Sunday, September 21, 2014

Intercollegiate football <--> NFL: The case of Jameis Winston

I have been meaning to write about the re-investigation by Florida State University into the sexual assault allegedly committed by Heisman Trophy winner Jameis Winston.
The initial investigation into the charges of sexual assault, which is required by Title IX, was done more than a year after the assault for a variety of reasons, according to FSU which include lack of compliance by the accused and the then-ongoing investigation by Tallahassee law enforcement which did not result in enough evidence, according to the state attorney's office. (Perhaps, in part, because there was a never statement by Winston.)
The re-investigation does not, of course, ameliorate the Title IX violations. It should have occurred within 60 days of the reported assault.
But lawyers for the victim (who is no longer at the school) say they are pleased with FSU's current investigation. Though what results and when (after the post-season?) remains to be seen.
So all this has been going on during the late summer and into the start of the academic year.
And then this past week students and bystanders report that Jameis Winston was standing on a table in the student union yelling something obscene about women. The university investigates and decides, on Wednesday, to suspend him for the first half of their game against ACC rival Clemson. Winston gives a press conference and apologizes for his actions and seemingly to the FSU community--but not to women, curiously. He talks about overcoming adversity---as it relates to being a football team playing without its star player.
And then late Friday, FSU announces that after the "continuing investigation"* into the incident the powers-that-be have decided Winston should sit the entire game. The reasons for this revision of the punishment were never clearly explained. There was some speculation that Winston's account of the event did not coincide with that of bystanders.
I want to discuss Winston in light of his current position as an intercollegiate athlete who has been accused of sexual assault and as a future NFLer. (It is presumed that FSU is just trying to keep Winston eligible for this season and that he will enter the draft.)
The campus sexual assault movement has raised the issue of athletes committing sexual assaults and how these assaults are being addressed by schools (i.e., handled by athletic departments, athletes transferred to new and willing schools).
This past week, as Erin wrote about, the White House added to the conversation by creating a public awareness campaign about campus sexual assault. Part of the goal is to make this a campus community issue and not one that exists solely between victim and perpetrator (and those adjudicating and investigating). Whatever its faults, the purpose is to change campus climates.
FSU's handling of Winston's latest "bad decision" (Coach Jimbo Fisher) fails to do this. And Winston's own understanding of what he did and how he handled it also reflects the failure of the institution to convey (assuming that it actually wants to) that it takes these issues seriously.
Winston dressed for the game and went out in warm-up and took snaps. Apparently there had been some miscommunication, because Fisher sent Winston to the locker room and he came out with just his shirt and sweatpants and a baseball cap. How did Winston not get the message that his punishment would be enacted? Did he think that when things started going badly (as they did in the first half) that someone from on high would come down and say "ok, that's enough. Go in there and be the hero." Some media folks had suggested that the original half game suspension was actually setting Winston up for hero status.
What was also troubling, especially in light of the campaign for community responsibility, was the way Jimbo Fisher talked about the punishment. In the pre-game interview he refused to talk about it all saying that it was something they were handling.
This was a reiteration of his earlier statements made after the announcement of the half-game suspension and critiques that it was too light:
"We're in charge. It's our team. That's our thought."
That is not a statement that suggests greater concern for the sexually hostile climate that exists at FSU.
Switching attention to the organization Winston will likely become a part of: the NFL. I don't think anyone needs a refresher on the image problems that organization is facing. The question is, what will the NFL do with Jameis Winston? Which team will take him on? There have been some rumblings about whether Winston has hurt his future professional prospects (but mostly from the perspective of endorsements, not whether he will have a job as a football player). But Winston will enter the draft after the close of what is turning into a highly controversial season for the NFL and after the NFL releases its report on violence against women (expected by the Super Bowl).
The culture of privilege and the institutional ignorance about violence against women do not just emerge when athletes enter professional sports. They are cultivated in intercollegiate sports. Winston is just the current example; he is not the first, but how his story and future unfolds will be an indicator of how serious both college and professional football are about challenging their own damaging cultures.



