this story is that the civil rights of religious institutions are the ones at risk.  This is exactly what the right wing media does when it reports, for example, on the imaginary war on Christmas.  I hoped for better from mainstream media. 

Sunday, March 18, 2018

Discipline Student's Case Against UMass Dismissed; Against Marymount Continues

This week I read two decisions in cases stemming from a university's decision to discipline a student for assault.  In one of these cases, the University of Massachusetts prevailed on summary  judgment on both the plaintiff's due process and Title IX claims. The plaintiff, a male student had physically assaulted a female student during a study-abroad program and then (multiple times) violated subsequent no-contact orders that were supposed to keep him away from her while the disciplinary process was pending. The student alleged that the university's decision to expel him was procedurally inadequate due to the length of time (seven months) it took to issue its final decision and other things, but the judge found no violations of his constitutional rights to due process. On his Title IX claim, the judge found no evidence to conclude that the hearing board committed error, let alone was motivated by gender bias. The plaintiff did not dispute the facts of the underlying assault or the no-contact violations, and the record was "entirely devoid of proof" that the board's decision was tainted by gender bias.  Haidak v. University of Massachusetts, No. 14-cv-30049-MAP (D. Mass. Mar. 9, 2018). 

In the second case, a court denied Marymount University's motion to dismiss a plaintiff's claim that its decision to suspend him for sexual assault violated Title IX (the plaintiff's torts and contracts claims against Marymount were dismissed, however). The court agreed that he satisfied the first element of an erroneous outcome claim by alleging that various procedural errors -- including ones that prevented him from cross-examining the complainant and marshaling exculpatory evidence -- caused the university disciplinary board to wrongly conclude he was responsible for the sexual assault for which he was charged. The court also accepted the plaintiff's allegation of gender bias as sufficient to survive a motion to dismiss.  The plaintiff alleged that the professor who adjudicated his hearing had revealed gender bias in a subsequent, separate case that that professor also adjudicated.  That later case involved a male complainant, who had accused a female student of touching his genitals without his consent.  The professor allegedly questioned the male complainant about whether he was aroused by the unwanted touching, and allegedly expressed disbelief that the complainant said he was not. The plaintiff claims that this shows the professor who adjudicated his matter employed discriminatory stereotypes about gender and sexuality. However, the court did not explain how an adjudicator's bias that "men cannot be victims of sexual assault" translates into bias that "men accused of sexual assault must be guilty."  I don't see the how the plaintiff's allegation could, if proven, allow the jury to conclude that the adjudicator was biased against the plaintiff because of his sex.  Doe v. Marymount Univ., No. 1:17-cv-401 (E.D. Va. Mar. 14, 2018).

Thursday, March 15, 2018

Jury Awards Coach Shannon Miller $3.74 Million

A federal court jury in Minnesota determined today that the University of Minnesota-Duluth was motivated by sex discrimination and retaliation when it decided not to renew the contract of former women's hockey coach Shannon Miller.  As a result, the university violated Title IX and is liable for $3.74 million in damages. This figure includes $744,000 to cover Miller's past lost wages and $3 million to compensate for her emotional distress. 

Though the university argued that Miller was not renewed for performance reasons, Miller's presented evidence that convinced the jury that she was actually let go because she was a strong advocate for her team and that that athletic department employed double standards when making employment decisions about male and female coaches. 

Some of our past blog posts about this case are here, here, and here.

Tuesday, March 13, 2018

Transgender Student Wins Decision in Locker Room Case

Another federal court has sided with transgender students and ruled that Title IX and the Constitution's Equal Protection Clause protect their right to use sex-specific facilities that correspond to their gender identity. The plaintiff in this case, who goes by his initials M.A.B., sued the board of education in Talbot County, Maryland, over his high school's decision to prohibit him from using the boys' locker room to change for gym class. M.A.B. was required instead to use gender neutral bathrooms for this purpose, even though that facility does not have lockers, showers, or benches, and is located remotely from the boys' locker room. The school board moved to dismiss his Title IX and Equal Protection claims on grounds that they fail to state a claim covered by either law, but the court has denied that motion, paving the way for litigation to continue.

