Wednesday, July 27, 2016

Pepperdine Withdraws Title IX Exemption

Huffington Post was the first to report this week on Pepperdine University's written withdrawal of an earlier, 1976 request for a religious exemption under Title IX.  Specifically, the exemption allowed Pepperdine to discriminate against female students by excluding them from opportunities to preach in chapel and otherwise withhold support for their efforts to become ministers. It also permitted Pepperdine to punish students for engaging in "heterosexual relations outside of holy wedlock or in homosexual relations."

Earlier this year, however, Pepperdine's president wrote to the Department of Education withdrawing the earlier-requested exemption, noting that the university is "committed to complying with Title IX" and that it wanted this to be reflected in any public lists or databases of Title IX-exempt institutions. When the letter came to light this week, the university supplemented it with a statement explaining that the earlier exemption " does not fully reflect Pepperdine’s values today" and affirming that "Pepperdine’s mission and the goals of Title IX are aligned."

Pepperdine's move is an understandable public relations move. As the government provides more transparency on religious exemptions from Title IX, it is reasonable to predict that exempt institutions will increasingly contend with negative publicity. Pepperdine's express rejection of its own earlier exemption appears to suggest that the university is making that same calculation. Interestingly, Pepperdine is in the midst of a lawsuit in which two former female students alleged that they were harassed and penalized because of their relationship with each other. Pepperdine could have doubled down on its exemption and become the first institution to test whether the exemption works as a defense in third-party litigation (as opposed to applying only to government enforcement). But such a tactic would have cemented Pepperdine's reputation as an exempt institution and underscored our worse fears that the exemptions provide a license to discriminate. So rather than use the exemption as a shield, Pepperdine has put it away so that it would not become a sword in which it might impale itself.

Monday, July 25, 2016

Trans issues round-up

In an act that I would find singularly outrageous if it were not in the current climate of fear--of everything and everyone--we see just how vulnerable some people are and how much we need the current interpretation of Title IX that includes transgender students.

In Wisconsin a trans high school student was told he could not use the boys' bathroom. He was offered the girls' bathroom or the office restroom. Neither option is acceptable but for a year, Ash Whitaker just did not use the bathroom at school, which had negative physical (and I would imagine emotional) health consequences. So he just started using the boys' bathroom seemingly without issue (and support from peers and some teachers) until the school instituted its wristband program. It would force students like Ash to use bathrooms based on sex on birth certificate. A green wristband would indicate that wearers are trans. The district and school wants to be able to monitor trans students and their bathroom use. The wristband reveals their trans identity to everyone.

A green wristband to identify trans students. The comparison is obvious and even if this is not a nationwide trend, it is deeply troubling. Whitaker and his mother have filed a Title IX lawsuit against the district. Also, this case serves as an example of the power of visibility. The Whitaker family was inspired to take action (there were other issues in addition to bathrooms) when they read about Gavin Grimm's case in Virginia.

Better news in South Carolina where a trans student, after OCR found her school district in violation of Title IX, is being allowed to use the girls' room in accordance to her gender of identity. The district engaged in a voluntary resolution of the complaint.

It is hard to take up the fight against discriminatory practices because often they lead to additional discrimination and backlash. It is more difficult in some areas and states than others. We live in Massachusetts where last week the legislature passed anti-discrimination legislation allowing trans people to use public restrooms and locker rooms in accordance with their gender identity. Yay Massachusetts! This does not mean, of course, that discrimination will cease. But an anti-discrimination measure has the backing of the state and that is hopeful. It goes into effect this fall.

Not Title IX related and not trans related (though potential implications) but too important to go without mention: Caster Semenya, who was subject to a disgraceful and malicious inspection of her gender in 2009 and then cleared to compete the following year, is competing in Rio this summer and is a favorite to win the 800 and also is a contender in the 400. But her participation is not without controversy, sadly. Again, despite being given the OK to compete in the field she has always competed in 6 years ago, some people are still worried about things being fair. Marathoner Paula Radcliffe--who does not compete against Semenya--is suspect of Semenya's participation and believes it is not sport when it is presumed that Semenya will win the gold. I guess gymnastics is going to suffer then given that Simone Biles is the presumptive all-around winner next month. Also Semenya, who won silver in 2012, is benefiting from the banning of the Russian team from track and field. Gold went to a Russian in London.

Her other fear is that so-called normal women will be pushed out of the sport when people to go areas of the world with higher occurrences of hyperandrogenism, which is the condition Semenya is believed to have. (In a rare moment of actually protecting her privacy, the results of her tests were not released.) One, athletes are recruited for specific physical traits all the time. Two, high testosterone levels are no guarantee of a specific performance outcome given that testosterone receptors are all over the body and perform different functions. Three, I could find distribution rates of intersex conditions. (They could exist, of course.)

Friday, July 08, 2016

Minot State Ignored Sexual Assault By Professor, OCR Finds

The Department of Education's Office for Civil Rights announced yesterday that it has reached a resolution agreement with Minot State University in North Dakota after finding that the institution violated Title IX in its response to reports of sexual assault. In particular, the university did not investigate or address a complaint made by a former student that she had been sexually assaulted by a professor for over two years. In addition, OCR's investigation found that overall only one of four complaints of sexual harassment reported to campus security officers actually led to a campus Title IX investigation.

My impression is that Minot State's violations of Title IX are among the most egregious findings that OCR has made in recent years. As opposed to procedural and policy violations of Title IX that have been found in other cases (e.g., here, here, and here), here the university outright ignored an egregious complaint. It is easy to imagine the injury this caused to to the reporting former student, as well as the significant risk to other students that the university created when it decided not to act. In combination with the pattern of under-investigating complaints made to campus security, it is clear that the university's policies and practices contributed to students' risk of sexual assault.

