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 prove 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.

Wednesday, September 21, 2016

High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds

A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution.  Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions.  (It is not clear to me whether this policy actually took affect.)

Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed.  On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.  

Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case.  Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.

Thursday, September 15, 2016

UNH's Million Dollar Scoreboard

As an alumna of the University of New Hampshire, as a scholar of sports, as an educator and advocate for education, I am disappointed in the university's choice to spend $1 million of a $4 million donation to a scoreboard for the new football stadium.

The gift is from the estate of Robert Morin, an alum and employee of the school who spent his 50-year career as a library cataloger. People were shocked that Morin had accumulated such an amount throughout his life and then that he left it all to the university. It gave many of us those warm, fuzzy feelings about our alma mater or respective alma maters.

Morin only restricted $100,000 of the donation--earmarked for the library--so UNH technically did not violate any restrictions on the money, though many, myself included, believe they violated the spirit of the donation. Another million lost in the football arms race. Wasted by an institution trying to be something it is not--a big-time football school.

I have complicated feelings about the morality of football, especially college football, in an era of academic and recruiting scandals and a moment when we must acknowledge the trauma of the sport, and the disproportionate effect of that trauma on poor men and black and brown men. But I am not inherently opposed to some of the money going to the football program. I am opposed to it going to a scoreboard which, in the age of planned obsolescence, will be out of date in 5? 10? years. Use it to endow a scholarship for a player who wants to go grad school maybe. For tutoring or other academic enrichment opportunities if you want to use the money in athletics. Pay it forward; make it meaningful.

In addition to the fact that this spending seems neither fiscally nor morally responsible, it may have Title IX repercussions. I have not seen the scoreboard nor have I seen the athletic department's budget this year, so I cannot say for sure, but if that scoreboard can only be used for football, it is benefiting only male athletes. Even if it can be used for other sports, it still likely benefits more men than women. So I am wondering if the university has earmarked $1 million that will go towards increasing the quality of the experience of 120ish female student athletes. New turf for the field hockey team? Chartered flights for the soccer team?

Yes, because Morin did not earmark most of the money, the university could spend it in athletics. But spending money in athletics comes with its own set of rules--including compliance with a federal law.

Friday, September 09, 2016

Frostburg State Agrees to Title IX Compliance

Today the Department of Education's Office for Civil Rights announced an agreement with Frostburg State University in Maryland that will obligate the university to address violations of Title IX revealed by an OCR investigation of 40 incidents of sexual harassment and sexual assault that the university had a responsibility to address.

In a press release, OCR summarized some of the university's violations as follows:
Required reporting by mandatory reporters that were not made even though they had notice of an alleged rape. 
Reported off-campus incidents and incidents involving non-student victims or perpetrators that were not investigated or were not fully investigated. 
Repeated violations of a no contact order that were not properly addressed and adequate steps to safeguard the victim were not taken. 
Sufficient interim measures that were not provided to victims. 
Requests for confidentiality that were not balanced against the need to keep the community safe. 
Title IX investigations that were not launched due to an improper reliance upon local or campus police investigations and reports.
In addition, the university resolved a complaint informally that should have gone through a formal hearing process, and took 10 months to resolve another. In one case, the university failed to conduct its own independent investigation of a matter that it instead referred to local law enforcement.  And while recent revisions to the university's policy for addressing sexual harassment and sexual violence complaints addressed most of the earlier shortcomings, some deficiencies remain.

In the agreement, the university agrees to bring its policies into compliance, conduct additional training, reimburse two complainants for the cost of counseling and academic services that the university should have provided, address identified failures to conduct adequate investigations, provide written notice of remedial services, and provide written notice of the outcome of the complaint investigation to the parties, conduct its own retrospective review of sexual harassment complaints to determine whether the investigation was prompt and equitable, and enhance its outreach and climate assessment efforts.
·   

Monday, September 05, 2016

In the wake of Brock Turner's release...

There was a protest outside of the country jail in California last week when former Standford student-athlete Brock Turner was released after serving 3 months of his 6-month sentence for sexually assaulting an unconscious woman on campus. That protest centered largely on the judge responsible for the lenient sentence who protesters are trying to get removed from the bench. These types of actions have been occurring since Turner's sentencing.

