Tuesday, April 19, 2016

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

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

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

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

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

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

Updates on campus sexual assault cases: Baylor & Tennessee

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

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

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

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

Thursday, April 14, 2016

Sexual Harassment Roundup

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

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

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

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

Saturday, April 09, 2016

Oregon High School Softball Team Sues District Over Unequal Facilities

School officials in Lake Oswego, Oregon, allegedly told the high school girls' softball team that they would have to win a state championship before the school would upgrade their facilities to match the level of quality that the boys' baseball team receives.  In a lawsuit challenging this disparity in treatment under Title IX, the softball player-plaintiffs strike back, pointing out the unfairness of holding them to such a high standard while refusing to improve the level of support for the team.

In the lawsuit, the softball players allege that their facilities at a nearby junior high school consist of a dirt field with poor drainage that often requires them to cancel games due to poor conditions.  They also lack designated locker room and basic amenities like water fountains.  Meanwhile the boys' baseball team plays in a stadium at the high school that is decked out with artificial turf, locker rooms, pitching machines, an enclosed batting area, a press box, sound systems, water fountains, and well-maintained bathrooms.

The school district claims that improvements to the softball field are being made, though if this is their only defense, that would not be enough to dismiss a Title IX challenge. Title IX requires that schools provide equal treatment to their boys' and girls' athletics programs overall.  It is not necessary to treat all sports equally or provide similar treatment to the boys and girls teams in the same (or similar) sport. Theoretically, a school court argue that (for example) a world-class swimming facility for the girls, if it had one, swim team offsets the similar level of luxury that the boys' baseball team enjoys.  However, intra-sport or similar-sport comparisons usually end up being good indicators of overall disparity in support for the boys and girls programs in the aggregate. 

Monday, April 04, 2016

Title IX Aside, Disciplined Students Prevail in Two Recent Decisions

In two recent decisions, students who had been disciplined for sexual assault prevailed in some way (one outright, one by defeating the university's motion to dismiss) in their claims challenging the disciplinary process used by the university.  As I describe each of them in some detail, you will notice that neither decision involves a Title IX claim. But both belong on the Title IX Blog, for two reasons.  First, the fact that plaintiffs prevailed on claims other than Title IX (i.e., a claim that the school's procedures or procedural violations resulted from bias against men) supports my suspicion that Title IX claims are for the most part misplaced in disciplined student cases -- there are better source of law to address the fairness of university's procedures that don't add the unnecessary distraction of a reverse-discrimination argument. Second, with one caveat, the examples of procedures that the judges in these cases found were or could possibly be deemed unfair are not procedures required by Title IX as spelled out in the Department of Education's Dear Colleague Letter (the caveat being the judge's discussion of the preponderance of evidence standard in the Brandeis case, discussed below).  Bottom line is that it is possible for universities to comply with Title IX and provide a fair process to students disciplined for sexual assault, and nothing in these recent decisions changes that.

Doe v. George Mason University

In this case, a federal court ruled in favor of the plaintiff's motion for summary judgment, a rare outcome in which the plaintiff wins without trial. The plaintiff is a former student who was expelled for sexual assault of a female classmate, his ex-girlfriend, with whom he had had a BDSM relationship. She reported to university officials that he had been sexually abusive and a hearing was held.  The panel initially found him not responsible, based on his defense that both parties had agreed to rough sex and the designation of a safe word to withdraw consent. On appeal, however, an assistant dean of students reversed the panel's determination and the plaintiff was expelled, and the plaintiff sued, eventually moving for the fore-mentioned summary judgment.  

The court agreed that the uncontroverted facts established a violation of his constitutional right to due process.  The Assistant Dean who served as the decisionmaker on appeal did not explain the factual basis for reversing the panel, but during the discovery phase of litigation, the plaintiff discovered that the conduct he was being punished for was something outside the scope of the notice of the charges against him.  Notice of the charges is a fundamental component of due process, since only a person who is on notice of the charges can adequately prepare to defend himself at a hearing.   Another due process violation occurred during the appeal process when the Assistant Dean held separate, closed meetings with the individual members of the disciplinary panel, the complainant, and the respondent, without informing the respondent about the content of those meetings that could have provided him an opportunity to respond. Moreover, evidence in the record that the Assistant Dean had "made up his mind so definitively that nothing plaintiff might have said [in the appeal process] could have altered his decision" is a rare example of decisionmaker bias severe enough to warrant a due process violation on its own.  

Having prevailed on the merits of his due process claim, the court agreed that he should be reinstated at least for now.  The court emphasized that due process is not focused on the result of a hearing, but the means used to reach it.  It is possible, the court acknowledged, that the plaintiff may in fact deserve to be expelled. The only issue this opinion decides is that the process the university engaged in to reach that decision was constitutionally flawed.  Yet, the court refrained from immediately ordering that the university correct its procedural errors by holding a new hearing.  Instead, the court decided to invite the parties to brief the matter of remedy prior to a final decision on that issue.