The court applied the sex-stereotyping theory of sex discrimination to conclude that the school board violated Title IX, reasoning that M.A.B. is excluded from the locker room because his transgender status contravenes stereotypes about sex and gender. Addressing his constitutional claim, the court applied intermediate scrutiny to the school board's policy because it singles out M.A.B. for reasons related to sex and because transgender individuals are a quasi-suspect class. The court determined that the exclusion policy did not survive intermediate scrutiny because it is not substantially related to the school board's interest in protecting student's privacy, since the locker room has partitioned stalls for changing clothes, and toilets with stalls and doors. A student who wants privacy can elect to take advantage of these features without experiencing the same kind of stigma and psychological harm that M.A.B. faces when he is mandated to use single-user facilities.

In the same decision that the court denied the school board's motion to dismiss, the court also considered M.A.B.'s motion for a preliminary injunction that would allow him to use the locker room while the litigation is pending.  The court denied this motion on the grounds that P.I. remedy requires a showing of irreparable harm, which M.A.B. cannot satisfy because he is not currently not taking physical education or competing in sports.  Though he will take P.E. next school year, the court seemed confident that it would issue its decision on the merits by then, which would render the preliminary injunction unnecessary. If the court is wrong and the case is still open when M.A.B. starts school in the fall, he can refile his motion for a preliminary injunction at that point.

Thursday, March 08, 2018

The cost of Title IX and backlash rhetoric

In talking about the repercussions of Title IX, a common statement is that the ultimate price of non-compliance is the revocation of federal funds. Quickly it is noted that this has never happened. No school has ever been punished by the Office of Civil Rights by having their federal funding pulled.

Perhaps this is obvious--but there are other costs to non-compliance. The fact that federal funding has not been revoked does not mean that schools do not pay for their mistakes and ignorance--willful or not.  This is an important reminder as we continue to exist in a time of uncertainty in regards to the enforcement of the law and continues on our theme of recent weeks: head to the courts.

We have, over the years, discussed the many settlements and jury verdicts that have cost schools hundreds of thousands, if not millions, of dollars. These are cases that have addressed retaliation against female coaches and administrators along with advocates of women's sports, as well as discrimination against transgender students. There are too many cases to link to here but examples have come from University of Iowa, Fresno State, Florida Gulf Coast, and several high schools that have been found to have discriminated against transgender students.

This post focuses on the costs schools incur when they choose to fight Title IX cases in court. How to proceed with legal action is always a literal cost-benefit analysis. I have been seeing more media attention being paid to these costs. The impetus for this post was an article about the pending case against Kent State University in Ohio: Kent State Budgeting over $600,000 for Kesterson Title IX Lawsuit. And then there was one about Iowa State which has "spent more then $120,000 on three Title IX lawsuits." Baylor, still in the midst of its sexual assault scandal has settled one case, but continues to fight in court the others it is facing.

Last week it asked a court to throw out a lawsuit from one of 17 plaintiffs suing the school. How much Baylor has spent in court thus far is not information I could find, but it must be considerable given the number of cases. It remains to be seen how hard they intend to fight each of the five other lawsuits involving the rest of the plaintiffs and how much money they will devote to what appear at this point to be losing battles--if not in court, then certainly in the realm of public relations.

The Kent State case, which I wrote about initially in 2016 and involves the alleged cover-up of an assault by a coach who is also the alleged perpetrator's mother, is currently in the discovery stage. The $600,000 figure cited in the headline is based on the total budgeted thus far since the lawsuit began.

We have not written abut Iowa State where only two of the three cases mentioned in the headline are still pending. (A judge dismissed one last week.) But one case is from a student  who was raped in a fraternity and who is accusing the university of deliberate indifference because administrators knew about the prevalence of sexual assault within the Greek system. The second is a lawsuit brought by the former Title IX coordinator who says the university prevented her from doing her job effectively and also engaged in patterns of racial discrimination putting women of color, like herself, in visible positions of leadership but not actually listening to them. I am especially interested in the latter case and how the intersectional discrimination this former employee faced will be discussed and considered by the court should it get that far.

Returning to the original topic though regarding money schools spend on lawsuits: costs matter because we should be paying attention to how much money schools are spending on lawsuits, especially schools--like Baylor--which have obvious patterns of violations and indifference and denial. But these public reports and interest about where the money is coming from and just how much of it is being spent can also have a deleterious effect.

They can contribute to the backlash against enforcement of the law, especially in a moment where how sexual assault on campus should be handled and how it will be addressed going forward is a very large uncertainty. We have already seen considerable backlash from a vocal group of accused men that has disproportionately taken up the public discussion of campus sexual assault. I worry that the "how much is school X spending" could have similar effects, especially when the school is public and thus taxpayers are implicitly called to action with these headlines and reports.