* These are the moments that further our cynicism about internal investigations.

Saturday, September 20, 2014

Ninth Circuit Affirms Title IX Win Against California School District

On Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's ruling after trial that the Sweetwater Union School District in California violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School and committed retaliation when it fired a coach who advocated for equal treatment.

First, the court affirmed the lower court's conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex.  First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation.  The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls' teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport.  The court also rejected as both false and irrelevant the school district's argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association.

The court also affirmed the lower court's ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team.  First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower court's conclusion that the school district's purported reasons for firing the coach were pretext for retaliation. 

The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect. 

When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%).  In fact, perhaps the most remarkable thing about this appeal was the school district's chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.  

Friday, September 19, 2014

White House Unveils New Public Awareness Campaign Aimed at Campus Sexual Assault

As part of its larger effort to focus public attention and government resources at the problem of sexual assault on campus, the White House today unveiled a new public awareness campaign aimed at amplifying the message that sexual assault is not just a matter between the perpetrator and the victim, but "one in which the rest of us also have a role to play." The campaign's name "It's On Us" reflects what is at core a basic but fundamental idea that sexual assault is a community problem with a community solution.  From the campaign's website, individuals can take a pledge, and then share
And they can share the fact of their having pledged with their social networks via Facebook and Twitter. 

This is the pledge: 
To recognize that non-consensual sex is sexual assault.
To identify situations in which sexual assault may occur.
To intervene in situations where consent has not or cannot be given.
To create an environment in which sexual assault is unacceptable and survivors are supported.
I recognize that is only small piece of a larger, more comprehensive governmental response, so it's unfair to criticize this initiative for being simply an online pledge. It's fine to incorporate a pledge initiative as one aspect of a multi-pronged approach. Especially when combined with social media, a pledge has the power to, by going viral, help normalize intolerance for sexual assault. But I think as far as its content goes, the pledge has only modest value in its over-simplicity.

The first sentence, for starters, is tautological. Sexual assault is defined as non-consensual sex and non-consensual sex is another word for sexual assault.

The second sentence is uselessly vague, since sexual assault "may occur" in any situation where one person and another person are in each other's company.

I like the third and fourth sentence well enough for what they do say, but I think they miss an opportunity to dig at least a little deeper into the root cause of the problem. As far as I'm concerned, sexual assault is a community problem worthy of a community-based solution (as opposed to a problem caused solely by individual offenders) because many more people than just rapists participate in the sexualization and objectification of women, which in turn creates a culture that gives offenders the perception of having permission to exert sexual power over women. This added layer of collective responsibility is lost in a message that makes it seem like it's sufficient to pledge to be ready to stop your female friend from going upstairs with that guy, or to give her a shoulder to cry on after she is assaulted. Maybe we should pledge to avoid language of sexual dominance ("scoring" and whatnot). Maybe we could pledge to boycott products that use sexualized images of women (or men) in their advertising. Maybe we could pledge to criticize all social contexts (professional sports, online gaming, Reddit, etc) that purvey and condone women's (or anyone's) sexual objectification.  That might actually make more sense as a message that is taking as a starting point the idea that sexual assault is a community problem for which we are all responsible.  It's well enough to pledge to "intervene" and "support" but I think it's also necessary to encourage people to examine their own behaviors that contribute to the culture that has given rise to this problem.

Sunday, September 14, 2014

Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?

As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the state's interscholastic athletic league (the UIL) on a one-year trial basis.  The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UIL's executive director.  The league was reportedly motivated to add the cheerleading competition in order to  ensure that school districts' cheerleading programs comply with its health and safety regulations.

Ensuring the safety of cheerleading participants is an important objective, and I support the league's decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. 

While the Department of Education's Office for Civil Rights does presume that activities recognized by the institution's athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution.  The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability.   The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case  determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the team's competitions emphasized non-athletic factors such as spirit-raising.  Given that Texas's state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well.

To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls.  I worry that this sends the wrong message to school districts that they can add competitive sideline cheer instead of other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case.  Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender  balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court. 