The protests have moved east, but they look a little different. Outside of the Turner family home in Dayton, Ohio where Turner will be on probation and have to register as a sex offender, which news reports say he has yet to do, are armed protesters. Armed with guns. There are signs as well calling for Turner's (and other rapists' ) castration.

Where to begin?

First, as I have noted previously, this is not a Title IX case. It is, however, a case of a violent athlete and the privilege conferred by being an athlete (and, in Turner's case, a white, class-privileged athlete). It is relevant because athlete privilege often affects how Title IX procedures are carried out (or not). Also, given reports about Turner's behavior coming from female members of the swim team, there was probably a Title IX case in there if someone had chosen to pursue it.

What I am more interested in regarding these protests is the violence of them. The threat of personal harm, all extralegal, is disgusting. Turner did something horrible and disgusting; so did the judge that handed down the 6-month sentence. Protesters with large guns and signs suggesting that Turner should be raped or castrated do not make any of it any less disgusting. They do not right the wrongs.

Are the protesters suggesting that vigilante justice is more fair than the system to which Turner was subjected? I know there have been a lot of superhero movies this summer, but the romanticization of vigilantism is just that, romanticized. And it is without context--especially historical context that includes its use against racial, ethnic, and sexual minorities. Vigilantes have used guns and castration and rape to keep people in their place when they thought the law was not doing enough or that these extralegal actions could serve as a warning.

So why these actions?

It goes beyond vigilantism. These protests and the symbols and words being used are a means of reifying a masculinity that is still violent and still sexually violent. In other words, it is not questioning the level of violence in our society, it is suggesting that certain forms of violence are more acceptable than others. Castration is sexual violence. The rape of men is sexual violence. Guns are symbols and weapons of violence. And they are all about the power of men. What these protesters are suggesting is that their form of violence, encouraged by state-sanctioned gun use in the form of Ohio's open carry law, is real masculinity. Turner's form of violence--sexually assaulting an unconscious woman--is not a proper display of masculinity. Slinging a semi-automatic across your body and standing watch outside the home of a convicted rapist is an acceptable use of violence, based on these displays.

This is also about class and class-based masculinity. To some people, including those standing outside his house, Turner is not doing masculinity in an acceptable way. His class privilege, his sport (swimming), and the nature of his crime all contribute to the perception that Turner is not the right type of masculine. Hegemonic masculinity, how it is created and embedded in society, is on display on that sidewalk.

Amid all this violent masculinity, where is the concern about the woman who was raped? About women who are and will be victims of sexual violence? Where is the challenge to rape culture and to the culture of violence more generally? It is missing. It is all missing from that protest, which is sadly ironic but very much proof that this is not about the sexual violence perpetrated against women.

There are no apologies to be made for Brock Turner, and he has already been granted too much leniency. His enactment of violence and the protesters' enactment of violence are both tied to violent masculinity, and violent masculinity is at the heart of rape culture.

Friday, September 02, 2016

Updates

University of Florida:
The student hearing of football player Antonio Callaway went as predicted. The outside arbiter found him not guilty of sexual misconduct.The victim, protesting the use of arbiter who is an alum and contributes money to the football program, boycotted the hearing.
It is unclear whether the victim plans  to take any additional action. Callaway is in action this Saturday against our local team, the University of Massachusetts. Interestingly, five of his teammates are not. They have been benched for various offenses including shooting BB guns in the residence halls and fighting during practice. Team culture...
One important clarification about this case. The media I read prior to my initial posting implied that using an outside arbiter (something I suggested might need review as a legitimate procedure for handling cases), was a common practice at UF. In fact, it is not. This was the first time UF had gone this route. This is eerily similar to Erika Kinsman's case at Florida State where a retired judge was brought in to conduct Jameis Winston's hearing and found him not responsible for sexual misconduct.

Kent State
The plaintiff who filed a lawsuit against the school in February 2016 alleging the school violated Title IX in the handling of her report of rape by her softball coach's son, has a filed a second lawsuit. This one is related to the university's failure to provide documents, including personnel records and student reviews of the softball coach, needed for the case. A judge has ordered this lawsuit to mediation. KSU has said the records requests from the plaintiff lack merit and specificity. It seems they are going down the dig-in-our-heels route.