Under the resolution agreement with OCR, the university is obligated to provide counseling and other support that would address any emotional, psychological, academic, or employment issues" faced by the complaining student as a result of the university’s delay in processing her complaint.  Additionally, the university must develop a procedure to document sexual assault and harassment complaints it receives, strengthen coordination between the campus police and Title IX coordinator, enhance its grievance procedures, and submit to ongoing monitoring by the OCR.

Wednesday, July 06, 2016

Government Sides With Plaintiff in Case that Tests Title IX's Application to Off-Campus Sexual Assault

Recently, the federal government sided with two Title IX plaintiffs in ongoing litigation against Kansas State University that challenges the institution's failure to respond to reports of sexual assault committed at off-campus fraternity houses.

The federal court's eventual decision in two pending cases will address an important issues of Title IX's scope. So it is noteworthy that the Department of Justice and the Department of Education submitted amicus briefs to challenge the university's contention that its obligations under Title IX do not apply to off-campus conduct.  The government argues that when Title IX uses the word "programs" in describing the statute's reach, it includes the house and events of a school-recognized fraternity, just like it applies to other off-campus activities like study-abroad programs and extracurricular activities that are still subject to the university's control. Moreover, the government argues that the university itself claims that its fraternities are part of the university in its marketing to prospective students, and exerts the requisite "substantial control" to prevent and respond to sexual assault that occurs at fraternities, in that the accused are students who are subject to the university disciplinary process and the fraternity itself relies on the university for ongoing recognition. In fact, the university demonstrates this control by sanctioning the accused student for alcohol violations, but not rape.

Clearly the government is watching this case closely, as we are as well.

Settlement at Tennessee

News broke this morning that there will be no trial (originally scheduled for spring 2018) in the Title IX lawsuit against the University of Tennessee. UT will pay just under $2.5 million to the eight women who brought the lawsuit.

As is the case in most settlements, the university admits no wrongdoing. Money for the settlement will be drawn from both central administration and athletics. Stories suggest that no taxpayer money will be used, but at a state university I wonder how easy it is to keep it all separated.

From the plantiffs' lawyer:
We are satisfied that, while universities everywhere struggle with these issues, the University of Tennessee has made significant progress in the way they educate and respond to sexual assault cases. My clients and I are also convinced that the University's leadership is truly committed to continue its exemplary efforts to create a model as it relates to sexual misconduct.

From UT Chancellor Jimmy Cheek:
Like many institutions, we are not perfect, but our goal is to continue to be the best we can be at creating awareness, educating and preventing discrimination and abuse in any form and to continue to be equally prepared when it does happen and to deal with it promptly, sensitively, fairly and effectively. We've come a long way in recent years, and we are working every day to be even better.

No one listed the measures UT has taken to ensure that Title IX is being correctly and effectively implemented.

ESPN has a list of the specific incidents here. But as a reminder, these date back to the mid-90s and involved UT athletes who were either not investigated or not punished for sexual assault.

As a wrap-up, I want to note the trends or similarities that these charges have with other cases we have covered.
1. Athletes have special protections. These manifested in the following ways in this case: not being investigated; found guilty but not punished or lightly punished; other entities intimidating victims discouraging them from filing complaints or charges (in this case it was teammates of perpetrators).

2. Passing the buck: In at least one case at UT, an offending athlete was found guilty, allowed to finish out his season and then transfer. Remember, the SEC passed a rule that prevents member schools from accepting transfer athletes who have histories of sexual assault. Apparently, they have no issue sending those students to non-SEC schools.

3. Female athletes as victims. Because tracking the intricacies of sexual assault is difficult--at best, we don't know how many perpetrators are athletes nor do we know are many victims are athletes and at what level they play. But UT is not the first time we have heard about male athletes at DI institutions assaulting female athletes with few repercussions (Missouri, Iowa, New Mexico). Keeping things in the "family" (i.e., athletics department) clearly has serious negative consequences. Female athletes are pressured not to report assaults; they are told things will be handled internally. In this case, that pressure was also exerted on a male athlete who attempted to come to the defense of one of the victims and was assaulted and called a traitor by Coach Butch Jones (Jones denies this.).

Friday, June 10, 2016

OCR Finds "Insufficient Evidence" of Most Title IX Violations Alleged Against Occidental College

The Department of Education's Office for Civil Rights announced yesterday that it had entered into voluntary resolution with Occidental College in Los Angeles, closing the agency's investigation into the high-profile complaint alleging that the college had violated Title IX in its handling of sexual assault.  For the most part, the agency found "insufficient evidence" that Occidental's procedures and practices deviated from the requirements in the Dear Colleague Letter.  In particular, the specific allegations against Occidental that were raised by complainants were all rejected. For example, the agency rejected the charge that Occidental fails to take interim measures to protect complainants while the grievance process is ongoing; the college issues stay-away letters and interim suspensions from college activities, removed respondents from shared living spaces, and also made support and academic services available to complainants.  The agency also found insufficient evidence to support the charge that Occidental did not adequately punish those found responsible for sexual misconduct by providing respondents with the opportunity to complete educational assignments as part of a sanction (in lieu of expulsion). OCR determined that these sanctions were reasonable under the circumstances and that they were completed by the respondents who received them. The agency also determined that respondents who faced multiple, separate charges of sexual assault were appropriately sanctioned, by expulsion in some cases, or with circumstance-appropriate alternatives.  As a final example, complainants alleged that Occidental officials discouraged students from filing formal complaints, but OCR investigators could not substantiate this claim.