Friday, September 12, 2014

Opportunity for Emerson

Emerson College in Boston has already found itself on the wrong side of Title IX compliance after being accused of mishandling sexual assault complaints. Some investigating by the campus paper has found that there was also a complaint against the school (and 99 other New England colleges and universities) alleging insufficient athletic opportunities for female students.
The mass complaint format is not new. We have seen it in states including Washington, California, Idaho. All these were aimed at high schools. The commonality is that they have all been done by an entity calling itself The Old Guys for Title IX. Friend of the blog Herb Dempsey, who counts himself as a member of The Old Guys, spoke to the Emerson paper about the complaints--all of which have been dismissed. The Office of Civil Rights does not believe the complaints have sufficient evidence to prove denial of opportunities. And based on the comments of students at Emerson who were interviewed in the article, they don't feel wanting either. The numbers show the opportunities provided to female students are not proportional to their representation in the undergraduate population. The participation gap (based on 2013 numbers) is 16% or 39 opportunities.
This does not mean Emerson is not in compliance, but we don't actually know that because, now that the complaint has been dismissed by OCR, they don't have to prove either prong two or three. As an Emerson alum (from the grad program admittedly), it didn't seem that athletics was an integral part of the Emerson experience. This, of course, does not mean that the female students are less interested than the male students who attend the liberal arts school. But Emerson should be required to ask, at least. If, as one student contends, students are more focused on the arts (and that is somehow more applicable to female students) and everyone is fine with what exists right now, it should not be too difficult for Emerson to assess that. With such a drastic participation gap, Emerson is setting itself up for future problems. Even if the complaint by The Guys was not successful, a future student complaint might be considered by OCR. And if Emerson has not chosen a prong and has data at the ready to prove it is indeed in compliance, it will be vulnerable. It continues to astound me that athletic departments are not crossing their t's and dotting their i's when it comes to Title IX. It does not matter if the program is not "big time" or even if it is a smaller part of student life, it still has to comply with the law.

Thursday, September 11, 2014

OCR Concludes Compliance Review of Ohio State

The Department of Education's Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010.  OCR determined that OSU's written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective.

In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance.  In particular, OSU is obligated to:
  • Streamline and revise certain policies consistent with the law; 
  • Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; 
  • Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and 
  • Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. 
Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations.  (By way of background regarding OCR's investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agency's own initiative -- with OSU's investigation falling into that latter category.  Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.)

Another contextual point worth making is that the agency's review commenced long before the problems of sexual harassment and sexualized climate of Ohio State's marching band came to light.  Yet, OCR has taken the opportunity of its pending investigation to review and endorse the university's response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward.  In the press release announcing the resolution agreement, Catherine Lhamon, the Department's Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band director's supporters who believe his termination was an over-reaction, it no doubt appreciates the Department's inclusion of this public statement of support.

Thursday, September 04, 2014

Light punishments, heavy mattresses, and lawsuits: Campus sexual assault round-up

There have been a few stories over the past week or so about campus sexual assault that deserve a mention.
One that has been making the rounds in the press and on social media is the story of a Columbia University student who is protesting the fact that her assailant is still on campus by carrying around a mattress wherever she goes. This story has been picked up by multiple outlets and is about a student who has been part of Columbia's very vocal group of activists who have protested the way the university has handled reports of sexual assault. Emma Sulkowicz is the mattress-carrier. It is protest but it is also art. She is calling it Mattress Performance or Carry that Weight and it is her senior thesis. Read the piece on HuffPo for a description of the project and its meanings. We have seen some creative means of protest during this national movement, examples of students taking control when they feel their schools have failed them and making sure the issues remain in the public and community eye. Sulkowicz is also the student who, even though her rape occurred several years ago now, went to the police to file charges at the end of last semester feeling that she had to do something when the university did not. She will carry the mattress around, she said, until he leaves campus--either of his own accord or because of university action.