California bill:
The bill initially proposed by state legislator Ricardo Lara has been amended after intense backlash from conservative religious organizations and schools. The initial attempt by Lara was to prevent these schools from discriminating against LGBT students by denying them exemptions. He changed the bill to mandate that religious colleges with exemptions reveal that fact (to whom or how is unclear based on media coverage) and that they report to the state when a student is expelled for violations of morality codes.
The bill and the ensuing controversy was mentioned in a recent Atlantic piece about the ongoing tensions between religious institutions, LGBT discrimination, and government funding of education.

The transfers issue:
Indiana State University took one day to dismiss from its football team a transfer from after they became aware of his alleged involvement in a sexual assault when he was at the University of Kansas. Though I remain suspect about the exchange of information that occurs in the transfer process, it does seem like ISU acted quickly. Perhaps it was just because a civil lawsuit against the player has been announced and ISU does not want to get caught up in the whole thing. In short, the decision was not very proactive, but it also was not as reactive (i.e., let's wait to see what happens) as we have seen in other situations.


Saturday, August 27, 2016

Federal Court Enjoins North Carolina's HB 2 as applied to UNC

Yesterday a federal court in North Carolina issued an injunction that will prevent the state's "bathroom bill" from taking effect at the University of North Carolina.

By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the user's "biological sex" as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX.  As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds.

The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNC's enforcement of HB 2 violates Title IX.  The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boy's right under Title IX to use the boy's bathroom.  The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent -- even though the remedy is temporarily on hold, for now, pending Supreme Court review.

In contrast, the court determined that plaintiffs' constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the "clear showing" of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiff's likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm -- no place to use the bathroom -- satisfied the requirements for injunctive relief.

As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs' gender-consonant bathroom use.  If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekend's decision from the federal court in Texas.  I read these conflicting injunctions to effectively permit UNC to choose for itself -- for now --  whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.

Tuesday, August 23, 2016

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Tuesday, August 09, 2016

Florida accuser tries new tactic

The student conduct hearing process for Title IX cases at colleges and universities can be, among other things: fraught, painful, confusing, offensive, ineffective, and biased.

At the University of Florida, one student accuser is attempting to address the latter: bias. She  refused to take part in the conduct hearing for two football players she has accused of sexual assault and attempted sexual assault her because the man adjudicating the case is a football booster.

The woman did not report the assault to university or local police, instead choosing to use the student judicial process. Florida appoints adjudicators for Title IX cases. John Clune, the Colorado-based attorney who has handled many Title IX sexual assault cases (he is Erica Kinsman's lawyer), is representing the woman. He made the statement on behalf of his client: "the fact that UF has hired a football booster to adjudicate a sexual assault charge against one of the team’s own football players is a fundamentally skewed process in which [the complainant] refuses to participate."

Bias in the processes of both the school's judicial process and the legal system is rampant in Title IX cases. We saw it in Kinsman's case and it was a major theme in Jon Krakauer's book about sexual assault at the University of Montana. 

Read more here: http://www.miamiherald.com/sports/college/sec/university-of-florida/article94006377.html#storylink=cpy

The players were suspended from the team for violating the student code of conduct. They were barred from campus but remained enrolled and took online classes. One player is planning to transfer (apparently as part of a deal, which included an apology), the other is remaining at the school and fighting the accusations and, as of last week, was practicing with the team (though he has not been officially reinstated).

It is unclear what will come of the boycott, but the action itself is important. It is an opportunity to really examine and potentially challenge the ways in which schools are adjudicating Title IX cases. It may also be an opportunity to assess the role and training of outside adjudicators. While the adjudicator in Kinsman's case against Jameis Winston, a former Supreme Court judge in Florida, was deemed acceptable by both sides, it was clear from the transcripts that he did know the student judicial process. A UF spokesperson said adjudicators are well-trained but apparently not vetted for bias the belief being that the training will somehow eliminate bias.

Schools need to do better. This is not news. But it seems as if schools that want to demonstrate attempts to change the climate of the campus should at least start at the judicial hearing process.

