Thursday, March 09, 2017

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Monday, March 06, 2017

Supreme Court Cancels Hearing in Transgender Bathroom Case

Today the Supreme Court announced that it would not hear oral arguments in Gloucester County School Board v. G.G., the case asserting a transgender student's right under Title IX to use the bathroom that matches his gender identity, as it had been schedule to do later this month. Instead, the Court decided to vacate the Fourth Circuit Court of Appeals opinion that had been appealed to the Court and order a rehearing in the case. The Fourth Circuit court had earlier held that the plaintiff in the case, high school student Gavin Grimm, had the right to use the boys' bathroom at his high school.  However, the Fourth Circuit decision deferred to the Obama administration's interpretation of Title IX in reaching that result. Now that the current administration has withdrawn that guidance, the deference argument is moot, and it is up to the appellate court to decide for itself whether Title IX supports the right that Gavin Grimm claims. Whatever the Fourth Circuit does decides could eventually be appealed again to the Supreme Court, but for now, the battlefield of this case has shifted from D.C. to Richmond.

Besides postponing an eventual Supreme Court showdown over transgender rights, today's move by the Supreme Court cancels another one over the more general question of whether courts should defer to guidance documents issued by government agencies -- though this results may have been ordained (and some might suggest, orchestrated) by the administration's decision to withdraw the guidance in the first place. While many have criticized the former administration's tendency to issue clarifying guidance documents rather than create new rules, it may be that current administration plans to do rely on a similar strategy at least as often. In any case, the president benefits from the fact that doctrine of judicial deference to such interpretations remains in tact.

Friday, March 03, 2017

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.

Disciplined-Student Litigation Roundup

Here is a summary of some recent judicial decisions in cases brought by students who were disciplined for sexual assault.

1. Colorado State University-Pueblo.  A federal magistrate rejected the university's motion to dismiss a case filed by a student who alleged that he was suspended for sexual assault in a biased and erroneous disciplinary proceeding conducted by university officials. The magistrate agreed that the plaintiff's allegations could support liability under Title IX if they eventually prove true. The complaint's allegations that university officials ignored exculpatory evidence, including statements by the complainant that their sexual encounter was consensual, evidence suggesting that the complainant and the respondent had consensual contact after the alleged assault, and evidence that could have indicated complainant's motive in filing the complaint was to conceal and avoid being punished for a prohibited relationship (she was a student in the athletic training program and he was a member of the football team).  The magistrate acknowledged that ignoring such  evidence indicates bias, but not necessarily gender bias which is required for institutional liability under Title IX.  However, the complaint's additional allegations about the investigator's gender bias, particularly, bias about football players' propensity to rape, could if proven satisfy that requirement, the magistrate determined. Importantly, another aspect of this decision dismissed the plaintiff's direct challenge to the Department of Education's Dear Colleague Letter.  Here, the magistrate reasoned that the plaintiff lacked standing to challenge the DCL because it did not cause the injuries that he alleges.

2.  Amherst College. Title IX and breach of contract claims against Amherst College filed by a student expelled for sexual assault survived the college's motion to dismiss. Like the case described above, the plaintiff here also alleges that the disciplinary proceeding failed to take into account evidence that would have shown consent, including some text messages sent by the complainant immediately following her their sexual encounter in which she describes herself as the initiator of sexual activity. The court determined that the plaintiff satisfactorily alleged that this and other procedural errors were motivated by bias by including claims that his accuser was known by the college to be part of a "student-led movement" pressuring the college to change the way it handles sexual assault complaints, and that this pressure motivated the college to make procedural errors in the plaintiff's case in order to expel a male student for sexual assault. In addition, the plaintiff's selective enforcement claim also survived because the plaintiff alleged that male and female students were treated differently by the disciplinary process.  The college allegedly failed to encourage him to file a complaint against her when they discovered the text messages suggesting she may have initiated sexual activity with Doe while he was “blacked out,” and thus incapable of consenting, but on the hand, encouraged her to file a complaint against him upon discovery of her belief that she was assaulted by him. Notably, the plaintiff's complaint was one of the few I've seen that alleged a contemporaneous claim of race discrimination in the pattern of enforcement against black men. However, this claim was dismissed as it was not supported by sufficiently specific allegations.