University of North Carolina is facing lawsuits from victims of sexual assault. In one, a student is claiming the university mishandled her complaint. from the facts provided, it seems they didn't handle it all with the complaint being lost in one administrator's inbox for weeks before he told the victim he was passing it on to another administrator who met with the victim and then passed it on to someone else who never got in touch with her. There was failure to follow through with the victim who was told things were a little confusing because the university was in the process of revising its policies. She left the school, but pursued the case and UNC eventually began an investigation which took far too long and was plagued by other issues.

The reasons behind OCR's investigation of University of Kansas which was announced in the middle of the summer have been revealed. A student who was raped by someone who admitted not stopping sexual activity when the woman asked for him to do so filed a complaint about the university's handling of her case. The woman, who went to a party with her assailant and who walked her home because she was intoxicated, actually went to the police first who spoke to the assailant who admitted his actions. Local officials have refused to pursue a criminal case despite the confession and have threatened the victim with charges of underage drinking if she pursued the case. She then went to university officials who did investigate the case but found not rape but "nonconsenual sex" had occurred.  (This post on Feministing takes to task this and other euphemisms for rape.)
The university banned the assailant from campus housing, had him write a reflective essay, and required he go to counseling. They considered required community service but felt it would be too much punishment. They told the student, who appealed the light punishment, that his sanctions were in accordance with university policy. Could be true, but that doesn't mean the policy--for which university administrators are responsible--is a good one. That is what OCR will assess.

Light punishments are also at the center of two other complaints. A graduate of UC Santa Barbara filed a complaint in response to her rape. The university basically offered a pleas deal to her male assailant saying that he could agree to a two-term suspension or go through an investigation which could result in his expulsion. He chose the suspension, but was allowed to complete the term and his finals. And because the victim was graduating, he was actually allowed back to campus after only three months.
A University of Toledo graduate filed a complaint after her assailant who admitted that he heard her say she didn't want to have sex received probation, a $25 fine, and mandatory sexual assault education totaling ten hours.

Wednesday, September 03, 2014

Back to campus: Policies and practices for trans college students

We've been doing this blog for some years now and so we notice trends. For example, every spring there are a dozen stories or so about trans and gender non-conforming students being denied access to their proms, other school-sponsored events, and sometimes even a spot in their own yearbooks.
This fall there is far more attention being paid to the lives of trans students on college campuses. (Some of this did start happening over the summer with the visibility of an Oregon college student's efforts to get housed with other men and with the rise in religious colleges seeking Title IX exemptions from accommodating trans students.)
But yesterday's announcement from the all-female Mt Holyoke College about their new admissions policy is just one story about trans college students.
Mills College, another women's college, also announced changes to its admissions policy. The California school will now admit self-identified women. It will not admit FTM students who have legally changed their gender prior to application to the school, but will--like MHC--retain those students who transition while at Mills.
The public announcement of these policies is something certainly to be lauded along with those of co-educational institutions that are making explicit the legal protections afforded to transgender students as well as resources for these students.
The Transgender Law and Policy Institute has published this about the rights of trans students and responsibilities of schools as well as examples of what schools are and are not doing. I could not find a date on this piece, so I am not sure how accurate the numbers are regarding the availability of, for example, gender neutral bathrooms or how many schools allow students to change their given name for school transcripts without legal documentations, etc. But the guidelines are valuable regardless touching on many aspects of student life: housing, bathrooms, health care, locker rooms, documentation. 

The issue may come in how this and other information is disseminated. This piece from Buzzfeed speaks to the burden trans students face in explaining their lives, their identities, their names and pronouns, etc. to not just their peers, but their professors. One student called it "Trans 101." And if you have been paying attention to some of the media this past summer around Laverne Cox and Janet Mock, two high-profile transwomen and their treatment by talk show hosts, you know that cisgender people often feel it is permissible to ask very personal questions. Both Cox and Mock publicly expressed the problems with such questions, but trans students likely have to make decisions every day in one-on-one or small group settings about how much to reveal and how to explain that even asking some questions is inappropriate and why. This subjects them to any number of responses from peers and those above them (professors, administrators, staff). It is not unusual for those in the majority to expect the minority to educate them. Jean Baker Miller discusses this dynamic in her article "Domination and Subordination."
In other words, policies are great, but they do not change culture all by themselves. Such work requires additional and consistent efforts by those in the majority and the minority.

