Saturday, December 03, 2016

A Roundup of Disciplined-Student Cases

In three separate cases, court issued rulings this week that address claims by students disciplined for sexual assault that the university's process for administering discipline was biased and/or procedurally unfair. A summary of each is below.

Doe v. Ohio State University.  In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the university's motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court.  The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply.

Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity.  Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiff's allegations about the deficiency of the process constituted a violation of clear constitutional precedent.  However, the court did not dismiss plaintiff's allegations that the university officials were trained in a biased manner, since if proven, such claims would implicated a clear constitutional right to have one's case decided by an impartial adjudicator.  However, the court cautiously acknowledged that there's a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff can't satisfy the latter with evidence of the former. However, the court read the plaintiff's allegations as plausible enough to warrant discovery.  The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations.  

Doe v. University of Cincinnati.  Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The university granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainant's absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panel's assessment of parties' credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accuser's absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way.

Arishi v. Washington State University.  This case stems from Washington State University's decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the university's disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washington's administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel.  The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiff's case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the court's decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.

Friday, December 02, 2016

Sex-Segregated Elementary School Violate Title IX, OCR Says

An Idaho elementary school may no longer segregate students by sex after the Department of Education's Office for Civil Rights determined that doing so without evidence-based rationale violated Title IX. OCR's investigation was triggered by the ACLU of Idaho, which filed a complaint against Middleton Heights school district in 2013. The ACLU argued that the elementary school's practice of separating boys and girls from first through sixth grade, including even for some nonacademic subjects, was not tailored to the program's stated objective of closing the gender gaps in reading and math proficiency.  For one reason, the program segregated students for more than just math and reading instruction. But even as it applied to reading and math, the school district's rationale was based upon a faulty premise according to the ACLU, which cited evidence that gender gaps in math and reading at Middleton Heights elementary school had been small or nonexistent prior to the segregation program. Instead, it argued, the school district imposed segregation based on impermissibly "overly broad generalizations" and gender stereotypes, such as that boys benefit from a kinetic classroom environment and girls need calm and quiet. The ACLU's complaint criticized the school district for operating on these assumptions and attributing them to entire genders, rather than making an "individualized assessment" to determine which students benefited from which environment.

The school district actually curtailed its decade-long segregation in June, and reportedly had no plans to reinstate it. To make sure, however, OCR is monitoring the school district until 2020.

Thursday, November 24, 2016

UCSD Successfully Appeals Student Discipline Case

This week, the California Court of Appeals overturned a lower court ruling that found in favor of a student, John Doe, who had been suspended from the University of California San Diego for sexual misconduct.  In July of 2015, a superior court judge invalidated the university's suspension after concluding that disciplinary hearing was plagued by prejudicial procedural errors, including limits on his right to cross-examine the complainant and the investigator, as well as insufficient evidence to justify the findings in complainant's favor.

The appellate court disagreed with the lower court's conclusions.  One of the procedural errors that the lower court addressed was the fact that the respondent was not allowed to ask questions directly to the complainant. Instead, the hearing panel asked the questions John Doe had submitted. This was not itself a problem, but the lower court did find fault in the fact that the panel filtered out many of the proposed questions; only asking 9 of the 31 submitted by the respondent. But the appellate court concluded that the rejected questions were unnecessary or repetitive of earlier testimony.  For example, 7 of the rejected questions sought the complainant's admission that she sent certain text messages, which was unnecessary since the text messages themselves were already in evidence. Moreover, Doe did not argue in his appellate briefs how exactly his case was harmed by the hearing panel's exclusion of various questions.

The lower court had also found that that the hearing panel improperly relied on the investigator's report. But, despite John Doe's argument to the contrary, the appellate court recognized that university policies put him on notice of the fact that the report would be used as a factfinding document.  Additionally, though John Doe claimed he was prejudiced by not being able to cross-examine the investigator who wrote the report, the appellate court noted that Doe could have called the investigator as a witness for that purpose, and that he neglected to do so.

The lower court had based its determination of insufficient evidence on its conclusion that the hearing panel should not have relied on the complainant's testimony or the investigator's report, because neither had been scrutinized under cross-examination.  The appellate court, having rejected the alleged procedural errors about cross examination, easily determined that there was sufficient evidence of John Doe's guilt.