3. St. Thomas University. In contrast to the two cases above, a federal court in Minnesota did grant St. Thomas University's motion to dismiss a Title IX claim alleging gender bias and mishandling of a sexual assault complaint. Here, the plaintiff's only support for his allegation that procedural errors resulted from gender bias was "pressure from the federal government to punish male students accused of sexual assault." The court rejected the sufficiency of this allegation, noting the absence of "targetted stress" imposed by the government on the university, that would have caused it to engage in unfavorable treatment of male students accused of sexual assault. However, this decision notably denied the university's motion to dismiss the plaintiff's claim of negligence (though the court was skeptical that the factual record would provide evidence necessary for liability on this claim).

4. San Diego State University.  While a Title IX claim was not at issue in this case, a plaintiff prevailed against San Diego State on grounds that the university's failure to provide him with an "adult adviser" constituted procedural unfairness in violation of the state administrative law. In contrast to the plaintiff, who was required to speak for himself in the hearing, the court noted that the complainant received the assistance and advocacy of the university official who had initially investigated the case. The court made clear that it is not requiring universities to furnish respondents with a lawyer, but that respondent needed some kind of adult advocate, like a faculty member, to level the playing field.  Further litigation is required to determine if the plaintiff, who had been expelled, must be reinstated.

Thursday, February 23, 2017

More on the Rescission of OCR's Transgender Guidance

Following up on Kris's post from yesterday about the rescission of OCR's prior clarification about Title IX's application to transgender students, I wanted to contribute some additional points. First, in light of the existing injunction against the application of the guidance to "intimate spaces" like bathrooms and locker rooms, rescinding the guidance highlights the Department's lack of support for transgender students' rights and safety even outside of that context.  It is saying, essentially, that it will turn a blind eye to students who might be rejected or expelled from college because of their transgender status, and that it doesn't care if school district officials ignores bullying and harassment of transgender students. This is a harmful position for the federal government to take, especially in light of the fact that fewer than 20 states provide protection for transgender students facing harassment and discrimination.

That said, I need to emphasize that Title IX's dual enforcement mechanism give victims of sex discrimination two choices to assert their rights -- to complain to the Department of Education and/or to file a lawsuit.  Therefore, it is still possible for the courts to interpret Title IX to protect transgender students rights and to subject school districts/universities to liability for violating those rights.  This would not require an extreme or unusual interpretation of the law in most cases, as evidenced by numerous courts that have found that the the sex discrimination provision of Title VII protects transgender employees and job applicants who experience some forms of employment discrimination.  Even in the most challenging context, that of sex-segregated spaces like bathrooms, courts are capable of reading sex discrimination to mean discrimination based on transgender identity, which is an evaluation that takes sex into account, in that it considers of one's gender identity relative to one's (natal) sex.  Lawyers have their work cut out for them, but this is definitely not "game over" for transgender rights and Title IX.

Wednesday, February 22, 2017

Transgender protections to be eliminated

The rollbacks are beginning. It was--unfortunately--not very surprising to read that the current administration will not uphold the clarification which grants transgender students protection under Title IX.

Also unsurprising is that the meaning of this announcement is unclear. The current president stated, through his press secretary, that use of bathrooms and locker rooms in public schools should be an issue decided by the states. Because apparently the previous regs were too confusing and too hard to implement.

 However, there is some indication that the anti-bullying protections will remain. This would theoretically protect trans and gender non-conforming students; but not allow them to use the bathroom of their choice. But backlash could easily threaten these as well.

So that puts us back to the pre-clarification days of angry PTA meetings and offensive ads by "family values" groups.

Truthfully, of course, those angry meetings, the heartbreaking stories of students who are bullied, who are not supported by their communities and sometimes by their families, have persisted. But now those students cannot look to the government to protect them. They cannot gain validation from the fact that the actions of those around them are banned by the government. The misinformed ads will persist. They may, as we have seen in other arenas, become more overt, more vitriolic, more misinformed.

This is just the first move to weaken (possibly dismantle?) Title IX. We have a secretary of education who would not comment on Title IX enforcement (it's unclear if she knows what it is) and what appears to be the pending nomination of an OCR chief (assistant secretary for civil rights) who thinks the previous administration overstepped in regards to campus sexual assault provisions.

Here is the good news: we have a vibrant movement committed to reducing campus sexual assault and instituting and maintaining proper policies and procedures for dealing with the crime. In regards to protecting trans students, the fight will be more local. We have seen the backlash to HB2 in North Carolina. We can pressure state and local officials to make schools (and other spaces) safe for trans people. We can work within our own institutions to create gender inclusive environments.