Doe v. Brandeis University

In the second case, a federal judge in Massachusetts denied Brandeis University's motion to dismiss breach of contract claims filed by a student disciplined for sexual assault. Unlike George Mason University discussed above, Brandeis is a private university and therefore is not subject to the Constitution's due process clause. However, the judge determined that private universities implicitly agree as a matter of contract to treat students with "basic fairness," including procedural fairness similar to due process.

Like in the case described above, the court focused on the university's failure to provide the disciplined student with sufficient notice of the charges against him, which, like the case above, arose out of conduct over the course of a long-term relationship between the plaintiff and his ex-boyfriend. Given the span of time in question, the university's failure to provide notice made it particularly difficult for the plaintiff to surmise and thus defend against the precise misconduct that was under scrutiny.  Additionally, Brandeis allegedly denied the plaintiff the right to counsel, prohibited him from having any opportunity -- not even through an intermediary -- to cross-examine the complainant, and similarly prohibited his access to the investigator's report as well as the statements of witnesses and other evidence against him, which similarly impaired his ability to defend himself. The judge also expressed concern that Brandeis's process permitted the same official who investigated the complainant against the plaintiff also served as "prosecutor, judge, and jury" while simultaneously restricting the plaintiff's right to appeal that decision.  And he additionally noted that the university's use of preponderance of evidence standard was "particularly troublesome in light of the elimination of other basic rights of the accused."  This part of the decision is notable because the preponderance standard is something that the Department of Education has required as a matter of Title IX compliance.  However, the judge does not isolate the preponderance standard as an independent grounds for concluding that Brandeis's process may lack basic fairness, so I don't read this decision as prohibiting universities from using it.

Additionally, the judge concluded that "basic fairness" extends to the substance of decision as well as the procedure that it was reached.  In this case, the university is alleged to have applied "novel notions of consent, sexual harassment, and physical harm" that are "at odds with traditional and legal and cultural norms and definitions."  The judge agreed that this allegation could also constitute a breach of contractual right to basic fairness.  For example, it does not appear that the investigator scrutinized the charges of sexual misconduct that the complainant alleged occurred prior to the onset of their long-term relationship.  While the judge noted that it is possible for someone to enter into a long-term relationship with someone who has abused them, the investigator apparently did not even consider other possibilities, such as that the complainant's memory of those events were clouded by his feelings for the plaintiff arising from the breakup, or by his subsequent alcohol abuse, or by the "suggestive effect" of sexual assault training he later received.

The judge also criticized the investigator for not taking into account that some of the sexual conduct that the plaintiff was punished for occurred in the context of a long-term relationship, which affects the way partners convey consent. For example, one of the grounds for sexual misconduct was the plaintiff having kissed the complainant in his sleep.  The judge criticized the investigator for automatically concluding that the plaintiff had not obtained consent on the grounds that sleep is incapacitation, without taking into account the reality that couples in long-term relationships tend to rely more on implicit than explicit means of establishing consent.

Having prevailed over the university's motion to dismiss, the plaintiff will now be able to continue the litigation to its next phase, discovery, after which it is possible that the case could be resolved by summary judgment, or alternatively, proceed to trial.  Of course, settlement is always a possibility in any case, and defendants are sometimes more willing to settle after losing a motion to dismiss.

Doe v. Rectors and Visitors of George Mason University, (E.D. Va. Feb 25, 2016).

Wednesday, March 30, 2016

Courts Address Disciplined Students' Title IX Claims in Two Cases

Federal courts in two separate cases have recently considered university's motions to dismiss claims by students disciplined for sexual assault that challenge the disciplinary process on constitutional and Title IX grounds. Here is a summary of each of those decisions:

In Doe v. University of Cincinnati, two male students who were disciplined (one suspended, the other put on probation and required to write a seven-page paper) for sexual assault in separate matters sued the university, alleging that its disciplinary process violated their constitutional right to due process as well as Title IX. The court granted the university's motion to dismiss both sets of claims.  In its Title IX analysis,the court interpreted the plaintiffs' complaint as alleging bias in favor of complainants (those reporting sexual assault) over respondents (those accused), which is not the same thing as gender bias. Providing interim measures to complainants and structuring a hearing that is sensitive to the complainant's trauma is not necessarily gender bias are moreover requirements of Title IX according to the Department of Education, and as such are hardly persuasive as violations of Title IX. The plaintiffs attempted to connect the alleged procedural disparities to gender bias with statistical evidence that shows only men were ever investigated or disciplined by the university.  But the court reasoned that these statistics are not evidence of bias on the university's part because there are other plausible explanations for this besides bias -- including (one) that the university has only ever received complaints that name male students as perpetrators of sexual assault, and (two) that women are more likely than men to report sexual assault. Nor is the case that males are "invariably found guilty" by the university disciplinary process, as even in the case at hand, one of the plaintiffs was found not responsible of one of the counts against him.