Lastly, the appellate court reversed the lower court's conclusion that the university's decision to suspend John Doe was an abuse of discretion, especially in light of the fact that the length of the sanction increased with each of John Doe's internal appeals. But the hearing panel, which only recommended suspension for one quarter, was only authorized to do that, recommend.  The Dean, who sanctioned Doe for a one year suspension, always had the ultimate authority to determine the initial sanction. While the Dean departed from the hearing panel's recommendation, the appellate court found that the Dean's sentence was consistent with university policy. The council of provosts, which considered John Doe's appeal of the Dean's sentence, increased the sanction to one year and a quarter. The appellate court found that the council's reasons were related to the content of the appeal, and not, as Doe claimed, punishment for exercising his right to appeal in the first place.

The lower court has been ordered to deny John Doe's petition for mandamus, which would have canceled his suspension. It is not clear to me what that means for Doe himself, given the time that has already passed while his case and appeal were pending.

Wednesday, November 23, 2016

New Secretary of Education Announced

The President-elect has announced his pick for Secretary of Education: Betsy DeVos, a public school reform advocate and former chair of the Michigan Republican Party.

DeVos currently chairs the board of directors for the American Federation for Children, an advocacy group committed to school choice through means such as vouchers and tax credits.

Though there is little public information I could find on DeVos from which to predict what her appointment would specifically mean for Title IX enforcement, the few clues I did find suggest that she is unlikely to champion the law's aggressive enforcement. In 2006, a Michigan right-wing watch group compiled a report on DeVos and her husband's philanthropy, which targets many conservative religious causes -- including a $50,000 gift to Grove City College, which notoriously refuses to participate in federal financial aid programs so that it will not have to comply with Title IX. (DeVos's own alma mater, Calvin College in Grand Rapids received a requested Title IX exemption in 1985 that permit the seminary program to limit certain internships to male students, consistent with the policy of the Christian Reform Denomination not to ordain women.  However, unlike many other religiously affiliated institutions, Calvin College has not sought exemptions from Title IX's application to LGBT students.)  The same report also indicates that she and her husband have donated to the Institute for Marriage Policy and the Michigan Family Forum -- groups that opposed same-sex marriage. From this it seems reasonable to predict that DeVos will not continue the current administration's push for Title IX's application to LGBT students. Add to that her financial support for pro-life groups and I think it's fair to say the incoming Secretary is no feminist, and would be unlikely to choose one as Assistant Secretary for Civil Rights.

Monday, November 14, 2016

University of Maryland's Title IX Fee

* There is a lot to say about what last week's election of Donald Trump means for Title IX. I am still gathering my thoughts and reading others'. Meanwhile, I continue with my commitment to public scholarship and advocacy of gender equality in education in this forum as I contemplate how else I can best make change.*

Old news: The University of Maryland student senate voted to implement a fee of $34 per student to help fund the school's "understaffed and overworked" Title IX office. As Erin told Inside Higher Ed, this is the first time we have heard of a university using student fees to fund its Title IX Office.

First thing to note is that, though the SGA approved the fee, it was not a done deal; which leads to...

...newer news: the SGA has decided not to devote student fees to the Title IX office. After the national news attention UMD received, the president held a meeting with SGA leaders and said the university would fund the office. It has committed to hire an additional investigator, two professionals in the health care center dedicated to counseling on these issues, and it will hire a firm to evaluate how UMD handles sexual assault reports. 

Apparently the move by the SGA was one intended to pressure the administration to pay more attention to the issue of sexual assault on campus. And it worked. In addition to the news coverage, state legislators started asking questions about why the burden of funding the Title IX office was being put directly on students.

SGA leaders, however, did say that they would reintroduce the idea of the fee if they did not see the university following through.

Initially it appeared that the university really needed the money from the students. But now money has been found in the budget. The people who work in compliance are pleased with the additional funding. It seems that things have tough in the past few years. The Title IX Office does not even have an office--two years after UMD hired its first Title IX coordinator.

A spokesperson for the university had called the vote to fund the office in part through student fees "a show of support for the important mission of the Title IX office."

The better show of support is the university fully funding its Title IX office and its mission; a mission that it is legally required to undertake. Could they have chosen this method of funding? Yes. But as it turned out the ethics and the optics of this route to compliance drew a lot of questions.