Friday, February 03, 2017

Private School Suspends Girl Who Sued to Play on Boys' Team

The local news in New Jersey recently reported about the decision of St. Theresa's School in Kenilworth to expel a female seventh grade student and her sister after the seventh-grader's unsuccessful attempts to sue the school for the right to try out for the boy's basketball team. A judge ruled in January that she had no right under applicable law, and the family is appealing.

If this student went to public school, she would have a strong argument that the U.S. Constitution's Equal Protection Clause protects her right to try out for the boys' team, which is the only basketball team offered by her school. The Equal Protection Clause requires state and local governments, including school districts, to avoid generalizations and stereotypes when making any sex-based classification. Under this rationale, female students have prevailed in many cases seeking the right to try out for a variety of sports, including sports like basketball that are covered by Title IX's contact sports exemption.

If she went to public school, the student and her family would also have legal recourse to challenge the decision to expel the student and her sister as apparent retaliation for the family's decision to appeal, since Title IX provides strong protection against retaliation. But the majority of private religious elementary and secondary schools do not accept federal funding, insulating them from the obligation to protect students civil rights. Unless St. Theresa's is among those private schools who participate federal programs to subsidize student's school lunches or to purchase classroom technology, the student and her family cannot rely on this statute for recourse.

Often when I write posts about stories where Title IX did not apply, I make the point that students and their families need to be careful when selecting private schools, since that decision often subjects the student to sex discrimination without legal recourse. But it also a cautionary tale against privatization as a policy matter. If federal support for public schools wains or disappears under the current administration -- a possibility signaled by president's nomination of Betsy DeVos -- more and more families may be compelled to accept private schools as a result. This shift would send more and more students like this one into the void of civil rights, with no statutory or constitutional protections available.

Tuesday, January 31, 2017

Boy Scouts of America Opens Membership to Transgender Boys

The Boy Scouts of America announced yesterday that it will "accept and register youth in the Cub and Boy Scout programs based on the gender identity indicated on the application." This is a change from the organization's previous policy that looked to the applicant's birth certificate for the evidence of eligibility for membership, and it paves the way for transgender boys to be able to join the organization. In its report on this story, the New York Times underscored the abrupt and marked reversal of course by pointing out that only last month a New Jersey Cub Scout became the first transgender boy to be rejected from the Boy Scouts when he was removed from his troop one month after joining.  

The BSA is not subject to Title IX, but I am posting about this story on the Title IX Blog because I think it sets a good example for school districts and other organizations that may be considering similar policy changes. The Boy Scouts are in a position to be particularly persuasive to school districts because they often meet in and are connected to schools. The timing of their policy change is also useful, as it seems some school districts are using the anticipated repeal of  OCR's guidance about Title IX's application to transgender students as an excuse to reject proposed policies that would protect LGBT students and employees. The new BSA policy proves that even without the government's promise to enforce Title IX in favor of transgender rights, it is still both legal and appropriate for local organizations to do the right thing on their own.

Monday, January 30, 2017

Updates from Baylor, Amherst

An additional lawsuit was filed against Baylor at the end of last week. A former female student alleges she was raped by two football players in 2013 while other players recorded the assault and shared the video. The school took two years to investigate the assault. It suspended and eventually expelled one of the players. The other transferred. The lawsuit, like the others, cites a culture of sexual violence at Baylor; a culture Ken Starr claimed did not exist both while he was president of the university and even after his departure.

New information, though, has emerged from this filing. Previously, we have known about the 17 incidents since 2011 that involved 19 players. The lawsuit states that there have been 52 sexual assaults (within an unnamed 4-year period) by 30 football players. The increase is likely due to the fact that the woman who filed the lawsuit was a member of a campus group organized to show football recruits around during visits. Members were supposed to be available for sex; a tool used to sell Baylor to the prospective players. Art Briles's attorney said the former coach, who himself is involved in litigation with the school, denies such a culture existed under his leadership.

With little attention, Amherst College announced before the start of the current semester, that they had concluded their investigation of the offensive messages sent by members of the men's cross country team. Sanctions include suspensions ranging from several meets to the remainder of an athlete's Amherst career. All members must undergo an "educational process" and the team is on probation until 2018.