OCR's investigation did find that in the 2012-13 school year, Occidental failed to promptly handle a three sexual assault complaints without an adequate justification. The delays in these cases were caused by staffing vacancies and hearing officers who were unavailable. Since that time, however, Occidental has revised its policy to eliminate the hearing panel, created a new process to determine responsibility and sanctions, and has hired Deputy Coordinators. To ensure that these changes address the matter of timeliness going forward, the college and OCR have entered into a resolution agreement that OCR will monitor.

The complaint against Occidental was one of the early in the wave of post-Dear Colleague Letter complaints. It received national attention, in part, because the college was found to have concealed sexual assault statistics in violation of the Clery Act.[*]  In that context, it did not seem unlikely that a college that would suppress evidence of campus rape would also seek to discourage students from filing formal complaints and otherwise minimizing the consequences for those accused and found responsible of sexual assault. The findings that emerge from OCR's investigation, however, tell a different story.

*Update: Since writing this post initially, I learned that the report of these violations was later retracted. Occidental College is being investigated but has not been found responsible for violations of Clery Act.

Wednesday, June 08, 2016

Roundup of Campus Sexual Assault Cases

Here is a summary of recent judicial decisions in cases alleging institutional liability for sexual assault under Title IX.

A student at the University of California at Santa Barbara was drugged at an off-campus party and then raped by a fellow student.  Three months later, she withdrew from school after being put on academic probation. She sued the institution under Title IX, first challenging its failure to conduct an investigation or disciplinary proceedings and for making statements capable of dissuading her from seeking such recourse. For example, one campus official told that plaintiff that university investigation might interfere with an ongoing criminal one. Confusingly, the court concluded that the university's "delay" does not constitute deliberate indifference giving rise to Title IX liability. Calling it a delay suggests that the university eventually got around to conducting an investigation though it did not. Nevertheless the court interpreted the university's conduct to be possibly negligent, but not clearly unreasonable if it really thought that conducting it own investigation would hamper law enforcement.

The court also rejected the plaintiff's argument that the university's failure to provide her with any housing or academic accommodations was deliberate indifference.  The plaintiff argued that, ""[t]he mere presence on campus, without any restrictions, of the student that sexually assaulted [her]” placed her in a sexually hostile environment" and did not try to help her reduce her courseload so that she could stay academic standing. But the plaintiff's claims fail because did specifically ask for accommodations.  Therefore, the university's failure to offer them, while possibly negligent, was not "deliberately indifferent."

This decision seems to me to set the bar for deliberate indifference unduly high.  The university is alleged to have done literally nothing in response to the plaintiff's report of sexual assault. Doing nothing ought to at least create the possibility of a deliberate indifference finding by a jury. Additionally, this case starkly illustrates the difference between judicial and administrative standards for Title IX liability. So much of what the plaintiff alleges directly contravenes the Department of Education's requirements in the Dear Colleague Letter.  But as the court itself (correctly) reminds, violations of Title IX regulations do not necessarily give rise to liability for damages because the standards courts used for that purpose is a much stricter, deliberate indifference standard.

Moore v. Regents of the Univ. of California, 2016 WL 2961984 (N.D. Cal. May 23, 2016)

The University of Tennessee is being sued by a group of plaintiffs who allege that while they were students, they were sexually assaulted by male student athletes on the basketball and football teams.  They claim that the university is liable for the sexual assaults that athletes committed against them because the university's indifference to a known pattern of sexual misconduct by athletes put them at risk of being assaulted as well.  Additionally, they claim that the university is liable under Title IX for mishandling their own reports of sexual assault, and one plaintiff alleges that she was retaliated against for participating in the investigation of one of the other plaintiff's assaults.  Last month, the federal court in Tennessee substantially denied the university's motion to dismiss these claims. The court was not persuaded by the university's argument that the plaintiffs did not allege that the university had actual notice of past sexual misconduct by their assailants in particular. Here the university is not alleged to have ignored a general risk that some students will harass some students, which would not, of course, be actionable.  Instead, the complaint alleges that the university  was "put on notice of a specific and concrete pattern of an 'inordinate' number of sexual assault allegations against members of specific teams within the UT Athletic Department and also allege that such a pattern may be directly related to the culture within the Athletic Department." This is an adequate allegation of notice and deliberate indifference, according to the court. In fact, it goes beyond "indifference" and alleges that the university's own actions in facilitating a culture of sexual assault are to blame for their assaults, which is a basis for potential liability in itself.

Doe v. University of Tennessee, 2016 WL 2595795 (M.D. Tenn. May 3, 2016).

In 1999, the plaintiff was a freshman at Oregon State when she was drugged and raped at a party in an off-campus apartment that was connected to members of the football team.  The plaintiff later learned that her assailant was not a student, but the cousin of a football player named Calvin Carlyle, who was visiting from out of town. Fifteen years later, the plaintiff discovered that Carlyle himself had raped another female student in the same apartment one year prior to her own rape, and that he had merely been suspended from one game as a result. The plaintiff then sued Oregon State, alleging that the university was liable for her rape committed by the cousin because it had been deliberate indifferent to the first rape committed by Carlyle. The court dismissed this claim, however, noting that the plaintiff's assailant (the cousin) was not a student and that the assault did not take place on campus. Given both of those factors, the university did not have power over the situation and cannot therefore be liable.  The plaintiff also alleged that the university was deliberately indifferent to her own reported rape, but this claim was barred by the statute of limitations, which in Oregon is two years.

Samuelson v. Oregon State University, 2016 WL 727162 (D. Or. Feb. 22, 2016). 

Sexual Assault by Student Is Not Automatically a Title IX Issue

As the public continues to decry the six-month sentence for convicted rapist Brock Turner, I get the sense that many are wondering about possible Title IX implications for this case. From what I've read, there are none. The university has pointed out in a public statement that it conducted a prompt investigation that resulted in Turner's being banned from campus, "the harshest sanction that a university can impose on a student."  The university also noted that it provided counseling services to the victim, who was not a Stanford student, once it learned her identity.  