In Marshall v. Indiana University-Purdue University Indianapolis, the plaintiff was expelled and banned from all Indiana University campuses after a hearing found him responsible for sexual assault. The court dismissed his due process and First Amendment claims after finding no support in the law for the idea that the constitution prohibits universities from limiting a disciplined student's right to counsel or interview witnesses in advance or that it requires them to use a standard of proof that is more than "some evidence."  However, the court did not dismiss his Title IX claim, after finding that his allegation of "selective, gender-based enforcement" met the minimum requirements for pleading a complaint. Specifically, he complains that the university failed to even investigate a reported sexual assault that he claims was committed against him by a female student. If proven, that could support a Title IX claim based on selective enforcement. The court was also willing to forgive the omission of details around this allegation, due to the fact that the university "does not deny that it is in sole possession of all information relating to this allegation" and refuses to share with the plaintiff. Accordingly, noted the court, the university "cannot have it both ways" -- withholding information from the plaintiff and simultaneously arguing for dismissal for lack of detailed allegation in the complaint. By allowing the case to proceed to discovery, the plaintiff will be able to access the information that may turn out to prove his allegation of selective enforcement.  When the discovery period closes, the university can put that issue to the test by filing a motion for summary judgment.

Decisions: Doe v. University of Cincinnati, 2016 WL 1161935 (S.D. Ohio Mar. 23, 2016);
Marshall v. IUPUI, 2016 WL 1028362 (S.D. Ind. Mar. 15, 2016).

Tuesday, March 29, 2016

Coach Fired After Dismissing Dating Player From the Team

Last week, news broke that Prairie View A&M University fired its women's basketball coach after she enforced a no-dating policy against two players who were in a relationship with each other.  The players complained to the university that the policy was discriminatory and violated Title IX.  As coach Dawn Brown reportedly has appealed the decision within the university system, she and her agent have also decried it publically as unjust "scapegoating."

Some additional facts about the coach's actions make it less clear that her actions were discriminatory and unlawful.  First, the policy does not single out players from dating each other.  They are also banned from dating coaches, trainers, managers, and other people associated with the program. To be fair, if you isolate the aspect of the policy that addresses players relationships with each other you could conclude that it discriminates based on sexual orientations (since only lesbians would have those relationships).  But the policy as a whole is arguably neutral as to sexual orientation,since a straight player dating a male trainer would be just as vulnerable to dismissal as lesbian teammates dating each other.  To be clear, I can think of better ways to create a policy about intra-team relationships. but a conclusion that this policy discriminates against lesbians is surely no slam dunk.

Even if we read the policy as discrimination against lesbians, it's not clear -- at least to me -- that this was the reason she was fired.  For one thing, discriminating against lesbians doesn't necessarily violate the law -- as much as I'd prefer otherwise.  Texas does not prohibit discrimination based on sexual orientation, and Title IX only covers discrimination based on sex. While one lower federal court has so far endorsed a view that sex discrimination under Title IX includes sexual orientation discrimination, this is not a universal interpretation and one that is not binding in other jurisdictions.
So if Prairie View A&M's explanation is that the coach was fired for "violating Title IX" this is (I hate to say) a stretch.

Legal issues aside, the facts suggested by Dawn Brown to the media also raise questions about the university's motive.  She says that the policy was developed in consultation with the Title IX office, and that the Athletic Director was involved in the decision to enforce the policy against the players in question. If this proves true, this surely calls into question any explanation of Brown being fired over the enforcement of the policy.  And as we have learned from other cases involving terminated coaches, when a university's rationale for firing a female coach doesn't ring true, it is sometimes pretext for discrimination.

Monday, March 28, 2016

North Carolina Law Causes Title IX Violation, Lawsuit Says

A lawsuit filed over the weekend presents constitutional and other challenges to North Carolina's new law, HB 2, which prohibits municipalities from including sexual orientation and gender identity in local ordinances banning discrimination and restricting access by transgender individuals to single-sex facilities. Though constitutional arguments are at the heart of the case, the lawsuit also includes a Title IX challenge to the provision of HB 2 that restricts transgender individuals to using the bathroom or locker room that matches the sex designation on their birth certificate, even if this conflicts with their gender identity and expression. Specifically, the lawsuit names the University of North Carolina system as defendant, and includes as a plaintiffs a transgender man who is a student at UNC-Greensboro and another who is an employee at UNC-Chapel Hill.  These plaintiffs argue that the under HB 2, they are prohibited from access to men's restrooms and locker rooms, and UNC violates Title IX as a result.

This argument could provide a federal court with the opportunity to consider the Department of Education's interpretation of Title IX as it pertains to transgender rights in single-sex facilities, and decide how much weight to give the agency's position that excluding a transgender person from gender-consonant usage is a form of sex discrimination that is prohibited under Title IX.  The agency has expressed this position most recently in the settlement of discrimination case against the school district in Palatine, Illinois last fall.  If the court agreed with the agency's interpretation, it could limit HB 2's application to public educational institution due to the conflict with federal law.