Wednesday, January 18, 2017

DeVos Won't Commit to Enforcing Title IX

This week, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on Betsy DeVos's nomination to be the next Secretary of Education. Until this point, DeVos has not made any public statements on Title IX, so the best we have been able to do is speculate on her view of how the law should be interpreted and enforced.  For example, it seems reasonable to predict that she will scale back enforcement of the statute's application to LGBT students, based on her past, extensive financial support for anti-gay and religious causes.

Though we anticipated that a confirmation hearing might shed some light on the nominee's additional plans for the Department of Education and Title IX, DeVos provided few concrete responses to questions by committee members. Regarding Title IX in particular, DeVos said it would be "premature" to commit to enforcing sexual assault statutes like Title IX and Campus SaVE, in response to questioning by Senator Casey (D-Pa.). She also denied that she had promised Republican Senators that she had plans to "reign in" the OCR.

On other issues, she was similarly cagey, such as when she refused to commit to Senator Warren (D-Ma.) that she would enforce existing regulations that protect students at for-profit institutions from fraud, or when she declined to reassure Senator Murray (D-Wa.) that she not was planning to dismantle public education. In fact, the only of DeVos's positions that is clear is her support for "school choice" which many see as a euphemism for privatization, and for which she and her advocacy have come under fire in her home state of Michigan. She also dodged questions -- about guns, and about services for students with disabilities -- by invoking the mantra of "best left to the states to decide" (though she eventually relented that the Individuals with Disabilities in Education Act is in fact federal law.)

Though one Republican, Senator Murkowski of Alaska, pushed back somewhat on DeVos's school choice ambitions -- asking that her commitment to traditional public education was as “strong and robust” as her passion for school choice -- it is evident that DeVos has the support of the Senate majority, and will likely be confirmed next week.

Wednesday, January 11, 2017

Updates

In Pennsylvania, the hazing case against football players participating in No Gay Thursdays has been settled. Three seniors, accused of harassing/hazing a first-year player, plead guilty to summary harassment. There were discrepancies between what was originally reported (penetration with a broomstick handle) and what was presented during the hearings (pushing a broomstick handle against the victim's leg while they held him down). How the seniors were punished remains unknown. Summary harassment is a citation, not a criminal offense.

As a reminder, No Gay Thursday had been a team tradition for several years. The football coach was initially suspended and then resigned. The remaining football staff was fired; though they were told they could reapply for their jobs. While the actions initially reported seem to have been wrong, the day itself and the culture that created it was still present and threatening. 

There is a Title IX complaint against Liberty University from a non-student who said she was sexually assaulted by a university employee in 2015. The university, which refused to fire the employee after their own investigation into the accusation, said it expects the complaint to be dismissed. But if I was OCR, I would take the opportunity to go to Liberty and find out what is happening with their brand new athletics director.

In November, Liberty hired Ian McGraw, the former Baylor AD who is facing a lawsuit from a Baylor student who accuses him of knowing that former football player Tevin Elliot had a history of sexually assault and displayed deliberate indifference, which led to Elliot assaulting her. Basically, McGraw was part of the Baylor house that got cleaned out when all these things--including additional assaults by athletes and non-athletes, and more deliberate indifference among various campus offices--came to light. Liberty president Jerry Falwell, Jr. is very enthusiastic about his choice: “You look at what Baylor was able to do during his tenure, it fits perfectly with where we see our sports programs going.  This is an exciting time for us.” He also presented McGraw's exit from Baylor as a choice.

I have written frequently about how athletes who commit physical and sexual assaults are often passed around athletics programs by coaches and admins who willfully ignore the issues. I did not think McGraw would be hired so quickly and by another ultra conservative Christian institution. Liberty has set itself up for problems should anything happen under McGraw's tenure. And its moral failings are very much in display with this move. Some in the Liberty community are not happy. Though no students would speak to ESPNW on the record for fear of retaliation. the majority were displeased with the hire and the repentance narrative the school is employing in support of the hiring. Several alum have spoken out, including some who said they would stop donating to the school while McGraw is there.

More on the Baylor swept asides: former coach Art Briles is suing three Baylor regents and one university administrator for libel, slander, and conspiracy. In the lawsuit, Briles claims that the four have made false statements about him in the press. These comments have prevented him from getting another head coaching job, he claims. Not sure how this lawsuit affects the very large settlement Briles received. As part of that deal, Briles was told he could not discuss the cases nor criticize the regents. That was in June. Sometimes there are time limits on such terms; but less than a year seems to be a bit short. Meanwhile, Briles could hit up his old boss for a job. Neither McGraw nor Liberty seem to care all that much about accusations, about character, or the safety of their student body.