I don't take a position on whether students have appropriately criticized Stanford's statement as cold and unsympathetic, or whether the university should extend an apology to the victim and increase resources for sexual assault prevention.  All I suggest here is that, if what Stanford says is true, there is nothing in the public record to suggest that more is required of the university under Title IX. Universities are not vicariously liable for the misconduct of their students. In the case of sexual violence and sexual harassment, they required to engage in a prompt and equitable response when it learns that such misconduct has occurred, and that appears to be what Stanford has done in this case.
Sexual assault has the potential to constitute a crime, a civil rights violation, and sometimes both. Often a reminder of sexual assault's dual character is required in the situations where there is no criminal liability for sexual assault. When cases like that are up for discussion, I find myself pointing out that the absence of criminal penalties doesn't mean that Title IX is automatically off the table. But that reminder works in the reverse, as well: just because there is criminal liability doesn't automatically mean implications for Title IX. 

Tuesday, June 07, 2016

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

Monday, June 06, 2016

New WSF Report Examines Gender Inequality in Coaching

Last week the Women's Sports Foundation issued a new report that examines gender inequality in the coaching profession. The report's authors surveyed over 2500 current and former coaches about their experiences and perceptions of the athletic departments in which they work, and revealed some surprising and some not-so-surprising results.

For example of of a not-so-surprising result, a significant minority of female head coaches (32%) perceive that men's teams other than football receive greater resources than women's teams. While football is certainly included in the Title IX analysis, separating it out for purposes of a survey paints an even more compelling picture of gender inequality. Yet, sadly, a third of female coaches also believed that they would put their jobs at risk if they spoke up about gender inequality.

The report also garnered data about how coaches view the equality in the terms of employment. A majority of coaches (male and female) agreed that it was easier for male coaches to get hired for high-level jobs, be awarded a multi-year contract, and successfully negotiate a raise.  Meanwhile more than 40% of female coaches reported that they had experienced gender discrimination in the workplace and a third perceived that administrators favored male coaches. Notably, the report also included some interesting comments about "reverse discrimination" -- the perception that being male is disadvantageous in the athletic department workplace. In fact, 40% of male coaches, compared to only 12% of female coaches, believed that they had not gotten a coaching job because of their gender. This is an interesting pair of statistics that I think says something about gender and entitlement. Women are unlikely to believe they were ever turned down for a coaching job because of their gender despite constituting only about 20% of college head coaches. One explanation for this is that they are not going after jobs in men's sports because they do not feel entitled to those jobs the way that men feel entitled to the coaching jobs in women's sports.

On the other hand, men have nearly all of the coaching jobs in men's sports and even a majority of the coaching jobs in women's sports, yet a significant percent of them still perceive that gender disadvantaged them in the hiring process. They made comments on the survey like, “I’m a white male and I can’t get the job because they have to hire a female or a minority. This is not right. The best candidate should be hired regardless of race or gender.” And, “I would do much better off professionally if I was a minority, handicapped, homosexual." They argue that "much less qualified" women "with less experience" are being hired instead of them.

Based on comments like these, one imagines the college coaching market flooded with applications from optimistic, overconfident women who are seeking jobs beyond their reach (and then managing to get hired for those jobs, no less.). There are a lot of gender stereotypes that pertain to hiring, but women being overconfident in their job applications is definitely not one of them.  I also have to wonder how many of these respondents are defining "experience" in a self-serving way, like assuming they receive equal "credit" for having a background in baseball instead of softball, or men's hockey instead of women's (despite the men's and women's sports having different rules).

Not surprisingly, therefore, the recommendations section of the report focuses primarily on the barriers to leadership that female coaches are confronting. For example, the report recommended that athletic departments conduct open searches by hiring committees to fill high-level vacancies, including head coach positions.  Departments should also have and follow policies that ensure job duties, evaluations, salaries, and other aspects of employment are handled without regard to gender. I also thought these two recommendations, aimed primarily at the NCAA, were particularly strong:

  • National athletic governance associations should require member institutions to undertake a periodic certification program or other third-party peer review of the operation, processes and policies of its member institution athletic programs to ensure compliance with legal requirements and best practices, including the employment and compensation of coaches.
  • National and conference athletic governance organizations should require that member institution athletic programs must establish policies that require a minimum number of qualified minority applicants to participate in finalist inperson interview pool for all coaching positions.

Monday, May 30, 2016

Transgender cases updates

University of North Carolina is flip-flopping on HB2. Initially, UNC president, Margaret Spellings (former Secretary of Education) announced that the state's flagship university would indeed enforce HB2's bathroom and locker room rules (requiring people to use bathrooms based on the sex stated on their birth certificates). This was despite Spelling's own experience with Title IX and the lawsuits between the federal government and the state of North Carolina. Spellings's initial stance was to follow the law until courts said otherwise.

But now Spellings has said UNC will NOT be enforcing HB2 choosing the same rationale: to wait until the legal wranglings are over.  She also promised to investigate any complaints from trans students, faculty, or staff who may run into problems. No complaints thus far.

In Texas, which is also suing the Obama administration for its Title IX clarification regarding trans rights, the University Interscholastic League, the governance body which controls athletics in public schools, has put into the rules that students may only compete in sports in accordance with the sex listed on their birth certificates. The spokesperson for the organization said this has always been the practice, they just wanted to put it in writing. Equality Texas will fight the new-not-new rule.

In older news...