It is also possible that the court could agree with the Department of Education's interpretation but still see no conflict between the laws.  While HB 2 is mandatory, Title IX is not.  It only applies to schools that choose to accept federal funding. The case could be resolved in such a way that HB 2 compliance renders North Carolina schools ineligible for federal funding, a ruling that would not affect the legal status of HB 2 directly -- but would certainly generate political pressure for its repeal.

Thursday, March 24, 2016

Recent sexual harassment and assault cases

A few cases of boys behaving badly recently have gained public attention and can be added to the data that suggest a correlation between male homosocial groups/behaviors and sexual violence.

Just a few months after a few upperclass boys on a Tennessee high school basketball team sexually assaulted a first year player, causing extensive damage to his colon and bladder, a high school football team in Pennsylvania has drawn public attention for its No Gay Thursdays. This was a weekly event at Conestoga High School and entailed sexual assault and harassment, apparently of a "gay" nature since it was initiated by and directed towards boys. The press calls it a form of hazing. (My thoughts on sexual assault as hazing can be found at the above link about Tennessee. They haven't changed much.) There seems to be something deeper at work here, though. To institute a day when behavior that would--under other circumstances--be deemed gay is permissible suggests more than a desire to initiate first-year students. This is more than hazing. The no gay/no homo phenomena among high school boys is causing serious damage.

This time that damage included sodomizing a first-year player with a broomstick. Three seniors were charged with the assault, which occurred in October. Unfortunately, the district attorney, Thomas P. Hogan, of Chester County, Pennsylvania has bought into No Gay Thursday as well and would not charge them with sexual assault. They were charged, as juveniles, with assault, unlawful restraint, and terroristic threats because, according to Hogan, "from our perspective, it's a physical assault and not a sex crime."

It is a sex crime. In most sexual assaults the goal of the perpetrator(s) is not sexual pleasure but demonstration of power that is enacted through a sexually charged act. These boys very deliberately chose this form of assault on a day they set aside for just this type of assault. It is undeniable that this is a sex crime. They should be charged with a sex crime.

No Gay Thursday is not a new event at Conestoga High School, either. Apparently it has been going on for three years and is a well-known secret. Three years. Hogan mentioned that this (sexual) assault is the result of "ignorance, violence, and a lack of supervision." To that I would add a culture of homophobia, male privilege, and silence--all of which are related/overlapping.

The head coach was initially suspended but resigned last week and the rest of the football staff has been fired. The reason provided for the loss of jobs has centered on the lack of staff supervision in the locker room where most of the hazing occurred. I would argue that the adults were also responsible for informing the culture on the team; a culture which should not include hazing of any kind and should also not perpetuate homophobia.

I am so frustrated hearing coaches say--in all of these cases of sexual assault and exploitation--from high schools in Pennsylvania to universities in Kentucky--that they knew nothing. Coaches are notorious micromanagers. They call players the night before games to make sure they are home. They establish and/or enforce training and diet regimens. They intervene when their athletes are performing poorly academically. Maybe they do not know--in some cases--the specifics; but they know what is happening on their teams.

Farther west, at the University of Missouri, a Title IX complaint has been filed within the university over a sexually offensive and threatening email that was sent by a member of a campus fraternity and directed at the women of a sorority. The fraternity and the student have apologized for the email which included the following: “Get your towels ready because it’s about to go down....[W]e get to stick our arrows straight up their tight little asses. Now don’t go be ass hats, go be as social as possible with our new friends.”

Interestingly, not all the news sources are actually posting what was in the letter. I found it here on the student newspaper's website.

The sender, Edward Lowther put the following apology on Twitter: "What I said was unprofessional on every level. I take full responsibility for my actions, and I will take steps to show that what was said in no way defines my morals or the morals of the men of Alpha Gamma Rho."

I don't think unprofessional is the right word here, because there was no professional context. What he said was aggressive and violent and misogynistic and to at least hint at his morals. The theme of today's post seems to be yes, this was wrong, but not wrong in the way you might think it's wrong. The University as well as the Greek community at MU seems to be taking it seriously, however, as they investigate the incident as sexual harassment and more than just unprofessionalism.  

It has not been a good month for Mizzou. Anti-Semitic graffiti was found on campus a few weeks ago. And of course the school is no stranger to Title IX issues.

Finally, a few states over, parents of a University of Kansas rower are suing the university for false advertising and violating the Kansas Consumer Protection Act after their daughter was sexually assaulted in a residence hall by a football player. They were explicitly promised, they said, that the dorms were safe. This was also listed in the school's promotional materials. While that is going forward, the university also conducted an investigation after the student reported her assault a year after it occurred. A student conduct hearing based on the investigation is forthcoming.