Friday, January 06, 2017

Catching up: Stanford

The infamous case of Brock Turner, former Stanford student athlete who sexually assaulted a woman, was found guilty and served 3 months for the crime, apparently has taught Stanford University very little. The mindset of administrators is similar to that of the judge who sentenced Turner--who raped an unconscious woman behind a dumpster and then left her there. There is a fear of ruining the lives of the men who commit these crimes. Consequently, some of them are still on campus and the university is facing lawsuits and complaints about how it handles sexual assault.

[Interesting bit of information: most of the complaints pending against Stanford were ongoing at the time of the Turner case--something we did not hear much about in the coverage of that case. ]

Stanford currently is piloting a new program: using a 3-person panel and requiring the decision to punish be unanimous--not a simple majority--because “being expelled is really a life-changing punishment” according to the provost.The unanimity standard was put into practice in 2016. Expulsion is the only option if the accused/investigated is found responsible.

Two weeks ago The New York Times wrote a feature on Stanford and its handling of a 2015 case in which a disciplinary panel of 5 found a football player guilty of sexual assault--twice.  Correction: a simple majority of the panel members found him guilty. But the standard at the time was a 4-1 decision requirement.  So he was never punished and played last week in Stanford's bowl game. The victim, who studied elsewhere for a semester has not decided is she will return to Stanford.

Backing up a little though. Stanford has several Title IX complaints pending. Filed by former students, the complaints are centered on how the university investigates Title IX complaints as well as the disciplinary process. Again, as noted above, Standford has been changing their policies and procedures, and apparently are eager to avoid the feds coming to Palo Alto for a visit. In December, BuzzFeed reported that at least two of the women--both victims of sexual assault--who have filed OCR complaints were offered money in exchange for the withdrawal of the complaints. In one of those cases the money was offered under the guise of support for therapy and other expenses resulting from the assault; but conditional upon withdrawal of the complaint. (Withdrawal of a complaint does not guarantee that OCR will drop its investigation. It does not require a complaint be filed in order to initiate an investigation.)

As a reminder, the student-run marching band has been dormant this year (except for bowl games!?) in the wake of revelations about hazing--of a sexual nature. (All hazing deserves punishment; the nature of this hazing speaks to the campus climate, which is why I mentioned it.)

In addition to the OCR complaints, a lawsuit was filed against the school in December. A woman who was physically and sexually assaulted by a man with whom she had tried to end relations encountered resistance from university staff and officials as she made her way through the process. She heard the now unfortunately common responses to sexual assault that included questions about whether she really wanted to have sex with him (from a counselor) and whether she really wanted to pursue charges against the assailant, who admitted to student life staff that he did indeed rape the woman in question. Punishment was not pursued because staff believed he was sorry and would not re-offend.

He re-offended. Against at least two other women at Stanford.  He graduated as a student in good standing in 2014. He was issued a 10-year ban from campus.

Stanford is pushing back against the media coverage of its many complaints and several lawsuits. There is a lot of PR happening. There is a lot more to come.

Thursday, January 05, 2017

Catching up: Minnesota football attempts boycott

Several significant events occurred in the past few weeks as we were wrapping up semesters, traveling, celebrating good news and times, and reflecting on what 2017 will bring and how we will respond.We will be catching up on these. Here is installment one about the Minnesota football boycott.

Minnesota football team protests Title IX sanctions
Part I: The members of the University of Minnesota football team banded together and said they would not participate in any football-related activities--including their scheduled December 27 bowl game--in protest of sanctions handed down by school officials against ten team members involved in sexual assault and harassment of a female student. They demanded the president and athletic director  reverse the suspension of their teammates.

In what was supposed to resemble activism, the players presented a united front, had a press conference, and told the media that the Title IX infractions were unfairly meted out, that there was violation of due process and constitutional rights. The action is supported by head coach, Tracy Claeys, who tweeted (2017--the year when people become more self-aware about Twitter??) that he has  "never been more proud of our kids. I respect their rights [and] support their effort to make a better world!" He also invoked the concept of due process.

There was a flurry of opinion pieces (and opinion pieces masquerading as fact) about Title IX investigations run amok.

Part II: The players thought that the cultural capital of football and its corresponding economic capital (bowl games = $$) would prevail. Not in this cultural climate--and not with the evidence against the ten players, including four who had been suspended by the coach himself for team violations after the incident was reported in September.