The commitment to the "important mission" was already suspect. Two years without an office? That is a nearly impossible and potentially dangerous situation. One, the amount of paperwork and organization is immense. Managing all of that without a permanent home impedes the ability of staff  Two, there are privacy issues involved. A mobile or constantly shifting office compromises privacy And, if there is no permanent home, how do students know where to go? While there are other reporting options--professors, residence hall assistants and directors, counseling and health services--all of those people, as well as students, should know where the Title IX officer is located.

Though there may be other universities in similar situations (underfunded Title IX offices), UMD's situation made national news. We will likely hear more about how the university chooses to demonstrate its institutional support of Title IX. 

Saturday, October 29, 2016

Supreme Court Grants Cert in Title IX Transgender Bathroom Case

Yesterday the Supreme Court partially granted the Gloucester school district's petition for certiorari to review the appellate court's decision that a transgender student had the right to use the bathroom according to his gender identity:

As you can see from the order, the Supreme Court's order limited its review to two questions raised by the school district's petition.  There were three questions on which the school district sought review in its cert petition:

By refusing to grant certiorari on question 1, the Supreme Court has confirmed that it will not use this case to overrule the Auer doctrine. Under Auer, courts must defer to an agency's interpretation of its own ambiguous regulations. In the decision below, the Fourth Circuit relied on heavily on Auer in determining that the transgender student plaintiff could access the boys' bathrooms at his high school. This is because the Department of Education, which enforces Title IX, has a regulation about bathrooms (it permits schools to separate bathrooms and certain other facilities by sex) but that regulation is silent about its application to transgender students. The Department has since interpreted that regulation to resolve that ambiguity to require schools to permit transgender students to access bathrooms consistent with their gender identities. As an interpretation of an ambiguous regulation, the Fourth Circuit determined, the court deferred to the agency's position on the matter.  It did not pass judgment on the agency's position; it simply recognized that the agency is the proper body to make that call.

In denying cert on the question of whether Auer deference is proper, the Court has made it considerably harder for the school district to prevail. It will only examine whether the Fourth Circuit properly applied that doctrine in this case.  Notably, most of the school district's arguments that it did not target the fact that the agency's interpretation was contained in a limited-purpose opinion letter and was arguably not meant to have broad application. Since that time. the agency has promulgated a broadly applicable guidance document on this issue. Even if it was improper for the Fourth Circuit to have deferred to that opinion letter, it is not necessarily improper for other courts in future cases to defer to the guidance document.

Additionally, it is worth noting that the Supreme Court presently has only 8 justices. The vacancy left by the death of Justice Scalia will not be filled before this case is argued sometime this winter or spring. I can think of three Justices who are likely to be sympathetic to the school district's arguments.  But they would have to get two more to the join them for the school district to win, because a 4-4 tie leaves the Fourth Circuit's decision in tact.

Finally, for some historical context, the Supreme Court has decided Title IX cases 8 times in its history. In all but one of those cases, it ruled in favor of the party seeking to challenge discrimination and advance civil rights.

Thursday, October 27, 2016

Title IX Used to Challenge Anti-Gay Utah Law

This week LGBT rights activists in Utah filed a lawsuit challenging state law that prohibits schools from including instruction on the advocacy of homosexuality in the curriculum, which the state Board of Education has interpreted to apply broadly to "any course or class." The lawsuit also targets provisions of state law that withhold support and recognition from student clubs whose activities involve or express "human sexuality." The lawsuit's primary arguments are that by singling out homosexuality for exclusion from the curriculum, and LGBT groups for the withholding of school support, Utah's laws violate students' constitutional rights under the First and Fourteenth Amendments, including equal protection, free speech and association, and the right to receive information. In addition to the constitutional claims, the lawsuit argues that the anti-gay state laws force local school districts, some of which are defendants, to violate Title IX by foreclosing LGBT students' rights to equal educational opportunities. The lawsuit charges that the state law violates Title IX because it forces school districts to "foster a hostile and censoring environment of silence and non-acceptance for LGBT students" and by "subjecting them to stigma and harassment based on sex, including actual or perceived gender non-conformity, being in a same-sex relationship, or being transgender." The lawsuit also claims that one of the school district defendants violated Title IX by ignoring severe harassment that students directed at one of the plaintiffs in the case, whom they perceived to be gay, a claim that helps illustrate the potential for discrimination in the curriculum to negatively affect school climate in ways that cause tangible injuries to LGBT students.  