While the lawsuit is a slightly differently and certainly unproven tactic, what these parents are really suggesting is that the realities of sexual violence are being hidden by the university. The lawsuit lists at least seven other incidents of sexual assault in the KU residence halls in a year and half period between 2013 and 2014. The parents say that if they had known about these, they would have reconsidered allowing their daughter to attend KU. They admit, however, that they did not check the university's Clery Act report, which actually shows more than the seven incidents cited in the lawsuit. This remains a case about transparency, and it will be interesting to see how a court interprets it.

Friday, March 18, 2016

More trouble at FSU

A "glitch" in the Florida State University student records system, controlled by a third party software company, has resulted in the release of 1600 emails detailing student conduct cases. Some of those are sexual harassment and assault cases which has raised concerns about whether those who complained are now in danger because an accused person could either find who his accuser was and/or the extent and details of an accusation.

The university has apologized but not taken steps beyond that to reassure those who have filed reports in the past that they are safe, according to some of those who have been affected.

If I was a conspiracy theorist, I would question this "glitch" in light of FSU's less-than-stellar record with Title IX issues. Why? Because if students are worried that their reports might not be secure--which clearly they are not--then they will not come forward to report harassment and assault. Lack of reporting is already a problem nationwide. This glitch has institutionalized it at FSU. Fewer reports means that the university does not have to deal with them and they do not have to report them to the federal government, which would make FSU look safer than it actually is. Even though the University took no responsibility for the Jameis Winston situation as they settled the lawsuit brought by Erica Kinsman, evidence about the number of unreported and uninvestigated sexual assaults occurring at FSU certainly raised concerns among potential students and parents who might send their children there.

But I am not conspiracy theorist. And I do not think that FSU administrators are happy about dealing with this situation. [Apparently the Title IX coordinator has been "up all night" addressing the information leak.]

Additionally, FSU is still under investigation by OCR. This situation is not going to help present a picture of an institution that has its Title IX house in order.

So it seems that this is just a really awful situation--for victims. Many of us have been waiting a long time for something to happen to FSU that will make it wake up and take notice of what is happening on that campus. But no one wants that moment to come at the expense of students.

Accused Student's Case Against Columbia Dismissed

Last April we blogged about the lawsuit filed by Columbia student Paul Nungesser, who was accused of sexual assault by a fellow student, Emma Sulkowicz.  After a university hearing failed to find Nungesser responsible, Sulkowicz protested by carrying her mattress in public. Nungesser sued the university for damages to his reputation arising from Sulkowicz's protest. He argued that the university was deliberately indifferent to Sulkewicz's harassment of him, and thus liable under Title IX.

As I predicted, the suit against the university was readily dismissed.  In a decision released last week, a federal court judge in New York reasoned that Nungesser could not establish the central requirement for a Title IX claim: discrimination based on sex.  As the court characterized Nungesser's argument, he experienced sex-based harassment because the allegations against him were based on sexual misconduct.  The court called this a "logical fallacy" that, taken to its logical end, would lead to the conclusion that those who commit or are accused of committing sexual assault is a protected class under Title IX. It is clear that when Title IX prohibits discrimination based on sex, it means based on the plaintiff's sex, not based on the act of sex. And it is clear even from Nungesser's own pleadings that Sulkewicz's conduct was motivated not by Nungesser's status as male, but by his conduct towards her -- in her account, that he raped her, in his account, that he rejected her, but either way, both agree that it is conduct and not status that motivated her actions.

Moreover, Nungesser failed to allege any harassing conduct by Sulkewicz or anyone else. He does not claim that Sulkewicz had any contact with him after the hearing, or directed comments towards him, or even used his name in her protest. And even if she had called Nungesser a rapist, it would have been an accusation particular to Nungesser, not a gender-based slur. The court noted that a person who is falsely accused in public has a remedy in tort law.  However, Nungesser's claim is a Title IX claim against the university, not a slander claim against Sulkewicz.

The court also found that Nungesser's allegations did not establish that he had been deprived of educational opportunities, another requirement for Title IX liability to attach.

The court granted leave to Nungesser to file an amended complaint to correct the numerous deficiencies, noting that it is typical for courts to grant such permission. I  don't think (and I don't think the court thinks) that the result would be much different for Nungesser the second time around; if he had better facts to include in his complaint he probably would have used them the first time.

Thursday, March 17, 2016

Department of Education Settles Athletics Complaint Against Erie Community College

On Tuesday the Department of Education's Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities.

OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex.  The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious.

 Nor did the college satisfy either of the two alternatives for compliance.  The second test measures a "history and continuing practice" of expanding opportunities for the underrepresented sex,  The most recent women's team to be added was lacrosse, ten years ago.  Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three women's teams, along with their male counterparts, for budgetary reasons.  For this reason, the college does not comply with the second test.  The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities.  The college could not satisfy this test either.  After dropping three women's sports, the women who participated in them remained interested in playing. Moreover, the college has a 'limited mechanism' for gathering information on women's interest, one that falls short of a formal process that women can use to request additional opportunities.

Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students' interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Erie's competitor schools.  Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test.  OCR will monitor the college's compliance.