What differs is that schools have to address a lawsuit whether by fighting it or settling. But public opinion matters and it matters a lot when Title IX enforcement is in its current precarious situation.

Wednesday, March 07, 2018

Rape Victim's Title IX Claims Against Columbia Dismissed

A federal court in New York dismissed a Columbia student's lawsuit against the university alleging that its inadequate response to sexual misconduct in general, and to her own rape in particular, violated Title IX. Specifically, the student alleged that she was raped twice in her dorm room. She claimed that Columbia's liability for the first rape stemmed from its indifference to the problem of sexual assault on campus. This allegation involved too-general a threat, however, to impose some specific obligation on Columbia. Institutions are only liable for pre-assault conduct if they failed to respond to a more specific threat, such as notice that the plaintiff herself was under a heightened risk of assault, or notice involving the particular context or manner in which the plaintiff was assaulted. Absent such allegations, the court dismissed this aspect of her Title IX claim.

The plaintiff also alleged that Columbia was liable for the second rape because it did not adequately respond after she reported her first rape.  The court's conclusion that this claim was also insufficient stemmed in part from the lack of notice that the university received. For one thing, she did not report the first rape to her professor, she only alluded to rape in vague enough ways that did not trigger the professor's responsibility to report to the university's Title IX office. For another, though she later reported the rape at an advocacy group meeting, Columbia policy specifically exempts rapes disclosed "at public awareness events, such as protests, “survivor speak outs,” and other student advocacy forums" from triggering an investigation. The fact that Columbia officials did reach out to her following the disclosure, and that they respected her wishes not to pursue an investigation, precluded the court from characterizing Columbia's response as clearly unreasonable, as required to impose liability under the deliberate indifference standard.

This case made me think about the ongoing debate about mandatory reporting policies. I'm noticing increasing research and advocacy against the mandatory reporting policies, such as this new paper in American Psychologist, which concludes that evidence does support the belief that mandatory reporting policies are helpful to survivors, and that they may in fact harm survivors by limiting their autonomy. The paper proposed several alternatives that the authors believe are more survivor-focused, such as allowing university personnel who receive a student's report of sexual assault to respect the victim's choice on disclosure, and to whom an incident may be reported, and allowing victims to chose whether their report gets investigated.

But what are we supposed to make of those findings  and recommendations in light of stories like the plaintiff's here?  Her autonomy was preserved --  by a mandatory reporting policy that let her say just enough to her professor without triggering the professor's obligation to report, and that exempt disclosures made at public awareness events.  It further preserved her autonomy by allowing her to determine whether her first rape got investigated.  Her autonomy was preserved, but was her safety?  She was raped again.  And I think it's telling that in retrospect she argues that the university should have done more to protect her safety, and that she faults the university for the very things that the university did to preserve her autonomy.

I don't purport to know the right balance between safety and autonomy here, but I am concerned that we are not talking enough about the risks, not only to victims and survivors, but to the campus community as well, stemming from a university's well-meaning choice to do nothing rather than respond.  I appreciate research like the paper I noted above, but I hope there are equal efforts to document the harm that results from policies like the one those authors propose.

The decision described in this post is: Roskin-Frazee v. Columbia Univ., 2018 WL 1166634 (S.D.N.Y. Feb. 21, 2018).

Wednesday, February 28, 2018

Litigation Update in St. Cloud State Athletics Case

On Monday a federal court ruled on various preliminary motions aimed to limit the scope of ongoing litigation against Saint Cloud State University in Minnesota, which was sued by female athletes over its decision to eliminate two women’s teams in 2016.  The plaintiffs claim that even though the university cut four men’s teams at the same time, the elimination of women’s tennis and nordic skiing violate Title IX because the university failed and continues to fail to provide athletic opportunities in proportion to women’s enrollment.  Though Title IX provides alternatives to proportionality compliance, neither of them is satisfied when a university cuts viable teams of the underrepresented sex.  The lawsuit also challenges inequitable distribution of scholarship dollars and access to facilities and equipment.