A potential bill barring transgender students from using bathrooms and other marked single-sex facilities according to their lived gender is drawing concern from the governor of Tennessee. The bill being considered by the legislature is similar to the one in Texas and states that "public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.” There is no mention of transgender students, but the bill is clearly aimed at these individuals.

But the governor is worried--and rightly so--that passing the law would mean the public schools would lose federal funding. As we have noted before, the Obama administration as well as the courts, have affirmed that Title IX protects transgender students and provides them the right to use bathrooms and locker rooms in their lived gender.

A nearly identical bill in South Dakota, passed the by state's legislature earlier this year, was vetoed by the governor in early March. The Republican governor (the legislature is also Republican controlled) said the bill was too sweeping and that these issues, when they arise--which he feels is rarely, are best dealt with by local officials. This is a bad approach. Yes, the law was also bad, because it conflicts with federal regulations, but leaving things to local officials is not a good idea either. It leaves trans students unprotected and opens up local school districts to lawsuits.

In response to the increase in the number of Title IX exemptions being sought by private religious colleges and universities, LBGT rights groups have put pressure on the NCAA to prevent schools who received these exemptions (which allow them to discriminate against transgender students) from being member schools. The petition which includes about 80 groups and is being lead by Campus Ally did not sway the NCAA which declined to take the recommended actions.

In a far more progressive consideration of these issues, the Albuquerque (New Mexico) Public Schools board is considering a proposal that allows transgender students to use bathrooms and locker rooms in keeping with their gender identity. There has been some concern from board members about children being exposed to the body parts of the "opposite sex" but these were seemingly quickly shut down by those who noted that any type of indecent exposure in these spaces is illegal and others who likened the discriminatory discourse against trans people to the rationale white people have used in the past against people of color.

The proposal also includes the following provisions:
  • The district will provide age-appropriate instruction to all students on gender-based discrimination.
  • Students will be addressed by the name and pronoun that aligns with their gender identity.
  •  Students are permitted to participate in physical education classes and intramural sports consistent with their gender identity.
  • The student and parents may request a support team meeting to ensure proper access to all programs and activities, as well as protection from gender-based discrimination.
  • Students have the right to dress in accordance with their gender identity within the constraints of the dress code.

Friday, May 27, 2016

What happened at Baylor

News broke yesterday, after several days of rumors about who was being fired and when, that football coach Art Briles would no longer be coaching the men's football team at Baylor University and that Ken Starr had been relieved of his duties as university president, had been "demoted" to chancellor,  and remains on faculty at the law school. The athletic director has been placed on probation. This is all in the wake of the university-commissioned report to look into the accusations that the school had mishandled many reports of sexual assault committed by male students. Most of the accusations were against football players, some of whom had actually been taken to criminal court and are serving jail time, but have never been reprimanded by the school.

The school hired an outside law firm to conduct the investigation last fall when the years of cover-ups became more public due to an ESPN Outside the Lines report and the filing of a lawsuit by several female victims. It found, just like OTL and other media outlets had found, a large cover-up of the assaults.

So here are my thoughts, in no particular order.  I focus on the culture at Baylor that created this situation and less on the legal and procedural aspects of this scandal.

1. Ken Starr being demoted to Chancellor is not enough. Starr's history certainly suggests that he is capable of investigating sexual relationships and he admitted publicly that he failed in his duties as president. He even apologized to victims. This does not mean he deserves a leadership position. In fact, keeping him as a chancellor calls into question Baylor's commitment to changing the culture on their campus. Starr was the guy who helped create that culture.

2. Several news outlets have posed the question: why haven't things changed yet and/or will this be the watershed moment? I do not predict watershed moments anymore or cite current scandals as turning points, because I have been so wrong before. I swore that FSU/Winston was going to be that turning point for reasons I will not detail here. I was confident--and wrong. Baylor is taking responsibility (after a lot of silence), but it remains to be seen how they will fare if/when the NCAA comes to investigate or in the court of public opinion, or in real court. (See #6) Baylor is not the only school under investigation or facing a lawsuit. This news has not drawn Tennessee administrators out of their offices to admit wrongdoing or resulted in anyone being fired today at any of the other schools under investigation.

The better question is why hasn't there been a turning point already? Why wasn't FSU that moment? Or Oregon? Or Colorado? Or New Mexico? Or any of the other many, many cases of student athletes committing sexual assault?

3. Dear members of the board of regents who are so shocked at the findings of the report: You are responsible for this too. No one really knows what goes on behind closed doors or at alumni/donor functions where coaches and trustees and presidents mingle and attempt to raise money for their team school. But trustees like winning football teams because they think they brings in dollars and they make that known to university leaders who make it known to coaches. The looking the other away--or the pushing away--when problems that impede this arrangement arise may be a little more deliberate within athletic departments than in the trustee board room, but trustees would be naive to think that the desire they exude for a successful athletics program does not have consequences. Consequences that cannot be entirely placed on the moral failings (in addition to the illegalities) of those whose contracts they approve. So more faire, less laissez (sorry francophiles).

4. Dear ESPN and other sport media outlets: Perhaps we should dwell on this story a little bit longer, engage in a little more introspection. Maybe about the ways in which sports media cover sexual assault and elevate college students who play football to celebrity status? It's too soon to furrow the brow and rub the chin wondering who will be taking over for Briles and lamenting about how Baylor football was just beginning to get good again. Also, don't forget that the rebuilding was necessary because of a 2003 scandal in which a basketball player killed a teammate and the subsequent revelations about the dysfunctional athletic department.    

5. The comparisons to Penn State have been interesting and go back to the questions about why things have not changed. How could Baylor happen in a post-Penn State world?

Because Penn State was about a grown white man preying on young, vulnerable boys. People are far more disgusted and appalled by this version of a sexual predator (because of age and homosexual acts) than they are by college-age men raping college-age women.