This resolution agreement should serve as a reminder to all institutions that despite OCR's increased focus on Title IX's application to sexual assault, it is still enforcing Title IX's requirements for athletics.  It also reminds community colleges that they have the same compliance obligations as four year colleges.

Tuesday, March 15, 2016

Recent transgender policy cases

[I have been putting this post together for a few weeks now so some of the information is not that new, but still important to consider in the overall landscape of trans rights in education. I will post again soon about additional stories that are more recent.]

I am stealing this line from Ed Mazza's HuffPo piece about genital inspections as a prerequisite for public bathroom use. (see end of post for more on this):
"It may be a New Year, but the same old battle over bathrooms is starting all over again."

So here we go:
South Dakota considered legislation  that would prevent transgender students from using bathrooms and locker rooms in accordance with their gender. This is despite the fact that the government has already made clear its stance on this issue when it recently intervened in the case of young girl in Illinois who was prevented from using the girls' locker room.The state's House of Representatives approved the bill by a wide margin (58-10). The bill's author specifically discussed the so-called incursion of the federal government into schools: "The federal government is now telling our schools that these students must have full, unrestricted access to restrooms, locker rooms and shower rooms," Deutsch said. "This means our schools must allow biologic boys and girls to use the same facilities together regardless of biologic sex." Another proponent of the bill said the "movement of transgenderism" is "endorsing confusion in the lives of little kids for whom we're responsible." The bill moves to the senate and then, if passed, to the governor's desk. Though he has not read it, he said it seems like a good idea. If it gets that far, I see lawsuits.

Another issue in Oregon. It was in Oregon, at George Fox University, where the issue of religious colleges receiving Title IX exemptions first drew media attention (though the requests had begun before that).  This time a high school is debating whether a transgender student can use the boys' bathroom. Like in South Dakota, everyone knows about what happened in Illinois, and opponents do not seem to care. At a school board meeting in December, in which this issue was not on the agenda but had gained enough local attention that parents flocked to the meeting, many people had things to say. Earlier in the fall, a letter had been sent home explaining that a trans student would begin to use the boys' locker room for gym class.

We have not been writing about every case of transgender discrimination in K-12, and this one has--seemingly--only just begun. I give it attention here because it was one of the saddest stories I had read in quite a while. Other cases such as that of Nicole Maines or Gavin Grimm or Jayce (the George Fox student) included testimony from their parents, who all stood/are standing behind their children. The paths to this place were different among the parents, but they all got there. The child at the center of this latest controversy does not have that support. Elliot Yoder's mother has not quite gotten there. This is not to say that she will not, but this fight is happening now. And Yoder walked to the front of that meeting hall by himself after standing in the back of the room listening to people talk about him. They invoked the usual: religious freedom (it's a public school) and fears about sexual assault and spying by students pretending to be something they are not. They added some threats of violence. And then Yoder walked to the front of the meeting hall, after hearing members of his own family and some of his friends support his exclusion from the boys' bathroom, and explained his situation.

This is why we need education and legislation about transgender student rights. Because I imagine there are many more students in Yoder's situation--ones who do not have family or local support--who cannot bring themselves to speak out in front of a crowd of people who are, for all intents and purposes, against them. When clear laws and policies are in place and supported vehemently by the administration, then these students can begin to exercise their rights even if they do not have a lot of people in their corner.

In Texas, school superintendents have voted that student athletes must compete according to the sex listed on their birth certificates. The University Interscholastic League, which governs school sports in Texas, had this policy informally but punted a final decision to the superintendents' association. The overwhelming vote in favor a birth certificate policy puts the state in line with only six others.

On a happier note for transgender athletes, but one that has nothing to do with Title IX, the International Olympic Committee has changed its policy regarding the conditions under which transgender athletes can participate. The major change from the previous policy is that participants do not have to undergo sex reassignment surgery. As many critics of former iterations of the policy have noted, surgery is not a performance enhancer and often recovery from surgery can impede an athlete's training. MTF individuals will have to be able to prove they have sustained a specified testosterone level for at least a year. FTM athletes can compete without restriction. This means, I presume, that there will be an exception made for exogenous testosterone. I find this curious given how concerned the IOC has been about testosterone levels.         

Though the IOC will apply these rules to Olympic participants, the new policy serves only as a recommendation to other international federations. In other words, governing bodies in any sport can implement their own rules.

And to end on a smh moment: a Virginia state delegate in the House of Representatives has proposed genital inspections before people go into public bathrooms, including students going into school bathrooms. It may be wrong to even mention this, but genital inspections do not reveal sex. Ask the International Olympic Committee circa 1960. This is, of course, beside the point. What the senator is trying to do is to prevent transpeople from using the bathrooms in accordance with their lived gender. The measure calls for a $50 fine for anyone using a bathroom not in accordance with anatomical sex. The fine can be issued by any law enforcement officer. So in an age where fears of pedophilia abound, there is a proposal calling for adults to inspect children's genitals. Again, pointing out all the problems with this proposal is an exercise in futility. The point is that it is being proposed to shame and out transpeople.