One issue that the court addressed this week was the plaintiffs’ decision to pursue this litigation as a class action. The class action is an important litigation strategy to plaintiffs in Title IX athletics cases because without it, lawsuits are vulnerable to dismissal for lack of standing after the plaintiffs graduate.  Here, the court agreed to certify the class over some objections by the university, but it did modify the description of the class to ensure it wasn’t overly broad. Now, the class of plaintiffs include “all present, prospective, and future students at Saint Cloud State who are harmed by and want to end sex discrimination in the allocation of athletic opportunities, the allocation of athletic financial assistance, and the allocation of benefits provided to varsity athletes.” The italicized language was added by the court, which used as a model a similarly-defined class that was certified in the Quinnipiac case.  

More significantly, the court narrowed the scope of the plaintiff’s case by granting the university’s motion to dismiss the plaintiffs’ claims for money damages arising from the alleged discrimination in the allocation of athletic scholarships. Title IX is a spending clause statute, expressly requiring that universities refrain from sex discrimination as a condition for federal funding. Though the Court has permitted private lawsuits to seek money damages from institutions that violate Title IX, the plaintiffs in such cases must prove that the institution engaged in intentional discrimination.  Decisions that reflect official university policy are intentional, as are unofficial decisions that the university fails to remedy despite being on notice of the fact that they are discriminatory. Here, the court agreed with Saint Cloud State that the university’s allocation of athletic scholarships was not official university policy; nor did university officials have notice of the fact that the harm to plaintiffs resulting from the alleged discriminatory allocation.  This conclusion, which the court supports by citing a 2001 Eighth Circuit decision called Grandson v. University of Minnesota, is concerning to me (and I’ve criticized its application in other cases as well.). An athletic department is strategic and intentional about how many scholarships to offer. In this case especially, the plaintiffs allege that the disparity in scholarships results from the athletic department’s decision to include too few women’s sports in the tiers that receive full scholarship support.  The decision to tier one’s athletic offerings is surely an official decision, isn’t it? 

The court also granted the university’s motion to dismiss the plaintiffs’ Equal Protection claim on the grounds that the state has not waived its sovereign immunity to be sued for violations of the 14th Amendment.

Lastly, the court addressed the scope of testimony of the plaintiff’s expert witness, Dr. Donna Lopiano. Lopiano, a former athletic director and advocate who currently serves as gender equity consultant. Here, the court agreed with the university’s argument that the law prohibits expert witnesses to testify about legal requirements or to provide legal conclusions.  Yet, the court ruled that Dr. Lopiano is permitted to testify about her own findings about the university’s compliance with equal opportunity, equal treatment, and scholarship provisions of Title IX, as well as Title IX compliance at other institutions. 

Portz v. St. Cloud State Univ., 2018 WL 1050405 (D. Minn. Feb. 26, 2018).

Monday, February 26, 2018

Second Circuit Rules Sex Discrimination Covers Sexual Orientation Discrimination

The Second Circuit Court of Appeals ruled today that when an employer discriminates against an employee because that employee is gay or lesbian, that employer had discriminated "on the basis of sex" in violation of Title VII.  Because Title IX contains a similar sex-discrimination provision, it is virtually certain that lower courts in this jurisdiction will apply the same reasoning in Title IX cases as well.

The case before the court began when a now-deceased parachute instructor was fired from his job for what he believed was the employer's anti-gay bias. A lower court dismissed his claim that this discrimination was covered under Title VII, citing older Second Circuit precedent holding that sexual orientation discrimination and sex discrimination are categorically distinct. The plaintiff's estate appealed, however, hoping to get the Second Circuit to join the recent, emerging recognition by the EEOC and some courts that an employer who is biased against an employee's sexual orientation is necessarily taking that person's sex into account. Taking a gay man for instance, discrimination motivated by his sexual orientation necessarily takes his status as a man into account, since a woman who is attracted to men is not targeted for similar discrimination. Relatedly, the already-settled application of Title VII to discrimination motivated by the employee's failure to conform to sex stereotypes implicates sexual orientation discrimination as well, since a gay man fails to conform to the stereotypes that men are attracted to women. Finally, discrimination against a gay man is associational sex discrimination, in the sense that it targets him for his (romantic) associations with men but not women.  In making these points, the Second Circuit expressly refuted counter arguments raised by the Department of Justice, which filed an amicus brief in the case. The court remanded the plaintiff's Title VII claim back to the lower court where it should be reinstated.