Friday, October 21, 2016

Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance

Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity.  This post will cover two key developments in separate cases that occurred this week. 

In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.  

As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue.  The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.

The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights.  Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case. 

Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order." 

The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question.  Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.  

Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX. 

Wednesday, October 12, 2016

OCR Says Wesley College Violated Rights of Student Accused of Sexual Misconduct

Today the Department of Education's Office for Civil Rights announced an agreement with Wesley College in Delaware that resolves certain violations of Title IX that the college has committed in its response to sexual assault cases. The agreement is unique in that it is the first time the agency has resolved a complaint filed by a student who was accused and disciplined for sexual misconduct. The agency agreed with him that the process the school used to adjudicate his case, and ultimately expel him, was not "equitable" as required by Title IX.

In 2015, someone (or someones) planned and broadcast a live stream video of a male student having sex with a female student at a college fraternity house without the female student's knowledge. Witnesses to the live stream named the accused student as one of those who had orchestrated the live stream, along with other members of his fraternity. Based on these reports, the college immediately issued an interim suspension, without undertaking any kind of preliminary investigation, such as interviewing the accused student. This was in direct violation of the college's own policy, which provides accused students with an opportunity to share their side of the story before an interim suspension can issue. This was also one of several aspects of the college's violation of Title IX's requirement of an equitable response, according to OCR.

Next, an investigator prepared a report for the judicial hearing without interviewing the accused student, an additional policy violation.  Relatedly, the college also skipped a preliminary "conference" that was required by college policy, which would have also given the accused student to tell his side of the story.  Meanwhile, the college failed to provide the accused student with accurate information about the hearing process. This misinformation, combined with the fact that the college failed to hold the preliminary conference, caused the student to believe that the judicial hearing that determined his responsibility was actually the preliminary conference. Owing to this confusion, he did not bring witnesses or otherwise prepare a defense to his hearing.  This collection of errors was cited by OCR as an additional examples of inequitable conduct by the college.

The hearing itself was also plagued with errors.  For one, the college had not provided him with an advance copy of the investigator's report and other key evidence, despite being required by its own policy to make such evidence available to both parties. Another error occurred when the accused student was not allowed to hear the testimony of the other students who had been charged.  The testimony of these students, who named him as a participant in the live-stream planning, was the only evidence that supported the board's finding him responsible.  However, the accused student was denied the opportunity to hear or question their testimony. Finally, OCR noted that only six business days had passed between when the accused student received notice of the charge against him and the college's decision to expel him. The college's own policy contemplates a longer time frame that permits respondents with adequate time to prepare to participate in the process.

In addition to finding the process in the accused student's case to be inequitable, OCR examined the records of other adjudications by the college and found evidence that some of these problems are widespread. Specifically, the college appeared to impose interim suspensions without preliminary investigation in other cases as well, and also had a habit of depriving accused students of the opportunity to present witnesses and other evidence.

OCR even found that the college violated the rights of complainants, such as by failing to provide appropriate interim remedies like counseling and academic services, and by failing to provide complainants with written notice of the outcome. The college also failed to provide sufficient notice and dissemination of its policies, information about the Title IX Coordinator, and information about how to report sexual assault.  In this respect, Wesley College hardly looks  a college that is "overcorrecting" the problem of sexual assault. It is not satisfying the Title IX right of the complainant OR the accused.

I am glad to see that OCR is using its enforcement power to ensure that respondents as well as complainants have the right to an equitable process. Such fundamental fairness is of course important to students who are accused.  It's also important to complainants that respondents are treated fairly, since procedural errors introduce the risk that a punishment could be invalidated on appeal. Moreover, I think it's helpful that OCR is clarifying that Title IX is not to blame when institutions deprive accused students of fair investigations and hearing.  Clearly, Title IX does not require such unfair procedures, and in fact, Title IX is violated when they occur.