[Don't forget: Virginia is the state where Gavin Grimm is fighting for his right to use the boys' bathroom at Gloucester High School. He has received the support of the Obama administration in his case. The Federal Court of Appeals heard Grimm's case last week. ]

I would like to think that Mark Cole's proposal is a publicity stunt--an attempt at media attention. But I doubt it. It is a response to a perceived threat that people like Cole find so outrageous and it inspires outrageous responses. My fear is that measures that are perceived as slightly less outrageous, such as the bill in Houston will be seen as legitimate in comparison.

Monday, March 14, 2016

Settlement at North Florida

Title IX news out of Florida late last week: a $1.25 million settlement in favor a dismissed female basketball coach.This case flew completely under the radar. News of the substantial settlement was the first we had heard of coach Mary Tappmeyer's claims of discrimination against the University of North Florida and only because friends-of-the-blog emailed us the press release. Since we have yet to write about it, here is the synopsis of Tappmayer's case:

She was dismissed from her position a year ago (March 2015). Her contract, which had been set to expire at that time, was not renewed. She had been the only women's basketball head coach in the program's history, which began in 1991. She alleged that the university fired her as retaliation for complaining about the inequitable conditions for female student athletes and made claims of sex discrimination as well. The university said she had a losing record and that every complaint about discrimination that Tappmeyer brought forward was investigated. These investigation never found that the coach's claims had any merit. Complaints included: academic exceptions (to university  admissions requirements) for male basketball recruits but not female, a larger operating budget--including travel--on the men's side, and disparities in training, office, and locker room facilities.  She got paid less, but claims the university held her to higher performance standards. Her lawsuit also included allegations that administrators spoke badly of her and her all-female coaching staff to student athletes, athletic department employees and donors and that they impeded her ability to coach and recruit.

So why is this case significant? One, it is a large settlement. This hints at the possibility that the university thought it would not have done better in court, though the statement from the university president stated that they settled to avoid extensive legal fees. And it is a large settlement for a case that got very little national attention and was underway for less than a year. Did the university just throw some money at this to make it go away quickly and quietly? Possibly. More on that theory later.

The second reason why this case deserves some additional analysis is because it shares characteristics with other cases we have seen. Tappmeyer did not report her allegations to the Title IX coordinator because she feared for her job. She went to the president's office instead where she was assured her position was safe. In other words, she knew that complaining within the department was dangerous for her. This is reminiscent of another Florida institution, Florida Gulf Coast University, where a group of female coaches anonymously sought help from outside the university to file a Title IX complaint about the inequitable treatment.  

Sex discrimination rarely stands alone. In allegations about the culture of the department, some of which did not make it into Tappmeyer's lawsuit, she noted that Athletics Director Lee Moon engaged in racist and homophobic behavior. He did not want LGBT or black athletes recruited. Regarding the latter he was alleged to have said that audiences will not come out for an all-black team and encouraged coaches to recruit from the midwest. He wanted teams with female head coaches to have male assistants on staff, presumably to challenge the idea that the team was coached by lesbians. There are no people of color in head coaching positions on the men's side. Tappmeyer's replacement is a black man; he is the only Black person in a head coaching position.

Single axis discrimination is rare. We saw this at Penn State with the case of former women's basketball coach Rene Portland. The lawsuit by a dismissed player (which also ended in a settlement--terms undisclosed) alleged race, gender, sexual orientation discrimination. Penn State also used the internal investigation method and found no evidence of the race or gender discrimination. There is a lack of understanding about intersectional discrimination, which is part of the reason why allegations are not proven. But it exists and it contributes to the hostile climate in athletics departments.

Another similarity: discernible patterns. In addition to the racist comments and inequitable treatment, the UNF athletics department had a practice of firing female coaches and replacing them with male coaches, a la University of Iowa. Sometimes athletics directors who are in charge when the discrimination occurs are themselves fired often as a measure to demonstrate that the university is taking the claims seriously and attempting to change the offensive and discriminatory culture. Not at UNF where Moon remains in his position and supported by the administration.

This is also happening at Iowa where the university is standing solidly behind AD Gary Barta who, in addition to having his contract renewed, has just won an award for being the best athletic director!! Though the lawsuits are not yet settled at Iowa and it remains to be seen what happens to Barta, the announcement that the National Athletic Collegiate Directors Association chose him for the Under Armour Athletic Director of the Year Award was startling, to say the least. I realize that this is an aside. Perhaps it deserves its own post, but it certainly speaks to the culture that female coaches are dealing with not just at their institutions but at the national level. NACDA thinks that someone who is at the center of several lawsuits and a federal investigation about gender equity is the best athletic director in the country. I might worry about what is happening everywhere else, if I did not know that this award is the epitome of an old white boys club, let's look out for one another mentality. For a more thorough analysis of situation see this post. While Barta's recognition certainly seems to contradict some of NACDA's own criteria, Under Armour's involvement may be the thing that engenders more outrage about this situation. After all, UA is working very hard to win female athletes and fitness fans away from Nike. The signing of Giselle Bundchen, Lindsay Vonn,  and Misty Copeland along with others to star in "inspiring" ad campaigns in the past two years reflects these efforts. Being connected to this award recipient is a major faux pas for this company at this time. Consumers should let them know that.