Monday, August 08, 2016

Law Professors Publish Support for DCL's Preponderance Standard

Over ninety law professors* have signed on to a white paper that defends the Department of Education's 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases.  Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly.  The agency felt the need to clarify Title IX's requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondent's guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more.

As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white paper's authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault.

Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power.  In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a university's power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives.


*myself included -EB

Saturday, August 06, 2016

Another Religious Exemption Withdrawn

Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets.

In Loyola's exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary.

As the Chronicle's article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.

Friday, August 05, 2016

Not IX but...

Two stories this week that were tangentially related to Title IX or have Title IX implications.

First, the story everyone is talking about: Texas A&M's Chalk Talk for Women. Let's leave aside for now how these football for women camps/events are becoming a money-maker for intercollegiate football programs and what they exploit. The gist: offensive slides describing football tactics using sexual innuendo and re-writing the school fight song

Outside the Lines interviewed an attendee, a woman who is head of the Aggie Mother's Club. She defended the coaches and the event calling it satire and noting that no one she encountered during the event (there were 700 women registered) complained and that they enjoyed the presentations. She said she laughed it off and attributed it to the coach's sense of humor and time in the military. She did not feel it sent a negative message to people about anything because there was--in her opinion--no message being sent. She said the coaches were being attacked with negative messages. She is going back next year.

Others have noted that at a time when football programs especially are trying to teach young men to respect women, this was hugely inappropriate and a step backwards. It is inappropriate at any time, of course. But there factors that speak to the culture of the A&M program that could, if a Title IX issue arises, come to the forefront.

First, one of the coaches who made the presentation and was subsequently suspended without pay for two weeks was a former coach for the Miami Dolphins. An offensive line coach who was fired in the wake of the Jonathan Martin/Richie Incognito bullying scandal. This is an example of toxic masculinity and misogyny and how it travels from one institution to another.

[Side note: Jessica Luther's book about sexual violence and intercollegiate football is coming out soon and I am very interested in reading it. Here is an interview with Luther.]

Second, the Aggie female fan who found nothing wrong with the talk also is indicative of the culture of A&M football. It is possible that there was no visible reaction because 1) women did not feel comfortable speaking out or even walking out in that space which was marked by fervent fandom and sexism and.or 2) female fans expect and accept that behavior as the price of fandom. One must accept the culture as it is--just as that fan in attendance accepted the coach's sense of humor and attributed his demeanor to his military service.

This is especially troubling because when something happens and female student comes forward and says she was sexually assaulted by a player, those fans will turn on her. We have seen it everywhere. These victims get run out of town--almost literally--because of the backlash. The culture of football includes the culture of fandom and if programs are running events for fans that makes them responsible for this as well.

On a sightly more positive note, the two-week, no-pay suspension of the two coaches who ran the chalk talk, the condemnation of the head coach (who issued the suspension) and the school president is at least a demonstration that the program is not being indifferent to the issue. (I have a post planned about how Baylor keeps resisting this.)

The second story, which has received far less attention, is about racial discrimination in women's sports. Three Black female basketball players from Cottey College in Missouri are suing the school saying they were treated differently from white players. They spoke of segregated practices, less playing time, and eventually expulsion from the team for what the school is calling behavior problems.

Again, not Title IX, but a reminder that discrimination is intersectional and that Title IX does not address the issues that women of color face in sports. This story reminded me of Jennifer Harris's case against Penn State and Rene Portland as well as the one from earlier this spring from Iowa State. Head coach Bill Fennelly (along with the school) is facing charges from a former player that he discriminated against her because of her race. Nikki Moody said that the coach called her a thug and created a hostile environment. In sum, sexism is not the only type of discrimination female athletes face and racism happens regardless of how many people of color are on a team.

Supreme Court Stays Ruling in Transgender Bathroom Case

The Supreme Court has temporarily stayed a court order that would have permitted a transgender male high school student to use the boys' bathroom, consistent with his gender identity.  As a result of this action, the order, which issued as result of the Fourth Circuit Court of Appeal's recent decision that the student's rights were protected under Title IX, will not take effect until the Supreme Court decides if it will add the case to the docket for its upcoming term.

Reportedly, the Court will likely make this decision in October or November, which means the student in question will have to start the school year excluded from the boys' bathroom, despite the fact that he identifies as male.