Because there is a hierarchy and male-on-male pedophilia outranks--by far--men raping women in American culture. Maintenance of this hierarchy involves downplaying the latter by 1) not calling it rape and 2) vilifying victims. According to the report, Baylor engaged in the latter itself when it retaliated against a victim who came forward.

Because Penn State was seen as an anomaly and not as a cost of the culture of American intercollegiate sports. That is what these two cases have in common: the cover-ups and denials in order to maintain a successful athletics program. But that commonality is not something most of American society chooses to see, and that is why Penn State is not a watershed moment and arguably why there has been not been a turning point. 

6. Breaking my own rule about not commenting on the legal side of this scandal: I imagine that a settlement is forthcoming in the lawsuit brought by women who were victims of assault. The question is whether the terms of that settlement will be made public. If Baylor really is all about contrition and change, then they will not place a gag order on those involved.

Monday, May 16, 2016

Some Thoughts on Friday's Dear Colleague Letter Re: Transgender Students

On Friday the Department of Education and the Department of Justice jointly released a significant guidance document in the form of a "Dear Colleague" letter that addresses schools' responsibilities under Title IX to avoid discrimination against transgender students. The central premise of the guidance letter is, "The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX....This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." Thus, transgender students must be permitted to access bathrooms, locker rooms, athletic opportunities, single-sex classes, single-sex schools, or any other sex-specific activity or requirement according to their gender identity even if their school records or other documentations say otherwise. Schools must also protect transgender students from harassment and respect their preferred names and pronouns.

Here are some of my thoughts about the Dear Colleague Letter:

The effect of guidance. A guidance document like the Dear Colleague Letter does not create new legal requirements. In fact, if you have been following the position that the Department of Education has taken in recent enforcement actions, you'll find the content of this guidance document to be familiar.  The effect of Dear Colleague Letters is to raise awareness about compliance obligations so that schools can proactively adjust their conduct to avoid such enforcement actions.

The Letter's scope. The Letter is directed at "schools" without specifying whether it meant to include or exclude institutions of higher education. In my mind, there is no legal basis for having a different definition of sex discrimination apply to K-12 than to higher education, so it is arguable that everything in the Letter applies to higher education with equal force.  Yet the Departments' failure to expressly address colleges and universities may create arguments to the contrary as well. This might be particularly controversial in the aspect of athletics, where prevailing NCAA policy imposes hormone-based requirements on transgender athletes wishing to compete according to their gender identities (though the Letter appears to endorse the policy in a footnote).

Federal government overreach? On the radio this morning I heard some state-level politicians complaining that the federal government lacks the right to regulate local schools in this manner. Indeed, the Constitution prohibits the federal government from directly regulating matters of such state/local concern, but when the federal government spends its own money, it may impose conditions on those who receive such funds. A local school district that doesn't want to comply with Title IX as interpreted by the Dear Colleague Letter is not required to do so.  All it has to do is forgo federal funding, and it has no obligation under Title IX whatsoever. On the other hand, if it agrees to accept the benefits of federal funding, it must accept the responsibilities that come with it.

Confirmation of identity. According to the Letter, all that is required to confirm a transgender student's gender identity is notification from a parent. It is appropriate that the Departments expressly denounce any specific medical diagnosis or intervention as a prerequisite for a schools' obligation to recognize the student's gender identity.  Unfortunately, however, a "parental notification" standard will leave some transgender students (those without parental support) without the right to access facilities and programs according to their gender identities -- though I understand why the Departments would not want to force schools to take sides within a divided family. Hopefully the government's express validation of transgender students' identities will help nudge society in a similar direction and likely reduce the number of unsupportive parents with time.

What about nonbinary students? A colleague of mine asked me what the Letter means for transgender students who don't identity as either male or female, and I thought I'd post my thoughts on that question here as well. Such "nonbinary" students are not expressly mentioned in the Letter, but it seems clear to me that their rights to be protected from harassment and discrimination in general are the same as transgender students whose gender identity is specifically male or female.  As for single-sex facilities and programs, however, there is not a clear answer.  Presumably such a student would be treated like a member of their birth-assigned sex that is reflected in school records, since that is schools' default mode of operation. But those students would not have access to facilities and programs for the other sex, however, since they cannot claim to have a similar gender identity to the students in that gender category. Theoretically, the Letter could have addressed the rights of nonbinary students by requiring schools to create third category for every program or facility that is segregated by sex, though the Departments likely (and reasonably) considered such an approach infeasible. But the omission of such a requirement doesn't mean schools can't try to accommodate nonbinary students as a matter of "best practice." For one, they could permit such students to use facilities or access programs that they feel most comfortable, whether that be consistent with their birth-assigned sex or the other sex category.  For another, they could eliminate unnecessary and gratuitous sex classifications (color-coded graduation robes is an example that readily comes to mind), since the fewer places in school where sex designations matter, the more inclusive the school environment is to all students regardless of gender identity.

Thursday, May 05, 2016

Throwback Thursday: Cutting women's teams

This is not really a throwback Thursday, but it feels oddly nostalgic to write about Title IX and the cutting of women's sports teams. Not in a good way, of course. Cutting teams is always a difficult process, but it has not been nearly as much of a Title IX issue recently. But as the recent announcement from St Cloud State University (Minnesota) shows us, cutting women's teams is not a thing of the past.

Five members of the women's tennis team at St. Cloud have filed a Title IX lawsuit against their university. The team is one of six that has been cut from the list of varsity intercollegiate sports in an effort to deal with budget shortfalls.