Players hold another press conference and say they will indeed play the bowl game and resume other activities. The change was attributed to the boycotting players actually reading the 80+ page report of the incident; a report compiled by the school as it investigated the incident as per its legal obligations. The reading of the document was part of a meeting with the university president. I imagine that the power of football was brought up in that conversation as well. The power bestowed on intercollegiate football players and the ability of universities to take that power away. (There were many troubling perceptions of the power of football within this whole event.)

The second press conference reflected some of these power paradigms Spokesperson for the boycott said "we understand that what has occurred these past few days and playing football for the University of Minnesota is larger than just us."

Sadly there was no concern for the victim. No support for the role of Title IX and its enforcers in keeping students safe. No clarification about Title IX investigations and how they differ from the criminal process. In short, it does not seem like anyone learned anything except how to (and how not to) wield the power of football.

Part III: Minnesota wins the bowl game. A Forbes writer attributes the underdog win to the "solidarity" that was established during the boycott and calls the boycott a "silent victory." Solidarity in the name of misogyny is not very silent--especially in football.

The school announces this week that Claeys has been fired. The athletics director (in his first year) said that there were issues in the program around recruiting and ticket sales but admitted that the coach's comments during the boycott did not help his cause. There has been pushback against the firing.

Tuesday, December 20, 2016

Elmira Resolution Announced Today

Today the Department of Education's Office for Civil Rights announced a resolution agreement with Elmira College in New York, after finding the college in violation of some of Title IX's requirements governing its sexual assault response. OCR's investigation was prompted by the complaint of a student who reported to campus officials in November of 2013 that she had been sexually assaulted by a fellow student. (Specifically, she reported that he had become"forceful" and she agreed to have sex with him "out of fear.") After investigation, the final investigative report concluded that the respondent committed sexual misconduct, but did not engage in sexual assault, and sanctioned the respondent with a no-contact order. OCR determined that while the college's response was equitable, the fact the it did not start investigating the complainant's November report until February of the following year was not sufficiently "prompt." It rejected the college's argument that such delay was reasonable in light of Thanksgiving break, final exams, winter break, and a one-week illness of the complainant.

Alone this violation may not seem like a big deal, and even OCR noted that the delay did not seem to result in the further harassment of the complainant.  But the agency also pointed out that when it looked at 16 other sexual harassment/misconduct complaints resolved by Elmira between 2012 and 2016, it found some "violation or concern" in all but one of them, "including instances where the college failed to provide prompt and equitable investigations and took insufficient measures to assess and address the impact of harassment and possible hostile environments." In other words, a pattern of getting it not-quite-right.

As a result, OCR and Elmira agreed that Elmira would commit to training for its Title IX coordinator and other staff members who play a role in the grievance process. The college must also review its own investigations that have occurred more recently than OCR's investigation, to ensure that they were conducted in a prompt and equitable manner.

Friday, December 16, 2016

And Princeton makes...

...three. As in the third Ivy League university to suspend a sports team this semester over racist, misogynist, and generally offensive messages among members. It is the fourth team when counting non-Ivy Amherst.

Princeton's swimming and diving team has been banned from competition pending an investigation which will inform administrators' decision over whether to cancel the rest of the season.

Like at Harvard, the comments were about members of the women's team. But other than that we do not know much. Unlike at Amherst, where the comments were revealed via a student publication, the issue came to the attention to the administrators via an anonymous complaint.

It is possible some comments will be leaked. I don't think we really need to know exactly what was said to see that the genie is out of the bottle. These are not going to be isolated incidents.

So while some people wait to see if Princeton officials will cancel the swim team's season, I am waiting to see how these events and the ones that will follow will be framed. Will people make a connection between the athlete culture that produces the athletes who write and disseminate these message and the sexual assault epidemic on college campuses? Will we start to look at "locker room culture" and think about sports beyond football and basketball? All the teams reprimanded/suspended/cancelled have been non-major teams--and at schools that are not considered "big-time college sports" schools. (I am not saying that athletes at these schools do not work as hard or as not as dedicated or that their sports are not important. I am speaking to the larger culture and categorizations of intercollegiate sports.) Will Title IX be used as a remedy or a consideration in these cases? Will we be able to talk about not just gender but race and sexuality and class as we engage in discussions?

So many questions. I suspect more cases will emerge before we start to get at answers.