Tuesday, September 02, 2014

Mount Holyoke College Clarifies Admissions Policy in the Most Trans-Inclusive Way Possible

As of today, Mount Holyoke College, a women's college in Massachusetts, now clarifies on its website that it will consider applications for admission from transgender students.  Specifically, the website reports that the following students may apply:
  • Biologically born female; identifies as a woman
  • Biologically born female; identifies as a man
  • Biologically born female; identifies as other/they/ze
  • Biologically born female; does not identify as either woman or man
  • Biologically born male; identifies as woman
  • Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman
  • Biologically born with both male and female anatomy (Intersex); identifies as a woman
By including those who are "biologically born female" who identify as male, Mount Holyoke's admissions policy is even more inclusive than that of Mills College, a women's college in California that earlier this month welcomed applications from transgender women, but not those "female-born students, who have undergone a legal change of gender to male prior to the point of application."  In my view, Mount Holyoke's broad view of those eligible for admission recognizes that both biological sex and gender identity are relevant for defining a community whose ostensible purpose is an antidote to male privilege. Transitioning to male does not erase the privilege deficit that may have accumulated for a student during the time she was legally female.  (I've blogged about this before.)

The other thing that makes me happy about Mount Holyoke's public endorsement of trans inclusion is that it suggests the college has finally dropped its mistaken belief that admitting transgender women would somehow cause the college to lose their federal funding under Title IX (an argument that is belied by the fact that Title IX does not even apply to the the admissions practices of private undergraduate institutions).  It seemed to me that Mount Holyoke was the public voice of this argument and that it was impervious to attempts at correction.  So I'm not only glad to see Mount Holyoke adopt an inclusive admissions policy, I'm also happy to see an end to its misplaced blame on Title IX.

Friday, August 29, 2014

Title IX, sexual assault and high schools

AMENDED: 9/3
While the stories we have heard from college students across the country about sexual assault and sexually hostile climates on their campuses are shocking, these stories are not--unfortunately--limited to college environments.
We have recently heard about a case in Seattle where a rape occurred during an overnight field trip. The girl reported the rape right away and went to the hospital where a rape kit was performed and an advocate confirmed that the victim did exhibit the signs of someone who had been sexually assaulted.
Evidence, however, was not compelling enough to pursue a criminal case against the perpetrator who admitted that the girl had said no to anal penetration and that he had not thought much about her during the act.
But despite the pleas of the parents of the victim--who was never able to return to school and was admitted to a facility for treatment for PTSD--the school did not investigate the incident. When the school did undertake an investigation--6 months later--they found that the girl was not subject to unwanted touching or sexual assault. The assailant was suspended for 10 days right after the assault out of fear for other students' safety. Interestingly, it was not his first suspension for this type of infraction. He had been suspended in middle school for having sex with a girl.
Other problems with the school response to the situation, outside the obvious lack of an immediate investigation and that the parents had to plead with the school to investigate, was that the parents' inquiries to Seattle's Title IX coordinator were never answered. The coordinator always referred the family to the district's lawyers.
The family left the state and went into debt seeking treatment for their daughter. There has been a lot of discussion lately about penalties to schools that fail to create and comply with effective sexual assault policies and procedures. But these discussions have focused on colleges which also face damage to their reputations, something public high schools have less fear of. Colleges do, however, share a similarity with this--and other--cases of assault in high schools: the threat of revoked federal funding just is not effective.
And while that is certainly true of this Seattle case, a lawsuit would seem to go pretty far and the family has been diligent about collecting and presenting a significant amount of evidence already. Sanctions from the government may not be as effective as we would like them to be at this moment, but lawsuits cause considerable distress. K-12 schools have been put on notice for issues of bullying--where there have been significant damage rewards to victims--sexual assault should not be any different.
The parents have started an advocacy group, Stop Sexual Assault in High Schools, in an attempt to garner national awareness of this issue and be a resource for other families and victims.  There is a demonstration Wednesday, September 3 at 4:15 in Seattle. The details can be found at the above linked Facebook page.