The university currently provides just under 120 more opportunities for men to play sports. The undergraduate student enrollment is nearly 50/50 men/women. This does not automatically mean they have been out of compliance; they could have been expanding opportunities for women or sufficiently meeting the interests and abilities of the female undergraduate population in terms of sports and opportunities provided.

It does mean, however, that with the cuts they must--post cuts--be adhering to prong one, in which the athletic opportunities provided reflects the male/female ratio in the undergraduate population. In other words, next fall there should be equal athletic opportunities for men and women at St. Cloud.

The numbers will surely be in dispute at pre-trial hearings and a trial, if it gets there. Here is what my basic math revealed:
Men are losing, based on the cuts alone, 92 spots (tennis and all track programs), bringing the total opportunities to 226. Women are losing 24 spots (tennis and skiing) bringing their opportunities to 178.

The asterisks on these numbers include the following:
1. As in any of these calculations, the numbers can change. The number of undergraduates enrolled, especially.
2. Specific to this case, the university, when making the announcement two months ago, said it was going to reduce the number of roster spots on 7 teams and increase spots on 6 others. I do not know exactly  where these additions and subtractions will occur or if it will be a zero sum game.

The university has said it will increase the roster for women's track to 90 from 60. The data I was using, though, said women's track was at 73 members, not 60. But if we add 30 to the reduced opportunities, it brings the number for women to 208. Lawyers for the tennis players (one of whom is also representing former Duluth hockey coach Shannon Miller) do not like this solution. They feel the university is using this to count the same athlete as many as three times (cross country, indoor track, outdoor track) and not really increasing opportunities.

Even if this is not legally wrong, I expect the university will have to respond to questions about this plan, and reveal their other plans sooner rather than later, i.e., when they go to court next month to deal with the request for an injunction.
Because, yes, the women have asked for a temporary injunction against the cuts that affect the opportunities for female athletes until the legal issues are resolved. That request will be heard on June 3. They are also seeking class action status.

It is possible that the university's intention to reduce spots on the football and baseball team along with increasing the numbers on the track team will bring them into proportion.The question remains though whether they can so drastically increase the women's track team. We have seen some sketchy roster management around women's track. Even if the lawsuit is not successful because the university has a plan for proportionality, they will certainly be on notice that they have to effectively and legally execute that plan.

One final thought: as I read the articles about the lawsuit I got the impression that these cuts were the proverbial final straw for many female athletes who feel the athletic department has not been treating them equitably. The cuts may have felt like such a tangible and actionable move, and some women are using the opportunity to illustrate the inequities. But even if the university brings itself into compliance with the quantity of opportunities, they may not be providing a similar quality to women. I sense quality is also an issue at St. Cloud. If it is, a complaint filed with OCR might be worth it to address the inequities other female athletes may be experiencing.

Tuesday, April 19, 2016

Trangsender Student's Title IX Claim in Bathroom Case Is Reinstated By Appellate Court

Today the Fourth Circuit Court of Appeals ruled that a lower court improperly dismissed the claim of a transgender male plaintiff who alleged that the Gloucester, Virginia school district's policy barring him from the boys' restroom violated Title IX. (We earlier blogged about that earlier district court decision here.) Today's decision paves a clear path for a judgment that provides permanent relief to the plaintiff in the form of a permanent injunction against the school's exclusive policy. Additionally, the court reinstated plaintiff's request for a temporary injunction that will allow him to use the boys' bathroom while the case is still pending.

The plaintiff's central argument is that Title IX's ban on sex discrimination includes discrimination that targets transgender students by treating them differently from other members of their affirmed gender. In support of this argument, he pointed to a 2015 opinion letter by the Department of Education that contains this interpretation.  But the district court refused to give weight to this opinion letter because in the judge's view, it conflicted with a provision of the Title IX regulations that permit schools to offer separate bathroom facilities for members of each sex.

The appellate court explained it is a settled matter of administrative law that when an agency's regulation is ambiguous, courts should defer to the agency's own interpretation of that regulation unless that interpretation is plainly erroneous. It held that Title IX's regulation permitting separate bathrooms for each sex is ambiguous with respect to transgender students, as "sex" could be understood to refer to biological sex (the school district's position) or to a broader definition of sex that incorporates gender identity. In light of these multiple plausible interpretations of the regulation, the court reasoned, the district court should defer to the Department of Education's interpretation of that regulation, which would require school to permit transgender students to use the facility that is consistent with their gender identity rather than their birth-assigned sex. Underscoring this conclusion, the appellate court determined that the Department of Education's interpretation was not plainly erroneous because it is consistent with the definition of sex that was prevailing even at the time the regulations were promulgated, a definition that incorporated consideration of various physical, psychological, and social aspects of sex and gender.

The appellate court therefore concluded that the plaintiff's claim should be reinstated.  This means that the case returns to the lower court to continue the litigation process as if it had not been dismissed. The plaintiff can also try again to get a preliminary injunction that would provide immediate access to boys' restroom while the case is pending. Notably, while the plaintiff asked the court of appeals to assign the case to a different lower court judge on remand (as issue we blogged about earlier, here), the appellate court refused to take what it considered to be an "unusual" step.

This decision will likely have an impact outside the context of this plaintiff and the public schools in Gloucester, Virginia.  Most directly, it could affect the political discourse in the wake of a spate of  new state laws targeting transgender individuals' right to use the bathroom consistent with their gender identities. Many have pointed out that these state laws jeopardize the federal funding for public schools and state universities who can no longer comply with Title IX and state law.  Some politicians have pointed to the district court decision that was overturned today as evidence that those state laws and Title IX did not conflict. But today's decision affirms that Title IX means what the Department of Education says it means, and that means, schools that restrict transgender students' bathroom access are not in compliance with Title IX.