The Second Circuit joins the Seventh Circuit, whose similar ruling last year was also noted on this blog, as the second appellate-level court to interpret Title VII (and by extension Title IX) in this broad manner (some lower courts have as well, including in the Title IX case against Pepperdine). The Second Circuit covers New York, Connecticut, and Vermont, while the Seventh includes  Indiana, Illinois and Wisconsin. In these states, therefore, there is clear federal law that prohibits sexual orientation discrimination by employers regulated by Title VII and schools subject to Title IX. Additionally, the persuasive power of these rulings from two influential circuit courts will likely persuade federal courts in other states as well.

Saturday, February 24, 2018

Wichita State VP Claims Retaliation for Investigating Campus Rape

Earlier this month the federal district court in Kansas ruled on Wichita State University's motion to dismiss a lawsuit filed by Wade Robinson, its former Vice President for Campus Life and University Relations. Robinson had sued the university after he was fired, alleging that the university took this and other adverse action against him in retaliation for his efforts to investigate incidents of rape reported to his office, including a rape allegedly committed by a member of the university's basketball team.

The court denied the university's motion to dismiss most of Robinson's suit and concluded that his complaint satisfactorily alleges the elements of a retaliation claim under Title IX. The element disputed in this case is the requirement that a retaliation plaintiff allege that he engaged in conduct protected by the statute. Generally such protected conduct may include advocating internally for Title IX compliance. However, when Title IX compliance is part of one's job duties, efforts to internal secure compliance do not count as protected conduct. Yet, Robinson's complaint included allegations that his Title IX advocacy had gone beyond the scope of his job as the court explained:
Had the Complaint in this case merely alleged that plaintiff warned WSU that it could face liability for failing to investigate alleged sexual assaults, the court might enter judgment against plaintiff on Count I. ... But here, the Complaint alleges substantially more than that. It alleges that plaintiff started two investigations and filed a complaint. The Complaint thus sufficiently alleges that plaintiff crossed the line from being an employee merely performing his job as Title IX compliance overseer and actively assisted others in asserting Title IX rights.... These allegations preclude the court from applying the manager rule to plaintiff’s claim and thus preclude judgment on the pleadings. 
The court also denied the university president's motion to dismiss Robinson's due process claim against him (though it did dismiss some state law claims).  That means the retaliation and due process claims will proceed to the discovery phase of litigation and, barring settlement or summary judgment, eventually to trial.  Yet regardless of what happens to this case moving forward, administrators working on Title IX issues will find this preliminary ruling helpful and reassuring on the question of what constitutes protected conduct as a matter of law. 

Robinson v. Wichita State Univ., 2018 WL 836294 (D. Kan. Feb. 13, 2018).

Friday, February 23, 2018

In Oregon School District, Girls Must Pay More to Play

Here's an interesting article that Oregon Public Broadcasting ran this week about the Beaverton school district charging girls more than boys for opportunities to participate in sports and other activities. A local woman first noticed gender disparities in utility charges, of all things, after she inquired about the school district's practice of billing her nonprofit, which runs after school programs on school grounds, for water and electricity. When she started looking into what other organizations the school district charges, she noticed a gender pattern: activities like cheer and dance, which primarily attract girls, were also being billed.

The utilities issue prompted her and other parents to ask questions about sports as well.  The school district charges athletes $225 to participate on a high school team, but the parents discovered that this fee is waived more often for boys than for girls. The parents also started looking into supplemental athletic activities like off-season camps, that are not part of the school's program but are offered by separate business run by the coaches.  These also charge for participation.  When the cost of these optional-but-not-really-if-you-want-to-make-the-team programs are added in, another disparity appears: Girls playing soccer at one of the district high schools were charged $450 total; boys paid $265, and an even greater difference exists between boys and girls playing basketball at the other high school.

The parents' advocacy has prompted the school district to pay closer attention to how coaches are running private, off-season camps. But the article did not indicate that school district officials were planning to regulate what coaches could charge in order to ensure equity between boys and girls participation costs or if they would offset the higher cost to girls in some other way. The parents advocating for equality liken the role of coach-run businesses to other third parties, like booster clubs, which Title IX does not recognize as an excuse for more favorable treatment granted to boys' teams. The article notes that this position is unpopular with parents in boys-team booster clubs, but it at least quotes a school district official acknowledging this is how Title IX works. OPB  has promised more reporting on this issue, so we will see what changes it leads to.  The parents seem dogged and resourceful and unlikely to give up. It also helps that the law is on their side.