Back to Tappmeyer's case and one final point. We like to think that lawsuits and settlements will change attitudes and cultures. While this is possible and we have seen it happen, it is not always a guarantee. I do not see change happening at UNF. Their reliance on internal investigations (versus outside consultants), their support of Moon, and the outright denial of Tappmeyer's claims alongside the roundabout blaming of her for costing them money suggest that things will move along as they always have. Tappmeyer challenged the culture she encountered, but she could not change it. Maintaining the culture of male and white privilege and power cost UNF $125 million. I think that they are happy to pay that to continue on with business as usual.

Friday, March 11, 2016

Sixth Circuit Affirms Verdict Against Wayne State in Pregnancy Discrimination Case

A federal court of appeal affirmed an $850,000 verdict that Wayne State University was ordered to pay to a social work masters student after it failed to address pregnancy discrimination she was subjected to while participating in a school-sponsored internship at the Salvation Army.  Plaintiff Tina Varlesi's internship supervisor made discriminatory remarks about her pregnancy and gave her a negative performance evaluation that lead to her receiving a failing grade that obstructed her graduation from Wayne State's social work program. Varlesi alleged not only direct discrimination on the basis of her pregnancy, but also retaliation for having complained about her supervisor's conduct to university officials.

In appealing the verdict, Wayne State challenged the award as excessive, as well as some evidentiary rulings by the lower court.  The appellate court said that the lower court had not abused its discretion in these matters.  Wayne State also complained about instructions that were given to the jury, including an argument that it was insufficient to instruct the jury to find for the plaintiff on her retaliation claim if they found that the institution took adverse action because she complained about pregnancy discrimination. Even though a recent Supreme Court decision held that under Title VII, a retaliation plaintiff must prove that retaliation was the employer's sole motive (as opposed to a substantial motive, mixed with other considerations), the court ruled that the word "because" in this instruction complied with that requirement, even if we assumed -- which the court did not -- that Title VII caselaw applies to Title IX on issues of retaliation where the statutes are markedly different.

More broadly, the case confirms Title IX's application to discrimination based on pregnancy, as well as the responsibility of educational institutions to address sex discrimination when it occurs in the context of an internship that is part of an academic program.

Monday, March 07, 2016

Field hockey coach files lawsuit & other Iowa updates

The long awaited lawsuit against the University of Iowa was filed today by former field hockey coach Tracy Griesbaum. As expected, the complaint alleges a department culture of discrimination against women and points places responsibility on current Athletics Director Gary Barta who has been in the position since 2006. (Barta's contract was just extended--see below.) Griesbaum is asking for her job back and that measures be taken to change the culture of the department.

Regarding the latter, the complaint cites the retaliation against female coaches who asked for improvements in conditions for female student-athletes, the firing of female coaches and replacement with male coaches, and different standards for male and female coaches in regards to behavior with athletes and win-loss records. The University released a statement supporting Barta in response to the filing.

Iowa settled a lawsuit brought by a former assistant track and field coach earlier this year. Mike Scott was a volunteer in the program and applied for a paid position with the program multiple times (there were several failed searches). He had a temporary contract, but ultimately lost the position to a woman. In his lawsuit Scott stated that the was told that the department wanted a woman to fill the position. The final search did indeed yield a female coach. It seems like this insistence on a female coach was an attempt to counter the ongoing allegations against female coaches that existed before Griesbaum's lawsuit. Scott received $200,000.

In other somewhat related Iowa news:
The faculty expressed their concern with the ways things are operating within Iowa's administration. The controversial process and selection of the new president, J. Bruce Herrald, a businessman with no experience in academic administration, already had faculty and other Iowa community members concerned. So recent moves by the administration, including the reappointment of Barta draw criticism all around and a public letter from the university's chapter of the AAUP.

Regarding Barta's reappointment, they noted that--according to AAUP philosophies of university governance--faculty are responsible for the welfare of students, including student athletes, Regarding the latter, there is a committee comprised of faculty members who look at and address issues in the athletics department and make recommendations. The Presidential Committee on Athletics also participate in job searches for staff members who work with student athletes.The PCA was not part of the decision to extend Barta's contract. From the letter:

Despite these directives that faculty be involved in important decisions involving student athletes, early this year your office extended the contract of Athletics Director Barta for an additional five years. There was no consultation with the PCA. This happened in a year in which — though there was impressive success on the playing fields — significant concerns were raised regarding gender equity in athletics. The university now faces investigation by the U.S. Department of Education in response to student athletes’ complaints.