Tuesday, August 26, 2014

High School Basketball Hazing Case May Go to Trial

Last year we posted about a lawsuit filed in federal court in Tennessee, in which the plaintiffs -- three high-school aged sisters and their parents -- sued the Rutherford County Board of Education after being hazed in a sexual manner upon joining the girls' basketball team at Siegel High School.  The girls alleged that they were subjected to an initiation or hazing ritual that the court refers to as "cornholing" -- a practice "whereby a girl on the team would attempt to place her finger up the rectum of another girl by surprise."  Moreover, the plaintiffs claimed that school officials tried to keep the issue quiet and did not meaningfully discipline the player involved because she was the coach's daughter, and that the coach of the team retaliated against the girls for reporting the incident by reducing their playing time and eventually suspending them from the team.  At the time the lawsuit was filed, we noted that the school district's position on the matter was that the cornholing was not sexual in nature. 

Fortunately, a district court disagrees with the school district's absurd suggestion that nonconsensual anal penetration is not sexual in nature.  In denying the school district's motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX.  First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another person's rectum or vagina reasonably could be construed as a 'sexual' act that is a severe violation of an individual's body and personal privacy."  The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the school's deliberate indifference, characterizing the school's response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels." 

The court makes clear that the school was not on notice of the team's initiation practices prior to the plaintiffs' reports, and thus cannot be liable for damages arising from the cornholing itself.  However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on.  To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her."

Additionally, the court found sufficient evidence in support of the plaintiffs' retaliation claim for that to proceed to trial as well. 

Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much. 

Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).

Monday, August 18, 2014

Oklahoma colleges handling misbehaving student athletes

Not all of these cases are Title IX specific, but given the cover-ups and repeat offenses that happen when colleges look the other way (see the last incident below) or lightly punish student athletes who commit assault, I felt this update is relevant.
The athletic and college administrators at the University of Oklahoma have announced the suspension of first-year Joe Mixon, a "highly-touted" recruit. Mixon was charged with a misdemeanor after punching a woman in a restaurant, breaking four bones in her face and leaving her unconscious. And OU has decided to suspend him for the season. He had been banned from team activities since right after the incident.
In the wake of the wrist-slapping the NFL gives players who commit assault, it might seem that OU is taking a hard line in this case. But as Deadspin writer Diana Moskovitz notes, this is the same team advocating for the eligibility of Dorial Green-Beckham, former Missouri football player who was dismissed after breaking into his girlfriend's apartment and assaulting someone at that residence. The girlfriend did not press charges because she feared backlash from the Missouri football community. (She must have learned well from FSU.)
OU should tread cautiously given that elsewhere in Oklahoma there is a Title IX issue....
University of Tulsa is facing a Title IX lawsuit from a female student who alleges the university did not do enough in addressing the history of sexual assault allegations by basketball player, Patrick Swilling, Jr. The lawsuit states that the university knew of an incident at Swilling's former school, the College of Southern Idaho and ESPN commentator said it is "shocking that the coach [at Southern Idaho] would pass the buck" on this. This is NOT AT ALL shocking. This underground passing of suspect student athletes happens all the time. What is more shocking--to me--is that the Southern Idaho admitted it handled things poorly. The former president said he felt the school's duty to investigate was mitigated by the fact that local law enforcement conducted an investigation.
Back in Tulsa, though, Swilling was cleared by a university investigation into the sexual assault (there was also a prior sexual assault allegation to campus security by a student who has graduated and does not want to pursue the issue--which was not pursued by the university). This has seemingly cleared Swilling for athletic participation and he is in fact trying to get on the football team and the coach wants him. How this lawsuit (and an Outside the Lines investigation into sexual assault) affects his chances remains up in the air. 

Friday, August 15, 2014

NCAA Reform and Title IX

Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed O'Bannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law.  As a result of the court's decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited.  And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal.  No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation.