Updates on campus sexual assault cases: Baylor & Tennessee

Two weeks ago, a lawsuit was filed against Baylor University by one of the victims of already jailed former student-athlete Tevin Elliot. The victim alleges deliberate indifference on the part of the university. Baylor's problems with athletes committing sexual assault were documented in an Outside the Lines, and through there is no telling what evidence will be brought into the courtroom, the fact that people who work(ed) at Baylor talked about the multiple complaints against Elliot and the denial of services to the victim do not bode well for the university. Also, it is this victim whose case resulted in Elliot's incarceration. I predict a settlement in which Baylor admits no liability and makes a statement about settling to avoid lengthy litigation with its attendant costs. (I wrote about the Baylor situation earlier and that post includes a link to the OTL story.)

 Last week, local police in Waco arrested former Baylor football player, Shawn Oakman and charged him with sexual assault. Oakman is entering the NFL draft this spring and was expected to be a middle round pick; there is no telling how this arrest may impact his draft standing. The police were also seeking to access his cell phone and DNA. The alleged incident occurred in early April according to the victim, a female graduate student at Baylor. So this case is not actually related to the lawsuit against Baylor or the reporting that OTL did. It is, of course, related to the culture of privilege and sexual violence that exists in the football program. Oakman has graduated from Baylor, where he--notably--did not begin his career. He was dismissed from Penn State because of behavior issues, which did not involve--according to reports--sexual assault, but did include assault on a female store clerk. 

Since the lawsuit against Tennessee was filed in regards to the climate of sexual hostility there which includes incidents of harassment and assault, the main news has been the addition of Peyton Manning to the text of the lawsuit. Manning is not the subject of the lawsuit, but an incident in which he allegedly sexually harassed a female athletic trainer is in the lawsuit as indicative of the university's pattern of deliberate indifference, especially in regards to athletes engaging in sexual assault and harassment. Other former players were also named, but of course Manning's draws a lot of attention to the case. The university wanted his name removed from the lawsuit but a judged ruled last week that that was not going to happen. The university also wanted proceedings to move from Nashville to Knoxville, likely because they believe that if this goes to trial a Knoxville-based jury will be more favorable to their side. The judge said no to that as well.

Tennessee continues to combat the lawsuit in any way it can, which includes the above actions as well as taking issue with several of the eight women who filed the lawsuit earlier this year saying that not all of them have standing.

Thursday, April 14, 2016

Sexual Harassment Roundup

Here is a summary of a few recent decisions in cases where the plaintiffs sought to hold educational institutions liable under Title IX for failing to adequately respond to peer harassment and assault.

The Sixth Circuit Court of Appeals upheld a lower courts summary dismissal of a Title IX claim against a Tennessee school district alleging deliberate indifference to pervasive bullying of the plaintiff.  The appellate court affirmed that the deliberate indifference standard "sets a high bar for plaintiffs." Here, school officials respond to individual accounts of bullying by a variety of methods including investigation and discipline, as well as proactive measures like separation and monitoring. The court noted that it is possible for officials to demonstrate deliberate indifference by continuing to rely on the same methods that are proven to be ineffective at eliminating the problem. But according to the court, that is not what happened here. School officials employed a variety of responses that were proportionate to the offense and effective at addressing individual sources of bullying.  There were almost no "repeat offenders" nor were there apparent connections between various bullies who contributed to the problem over time.  Accordingly, the appellate court held that the district court was correct to determine that the school officials' response was not clearly unreasonable as a matter of law.  Decision: Stiles ex rel. D.S. v. Grainger County, 2016 WL 1169099 (6th Cir. Mar. 25, 2016).

A federal court in Virginia dismissed a plaintiff's Title IX claim against Bridgewater College that had alleged the college was deliberately indifferent in its response to her report of sexual assault by a fellow student.  Specifically, she had alleged that the college violated its own policy when it discouraged her from simultaneously reporting the matter to the police, failed to advise her of her rights, didn't allow her to present witnesses, and didn't keep her involved and advised of the disciplinary process. In rejecting this argument the court held that the judicial standard of institutional liability for damages under Title IX is not conclusively satisfied by claims that the college violated its own policy.  Instead, the college must be "deliberately indifferent" to the plaintiff's claim, which is a higher standard. Here, the college promptly conducted an investigation, held a disciplinary hearing, and suspended the respondent--a response that cannot be classified as "indifferent". This case illustrates the difference between the judicial standard for institutional liability where money damages are at stake, and the Department of Education's compliance standard to determine whether a college can continue to receive federal funding. Because the standards are different, the fact that the plaintiff's allegations may have constituted violations of the Department of Education's Dear Colleague Letter did not enter in to the court's analysis. Decision: Faccetti v. Bridgewater College, 2016 WL 1259415 (W.D. Va. Mar. 30, 2016).

In Connecticut, a federal court dismissed a Title IX claim against Torrington School District in a case challenging the school district's response to prolonged bullying of the plaintiff by other students.  The bullying consisted of verbal harassment, much of it by fellow members of the high school football team, as well as an incident of sexual assault.  The court ruled out that the school district could be liable for its response to the sexual assault, which occurred over the summer and off school grounds, because when it was eventually reported to school officials, they responded immediately to the report by separating the plaintiff from the bullies. The court ruled that the rest of the harassment was outside the scope of Title IX because there was no evidence that the bullies were motivated by the plaintiff's gender.  The court rejected the plaintiff's contention that some of the bullies' slurs, like "bitch," "pussy," and "faggot," satisfied this element, a conclusion that was surprising to me, given those words in isolation connote effeminacy and even more so in the context of a football team, where masculinity is rigorously policed.   Decision: Doe v. Torrington Public Schools, 2016 WL 1257819 (D. Conn. Mar. 30, 2016).