Friday, October 07, 2016

Disciplined Student Prevails Against Brown on Breach of Contract Claim

Last week a federal judge in Rhode Island concluded a bench trial in a case between a John Doe plaintiff and Brown University who sued the university after he was suspended for sexual misconduct.  The only issue that the trial addressed was whether the university breached its contractual obligation to John Doe in the manner that it conducted the process by which he was found responsible and disciplined. In siding with the plaintiff, the court made clear that it was not concluding anything about the merits of the complaint against Doe.  It also expressed alarm that Brown students had orchestrated an email campaign directed to the judge to criticize his earlier decision that allowed Doe to remain on campus while his case was pending, and hoped that these students would read the decision and be educated about the role of the courts in such matters.

As for the breach of contract claim itself, the court first acknowledged that the Student Handbook, including the Code of Conduct, form the basis of a contract between a student and the university. In this case, the conduct for which Doe was suspended occurred in 2014, so his case should have been governed by the policy and process contained in the 2014-15 version of the Code of Conduct.  Brown has subsequently updated its policy to provide a definition for consent, which was absent from the 2014-15 policy, but it applied the newly-codified definition of consent when it adjudicated Doe's case.  The new definition clarified that that consent could not be obtained through "manipulation," and the charge in Doe's case was that he had manipulated another student to have sex. (In fact, he had admitted to such "manipulation" in an incriminating text message.)

Brown argued that the consent definition merely "codified community standards" of consent, and therefore did not materially change the 2014-15 Code. But the court determined that a reasonable student would not have expected in 2014-15 that sexual activity to which another had been manipulated to consent violated the Code of Conduct. The Court acknowledged that this case was a "close call" and that the problem it acknowledges is limited only to those cases that occurred prior to the change of definition.  As such, it is not an indictment on Brown's sexual assault response or, for that matter, on Title IX.

Though the court invalidated Brown's decision to suspend Doe, it acknowledged the university's right to hold another hearing using the 2014-15 Code. Presumably, this would mean instructing the panel to apply a common sense/ common understanding of consent, as they had done prior to the Code's incorporation of a specific definition.  It is possible that under such a definition, the "manipulation" in question negates consent, but hearing panel could decide otherwise.

Thursday, October 06, 2016

Throwback Thursday, aka Updates

UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.

The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.

Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.

And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
               On Monday, Baylor said it had filled Crawford's post by promoting senior deputy                 coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)

It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.

On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.

The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.

Friday, September 30, 2016

Coach Wins $3.35 Million Jury Verdict for Retaliation

Last week we blogged about the trial between San Diego State University and its former women's basketball coach Beth Burns.  Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team.

By way of update to that earlier post, we learned this week that the jury did not accept the university's argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages.

Though we haven't had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.

Tuesday, September 27, 2016

Another Court Requires School to Accommodate Transgender Student's Bathroom Use

On the heels of a similar post from last week, another federal district court has enjoined a school district's policy of banning transgender students from using the bathroom that matches their gender identity.  An elementary school student in Ohio, a transgender girl, will be able to use the girls' bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last week's ruling, this court recognized the plaintiff's likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order.

Simultaneously, the court in this case considered and denied the school district's motion to enjoin the Department of Education's enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the court's opinion contrasts with a federal district court decision last month that granted the state of Texas's motion to enjoin Title IX's enforcement.  Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:
Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 
The court in the Ohio case conducted a thorough analysis of Title IX's enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Education's policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX.  The court determined the availability of post-enforcement judicial review precludes earlier review.  The court drew parallels between Title IX's statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review.

We now have two district courts with competing positions on whether the Department of Education's transgender policy is vulnerable to injunction. Showdown!

Monday, September 26, 2016

Title IX Retaliation Case Heads to Jury

This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired women's basketball coach Beth Burns in 2013.  At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins.  She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year.  Her past performance evaluations praised her for running a solid program and doing an "excellent job."

So why was she fired?  That is what the jury will have to decide after today's closing arguments summarize a month-long trial's worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coach's knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect.

Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the women's athletics, including her team.  Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining."

Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony?  Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coach's behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms?  (As one witness testified, "What most people call yelling, we (in athletics) call communication.”)

The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree.

Note: This is not the first retaliation case we've blogged about against San Diego State. In 2007, the university was sued by a former women's swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record!  Eventually the university settled for $1.45 million dollars.