Notably, the O'Bannon plaintiffs came from the sports of men's basketball and football, which are the sports that generate broadcast revenue.  Accordingly, the decision only speaks to athletes in those sports.  Yet, the decision is bound to have an indirect effect on women's sports, as a result of Title IX.  As economist Andrew Schwarz explains, both in Jane McManus's column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes.  A school that decides to offer male football recruits some additional compensation would  have to ensure that a proportionate dollar amount is allocated to female athletes as well.  Otherwise, they have a compliance problem.  (Or more likely, a worse compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.)

As McManus points out at the end of her column, the effect of the O'Bannon decision on women's sports could be to inject a little more money into women's sports.  But is that really a victory?   To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all? 

Thursday, August 14, 2014

Expanding the movement

Two recent pieces about sexual assault and harassment on college campuses will hopefully open up more dialogue and more changes that offer protections to others in addition to undergraduate students.
Actually, one of the pieces--from Inside Higher Ed--reported on the harassment that takes place when doing fieldwork; so in off-campus situations. The article reports on the recent publication of a survey that asked people involved in off-campus fieldwork about their experiences with sexual harassment in these settings.
The harassment happens between colleagues and also between supervisors and trainees (often graduate students or postdocs). In other words, most often it is between people with different levels of power, though it is not unheard of for harassment to occur, for example, among graduate students or other trainees. The harassment women experienced was more likely to occur with people who were more powerful than them, whereas the harassment men reported was more often peer-to-peer harassment.
There were 666 respondents to the survey, 78 % of whom were women. A majority of respondents (about 75%) had heard of or witnessed sexual harassment in the field. A slightly lower number, 64% said they had experienced it themselves. And 20% reported being victims of sexual assault, which the researchers defined as any unwanted sexual contact, including rape.
Several academic professional societies have responded to the study noting their obvious opposition to harassment in the field. But whether these organizations have policies or make statements is of little consequence since they generally have no authority over the people involved. In other words, schools need to address this issue. Fieldwork is a very different situation and it requires very specific attention. How does one report harassment and assault while in the field? How are protections offered to victims? What are the protocols from removing an assailant from the field?
An additional factor that is specific to this situation is that trainees and lower level colleagues have a lot to lose by reporting assault and harassment. Supervisors can be dissertation committee chairs and members, advisers, tenure committee members, recommendation writers and general notable people in their fields.
This is an issue that also faces graduate students. This was well-noted by Brown graduate student, Sara Matthiesen in this article. Matthiesen has been advocating for specific attention to the issues graduate students face being neither students nor employees. Private institutions, such as Brown, do not have to let graduate students unionize, thus providing even fewer avenues for protections. Matthiesen is asking for greater awareness within departments about resources and training for graduate students about sexual harassment.
Peer to peer harassment can be addressed via student judicial boards, but harassment by supervisors, professors, and others who hold more power than graduate students go through different processes which end in a final decision about, for example, the employment of a faculty member, with the word of one individual (usually president, dean, or provost) even if an entire panel has heard the case and made a recommendation. Victims also do not receive the same level of support in going through a grievance process--no advocate, no office providing support.
But even these practical issues do not entirely address the problem of the academic hierarchy. Matthiesen sums it up well:
Graduate students not only risk their educational opportunities when they take steps to hold advisers and colleagues accountable for sexual violence. No longer able to conduct research in the lab, or obtain letters of recommendation from the leaders in their field, or secure access to faculty research money, they risk losing their current and future livelihoods. No amount of Title IX coordinators or university-wide committees on sexual misconduct can correct for the power imbalance that defines this professional relationship, an asymmetry that is only compounded when universities refuse to acknowledge graduate students’ work lives and goals.
This moment of student activism on the issue of campus sexual assault has been impressive and drawn considerable attention and hopefully will result in positive changes. And though the focus has been on the experiences of undergraduates, it is a good time to realize that sexual harassment and assault happen to other members of a university community both on and off campus. As many schools scramble to correct and clarify their policies and procedures for undergraduate sexual assault, they should also take the moment to broaden their scope.